leap 3 (2016) family values: an introduction andrew williams icrea & universitat pompeu fabra the social, legal, and political institutions that constitute the family play a profound and unavoidable role in shaping individuals’ lives and distributing opportunities amongst them. they strongly inf luence our psychological development, including the acquisition of a sense of justice, as well as various cognitive skills, and our prospects of success in the competition for positions conferring authority and inf luence in the economy and the state. those institutions also have non-instrumental importance insofar as we have weighty reasons to care about our capacity to enjoy love and intimacy both as adults and children, and the degree to which we are protected from various objectionable forms of control by other agents. since the design of the family is malleable any reasonably complete political philosophy needs to ref lect on these and related issues. fortunately, contemporary angloamerican political theorists have attempted to respond to this challenge. in recent years, some of the most notable contributions to the emerging debate have arisen v ia joint work by harr y brighouse and adam sw ift, leading eventually to the publication of their book, family values: the ethics of parent-child relationships (brighouse and swift, 2014). brighouse and swift provide a sophisticated liberal egalitarian account of the essential role of the family in a just society. the account is distinctive in part because of the role it affords to the interests of parents in enjoying valuable relationships with their offspring as well as the interests of children and adults in being raised in families. at the same time as showing how their favored dual interest case for the family justifies parental partiality, the authors are keen to establish their account offers no support for the types of substantial inequality in opportunity characteristic of most societies. these claims and others made by brighouse and swift raise a host of questions within ethics and political philosophy, several of which are pursued by the authors of the follow ing three thought-provoking papers. sarah st roud ca l ls i nto quest ion some of t he ega l ita r ia n a ssu mpt ion about in herita nce that animate many recent discussions of justice and the family. anca gheaus focusses on the extent to an adult’s interest in parental authority over a child can plausibly ground its possession. luara ferracioli asks whet her brighouse a nd sw if t a re over-relia nt on a n idea l of persona l autonomy, and extends our attention to the interests of offspring in family membership over the course of their lives and not merely during childhood. leap 3 (2015) the discussion concludes with a substantial response by brighouse and swift that elaborates their position, and defends it where necessary. the editors hope the four papers advance debate on issues of pressing personal as well as public concern. they are grateful to all the participants for their commitment to the sy mposium, and to marcos picchio for his invaluable administrative and philosophical assistance with the project. 227 issn 2341-1465 leap 2 (2014): 227-229 a brief rejoinder to valentini kok-chor tan university of pennsylvania laura valentini’s gracious but incisive response to my criticism helpfully clarifies her own position and puts into greater relief the point of contention between us. she says that my claim that she rejects global egalitarianism is a “misunderstanding” since she only rejects “full-blown cosmopolitan equality” and not global egalitarianism as such. however, the basic difference between both remains unclear. i should first note that valentini’s basic aim in her book, namely to discover a distinctive third position, is to be commended and encouraged. in fact, bold, ambitious undertakings of this sort, of developing new positions or frameworks for assessing lingering problems, is what makes for really interesting and engaging philosophical work. so my rejoinder here should not be read as a dismissal of her project. to the contrary, i will put pressure on her claim in order to encourage more investigation into the possibility of a third position on global justice along the lines she suggests. her approach to global justice, she stresses, is open to the possibility that certain global practices be regulated by egalitarian principles (of the sort i hinted at) although she did not argue for them in her book. but if this is so, it only reinforces my central objection that her approach to global justice is not a distinctive position that provides a third alternative to statist humanitarianism and cosmopolitan equality. as she says, my reading of her “reveals a deeper disagreement between the two of us”, and this is the significant point. this disagreement in the first instance has to do with how we characterize cosmopolitan equality and what would make a position non-cosmopolitan. whether we should call a position “cosmopolitan egalitarian” or not might seem to some readers to be a pedantic dispute. but in the context of the present discussion this is more than a terminological quibble, for my claim in my review is that the interesting and crucial difference between humanitarian obligations and cosmopolitan egalitarian obligations reduces to the difference between sufficiency and equality (or sufficientarianism and egalitarianism). what is substantively at stake in the debate on global distributive justice, in fact what i would consider the fundamental challenge, is whether global distributive principles should be sufficientarian or egalitarian. valentini, in contrast, takes the dispute to involve not just the pattern of distribution 228 kok-chor tan leap 2 (2014) but also the grounds and recipients of distribution. our disagreement, as valentini also points out, far from being merely semantic, is ultimately a disagreement about what is really at issue in the debate. in my view, valentini’s position as clarified in her reply is more clearly a variant of cosmopolitan egalitarianism. valentini offers two reasons why her position is distinctive from cosmopolitan egalitarianism and occupies a middle position. one of them is that she takes the basic recipients of distribution to be states. this alone, however, does not make her position anti-cosmopolitan since she also conditions the normative standing of states on their respecting the equal freedom of their respective individual members (freedom here defined as independence). cosmopolitans do regard individuals, in the world as a whole, as the basic units of equal moral concern and, in this sense, adopt a normative individualist position. but this does not mean that a global distributive principle that takes states to be the recipients is non-cosmopolitan, if the qualification of states to be recipients of justice is contingent on how they treat individuals within their borders. for instance, if states’ normative status as recipients of global justice is conditional on the respect for the equal freedom of each individual (as in valentini’s theory), this is not fundamentally distinguishable from the cosmopolitan position. cosmopolitans can allow states to be the main recipients of global distribution for a variety of reasons, including administrative, heuristic, or appeal to the virtues of a division of labour. their position remains basically cosmopolitan if what fundamentally guides their vision is how individuals fare under the distributive arrangement. her other reason for distinguishing her position from a cosmopolitan egalitarian one is her understanding of the grounds of global obligations. but the ground of a principle and the pattern of the principle are distinct, and a principle is egalitarian depending on its pattern and not its ground. what distinguishes cosmopolitan egalitarianism from statist humanitarianism is not that the former is grounded in justice and the latter is not, for it is open to humanitarians to say that their minimalist commitments are nonetheless obligations of justice (and some will indeed hold this). more to the present point, cosmopolitan egalitarianism need not be tied to any particular ground of equality. valentini herself recognizes this (allowing that there can be relational and non-relational grounds for cosmopolitan equality), but this then only further confirms my point that the ground of a principle is distinct from its pattern. to make my central point from a different direction: valentini means to only reject “full-blown” cosmopolitan equality, meaning by this the position that egalitarian principles for the global domain are identical to those for the domestic one. that is, on this view, global egalitarianism is just domestic egalitarianism writ large. as i noted in my review, while this is certainly descriptive of some cosmopolitan egalitarian positions, 229 kok-chor tan leap 2 (2014) “full-blown” cosmopolitan equality is only a variant of cosmopolitan egalitarianism. valentini may well be correct that global egalitarian justice is not simply domestic justice replicated in the global arena but should take the more limited though egalitarian form she suggests. but to claim that this is a distinctive (and non-cosmopolitan) position and not just a variant of cosmopolitan equality distracts from the key dispute about global distributive justice, which is that of sufficiency versus equality. and appealing to the dimensions of grounds and recipients does not necessarily provide a resolution of this quarrel nor does it bring the two sides to a common middle ground. statist humanitarians can accept that humanitarian obligations are obligations of justice but insist that these global obligations remain sufficientarian in form; and cosmopolitan egalitarians can accept that states are the recipients of distributive justice but insist that the global distribution remain egalitarian in form. in short, valentini’s thesis that there is a third approach rests on a particular characterization of cosmopolitan egalitarianism which includes features that are not essential to the view. however, since cosmopolitan egalitarianism is neither (i) uniquely based on some specific moral grounding nor (ii) incompatible with involving the state in its distributive enterprise, valentini’s acceptance of global distributive principles with egalitarian pattern and whose normative starting point is the equal freedom of individuals puts her on the cosmopolitan side even though she denies the team colours. as noted above, this is not a quibble over a label but a comment on what the debate between statist humanitarianism and cosmopolitan egalitarianism is really about. 01. blake & brock.indd justice, fairness, and the brain drain m ich a e l bl a k e university of washington gi l l i a n brock university of auckland abstract the emigration of skilled professionals from developing societies to more wealthy ones has troubling ethical implications. this form of emigration may undermine the efforts of developing countries to build robust political institutions, as those who leave are those most able to demand institutional change and reform in government. such emigration also represents a regressive transfer of wealth, as those educated by an impoverished society frequently use that education to benefit the more well-off. gillian brock and michael blake agree that this phenomenon deserves moral attention, but disagree about what states of origin might legitimately do in response. brock argues that the state has some right to condition exit upon the performance of some specified term of public service; blake, in contrast, argues that liberalism demands robust rights of exit, even when that exit does not tend to move the world towards global justice. this overview examines their respective arguments, as well as their shared assumptions about both liberal theory and empirical fact. keywords: emigration, justice, international law, freedom. introduction we tend to think that at least some forms of inequality are wrong – are, indeed, unjust. to fully explain why, though, we have to describe at least three features of the inequality in question. the first is the what of inequality: what is that thing whose distribution is to be taken as morally pernicious? what is it, to use the language of an earlier debate, that is the 84 michael blake & gillian brock leap 4 (2016) currency of justice in this context? the second question is the why of inequality: why is this particular form of inequality to be taken as morally problematic? not all cases of inequality are worthy of being regarded as unjust; why should this one be so viewed? the final question is the how of justice. given that we now know what the inequality is, and why it is unjust, what is there to be done about that injustice? not all proposed policy solutions, after all, are both effective and permissible; what is the range of rightful solutions to this existing injustice? in debating brain drain: may states restrict emigration? gillian brock and michael blake focus on a particular sort of inequality, and ask both why that inequality might be unjust, and how that injustice might be legitimately addressed. the inequality in question involves the emigration of highly-skilled (and highly-educated) people from developing countries to wealthy countries —a phenomenon generally referred to as the brain drain. the facts of the brain drain are startling. look, for example, at the contrast between japan and malawi. japan has around twenty-one physicians per 10,000 people, while malawi has only one physician for every fifty thousand people.1 this radical inequality in medical skills and talents has, obviously, bad consequences for health; people born in malawi will live, on average, 32 years fewer than their counterparts born in japan.2 this inequality, moreover, does not emerge simply because the malawian government is disinterested in medical education; indeed, many developing societies spend a significant portion of their budgets on training a new generation of medical personnel. the difficulty is that such medical training makes those people desirable on the global market for talent, and many of those trained simply leave the developing world for the developed one. thus, in 2000, ghana trained 250 new nurses —and lost 500 nurses to emigration (awases et al. 2004). in 2001, zimbabwe graduated 40 pharmacists— and lost 60 (katere and matowe 2003). in 2002 alone, malawi lost 75 nurses to the united kingdom —a cohort that represented 12% of all the nurses resident in malawi (ross et al. 2005: 260). the result has been a continued shortage of medical personnel in developing countries, especially in sub-saharan africa, despite considerable investment. it is tempting to conclude that —as a recent editorial put it— america is stealing the world’s doctors (mcallester 2012). brock and blake take this sort of inequality as – at the very least – morally troubling. they have a common vision of the what of this particular 1 the data are from studies between 2005 and 2012; they are available at http://kff. org/global-indicator/physicians/. 2 figures are from 2012 life expectancy data, available at http://cia.gov/library/ publications/the-world-factbook. justice, fairness, and the brain drain 85 leap 4 (2016) inequality. the book is, however, a sustained disagreement about the why and the how. the book is not intended primarily as an empirical study – although the empirical facts are, of course, enormously relevant to the policy conclusions that ought to be adopted. the book is, instead, an argument between philosophers who are committed to the idea of global justice, about why the brain drain is troubling, and what might be legitimately done to counteract the injustice it represents. our focus includes an inquiry into what might be done at the global level, and by wealthy states, to counteract the brain drain. our primary inquiry, however, is on the most vexed question of all: may developing states, in the name of justice, prevent or delay the emigration of skilled professionals —or does the right to exit make such policies morally illegitimate? brock argues, in her portion of the book, that the unregulated emigration of skilled professionals —including, but not limited to, medical personnel— can represent a significant form of injustice. the injustice may involve the frustration of the legitimate expectations of the fellow citizens of the would-be emigrants; they have spent money, which the developing society does not have in abundance, to educate a medical student, only to have the benefits from that investment go to those already well situated. the effects of such emigration may also undermine those institutions that are necessary for the administration of justice. development as a f lourishing society, that is, requires the creation and maintenance of political institutions, and these institutions are most likely to be sustained by educated and active citizens —exactly that group of citizens whose departure from the developing society is in question. in view of considerations like these, brock argues that it would be legitimate for many states to engage in policies designed to delay emigration of these professionals, either through some form of conditional repayment scheme or, under certain circumstances, through a temporary restriction of emigration itself. there are, of course, limits here; brock’s conclusions apply only to states that are poor, but sufficiently responsible and legitimate —and the amount of time owed by the would-be emigrant cannot include more than a few years. nonetheless, brock argues that the developing state is within its right to condition the exit of the would-be emigrant, and that such states may end up finding these policies both justified and effective. blake, in contrast, regards these policies as likely ineffective, and usually unjust. he accepts that the brain drain represents a problematic form of inequality —but that there are some inequalities that could not be eliminated except through means that are, themselves, morally prohibited; these are cases, he argues, of moral tragedy, in which we cannot hope to arrive at a just world through just means. he argues, in particular, that the 86 michael blake & gillian brock leap 4 (2016) polices imagined by brock are generally unfair, in that they force the burden of making the world just onto a particular subset of the world’s population that had comparatively little role in making that world unjust. these policies, moreover, are likely ineffective given the ways in which restrictions on emigration can sometimes lead to reduced demand for educational services. most centrally, though, blake argues that these policies are illiberal. the just state has a right to govern over those people who are within its territorial borders; it has no comparable right to insist upon those people’s continued presence within those borders. this right is defensible with reference to political history, but also with reference to the question of political justification; no justification can be given to the one prevented from leaving that that citizen is bound to accept as morally motivating. blake concludes that the range of acceptable policy options for those trying to overcome the brain drain is comparatively small. both brock and blake, then, accept that the brain drain is morally disquieting, but disagree about how that disquiet is to be understood – and how it is that we might respond to the circumstances of the brain drain. they agree, however, that sustained inquiry into the brain drain would be of benefit to the world as a whole, and are gratified that the current exchange might help that sustained inquiry begin. bibliography awases, m., a. gbary, j. nyoni and r. chatora, 2004: migration of health professionals in africa: a synthesis report, brazzaville: world health organization. katere d. r. and l. matowe, 2003: “effect of pharmacist emigration on pharmaceutical services in southern africa”, american journal of healthsystem pharmacy 60: 1169-1170. mcallester, m., 2012: “america is stealing the world’s doctors”, the new york times (march 7, 2012). ross s. j., d. polsky and j. sochalski, 2005: “nursing shortages and international nurse migration”, international nursing review 52: 253-262. leap 3 (2015) unjust gender inequalities 1 pau l a c a s a l icrea & pompeu fabra university many papers on gender inequality focus on one or more respects in which women, as a group, fare worse than men, with some also noting respects in which gender discrimination and oppression is bad not only for women and children but also, as john stuart mill recognized, for society as a whole (1869: eg. 471-5, 558, 564). all this is, of course, consistent with men being harmed by patriarchal institutions or worse off than women in some respects either because of those institutions or for independent reasons. in his controversial paper “four puzzles on gender inequality,” based on a provocative talk presented at a feminist forum, philippe van parijs lists some peculiar gender inequalities. such inequalities are puzzling not because they indicate dimensions in which women fare better than men but because they show a lack of shared and clear criteria to determine when inequality involves injustice, which is not due to predictable differences between left and right. whether some inequalities require some sort of compensation or institutional reform is unclear even within a single position in distributive justice, including positions as elaborated as that of john rawls. as readers will notice, the paper is different from the standard scholarly pieces that appear in academic journals like leap. however, it still serves a valuable philosophical function because the puzzles it describes raise important questions regarding which statistical differences between two social groups identify an injustice and which merely contain information t hat is eit her irreleva nt or t hat bea rs a more indirect relat ion to socia l justice. the va lue of discussing t hese questions, stressed by van parijs’ response “real freedom for all women (and men),” thus extends well beyond feminism. in addition, each instance of gender inequality van parijs describes is a lso intrig uing in its ow n right, and not only as an illustration of t he general problem just described. so, the discussion published here aims to contribute to an exchange that is informative and engaging not only for those interested in gender but also for those working on distributive justice more generally. 1. i thank philippe van parijs and all participants for their cooperation and contributions a nd serena olsa retti for usef u l comments on t his introduction. for help w it h t he entire exchange, i thank andrew williams for excellent philosophical advice, and laura sánchez de la sierra and hannah weber for their conscientious editorial assistance. unjust gender inequalities 75 leap 3 (2015) the first potential injustice van parijs’ paper discusses concerns the fact that women live longer than men. this issue, prev iously discussed not only by conservatives like john kekes (1997: 100ff ) and men’s rights advocates like david benatar (2012: 57ff ), but also by luck egalitarians like shlomi segall (2010: 105ff ), brings out the controversy over whether there are normative differences bet ween natural and social inequalities. the authors who successively agreed to contribute a piece on this puzzle turned out to be unable to deliver it. and so, despite the fact that leap editors do not normally contribute to any exchanges, i ended up w riting a (doubly blind refereed) reply to this first puzzle not to delay publication further. the response, “distributive justice and longevity,” claims that on plausible liberal egalitarian views men’s lack of female longevity is not an injustice. the second potential injustice concerns women’s greater educational achievements. this new trend is worth attending to inter alia because women’s lower educational achievements used to be deemed an important cause of gender inequality (e.g. okin 1989: ch. 7, esp. 142-7). in “women’s greater educational efforts as a consequence of inequality,” jesús mora denies there is any injustice here because society does not offer men any less educational opportunities. instead, men reject or squander their equal or greater educational opportunities because society already offers them such good opportunities that they do not need qualifications as desperately as women, who, by contrast, in view of their greater likelihood of suffering domestic and workplace exploitation, take up the opportunities they have more conscientiously. a third puzzle highlighted by van parijs concerns the fact that most voters are women, both because women live longer and because educated individuals tend to vote more. in “do women enjoy a political advantage?” pierre-étienne vandamme denies this inequality is an injustice or even an advantage because mere membership in a majority group cannot plausibly be judged so. moreover, i f women a re not vot i ng sel f-ser v i ng ly, it i s i nappropr iate to respond to t hei r d ischa rg i ng t hei r dut y to vote a nd protect public goods or v ulnerable groups, like children or animals, by depriving them of resources we other w ise deem theirs. a fourth and final puzzle arises from three distinct inequalities, which may or may not represent injustices: inequalities in the possession of certain hormones, in incarceration rates, and in sexual desire. in fact, the final puzzle actually contains three distinct puzzles, which is why there are three responses to it. “hormona l inequa lit y” is t he claim t hat men are handicapped by possessing more hormones linked to undesirable behaviors such as those involving imprudence or aggression. in “a blatant case of over-accommodation,” valeria ottonelli grants that the set of propensities van parijs describes as 76 paula casal leap 3 (2015) linked to male hormones could, in some sense, be understood as disabilities. but she argues that the over-accommodation of the unfortunate traits has effectively turned them into advantages. one cannot thus claim hormonal inequality is an injustice that needs to be rectified or that diminishes the inequality between men and women. inequalities in incarceration rates are a ver y different matter. first, incarceration is something only a minority of men experience, rather than part of men’s normal constitution, like male hormones. second, incarceration is not something that happens “naturally” but is instead a social method to prevent a murderer or rapist from committing further crimes and to deter other individuals from acting likewise. third, unlike hormones, incarceration rates bring back the debate between natural and social inequalities and causation. van parijs compares the higher incarceration rates suffered by men w ith those suffered by the v ictims of social injustice, povert y and racial discrimination, despite the fact that it is women that are more often the v ictims of social injustice, povert y, and discrimination. however, in “are unequal incarceration rates unjust to men?” gina schouten answers affirmatively, even if men are the beneficiaries of injustice and guilty of the crimes for which they have been imprisoned. a final issue involves the fact that men tend to be more interested in sex than women, and hire prostitutes or act foolishly, harming themselves and others in the pursuit of sexual gratification. in “the rich also cry,” ana de miguel not only addresses the issue of prostitution and male desire. in addition, she also tries, to some extent like vandamme, to explain why van parijs’ original audience reacted with hostility to his talk. one reason for the adverse reaction seems to be the way van parijs’ comments on prostitution sit outside decades of feminist work on the fact that almost all clients of prostitutes– including child prostitutes – are male, and how the sex industry and much of society caters to male desires for sex and domination that men do not regret. 2 van parijs, of course, does not claim that since men have certain desires women should give in to men’s demands. however, at least part of the hostile reaction appears to have been caused by his unawareness of the way, vividly illustrated by de miguel, in which portraying male sexual “greediness” as a burden men bear can be used, and has been used, for oppressive purposes. 2. for example, since men want novelt y and ethnic variet y, pimps regularly relocate prostitutes, preventing t hem f rom forming attachments t hat ca n undermine t he pimp`s control (de miguel 2015:165). in the wider society, too, sexual access to women is maximized by keeping them poor, voiceless, isolated, homebound, or foot-bound, in harems or brothels, and by inventing religions like that of trokosi, deukis, and devadasi that sanctify sexual slavery, or by brainwashing girls into “wifely duties” and obedience because “men can’t help it.” unjust gender inequalities 77 leap 3 (2015) van parijs was moved by the desire to understand distributive justice better and was not thinking about possible misuses of his questions nor about t he ex istence of a men’s right movement, w it h which he has no connection. however, as women’s position slowly improves in developed societies, and men’s rights groups grow and become more vocal academically, legally, and politically, these sorts of misencounters and heated reactions are only likely to multiply and escalate. it is, therefore, preferable to examine calmly and separately each claim about a potential injustice to men. some disputes may be solved by mere exposure to the relevant empirical research and by clarifying misunderstandings or faulty patterns of reasoning, whilst others may involve reasonable disagreements, or refer to an important unfairness to men that needs to be institutionally addressed. in all cases, however, it seems preferable to discuss such matters amicably when one has well-disposed interlocutors eager to do so, than to ignore potentially reasonable considerations. failing to discuss such concerns is likely to fuel the growing resentment that is already brewing in the men’s rights movement. some general recommendations one can extract from the exchange between van parijs and the other six political philosophers who respond to him are also likely to prevent other inequalities from being misconstrued as injustices. the first is that we should not zoom in and focus on an isolated inequality, for example, on education or longevity, without also zooming out to take a wider picture that may change the significance of the observed inequalities. the second is that we should not assume all statistical regularities indicate the existence of constraints reducing individuals’ options, responsibility, or liabilities. for example, the fact that there is a strong statistical correlation between excessive power and corruption does not mean that power reduces people’s options and should be seen as an attenuating circumstance making the powerful less liable to punishment for corruption. finally, we cannot assume inequalities are reduced whenever the better-off engage in unadvisable behavior. for example, we may have reasons not to count the badness of being corrupt as something that diminishes the inequalit y bet ween the very powerful and the powerless. 3 3. one example can illustrate all three points. it was statistically very normal for slaveowners to pick a slave and force her to satisfy whatever sexual whim they had. the way the slave’s family looked at the slave-owner doing so or perhaps the expression of the slave-owners’ wife or daughter if they saw him may have caused him a temporary discomfort. however, it would seem odd to focus on that discomfort as an inequality justice requires amending, once we zoom out and take into account the circumstances that surround the discomfort and explain it. second, the fact that it was common for slave-owners to exploit slaves sexually does not automatically mean slave-owners were constrained or lacked sufficient opportunity to act differently. finally, it would be strange to deem the slave-driver’s greater tendency towards additional wrong doing as something that reduced the inequality between masters and slaves. 78 paula casal leap 3 (2015) the following exchange discusses several inequalities seen both from a narrower and a wider focus by van parijs and his commentators, ref lecting on relevant factors that surround each of them. after all, it is by placing all the pieces together rather than by staring at each one in isolation that puzzles are usually solved. bibliography benatar, d. 2012: the second sexism discrimination against men and boys. oxford: wiley-blackwell de miguel, a. 2015: neoliberalismo sexual. el mito de la libre elección. valencia: cátedra. kekes, j. 1997: against liberalism. ithaca: cornell university press. mill, j.s. [1869] 1998: “the subjection of women”, in on liberty and other essays. oxford: oxford university press. okin, s. 1989: justice, gender and the family. ny: basic books. segall, s. 2010: health, luck and justice. nj: princeton university press. this article and the following exchange received funding from the european research council (erc) under the european union’s horizon 2020 research and innovation program (grant agreement: 648610, grant acronym: family justice). leap 3 (2015) women’s greater educational efforts as a consequence of inequality1 jesús mor a carlos iii university of madrid abstract contrary to philippe van parijs’ assumptions, women’s greater educational achievements do not indicate that gender inequalities are smaller than assumed or that the efforts to achieve gender equality are overshooting. being more qualified may be women’s best hope to escape poverty, unemployment, or single-parenting, as well as domestic and workplace exploitation. they a re t hus sy mptoms of gender inequalit y, not signs of its disappearance. in addition, they do not translate into greater access to income and wealth, positions of power and authority, social standing, or the chance to have several children, in the same way as they do in the case of men. having to work so much harder to be rewarded so much less is, as van parijs at one point suspects, one of the forms of compound injustice that women face. keywords: gender inequality, education, poverty, traditional gender roles, leadership positions introduction in his second puzzle on gender equality, philippe van parijs draws attention to the fact that, in some places, women are now more successful than men in securing degrees in higher education. this is not true everywhere, but i shall not dispute the trend in some countries and instead note that this already happened in the united states in the mid-1980s (schwartz and han 2014: 605). this paper disputes some of the lessons van parijs draws from these events. van parijs points out that higher education “has a significant impact (...) on empowerment as citizens and household members” (2015: 84), and so wonders whether “women’s emerging educational advantage should then 1 special thanks to paula casal for her thoughtful suggestions, and multiple revisions and corrections. i also thank two anonymous referees 108 jesús mora leap 3 (2015) be regarded as offsetting (albeit in small part) men’s economic advantage” (84). my v iew is that it is true that education could potentially, in some possible world, offset men’s economic advantage. in ours, however, it does not. income and employ ment gender differentials persist, as van parijs admits (84 ). a nd, in fact, such inequa lit ies compel women much more than men to achieve higher education. women’s income and employment are much more dependent than men’s on qualifications and so, rather than indicating the end of inequality, women’s greater educational efforts appear to be just one of the many consequences of the pervasive inequality favoring men. women’s greater dependence on extra educational effort is one of the many disadvantages women suffer. it is well known that women, whether they are secretaries or mps, also have to make a greater effort than men to look good and dress well to avoid mockery. the fact that they try so much harder and sometimes succeed and do look better than men is not a sign of the end of injustice, but just one of the respects in which, as it is often said, women have to “try twice as hard, to be granted half as much.” and this makes men like myself wonder why they do persist in trying rather than give up in the face of such obstacles. 1. protection from poverty, single parenting and domestic exploitation one of the most relevant disparities between men and women is what we may call “the poverty risk,” which refers to the chances of ending up liv ing in poverty. while in the past there were a variety of reasons why somebody could end up liv ing in povert y and the ranks of the poor were made up to a greater extent of people from a variet y of groups, povert y statistics and projections clearly show single (especially, never-married) mothers and their children as making up a large and growing2 percentage of people living below the poverty line in developed societies (see bianchi 1999: 313; targosz et al. 2003: 716). women’s poverty risk is higher than men’s. in addition, poverty (income inequality) involves additional harms for women because of how deeply and irreversibly it can affect their children and because it correlates with increased risks of violence, harassment, and rape (w haley 2001: 550), as well as depression and other t y pes of mental disorder (targosz 2003: 721). in the united states, the poverty risk increased for women relative to 2 in the words of bianchi, “since the mid-1980s, the percentage of mother-child families in poverty has fluctuated, and the ratio of their poverty rate to that of married-couple families has been higher than in 1984.” she also notes that the relative poverty ratio between motherch i ld fa m i l ies a nd t wo-pa rent fa m i l ies, f luc t uated bet ween t he 1970s a nd t he 1980s. never t heless, i n 198 4 mot her-ch i ld fa m i l ies' pover t y rat io w a s st i l l f ive t i mes t hat of t wo parent-families. women’s greater educational efforts as a consequence of inequality 109 leap 3 (2015) men in the period from 1950 to 1980 (bianchi 1999: 310), precisely the period in which women applied themselves enough to catch up with men educationally. despite such a great educational effort, however, women’s poverty rates still remained higher than men’s during the 1990s (bianchi 1999). recent data shows that the efforts of european women have also failed to liberate them from a higher poverty risk (see van lancker et al. 2015: 45-54). given this explanation of women’s educational efforts, the prediction can only be that the trend will remain while sexism remains. a f unda menta l factor in ex pla ining women’s g reater pover t y risk is single-parenting, which is strongly connected to their education. since the chances of finding a co-parent increase for women as they obtain diplomas and degrees, women with higher education reduce their poverty risk, for even if their educational efforts do not secure them permanent employment, they reduce their risk of single-parenting in poverty (diprete and buchmann 2006: 4). this offers an excellent deterrence against dropping out of school. since men do not face the same risk, they do not have the same deterrent. education diminishes women’s chances of being abandoned while pregnant and giving birth alone, and when the relationship continues, education remains one of the few protections (and perhaps the only protection) women can secure against the man then insisting that since he earns more, she should stay home, cook ing a nd ra ising t he chi ldren. this is a risk y opt ion for women, as with every pregnancy and every year into the marriage, women become less desirable both in the love and the labor markets, becoming less employable and attractive, not only because of the physical deterioration usually caused by motherhood, but because when children come with the package, women become less attractive both to other men and employers. meanwhile, the man is promoted, takes senior positions and his stocks in both markets go up. with very poor exit options, the woman then tends to lose her voice and have to accept any deal she is dealt (okin 1989: 137-8), including affairs or sexual activities she does not want, while living with the fear of being abandoned for another woman, or seeing this happening and becoming poor. even renouncing motherhood and staying in paid employment is no guarantee against being expected to do most of the household chores after work (hochschild 1989: 4). men need not fear such exploitation, and do not need a degree to gain protection against such fate. 110 jesús mora leap 3 (2015) 2. protection from unemployment and exploitative wages out side t he home, women a re a l so at g reater r i sk of u nemploy ment, underemploy ment, a nd unfa irly low wages a nd so need to have more qualifications for these purposes than men. in addition, in the 1980s and 1990s, the value of higher education has been grow ing faster for women than for men, not only regarding family returns but also the labor market (diprete and buchmann 2006). the gap in income bet ween college and high-school educated women increased enormously after the 1980s and remained always larger than that of men (13 and 20). this shows that women’s income is more dependent on higher education than men’s, for whom high school is often enough to provide adequate earnings. similar trends appear in relation with access to employment. in the european union, men’s rates of employ ment are superior to women’s in all levels, with the exception of tertiary education (eurostat 2014). only at that level are female rates able to achieve men’s possibilities to find a job. this provides an additional good reason for women to accomplish higher education: it constitutes an irreplaceable tool for them to achieve levels of employability similar to men’s. becoming well qualified may also be the only way in which women can reduce (rather than eliminate) the rate of patronizing comments, demeaning and intimidating attitudes, and bullying. it seems, then, that educated women are penalized for being women less than less educated women are by all those who select them as either employees or as co-parents or partners. if so, even if female higher educational efforts do not make women wealthier, they are worth pursuing, for it is their protection, and perhaps the only one, against being short-changed at work and at home. thus, female educational efforts, far from signaling the arrival of equality, are the knotted rope women use to escape the f lames of discrimination, domestic and workplace exploitation, and poverty. van parijs doubts there is any inequality “if society gives group b more money and group a better education” (2015: 88). this is misleading because societies do not reserve school places for women or otherwise offer women something it denies to men. to understand something complex we may need to take its simpler constitutive pieces apart and place them together again. but we may mislead rather than contribute to a better understanding if we greatly simplify something and just leave it at that. women’s greater educational efforts as a consequence of inequality 111 leap 3 (2015) 3. women’s lowly occupations van parijs admits that “not only do women get paid less than men, but they do so despite studying harder” (2015: 83). he then suggests, however, that t his may be because “women choose studies t hat lead to less lucrat ive careers” (83). if that is the case, he doubts whether their studying more and earning less could “still be viewed as amplif ying the injustice” (83). this speculative monistic explanation, again, stops the inquiry short. we need to ask why women pursue badly paid careers. there are several w idely discussed explanations of this phenomenon in the literature. one well-known explanation refers to social conditioning, stereotypes, and the systematic undermining, from a young age, of women’s confidence in their being able to per for m wel l i n cer ta i n occupat ions. a not her t heor y is t hat some occupations have low status and are badly paid because so many women work in them. we know, for example, that when women started to occupy the respectable positions of “clerk” and “administrator,” though the tasks remained the same, the position was demoted to that of “secretary” and the salary lowered (see reskin and hartmann 1986: 31). a third, extensively documented explanation of why women take such occupations is that other occupations are less compatible w ith women hav ing to do most of the housework and childcare. it seems that the three best known accounts do not imply that there is no injustice to worry about, but on the contrary direct us to the existence of ot her injust ices ex pla ining women’s actua l occupat ions. va n pa rijs would have to show that none of these explanations or any other alternatives referring to some background of unfairness is even partially correct. he would then have to prov ide a more conv incing account which does not u lt i mately refer to u n fa i r phenomena. it is u n l i kely, however, t hat a complete description would not involve elements from all three explanations. a starting point to analyze the traditional attribution of certain professional pathways to each of the sexes can be the common association between women and childrearing. regardless of whether women decide or not to have children, most gender differences in employment and economic opportunities are parasitic on the sexual division of labor (nagel 1997: 318). the assumption of the interconnection between womanhood and childrearing has had the widespread effect of denying women the ability to specialize. the interruption that the need to care for children necessarily generates makes women engage in a whole set of different tasks that involve lower cognitive, emotional, and aesthetic demands, without fully concentrating on any of them (wilson 2004: 261, 272). women’s work should not be too absorbing or dangerous, as it must always allow them to maintain their socially assumed maternity function (261, 272). statistical ev idence shows that the presence of women in full 112 jesús mora leap 3 (2015) time work decreases enormously after the birth of the first child (paull 2008: f18) and small children at home increase the likelihood that a woman is employed part time (rosenfeld 1996: 209). the different expectations generally attributed to men’s a nd women’s work ma ke it necessa r y for t he latter to choose careers that allow little specialization and great ability to combine childrearing w ith work outside the household. as a consequence of the assumption that it is them who will have to take care of children, women accommodate their fertility to their labor force participation and vice versa (brewster and rindfuss 2000: 289-290). consequently, women tend to be overrepresented in fields characterized by their functional or symbolic proximity to the traditional female domestic role, which cover health related careers (nursing), education, and humanities (charles and bradley 2002: 581, 590). these occupations provide more poorly paid jobs than those that require specialization, like math, science, and engineering (mse), which are characterized by the abundance of men (580). the traditional absence of women from mse domains has also had effects on men’s and women’s self-perception of their skills. as a result of common stereot y pes, women w it h equa l scores in mat h tests to men tend to rate their own mathematic skills much lower (fine 2010: 48). differences in rating of one’s own skills derive also in a different disposition to choose one or another professional path (48), so that, even though women are not necessarily less competent than men for mse, they will be more reluctant to lead their careers in this direction. these stereotypes, though, do not only work against women’s fitting in particular domains, they also affect their position within different occupations. both in traditionally male and female spaces, the disproportionate upholding of leadership spots by men hinders women’s upwa rds ca reer mobi lit y (maume 1999: 1436, 1452). managers often associate positions of power with the exercise of abilities like aggressiveness and ambition (1436, 1452), which are more commonly coupled with men. there are, however, other abilities, like social and psychological skills or ability to negotiate, which can be more useful in some managerial positions. in contrast, managers’ preconceptions about women tend to describe them as ‘gentle’ or lacking a mbit ion, wh ich creates problems for t hose who t r y to cl i mb up t he leadership ladder (fine 2010: 52). the exercise of leadership is simply not seen as feminine, and when women manage to achieve positions of power they are commonly regarded as ‘competent but cold’ (52). therefore, the situation of women in access to leadership is hindered by the interplay of first, the assumption of their lack of competence to exercise power and, second, t he negat ive percept ion of t hose women who at tempt to put leadership-associated abilities into practice. women’s greater educational efforts as a consequence of inequality 113 leap 3 (2015) the traditional exclusion of women both from mse domains and leadership positions makes it harder for them to fit into those spaces still nowadays. as radcliffe-richards (1980: 113) points out, if a group is kept out of a particular area long enough, it is overwhelmingly likely that activities will develop in a way unsuited to the excluded group. mse careers and the achievement of leadership (both in traditional male and female domains) are currently linked to capacities which are uncommonly associated with women. men’s sociallydesigned biographies define workplace expectations and successful career patterns (mackinnon 1987: 36). these long-lasting stereotypes are hard to break for women who, as we have seen, are at the same time regarded as incompetent for leadership and valued negatively when they try to exercise power in ‘masculine’ ways. even if women were truly less attracted than men by mse careers, that interest is clearly not impervious to outside influence (fine 2010: 50), so that social stereotypes condition enormously women’s predisposition to enter such domains. in addition, the assumption of their lack of competence for leadership blocks women’s career mobility both in traditional male and female domains, in which men are commonly ‘kicked upstairs’ on the belief that they are too competent for low-rank posts (50) or that leading is a special talent men have. randall filer offered an alternative explanation of women’s lower income. he argued that women are badly paid because they care more about the nonpecu n ia r y a spects of a job a nd so systemat ica l ly pick bad ly pa id but otherwise attractive positions (see filer 1985: 426-37). this did not sound prima facie implausible and points to a potential, exonerating explanation which probably helped those who already wanted to do nothing about existing inequalities. however, as j. s. mill had already argued against adam smith, and as contemporary social scientists confirm, the worst paid jobs have a systematic tendency to be the worst jobs in all the nonpecuniary dimensions of job desirability as well. moreover, women’s jobs in particular are worse t ha n men’s in t welve of t he four teen non-moneta r y measures used by christopher jencks and his co-authors (jencks et al. 1988: 1352). thus, “if it is true that women value non-monetary factors more than men, what this shows is that women fair worse than men even in what matters to women most” (casal 2016: sec. v.b). therefore, the fact that women are badly paid, far from being explicable by some exonerating factor, constitutes a clear case of compound injustice. so, the answer to van parijs’ question regarding whether the fact that women today are both more qualified and worse paid should be seen as “amplifying injustice” (2015: 83) is “yes,” because women are worse paid within the same occupat ion, a nd t he most li kely ex pla nat ions of t heir being in cer ta in occupations refers to further injustice. 114 jesús mora leap 3 (2015) it is also important to note that having an education which those in the opposite sex lack has ver y different consequences for men and women, regarding non-pecuniary or promotional aspects of their lives. men with very successful careers in the hard sciences often have several children, while successful female scientists often have no families at all, as they have to compete with men who have housewives that do everything for them whilst lacking one of their ow n. so a group of well qualified women are childless or even entirely alone. for another group, their qualifications have just brought them additional sadness and frustration in realizing that the price of having children was having to leave their phd on the shelf and put on their cleaning gloves, while their less qualified husbands pursue their careers. a third group of women lives with extraordinarily high levels of stress as breadwinners who still make sure their children keep medical and social appointments, do their homework, have all they need for school, and either do all the housework or have to chase the man so that things get done to what they consider an acceptable level. for, while getting married does not affect male careers negatively – rather the opposite – (see wolfinger et al. 2008: 394), the weight of housework forces women either to delay their decision to form a family or to forsake it if they want to succeed in the professional world (390-1, 398-402). having an education, thus, does not bring women the benefits it brings men. conclusion women’s educational achievements do not show that the efforts to achieve gender equality are overshooting. being more qualified may be women’s best (or sometimes only) hope to escape poverty, unemployment, or singleparenting, as well as domestic and workplace exploitation. it is thus a symptom of gender inequality, not a sign of its disappearance. in addition, it does not translate, in the same way as it does with men, into greater access to income and wealth, positions of power and authority, social standing, or the chance to have several children. having to work so much harder to be rewarded so much less is, as van parijs at one point suspects, one of the forms of compound injustice that women face. women’s greater educational efforts as a consequence of inequality 115 leap 3 (2015) bibliography hochschild, a., 1989: the second shift, new york: penguin books. bianchi, s., 1999: “feminization and juvenilization of poverty: trends, relative risks, causes and consequences,” annual review of sociology 25: 307-33. brewster, k. and rindfuss, r., 2000: “fertility and women’s employment in industrialised nations,” annual review of sociology 26: 271-96. casal, p., 2016: “mill, rawls and cohen on incentives and occupational freedom,” utilitas: forthcoming sec. v. charles, m. and bradley, k., 2002: “equal but separate? a cross-national study of sex segregation in higher education,” american sociological review 67: 573-99. diprete, t. and buchmann, c., 2006: “gender-specific trends in the value of education and the emerging gender gap in college completion,” demography 43: 1-24.eurostat, http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=lfsa_egaed&lang=en filer, r., 1985: “male-female wage differences: the importance of compensatory differentials,” industrial and labour relations review 38: 426-37. fine, c., 2010: delusions of gender, london: icon books. jencks, c. et al., 1988: “what is a good job? a new measure of labor-market success,” american journal of sociology 93: 1322-57. mackinnon, c., 1987: feminism unmodified: discourses on life and law, cambridge, ma: harvard university press. maume, d., 1999 : “occupationa l segregation and t he career mobilit y of w hite men and women,” social forces 77: 1433-59. nagel, t., 1997: “justice and nature,” oxford journal of legal studies 17: 303-21. okin, s., 1989: justice, gender and the family, new york: basic books. paull, g., 2008: “children and women’s hours of work,” the economic journal 118: f8-f27. radcliffe-richards, j., 1980: the skeptical feminist: a philosophical enquiry, london: routledge and kegan paul. reskin, b. and hartmann, h., 1986: women’s work, men’s work: sex segregation on the job, washington: national academy press. rosenfeld, ra, 1996: “women’s work histories,” population and development review 22: 199-222. scwartz, r. and han, h., 2014: “the reversal of the gender gap in education and trends in marital dissolution,” american sociological review 79: 605-29. ta r gosz , s., et a l. 20 03 : “l one mot her s, soc ia l e xclu sion a nd depre s sion,” psychological medicine 33: 715-22. van lancker, w., et al. 2015: workshop on main causes of female poverty, brussels: policy department c, citizens rights and constitutional affairs. van parijs, p., 2015: “four puzzles on gender equality,” law, ethics and philosophy 3. whaley, rb, 2001: “the paradoxical relationship between gender inequality and rape: toward a refined theory,” gender and society 15: 531-55. wilson, c., 2004: moral animals: ideals and constraints in moral theory, oxford: clarendon press. wolfinger, n. et al., 2008 “problems in the pipeline: gender, marriage and fertility in the ivory tower,” the journal of higher education 79: 388-405. http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=lfsa_egaed&lang=en 0 introducción.indd symposium on thomas christiano’s views on the legitimacy of the international order josé lu is m a rt í pompeu fabra university thomas christiano, one of the more prominent democratic theorists today (christiano 1996, 2007), is developing some of the most refined and inf luential normative views on the legitimacy of global institutions and international law (christiano 2006, 2010, 2011a, 2011b, 2012, 2013), with contributions to more specific issues like immigration (christiano 2008b, 2017) and climate change (christiano 2015), among others. christiano defends a model of fair democratic association of states. while it is true that his is mainly a statist view, it is a very qualified one: he holds that the autonomy of democratic states should be preserved and should remain the basis of, and be the main legitimate actor in, an international multilateral system, with state sovereignty conditional to the fulfillment of certain global, morally mandatory aims. christiano rejects the more demanding ideal of global democracy. but he does advocate a distinctive, and attractive, ideal of international democracy that presupposes the existence of a cosmopolitan political community and seeks to conciliate and preserve the value of national self-determination and self-government with an egalitarian, institutional framework that promotes peace, human rights, and basic justice worldwide. christiano’s cosmopolitanism is initially modest and limited, but he characterizes it as progressive, that is, its aims and requirements are meant to become more and more demanding as the cosmopolitan community develops. this symposium has brought together three significant scholars, who, from three different perspectives, discuss christiano’s views on the international order and immigration. the first commenter is david álvarez, professor of philosophy at the universities of minho (portugal) and vigo (spain). he has written extensively, mostly in spanish, on global justice, global health, and the global order (for english publications see álvarez 2012a, 2012b). in his contribution to this symposium, “democratic legitimacy, international institutions, and cosmopolitan disaggregation”, álvarez pushes christiano towards a more radical cosmopolitanism. he argues that 0 introducción.indd 183 21/4/17 13:29 184 josé luis martí leap 4 (2016) christiano’s idea of global morally mandatory aims imposes stronger objective restrictions on what actions democratic states may carry out internationally, and what they may say in domestic democratic deliberation, and that individual citizens are legitimated to address disaggregated, direct claims to global institutions when their states fail to meet such obligations. the second commenter is david lef kowitz, professor of philosophy, politics, economics, and law at the university of richmond. he has made very significant contributions to several issues regarding authority and the duty to obey the law, criminal law theory, the ius in bellum, and others. he has recently written about several areas related to international law and the international system (lef kowitz 2010, 2011, forthcoming). in his piece in this symposium, “democracy, legitimacy, and governance”, lef kowitz argues that interdependence among citizens of different states is not great enough to generate a claim to legitimate common legal order. because of this argument, he sides with christiano in his skepticism of global democracy, but extends this rejection to christiano’s own model of fair democratic association. lef kowitz concedes that the international system may have some instrumental value, sufficient to grant some degree of legitimacy, but holds that it is disconnected from its democratic or associative character. the third commenter, michael blake, is professor of philosophy, public policy, and governance at the university of washington and a prominent philosopher of international issues. blake has significantly contributed to the debate on global justice, defending an institutionalist view that rejects the existence of transnational justice obligations based on the lack of a coercive international institutional system (blake 2001, 2011, 2013a). he has also contributed significantly to debates on immigration and the brain drain (blake 2013b, blake and brock 2015; see also the symposium on blake and brock's book in this volume), the former being the focus of his contribution to this symposium, “migration, legitimacy, and international society”. blake expresses skepticism on two fronts. one target is christiano’s general view that international bodies may have legitimate authority. the other is christiano’s more specific claim, made in one of his more recent works (christiano 2017), that a multilateralist order like the one he advocates may end up adopting justifiable common principles to govern migration. thomas christiano responds to these three critics in a piece that serves to clarify and illuminate different aspects of his own theory. these concluding pages may be seen as a very useful introduction to his views on the international order. 0 introducción.indd 184 21/4/17 13:29 introduction 185 leap 4 (2016) bibliography álvarez, d. 2012a: “individual membership in a global order: terms of respect and standards of justification”, in public reason 4(2): 92-118. —2012b: “global health justice: on the political determinants of health,” ethical perspectives 19(2): 276-286. blake, m. 2001: “distributive justice, state coercion, and autonomy”, philosophy and public affairs 30 (3): 257–296. —2011: “coercion and egalitarian justice”, the monist 94(4): 555–570. —2013a: justice and foreign policy, oxford: oxford university press. —m. 2013b: “immigration, jurisdiction, and exclusion”, philosophy and public affairs 41(2): 103-130. blake, m. and g. brock 2015: debating brain drain: may countries restrict emigration? oxford: oxford university press. christiano, th. 1996: the rule of the many: fundamental issues in democratic theory, boulder (co.): westview press. —2006: “a democratic theory of territory and some puzzles about global democracy”, journal of social philosophy, x x xvii (1): 81–107. —2008a: the constitution of equality: democratic authority and its limits, oxford: oxford university press. —2008b: “immigration, political community and cosmopolitanism”, san diego law review 45: 933-961. —2010: “democratic legitimacy and international institutions”, in the philosophy of international law, ed. s. besson and j. tasioulas, 119-137, oxford: oxford university press. —2011a: “an instrumental argument for a human right to democracy”, philosophy & public affairs 39: 142-176. —2011b: “is democratic legitimacy possible for international institutions?”, in global democracy. normative and empirical perspectives, ed. d. archibugi, m. koenig-archibugi and r. marchetti, 69-95, cambridge: cambridge university press. —2013: “an egalitarian argument for a human right to democracy”, in human rights: the hard questions, ed. c. holder and d. reidy, 301–325, cambridge: cambridge university press. —2012: “the legitimacy of international institutions”, in routledge companion to philosophy of law, ed. a. marmor, 380-393, new york: routledge. —2015: “state consent and climate change”, in climate change and justice, ed. j. moss, 17-38, cambridge: cambridge university press. —2017: “democracy, migration and international institutions”, in immigration, emigration and migration: nomos lvii, ed. jack knight, new york: new york university press. lef kowitz, d. 2010: “the sources of international law: some philosophical reflections”, in philosophy of international law, eds. s. besson and j. tasioulas, new york: oxford university press. —2011: “the principle of fairness and states’ duty to obey international law", canadian journal of law and jurisprudence 24:2. 0 introducción.indd 185 21/4/17 13:29 186 josé luis martí leap 4 (2016) —forthcoming: “the idea of international law from a normative perspective”, in global political theory, ed. d. held and p. maffettone, cambridge, uk: polity. 0 introducción.indd 186 21/4/17 13:29 leap 3 (2015) the rich also cry1 ana de miguel universidad rey juan carlos abstract philippe van parijs (2015) reports a hostile reaction to some remarks he made suggesting that men’s stronger sexual drive disadvantages them compa red to women, in pa r t because it causes t hem to v isit brot hels, thereby incurring financial and reputational losses. this paper describes how satisfying sexual desire can be very cheap, or even free, and explains why the way a man’s reputation is affected by a greedier libido is not always significant or negative. more importantly, the paper tries to explain why van parijs’ remarks were received with so much disapproval by feminists. keywords: sexual exploitation, prostitution, human trafficking, harassment, feminism introduction i have been asked to comment on a text by a philosopher i have never met called philippe van parijs. he tries to describe some possible advantages women have compared to men and comes up with these: women outlive the men they look after; women earn less but study more; women have less political representation but vote more; women are the victims of crime rather than the perpetrators; and women tend to be those whose body is sold, rather than the client or pimp (van parijs 2015). wow, men must be really envious! he warns that he is speaking “tongue-in-cheek.” you don’t say! it would be really worrying if this was seriously all one could come up with. i hope he can appreciate other people’s sense of humor, for i work on prostitution and the alleged handicap i have been asked to discuss is men’s 1 i thank paula casal for her help with the translation, the structure, and countless ex a mples (t h i rst, sea food, subord i nat ion fa nta sies, coet zee, su nscreen…). in fact, her contribution was so great, that i thought we should both sign the paper, but she declined. i am also grateful to jesús mora for his references and revisions, and to antonio garcía valdecasas for the title and other suggestions. finally, i am very grateful to three anonymous referees for their criticisms and encouragement and to laura sánchez de la sierra and hannah weber for their thorough proofreading. 152 ana de miguel leap 3 (2015) greedier libido. van parijs explains it thus: “men’s greedier libido turns them into handicapped individuals, sometimes even super-handicapped à la dominique strauss-kahn.” it causes them financial losses because they find themselves paying for prostitutes and, if caught, can also cause them reputational damage (86). i was myself really puzzled when i read, and then had to re-read, that he is now telling the world that this is what he actually prepared for a feminist, predominantly female audience at a major gender equality event (!). predictably, the talk did not go down well. and he could have left it there. philippa would have gone home wanting the earth to swallow her and quietly researched into where she went so horribly wrong until she understood. but not philippe. two and a half years later he remains conv inced that the problem lay w ith the female audience. they misunderstood him. all of them. they must have. there can be no other explanation. so, he is repeating it all again, trying to reach an even larger audience, without changing even a comma. he seems to believe that the problem lay with these women’s poor mastery of english, the insufficient time they gave him, and their unfamiliarity with a philosopher’s job ( 79-80), for it could not have been what he said. absolutely not. having carefully read his piece, i think i know what happened. he was spea k ing to wel l-educated women, united to promote equa lit y in t he workplace, concerned with depressing gender facts, and they were outraged by their guest’s speech. they were outraged because they understood him and – what’s more unusual – they dared to say so. i will try to spell out why, despite the additional complication posed by va n pa rijs’ a mbiva lence about whet her t he behav iors he describes as hormonal inequality are actually about socialization (16). if i understood correctly – in spite of my being a woman and a feminist with imperfect english – the problem he was drawing attention to is this: men’s libido has t he u n for t u nate ef fec t of c au si ng t hem to go w hor i ng , w h ich i s bad because of the expense and potential damage to their reputation. women are more fortunate in this respect, as they do not need to v isit brothels, and therefore do not waste money or risk reputational losses. he calls the whoring propensit y “a ha ndicap,” perhaps of fending t he disabled a nd women at once. his paradigmatic super-handicapped male is strausskahn, a thrice-married millionaire who, swept away by the force of his libido, damaged his public reputation with various affairs – well past the age of sixty, i would add. the rich also cry 153 leap 3 (2015) 1. the alleged handicap l et us a ssu me t hat, because of t hei r hor mones, men wa ke up w it h a burning desire that prevents them from functioning in life. let us also g ra nt t hat such sensat ion rea l ly is li ke being ver y t hirst y, sta r v ing, or extremely cold, so that they truly cannot focus on other matters until they are relieved. ‘it must be a handicap!’ says philippe the philosopher. and he quickly closes his computer satisfied to have found yet another disadvantage he bets feminists have never before considered. however, let us suppose men have a plentiful and permanent supply of water, but love being thirsty. they like it so much that the moment their thirst subsides, they try to increase it with pills, pictures, videos, toys, or whatever works best for each of them. they do this in order to enjoy the thirst, and then the drink which they can always find – even if they could not, the pleasure derived from simple thirst would have made it worthwhile. after all, the market is full of stuff to increase this thirst and delay its satisfaction. it seems to me, then, that if men themselves are delighted w ith this ‘thirst-thing’ they possess and can easily relieve, there is no justification for telling women that they are not as far from equality as they would have thought otherwise. and the desire for sex is like this ‘thirst-thing’ for most men. they love having it, and so long as they are not handicapped in other ways, and so still have hands, relief is simple, instant, and gratis. this is the cartesian “clear and distinct” idea carol pateman explains in the sexual contract (1988), a w idely cited book van parijs’ audience may well have read and discussed. men prefer, of course, women pouring the drinks for them, but none dies for having to help himself (and nowadays we know it does not cause blindness either). you can, by contrast, die working as a prostitute. even if nobody attacks you, it is a largely nocturnal life of risks, drinking, drugs, driving, disease, and weirdos. this is my field of research: a heart-breaking world of rows of naked or half-naked women freezing in parks at night, or roasting in plastic chairs on the side of busy roads, with just a bottle of water to wash themselves between clients. it is a sinister world of women in glass windows in red light districts and industrial parks: “24 hours, all services,” “asian, very young, submissive,” “sluts, totally shaved, do what you want with us.” w hat was philippe the philosopher thinking, when he persuaded himself that conjuring these images in the minds of the concerned feminists was going to make them appreciate the disadvantages suffered by...men, and in particular one man, strauss-kahn? what were the chances of that audience ever thinking of this horrendous, ever-growing meat market as a massive charity operation to assist the poor men with their handicap? 154 ana de miguel leap 3 (2015) it is strange to describe as a handicap a disposition that is catered to and celebrated both by those who possess it and their broader culture. consider, for instance, the protagonist of coetzee’s disgrace (2000) or freud’s discussion of the greater male libido as a sign of male superiorit y and the primar y cause of greater creativity and inventiveness in men (1923). it is also very strange to say that somebody is to some degree disabled in an injusticeinvolv ing sense merely because they have, or are more likely to have, a preference. the same is true if the preference is a passion, for instance, for the sea or the snow, that might kill you in some circumstances. the word ‘handicap’ suggests something stronger than the frustration of a mere preference, t he ex istence of a n u n met need. but what k i nd of need, preference, or handicap are we really talking about? does it involve the need for quick relief that can easily be obtained manually? no, it cannot be so simple or the whole sex industry would be redundant. is it a desire to see a woman dow n there, on her knees, naked and obey ing? or the w ish to humiliate her, to call her a ‘slut’, and to make her say that she wants you, when you know it is not true? is it a desire to see women as nymphomaniac school girls, raunchy nurses, or interviewees who would otherwise not get the jobs (three of men’s classic favorites)? or is it the need to show who is boss and prove that ‘women are whores’ who will do anything you say for money? research shows that most men know that many of the girls they use are not self-employed but parts of net works of exploitation and trafficking (raymond 2003). many of them, we hear in the news, have been sold by their families, while others are captured by experts in supply and demand and in identifying girls from broken homes, prone to substance abuse or low selfesteem, who are more easily captured.2 in any case, the majority of them come from the most sex ist and unstructured countries, from poor and dysfunctional backgrounds, and cultures where a girl is worth nothing. we all know about this. but when entering a brothel and seeing the “asian, very young” or “sexy caribbean, barely 18,” do ‘the handicapped’ step back in shock? do they make any inquiries? “hey, i am handicapped, i hope you are not handicapped too and can help me. are you here of your own free will? could you leave anytime? are you really this desperate for money? are you really 18? where is your family? ” the handicap must be an extreme form of selfishness and indifference, for the handicapped customer asks nothing. in fact, he wants not to know: he is interested only in his handicap and in whether you have the body to relieve it. and so, an audience of women already concerned by the suffering 2 the daily mail, 2014. http://www.dailymail.co.uk/news/article-3300016/humantraffickers-preying-refugees-europe-forcing-slave-labour-child-prostitution-warn-europol.html http://www.dailymail.co.uk/news/article-3300016/human-traffickers-preying-refugees-europe-forcing-slave-labour-child-prostitution-warn-europol.html http://www.dailymail.co.uk/news/article-3300016/human-traffickers-preying-refugees-europe-forcing-slave-labour-child-prostitution-warn-europol.html the rich also cry 155 leap 3 (2015) caused by men’s selfish focus on their itch had to listen to the philosopher blanketing out all else, claiming ignorance and telling them to focus on this matter of such great importance. as if they themselves had not had many occasions to hear men going on about it, demanding pity and relief. feminists know full well how manipulative, rhetorical, and persistent men can be about the importance of relieving their itch. “oh, i suffer so much! if you love me, you w ill make me happy (w ithout thinking about pregnancy or venereal disease).” even if they had not read it in feminist texts, they would have heard the male ‘pity me’ countless times directed at them. one wonders if the philosopher knew this when he told the women they were to pity men. 2. the alleged costliness the philosopher observes that the man must pay (van parijs 2015: 16), as an added disadvantage, just in case this escapes us or seems unimportant in view of men’s higher average income. it is true, you are supposed to pay. in madrid or barcelona you can pay 5€ for a blowjob performed by black girls with really good prices, plus those very special mouths, so perfect for the task.3 for 10€ more, you can then penetrate one of those skinny asians in the park, a car, or some back street. for 30€ you can have a half an hour with a breast-enhanced latina in a room in central gran vía. and now there are also ‘low-cost’ brothels, brothels with “refund if unsatisfied” policies, and even brothels with loyalty cards where you can “enjoy and forget,” as they say in the ads.4 driving along the spanish east coast, you can find anything at really good prices: alleged sado-masochists, exotic girls with unusual bending or swallowing abilities, group acts, the lot. i am just reading the current menu to van parijs, since he seems unaware of the fact that whoring is rather inexpensive. it is cheaper than seafood, for example, or watching the local fallas, and presumably the philosopher does not count seafood or firework lovers as handicapped too. but perhaps he has in mind the exclusive services that arrange for you to have sex with top models, news readers, and top university students struggling with their fees,5 assuring the ‘handicapped’ that there is no woman they cannot buy. after all, the paradigmatic super-handicapped is the economics professor, minister, and imf managing director, strauss-kahn, and these high-f liers sometimes spend exorbitant sums on their handicap (or get 3 que, 2013: http://www.que.es/ultimas-noticias/sociedad/201310250800prostitucion-nigerianas-recien-llegadas-cinco-cont.html 4 see apr amp: http://apramp.org 5 the gua rdia n, 2015: http://w w w.t heg ua rdia n.com/education/2015/ma r/27/ universit y-students-sex-work-liv ing-costs-tuition-fee-debts http://www.que.es/ultimas-noticias/sociedad/201310250800-prostitucion-nigerianas-recien-llegadas-cinco-cont.html http://www.que.es/ultimas-noticias/sociedad/201310250800-prostitucion-nigerianas-recien-llegadas-cinco-cont.html http://apramp.org http://www.theguardian.com/education/2015/mar/27/university http://www.theguardian.com/education/2015/mar/27/university 156 ana de miguel leap 3 (2015) funding from tax payers). but how could the philosopher pick this man as the paradigmatic victim of any specific form of injustice? strauss-kahn did not lose his reputation in a brothel or a party with prostitutes. he made it to the front pages as somebody accustomed to “getting away with murder” who decided to grab his chambermaid and try to rape her.6 at the time, he was with his third beautiful wife, heir of a millionaire, but hey, the male itch is so important, how could a maid refuse to cooperate in its relief? he was later accused of further rapes and involvement with a pimp network.7 the super-handicapped and self-proclaimed libertine – super-handicapped and proud8 – soon acquired a new girlfriend, and his business continued to boom until his customers accused him of fraud in october 2015.9 and yet, as i write, strauss-khan is not in jail, or alone, or abandoned. surely, while having a girlfriend, he finds time to frolic with the “very young asian,” “submissive black beauty,” “operated brazilian,” and “all-waxed russian” that are routinely trapped in prostitution rings organized to relieve the all-important itch at all prices for men of all classes. 3. the alleged reputational loss the philosopher, i am reliably informed, is a nice guy who honestly just wants to understand things, and so might reply: “i didn’t realize buying the services of prostitutes is so cheap, and perhaps i was mistaken about strausskahn too. but what about the others?” perhaps there are some men who buy sex only from self-employed, mature prostitutes, and take the trouble to ensure they are not prostitutes in part because they have been abused, are mentally ill, addicted, or need to support a sick child. but who are these people who unfairly suffer a reputational loss in such circumstances? the greater understanding for the specifically male handicap that the philosopher tries to promote gives the berlusconis of this world a great sense of impunity. their endearing “weakness for the girls” is said to make them “more human” ( walston 2010). they know they w ill not lose their reputation for doing what they want. it is after all a “handicap,” and a sort of need-based claim. bill clinton did not think that being the most powerful man on earth as president of the united states came with the responsibility to behave himself 6 the guardian, 2012: http://w w w.theguardian.com/world/2012/dec/10/ dominique-strauss-kahn-case-settled 7 sott, 2015: https://www.sott.net/article/292198-dominique-strauss-kahns-pimping-trial-starts 8 fra nce 24, 2015: http://w w w.f ra nce24.com/ en/20150210-liber t ine-st rauss-ka hn-adm its-org ies-denies-prost it utes 9 bbc, 2015: http://w w w.bbc.com/news/world-europe-34549950 http://www.theguardian.com/world/2012/dec/10/dominique http://www.theguardian.com/world/2012/dec/10/dominique https://www.sott.net/article/292198 http://www.france24.com/en/20150210 http://www.france24.com/en/20150210 http://www.bbc.com/news/world the rich also cry 157 leap 3 (2015) at least until the end of his term in office. no, with so many centuries of the ideological compassion for the male weakness, he felt untouchable or at least less liable to indignation and sanction. maybe he even felt entitled, and claimed that sex with the young intern was “consensual.” i am just a teacher, and a woman, but would not think that sex in my office with one of my students could count as consensual. monica lew inski’s reputation (and much of her life) was ruined, of course.10 but what happened to bill? he remained married and president, and the world remembers him as one of the best contemporary presidents, and a rather nice guy. 4. the alleged lack of understanding perhaps the philosopher would judge franco’s spain superior to zapatero’s in one respect. there was such understanding for the male handicap that it was normal for the señor of the house to have access to the maid’s young body with neither the maid, nor the wife, having any say about it. “men have to throw a grey hair in the wind” was the catch phrase (meaning: “copulate w ith somebody besides the w ife”). until 1963, a womanizing man could even kill his wife for adultery and be acquitted. why? because men have a weakness women lack.11 given the philosopher’s insistence on the need to abstract from all else, he may also want to focus on the unique way in which society accommodates for the male itch at war: at home, the soldiers’ prerogative is to leave a trail of pregnant girls behind, and while away, occupying armies are more readily permitted to ‘whore around’ than to read in the local library. occupying armies are so understanding of the male need that soldiers can rape with impunity just about anyone.12 the poor soldier forced into so much discipline has to let off steam somehow, right? van parijs condemns such actions, of course, but he seems to believe he is the first one to suggest the men are to be pitied for their weakness when in fact there is no novelty in this: this is the rancid ideology that has been oppressing humanity for centuries. he may say he does not mean his words to excuse such behaviors, but the fact is that his message has been used in this way for far too long. he cannot reasonably be surprised that feminists did not appreciate that his contribution to their empowering meeting was a disempowering message: “the handicap we ought to pit y” is just too similar to the discourse fed to us ad nauseam which has done so much damage and we have to fight. 10 ted, 2015: http://w w w.ted.com/talks/monica_lewinsky_the_price_of_shame 11 abc, 2010: http://www.abc.es/20100915/internacional/adulteras-espana-201009151646.html 12 independent, 2014: http://www.independent.co.uk/news/world/middle-east/nojustice-in-sight-for-iraqi-victims-of-alleged-murder-rape-and-torture-9849305.html http://www.ted.com/talks/monica_lewinsky_the_price_of_shame http://www.abc.es/20100915/internacional/adulteras-espana-201009151646.html http://www.independent.co.uk/news/world/middle-east/no-justice-in-sight-for-iraqi-victims-of-alleged-murder-rape-and-torture-9849305.html http://www.independent.co.uk/news/world/middle-east/no-justice-in-sight-for-iraqi-victims-of-alleged-murder-rape-and-torture-9849305.html 158 ana de miguel leap 3 (2015) for what made strauss-kahn assault the maid is not a handicap or a need, but a product of overindulgence in the male itch. the ideolog y of calling it “a handicap” misdirects attention and empathy away from the maid, and towards strauss-kahn’s desires. by reproducing it, the philosopher is maintaining a discourse according to which, although men are already richer and more powerful, women must have some understanding and pity for the distinctively male “weakness.” although they would have applauded loudly, strauss-kahn, berlusconi, and franco do not need this message, so van parijs instead delivers it to a feminist audience. but these are people devoted to ending precisely that ideology, people who encourage poor women to stand firm and tell their husbands to stop talking about his needs when they cannot even feed their existing children. feminists tell women to stand up a nd show no mercy in denouncing men who rape or ha rass t hem.13 feminists tell women not to listen to his veiled threats of leaving her for somebody more accommodating to his whims. feminists tell women not to risk hiv because a man tells them that he suffers. feminists are people like pateman, who tell women not to be afraid to say “why do i have to use my mouth when you have two able hands” (pateman 1988: 172)? feminists, then, are not people reluctant to voice, or hear, challenging views. but they are people who would not have invited a speaker, philosopher or not, to repeat an old myth that women have worked long and hard to combat. 5. the alleged class and gender similarity philippa would have thought that having accepted such an invitation, she ought to engage in some research. but not philippe. with the confidence society imbues so many men, philippe thought he could quickly improvise something, thinking of four possible advantages for women and perhaps some comparisons bet ween class and gender should suffice. and off he goes. and like so many men before him, but perhaps never to such a large audience of gender-aware listeners, repeatedly displays the androcentric understanding of class that feminists have so often criticized. for he writes, “people who grew up in poor families (...) are disproportionately in prison (van parijs 2015: 87).” no, philippe, it is “prisons and brothels,” for not everybody responds to povert y in the same way. depending on sex, race, and age, people face different risks: for some the risk is gang warfare or crime, for others it is, or also includes, teenage pregnancy, single motherhood, the sex industry, stis, and encounters with strauss-kahn. the main cause of death for women aged 18 to 40 is gender violence (un women 2015). and 13 even barak obama had to speak against the view of rape as an inevitable part of life on us campuses (w hite house, 2014). the rich also cry 159 leap 3 (2015) even if a poor, black man’s chance of imprisonment was higher, anybody prefers a higher chance of committing a crime and a lower chance of being the victim, because the victim does not have a choice. only for the rapist, not for the raped, is it enough to say “no.” the philosopher then makes us search into our conscience w ith the phrase: “especially if we happen to enjoy a more privileged background” (van parijs 2015: 87), assuming, once again, before so many gender-conscious women an androcentric view. perhaps his female listeners were middle-class, but that would not have saved them from a violent or oversexed father, an important portion would have been raped,14 and tending to be pioneers in the workplace, most would have been harassed or threatened at some point (fine 2010: 87). knowing this, is it appropriate for a man to go to this femaleempowerment meeting to attempt a sympathetic look at the men who can pick a poor, naked, maybe terrified girl, and use her for their pleasure? and why stop there and not include testosterone-filled tyrants, sadistic torturers, hangmen, and nazi officials, who were all also overwhelmingly male? los ricos también lloran nobody, and certainly not philippa, would go to a meeting in a southafrican shantytown and attempt to move people with stories about privileged white lives, perhaps expressing frustration about servants’ unreliability and showing how the rich can also cry. one could imagine the reaction on hearing about the puzzle arising from their need for more expensive sunscreen to avoid skin cancer. and why not go to a disability conference to talk about the four downsides of being able-bodied? maybe van parijs would think that doing so is fine, because philosophers are licensed to focus on whatever they find interesting, blanketing out all else. but such things do not normally happen. it is usually women that have to put up with good philosophers coming to talk to them about gender and telling them the first thing that comes to mind. philippa would have not dared to do such a thing. but philippe may tell himself that the cold reception for his speech was not due to its being inappropriate or ill-researched, but due to some uncomfortable truth he alone unearthed. it is more likely, however, that there was little in it the feminists did not already know, and much the speaker should have known. at t he meet i ng, t he women were concer ned w it h d iscr i m i nat ion, exploitation, and power and sex abuse in the workplace. in this context, van parijs’ idea of comparing the scores of men and women must have 14 in the uk, for instance, one in five women report having been victims of sexual offences since the age of sixteen (ministry of justice 2013: 6). 160 ana de miguel leap 3 (2015) seemed rat her juveni le to t hem. they were t here to incite men to help create a cooperat ive a nd fema le-f riend ly work env ironment. in such a context, creating some petty competition (men: 4, women: 0) is unlikely to be of a ny help. simone de beauvoir (1966 : 28) la mented t he way men attempted to turn the female struggle for justice into a trivial diatribe, and perhaps this is just how these feminists felt. and, no, men do not have to be eliminated, but the world would be a better place without patriarchal men. bibliography archive of prostitution advertisement of apr amp, http://www.apramp.org de beauvoir, s., 1966: le deuxième sexe, les faits et les mythes, paris: gallimard. coetzee, j.m., 2000: disgrace, new york: penguin books. fine, c., 2010: delusions of gender, new york: icon books. freud, s., 192 3 : d a s ich und d a s e s, v ien na-l eipz ig-zu r ich : i nter nat iona ler psychoanalytischer verlag. ministr y of justice, uk home off ice & t he off ice for nationa l statistics https://w w w.gov.uk/government/uploads/system/uploads/attachment _ data/f ile/214970/sexua l-offending-over v iew-jan-2013.pdf pateman, c., 1988: the sexual contract, oxford: polity. ray mond, j., 2003: “ten reasons for not lega li zing prost it ut ion a nd a lega l response to the demand for prostitution,” journal of trauma practice 2: 315-332. un women, http://w w w.unwomen.org/en/what-we-do/ending-violence-againstwomen/facts-and-figures van parijs, p., 2015: “four puzzles on gender inequality”, leap 3. wa lston, j., 2010, “w hy silv io berlusconi is still standing,” the daily telegraph, http://w w w.telegraph.co.uk/news/worldnews/europe/ita ly/8114902/w hysilv io-berlusconi-is-still-standing.html www.apramp.org https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts http://www.telegraph.co.uk/news/worldnews/europe/italy/8114902/why-silvio-berlusconi-is-still-standing.html http://www.telegraph.co.uk/news/worldnews/europe/italy/8114902/why-silvio-berlusconi-is-still-standing.html 108 issn 2341-1465 leap 2 (2014): 108-119 reply to horta: spectrum arguments, the “unhelpfulness” of rejecting transitivity, and implications for moral realism l arry temkin rutgers university abstract this article responds to oscar horta’s article “in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions”. i begin by noting various points of agreement with horta. i agree that the “better than relation” is asymmetric, and point out that this will be so on an essentially comparative view as well as on an internal aspects view. i also agree that there are various possible personaffecting principles, other than the one my book focuses on, that people might find plausible, and that in some circumstances, at least, these might have deontological, rather than axiological significance. in particular, i grant that horta’s actuality-dependent person-affecting principle, his time-dependent person-affecting principle, and his identity-dependent person-affecting principle, might each be relevant to what we ought to do, without necessarily being relevant to which of two outcomes is better. but i reject horta’s claim that essentially comparative principles don’t apply in spectrum arguments. i also argue against horta’s view that the two standard views that underlie our intuitions in spectrum arguments are contradictory. i question horta’s (seeming) position that there is no point in rejecting the transitivity of the “better than” relation on the basis of spectrum arguments, on the grounds that doing so won’t solve the predicament that spectrum arguments pose. finally, i conclude my paper by challenging horta’s interesting contention that my views about nontransitivity support an anti-realist metaethics, and are incompatible with the sort of realist approach to metaethics that i favor. keywords: transitivity, spectrum arguments, person-affecting principles, internal aspects view, better than, essentially comparative view, realism, anti-realism, sophie’s choice, moral dilemmas. reply to horta 109 leap 2 (2014) let me begin by acknowledging my gratitude to oscar horta for his thoughtful and sensitive comments in his article “in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions” (horta, 2014), and also for the generous spirit he displayed in presenting them. i will divide my responses into two main parts. in part i, i will note some points where i agree with horta. in part ii, i will note some points about which we disagree. 1 1. in section 3, horta discusses different possible types of person-affecting principles, and the question of whether better than can be non-asymmetric. as horta recognizes, the points he makes in this section are not in tension with my book’s claims. but i agree that they offer useful lessons to bear in mind as we try to determine what needs to be said about the “better than” relation and other analogous relations. one of horta’s main claims in section 3 is that the “better than” relation is asymmetric: so if, in any given context, a is better than b, all things considered, then it can’t also be the case that, in that very same context, b is better than a, all things considered. even i, who am open to rejecting the axiom of transitivity for the “better than” relation, don’t reject the fact that the better than relation is asymmetric! similarly, while i am open to rejecting the axiom of transitivity for the “equally as good as” relation, i accept the standard view that the “equally as good as” relation is symmetric: so if, in any given context, a is equally as good as b, all things considered, then it must 1. this article was originally written in response to the talk that horta presented at the leap symposium on my book, rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012), at pompeu fabra university in fall 2012, and to an early draft of his article based on that talk. unfortunately, shortly before this journal was to go to press, i received the final, revised, version of horta’s article, and i was somewhat surprised to see that he had substantially revised his article, both in terms of adding new material that i hadn’t previously seen, and deemphasizing, or removing, some key claims or passages to which my original article had objected. i have, where possible, adjusted my article in light of horta’s final changes. however, given the journal’s time constraints, there were some important aspects of the final version of horta’s article to which i was unable to respond. in addition, in some cases i have thought it worthwhile to retain points that i raised with respect to his original talk and draft, since others may be attracted to views similar to those he previously held, even if horta, himself, has now changed his mind on the matters. thus, i acknowledge, here, that some of the points that i will be making are less relevant, or even not relevant, to his published article, and that, in some cases, when i highlight a supposed disagreement between us, the disagreement between us may have lessened, or disappeared altogether, since horta first presented his views on these topics. to aid the reader, i try to make it plain in the text where i am mainly responding to his talk, as opposed to his published article. 110 larry temkin leap 2 (2014) also be the case that, in that very same context, b is equally as good as a, all things considered. to these uncontroversial claims, i would simply point out that the explanation i give for why the various axioms of transitivity could fail to hold, does not similarly challenge these other standard claims. in challenging the axioms of transitivity, i noted that some of the ideals people most value are essentially comparative. on an essentially comparative view, the factors that are relevant and significant for assessing an outcome may vary depending on the alternative with which it is compared. this opens up the possibility that, in any given context, the factors that are relevant and significant for comparing a with b, or b with c, may be different from the factors that are relevant and significant for comparing a with c. from this it follows that, in a given context, a might be better than (or equally as good as) b, in terms of all of the factors that are relevant and significant for making that comparison, and b might be better than (or equally as good as) c, in terms of all of the factors that are relevant and significant for making that comparison, and yet a might not be better than (or equally as good as) c, in terms of all of the factors that are relevant and significant for making that comparison. thus, i claimed that on an essentially comparative view of ideals, the axioms of transitivity regarding the “better than” and “equally as good as” relations may fail, or fail to apply across different sets of alternatives to which we might have thought they should apply. 2 however, as indicated, the explanation i give for why the axioms of transitivity may fail, or fail to apply, offers no reason to doubt the asymmetry of the “better than” relation, or the symmetry of the “equally as good as” relation. this is because whether one accepts an internal aspects view (according to which how good an outcome is depends solely on the internal features of that outcome), or an essentially comparative view of ideals, if, in a given context, a is better than b in terms of all of the factors that are relevant and significant for comparing a and b in that context, then it will be the case that b is worse than (and hence not better than!) a in terms all of the factors that are relevant and significant for comparing a and b in that 2. some people believe that on an essentially comparative view the axioms of transitivity fail to hold, so that they should be rejected. others insist that there are various ways of preserving the axiom of transitivity even on an essentially comparative view, so that they never fail, but that the axioms of transitivity may fail to apply in those cases where essentially comparative ideals are relevant for assessing different alternatives. in my book, i use the notion of non-transitivity to cover both the cases where we think the axioms of transitivity fail, and those where we think they fail to apply across different sets of alternatives to which we might have expected that they should apply. i argue that there are significant practical and theoretical implications of the “all-things-considered better than”, “equally as good as”, and “at least as good as” relations being non-transitive, whether or not this is because the relations fail, or “merely” because they fail to apply in the cases i discuss (temkin, 2014: 85, note 13). see temkin 2012: 5, 16-8, 59-60, 66, 163-182, 197-8, 203-214, 223-5, and ch. 13. reply to horta 111 leap 2 (2014) context. thus, “better than” is asymmetric, precisely as horta has claimed and as i, and everyone else, should readily accept. similarly, whether one accepts an internal aspects view or an essentially comparative view of ideals, if, in a given context, a is equally as good as b in terms of all of the factors that are relevant and significant for comparing a and b in that context, then it will be the case that b is equally as good as a in terms all of the factors that are relevant and significant for comparing a and b in that context. hence, the “equally as good as” relation is symmetric. in sum, i have offered an account of why the axioms of transitivity might fail to hold, but that account does nothing to challenge the uncontroversial claims that “better than” and “equally as good as” are asymmetric and symmetric relations, respectively. let me turn next to horta’s discussion of different person-affecting principles. horta distinguishes between three different kinds of personaffecting principles: the actuality-dependent person-affecting principle: in assessing possible outcomes, one should focus on the status of those who exist in the actual world, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who do not exist in the actual world, except that one wants to avoid harming them as much as possible. the time-dependent person-affecting principle: in assessing possible outcomes that haven’t occurred yet, one should focus on those who will exist in the outcome that will occur first, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who will not exist in the outcome that will occur first, except that one wants to avoid harming them as much as possible. the identity-dependent person-affecting principle: in assessing possible outcomes, one should focus on the status of those whose identity is already determined, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those whose identity is not determined yet, except that one wants to avoid harming them as much as possible (horta 2014: 96). i should mention that none of horta’s versions of person-affecting principles correspond exactly to the two versions i discuss in my book, my narrow person-affecting view and my wide person-affecting view (temkin 2012: 416-45), but this need not concern us here. in his original talk, horta contended that while positions like the actualitydependent, time-dependent, and identity-dependent person-affecting principles might be relevant, in certain circumstances, to our assessment of what we ought or ought not to do in choosing between two alternatives, it doesn’t follow that such judgments are tracking which of the two alternatives, considered just by themselves, is better, per se. here, too, i agree with horta. 112 larry temkin leap 2 (2014) consider, for example, diagram one. a q r b b a diagram one as drawn, diagram one represents two possible outcomes, q and r. each outcome contains two groups, a better-off group and a worse-off group. there is no difference between the levels or number of people in the two better off groups, and similarly, for the two worse-off groups. the only difference concerns the identities of the betterand worse-off groups in the two outcomes. in q, the a people occupy the better-off group and the b people occupy the worse-off group; in r, the reverse is true. assuming there are no morally relevant differences between the a and b people—so, for example, each person is equally talented, hardworking, deserving, and so on—it seems clear that, considered just by themselves, q and r are equally good. but now, suppose that there were a presently existing actual outcome, with people whose identities were already determined, and it looked like p in diagram two. aa p q r b ab diagram two in p, a presently existing actual outcome, the a people already exist, and they are at a level between that of the betterand worse-off groups in possible reply to horta 113 leap 2 (2014) future outcomes q and r. suppose, next, that we could transform the p outcome into one like q or r. that is, we could either raise the a people up, and bring another group of people, b, into existence at a lower level, so as to produce an outcome like q, or, alternatively, we could bring another group of people, b, into existence at a high level, but at the cost of lowering the a people, so as to produce an outcome like r. in accordance with horta’s actuality-dependent, time-dependent, and identity-dependent person-affecting principles, it would be permissible, desirable, and perhaps even obligatory to bring about q, and impermissible, undesirable, and prohibited to bring about r. but even if this showed that p would be improved by being changed into q and worsened by being changed into r, that doesn’t entail that q, considered just by itself, is a worse outcome than r, considered just by itself. this should be evident, if one considers the fact that instead of the third alternative p, being a presently existing actual outcome, it might have been a fourth alternative, o, that was a presently existing actual outcome, where o was just like p except that instead of the a people existing at a level between the betterand worse-off groups in q and r, the b people existed at that level. in that case, it would have been true that on all three of horta’s dependent person-affecting principles, o would be improved by being changed into r, and it would be worsened by being changed into q. thus, we would have to abandon the non-asymmetry of the “better than” relation if we thought that we could infer that q was in itself better than r, simply from the fact that it would be desirable to transform p into q, but undesirable to transform p into r; because the same reasoning would then entail that r was in itself better than q, since it would also be desirable to transform o into r, but undesirable to transform o into q. a fortiori, as horta contended in his talk, even if there are cases where in accordance with any of his dependent person-affecting principles it would be obligatory to bring about one outcome, o 1 , rather than another outcome, o 2 , it doesn’t follow that the judgments yielded by such principles support the conclusion that, considered just by themselves, o 1 is better than o 2 . however, let me add that horta’s position is not merely compatible with my claims in rethinking the good, it follows directly from the fact that horta’s three person-affecting views are essentially comparative as i characterized that notion. as noted previously, on an essentially comparative view, different factors can be relevant and significant for assessing the relative goodness of outcomes like q or r, depending on the alternatives with which they are compared. thus, q might have one value in comparison with r when those are the only alternatives, but a different value in comparison with r when each is itself an alternative to some third outcome p, and a still different value in comparison with r when each is itself an alternative to some fourth outcome o. 114 larry temkin leap 2 (2014) 2. let me turn next to some points of disagreement with horta, some of which are fairly minor, but others of which are not. first, in discussing my spectrum arguments, horta titles his subsection 4.1 “no essentially comparative principle applies in spectrum arguments”, and he calls special attention to the claim “that appeals to person-affecting reasons play no role here” (horta, 2014: 99). i agree with horta’s claim that personaffecting views do not underlie my spectrum arguments. 3 however, i take exception to the title of his subsection, which, i believe, is either misleading or mistaken. as i have presented and analyzed them, spectrum arguments do arise because of the essentially comparative view of ideals. consider, for example, my spectrum argument where the first member of the spectrum involves a very long life with 15 mosquito bites per month and two years of torture, and the last member involves a very long life with 16 mosquito bites per month but no torture. i claimed that two distinct views guided our thinking in making different comparisons along the spectrum. the first standard view reflects an additive-aggregationist approach and the second standard view reflects an anti-additive-aggregationist approach. both views are limited in scope, in that they seem relevant and significant for making certain comparisons but not others. in particular, i pointed out that where the differences in the intensity of pains between two alternatives was very small, the first standard view seemed plausible and appropriate for comparing those alternatives, so, in particular, it seemed appropriate for comparing my spectrum’s first alternative with the second, the second with the third, the third with the fourth, and so on. on the other hand, where the differences in the intensity of pains between two alternatives was very large, the second standard view seemed plausible and appropriate for comparing those alternatives, so, in particular, it seemed appropriate for comparing my spectrum’s first few alternatives with its last few alternatives. thus, the factors that seemed relevant and significant for assessing the spectrum’s first alternative were different depending on whether it was being compared with the spectrum’s second alternative or its last alternative. this is in keeping with the essentially comparative view of ideals, and is at odds with the internal aspects view of ideals (see temkin 2014: section 3, 71; and temkin 2012: 62-6, 229-31, 369-74). in sum, while it may be true that there is no single essentially comparative ideal like a person-affecting view that underlies my spectrum arguments, i think it is true that an essentially comparative approach best explains 3. however, like the spectrum arguments, person-affecting views challenge the axioms of transitivity. see temkin 2014: sec. 5; and temkin 2012: ch. 12. reply to horta 115 leap 2 (2014) what is going on in my spectrum arguments, and why they ultimately put pressure on the axioms of transitivity. let me turn to a second point. horta suggests that my two standard views are contradictory. 4 i deny this. the first and second standard views would be contradictory if there were any particular judgments which the first standard view made which were denied by the second, or vice versa. but this is not, i think, the case. for example, where the first standard view yields the judgment that the first member of my spectrum is better than the second, the second standard view doesn’t deny this judgment, rather it is silent. specifically, as i characterized it in my book, the second standard view simply doesn’t apply for comparisons involving such alternatives. likewise, where the second standard view yields the judgment that the spectum’s first member is worse than the last, the first standard view doesn’t deny this judgment, rather it is silent. again, as i characterized it, the first standard view simply doesn’t apply for comparisons involving such alternatives. note, there would be nothing contradictory about the claims that john is in love with mary and that john isn’t in love with tim, even if mary is in love with tim. there would also be nothing problematic about such claims, and this for the simple reason that “is in love with” isn’t a transitive relation! likewise, there will be nothing contradictory or even problematic about the claim that spectrum’s first outcome is better than the second, but the first is not better than the last, even if, for each pair of adjacent outcomes n and n + 1 along the spectrum, n is better than n + 1, as long as “all-things-considered better than” isn’t a transitive relation. but, of course, if, as many believe, the first standard view is relevant and significant for comparing adjacent outcomes along my spectrum, but doesn’t apply for comparing the first and last outcomes, and if, as many also believe, the second standard view is relevant and significant for comparing my spectrum’s first and last outcomes, but doesn’t apply for comparing my spectrum’s adjacent outcomes, then there is good reason to believe that “allthings-considered better than” isn’t a transitive relation, in which case the first and second standard views won’t be contradictory, and neither will their respective judgments that the spectrum’s first outcome is better than the second, but not better than the last. third, horta suggests that there is a powerful reason to resist being driven to “reject the conclusion that transitivity does not apply to [spectrum cases, since]... rejecting that betterness is transitive does not solve the problems 4. horta was clearer about this in his talk, than he is in his article, where he seems to deemphasize this claim. however, he still seems to hold the view in question. see, for example, note 9 of horta 2014: 100, where he writes “note that the contradictions between the applications of the [spectrum arguments’] principles sometimes works in different directions... (emphasis added)”. 116 larry temkin leap 2 (2014) implied by the conflict between different standard views (emphasis added)” (horta 2014: 107). later, horta emphasizes that “rejecting transitivity fails to facilitate a solution. in fact, it make it harder, if not impossible, to do so” (horta 2014: 104). in essence, then, horta believes that there is no point in rejecting transitivity on the basis of spectrum arguments, if doing so won’t help us to solve such arguments. 5 to a large extent, i agree with these remarks. indeed, i emphasize some of these very same sentiments in my book, when i’m discussing the costs and benefits of accepting or rejecting the different positions underlying my impossibility arguments. but, i’m not sure, exactly, what is supposed to follow from such observations. i am a philosopher seeking the truth. we would very much like to be able to answer certain questions in a certain way. but what if the sad truth is that the answers we seek are not to be found, or cannot be answered in the way we had thought or hoped. is it not an important advance in our understanding of the normative realm if we learn that this is so? i am reminded here of the socratic claim regarding why the oracle called him the wisest of all men. it was, socrates claimed, because whereas most people thought that they knew a lot, and were wrong, he knew that he knew nothing (other than the fact that he knew nothing!). 6 as socrates recognized, it can be as important to know what we don’t know, and to learn what we can’t know, as to continue to seek solutions along a path where they can’t be found. this raises a related point. many years ago, when i first began thinking about and teaching these issues, carl hoefer, who was then still an undergraduate, was quite pleased by my results, and the implications he took them to have. hoefer was worried about the dominance of consequentialist reasoning in much of contemporary normative reasoning. at the time, hoefer thought it would be better if moral philosophers spent more time focusing on considerations of character, of the sort championed by aristotle, or on deontological considerations, of the sort championed by kant. for hoefer, my results suggested a vindication of sorts for those who thought that a focus on consequences, and in particular on the aim of bringing about the best available outcome by maximizing the good, was the wrong way to proceed in determining how we ought to act, morally. now i don’t abandon the appeal to consequences lightly, if at all. indeed, as i emphasize in my book, i don’t really even see how that could be a possible option, and i am certain that there would be enormous costs to such a move. moreover, and more troubling, i’m not sure that virtue-based or deontological-based reasoning can wholly avoid the sorts of worries that 5. horta was, i think, even clearer about this in his talk, where he really emphasized this point. 6. the position in question is often attributed to socrates on the basis of a key passage (21d) of plato’s apology. reply to horta 117 leap 2 (2014) arise in my book from spectrum arguments or an essentially comparative view of ideals. 7 but having said all that, the mere fact that abandoning the transitivity of the “all-things-considered better than” relation wouldn’t help us to decide what to do if, for example, we found ourselves facing a spectrumtype choice and we wanted to bring about the best available outcome, doesn’t show us that transitivity shouldn’t be abandoned. perhaps, reluctantly, it should. however intuitively unpalatable, this is an alternative that requires careful consideration. indeed, perhaps taking such an option seriously will force us to pursue other paths in our exploration of the normative realm that may ultimately prove to be more fruitful than the paths on which most moral philosophers have focused up until now. let me conclude my response to horta with some comments on the topic of section 6 of his article, moral realism. as i note in my book, derek parfit once claimed that if my arguments were sound, they amounted to the most skeptical argument against moral realism since david hume’s arguments. 8 since neither parfit nor i are moral skeptics, that gave us both reasons to hope that my arguments aren’t sound —at least, if parfit were right in his assessment about their implications. but, of course, hoping doesn’t make it so! moreover, as my previous comment suggests, how devastating my results may prove to be will ultimately turn on whether other fruitful paths in the normative realm might be found that do not fall victim to my arguments. a key question to be addressed concerns how much of the normative realm depends on our being able to provide a coherent ordering, in the form of a transitive ranking, of outcomes or choices. even if, in the end, there is no meaningful transitive ranking of outcomes that we can correctly appeal to in our normative deliberations, it is arguable that there may still be many fullblooded realist considerations that would rightly have a bearing on what choices we ought, morally, to make in the living of our lives. perhaps some of these would be deontic-, caring-, or virtue-based in nature. but, as implied above, perhaps some of these would be along new lines yet to be discovered and developed; lines which, perhaps, will only be discovered if we are forced to look in new directions for navigating the normative realm. finally, i am a realist in thinking that if we end up abandoning the axioms of transitivity, it will be because we are recognizing that there are compelling reasons to accept essentially comparative principles like the narrow person7. soon after i sent this article off, morten dahlback sent me an email suggesting that virtue theorists and deontologists will also face compelling versions of the spectrum arguments, together with a sketch of an argument for why this is so. in a few subsequent exchanges, we were able to revise and tighten up his argument, showing that this is, indeed, the case. 8. actually, parfit has made this claim to me on multiple occasions over the years during discussions about my work. 118 larry temkin leap 2 (2014) affecting view, the pareto principle, person-affecting versions of utility and maximin, and combinations of positions like the first and second standard views. that is, i believe that there may be good reasons to abandon the axioms of transitivity, and that we will only be driven to such a position by the force of such reasons. so, this makes me a realist about reasons, as opposed to a skeptical anti-realist who denies that there could be reasons to accept or reject any particular principles, including principles of consistency like the axioms of transitivity. my position here is similar to that of some people who believe in the possibility of genuine moral dilemmas. consider one classic example of a so-called moral dilemma, sophie’s choice (styron 1979). sophie seemingly faced three choices: she could save her son, in which case the nazis would murder her daughter, she could save her daughter, in which case the nazis would murder her son, or she could do nothing, in which case the nazis would murder both her children. anti-realists about reasons believe that in the most fundamental sense it doesn’t matter what sophie chooses. specifically, they believe that, ultimately, there are no reasons of any kind guiding sophie’s choice, or any other choice for that matter. on the anti-realist position, there is no reason either way for sophie to save her son, save her daughter, allow both to be killed, or, for that matter, to pursue a fourth option of killing both of her children herself, and perhaps a lot of other innocent victims who would otherwise have survived! those realists about reason who believe in the possibility of genuine moral dilemmas (many realists do not), believe that there are overwhelmingly compelling reasons for sophie to save her son, but that there are also overwhelmingly compelling reasons for sophie to save her daughter, and that the nature and structure of the reasons in question are such that they do not, and cannot, balance or cancel each other out. on their view, the fact that she can’t save both of her children doesn’t alter the fact that sophie should save her son, which she can do, and that she should save her daughter, which she also can do. accordingly, for such moral realists, sophie is facing a moral blind alley, or moral dilemma, in the sense that whether she chooses to save her son or her daughter she will, in a deep and fundamental way, have acted wrongly. on this view, whatever choice sophie makes, she will have unavoidably acted contrary to compelling reasons for acting otherwise than she did, reasons which were not cancelled out or balanced by the likewise compelling reasons on which she chose to act. importantly, such realists would vehemently deny that there are no reasons applicable to sophie’s choice. contrary to the anti-realist, they would insist that sophie has strong reason not to let both children be killed, and even stronger reason not to kill her children herself along with a number of other innocent victims who would otherwise survive. but they believe that the very real and compelling reasons that have a bearing on her situation reply to horta 119 leap 2 (2014) put sophie in a “no win” situation. she must choose to save her son or her daughter, but whatever choice she makes will be wrong! on the view in question, moral dilemmas are truly tragic situations from which there is no rational escape. but they only obtain because there genuinely are moral reasons whose nature and structure give rise to such dilemmas. my point in discussing moral dilemmas is not to defend the view that there are such dilemmas, but to illustrate how such a view is consistent with a realist view of reasons. similar thinking applies, i believe, regarding my spectrum arguments, or the other arguments i have given threatening the axioms of transitivity. one may be a realist about reasons, but believe that an essentially comparative view of ideals is true. if the essentially comparative view is true, then there may be no transitive ordering of the alternatives in my spectrum arguments, or of many of the other sets of alternatives my book discusses. but this won’t be because the anti-realists are right. rather, it will be because of the nature and structure of the genuine reasons that exist, and that bear on the alternatives in question. or so i believe, anyway. bibliography horta, o., 2014: “in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions”, law, ethics and philosophy 2: 87-107. styron, w., 1979: sophie’s choice, new york: random house. temkin, l., 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. — 2014: “rethinking the good a small taste”, law, ethics and philosophy 2: 58-86. 153 issn 2341-1465 leap 2 (2014): 153-165 globalization and global justice in review* nicole hassoun binghamton university abstract globalization connects everyone, from the world’s poorest slum dweller to the richest billionaire. globalization and global justice starts by giving a new argument for the conclusion that coercive international institutions —whose subjects who are likely to face sanctions for violation of their rules— must ensure that everyone they coerce secures basic necessities like food, water and medicines. it then suggests that it is possible for coercive institutions to fulfill their obligations by, for instance, providing international aid and making free trade fair. this overview sketches the argument in the book’s first half, as which is the focus of the papers in the symposium. keywords: globalization, global justice, legitimate coercion, autonomy. 1. introduction globalization connects everyone, from the world’s poorest slum dweller to the richest billionaire. us subsidies for ethanol contributed to a world food crisis in 2008 that caused haiti’s government to fall. the subsequent us financial crisis precipitated the european sovereign debt crisis and a global recession felt in even the poorest countries. today, however, antiglobalization protests pale in comparison to the new protests against economic inequality and oppression that gave rise to the arab spring. but many of the new protests, from the us occupy movement to those in tahrir square, also focused on what are now —truly global— economic structures’ impacts on individuals’ ability to meet their basic needs. the first half of globalization and global justice (ggj) gives a new argument for the conclusion that coercive international institutions —whose subjects who are likely to face sanctions for violation their rules— must ensure that everyone they coerce secures basic necessities like food, water, medicine. * the author would like to thank particularly paula casal, as well as editors, marcus arvan, thom brooks, and darrel moellendorf. 154 nicole hassoun leap 2 (2014) otherwise, the book suggests, these people will not secure sufficient autonomy, which will be defined below to include the basic reasoning and planning capacities necessary to consent, or object, to coercion. the book’s second half suggests that it is possible for coercive institutions to fulfill their obligations by, for instance, providing international aid and making free trade fair. it concludes with a new proposal for fair trade in pharmaceutical and biotechnology to help people secure access to essential medicines. because the papers in this symposium focus on the argument in ggj’s first half, however, this overview will do so as well. this autonomy argument proceeds, roughly, as follows: 1) coercive institutions must be legitimate (i.e. justified in exercising coercive force). 2) for a coercive institution to be legitimate it must ensure that its subjects secure sufficient autonomy to autonomously consent to, or dissent from, its rules (henceforth sufficient autonomy). 3) everyone, to secure this autonomy, must secure some food and water, and most require some shelter, education, health care, social support, and emotional goods. 4) there are many coercive international institutions (that may amount to a coercive international institutional system). 5) so, these institutions must ensure that their subjects secure food, water, and whatever else they need for sufficient autonomy. this argument is intended to address liberals deeply concerned about individual freedom. ggj does not provide an account of individual responsibility for bringing about the requisite institutional change. nor does it address tradeoffs between fulfilling the condition for legitimacy it defends and other things that matter. 1 nevertheless, the book attempts to provide reasons for liberals of all sorts —as long as they are deeply concerned about coercion— to accept the autonomy argument’s conclusion. although there are many other good arguments for aiding the global poor, the book attempts to address two kinds of skeptics: libertarians and statists. libertarians do not think there are any obligations of global justice or legitimacy to provide aid. 2 they are, however, deeply concerned about coercion and think no one should have to sacrifice their freedom for others. ggj argues that it is precisely because no one should have to sacrifice their freedom for others that there are significant obligations to the global poor. 3 it suggests that if, as many have argued, libertarians should be actual consent theorists, libertarianism entails that people must secure the autonomy they need to consent to coercive rule. so, if the autonomy argument goes through, 1. i discuss some such tradeoffs elsewhere (hassoun 2008) and in this journal. 2. i use the term “libertarian” throughout to refer only to right-libertarians. 3. i discuss elsewhere the relevant sense in which this is true (hassoun 2014). globalization and global justice in review 155 leap 2 (2014) libertarians should agree that coercive institutions must ensure that their subjects secure food, water, and whatever else they need for this autonomy. statists often hold that, because states exercise coercion, to be legitimate, they must fulfill significant obligations of global legitimacy or justice. ggj argues that many international institutions also exercise coercion. so, statists should agree that these institutions also have these obligations. what follows recaps the basic line of thought supporting each premise of the autonomy argument. in particular, this summary focuses on a line of argument for the second premise, which is most relevant when addressing libertarians. i suspect that this premise is the most controversial —and potentially important— aspect of the argument. in the book, i distinguish between the defense of the argument by appeal to libertarian principles (the topic of chapter 3) and the more general defense (discussed in chapter 2) by renaming the autonomy argument the legitimacy argument. here, however, i will not make much of the distinction and simply highlight some of the argumentative moves intended to address libertarians. 2. the first premise ggj defines institutional legitimacy in this way: a coercive institution is legitimate only if it has the right to use coercive force. 4 legitimacy, then, is a “justification” right to rule through force (landenson 1980). having a justification right is having a moral permission to make coercive rules and give coercive commands. legitimacy, in this sense, must be distinguished from justified authority (christiano 2004). a coercive institution has justified authority if and only if it is legitimate and individuals have a moral duty to comply with its rules (buchanan 2004: 237). some rights may carry with them correlative duties (simmons 1979). ggj’s argument does not rely on it being the case, however, that whenever coercive institutions have a right to rule through force, their subjects are obligated to obey their dictates (though this may be so). according to the first premise of the autonomy argument, any coercive institution must be legitimate. although this point is relatively uncontroversial, here is an argument in its defense that is intended to appeal to liberals 4. legitimacy, as the book uses the term, comes in degrees. some people believe legitimacy is an all or none affair. this is not a substantive disagreement. those who hold a binary theory of legitimacy can specify that an institution is legitimate in the binary sense if it surpasses a threshold of legitimacy in the degree sense. however, the degree conception allows for different thresholds to be specified for different purposes. for the purpose of the autonomy argument, one need only suppose that imperfectly legitimate institutions must be reformed. i owe thanks to allen buchanan for discussion on this point. 156 nicole hassoun leap 2 (2014) deeply concerned about coercion. following john locke, one may hold that each person has a natural right to freedom and so, rights-respecting people cannot be subject to others’ commands without justification (locke 1690). h.l.a. hart provides one way of defending a natural right to freedom. hart argues that if there are any natural rights, there is a natural right to freedom (hart 1955). alternately, one might try to ground the concern for freedom in a concern for individuals’ interests or autonomy. but, since the autonomy argument is not intended to address skeptics about the importance of freedom, ggj does not examine the alternatives at great length. 3. the second premise according to the second premise of the autonomy argument, to be legitimate, coercive institutions must ensure subjects secure sufficient autonomy. consider what this means. first, people are subject to a coercive institution when the rules of the institution apply to them and to secure sufficient autonomy, people must be able to reason about, make, and carry out some significant plans on the basis of their desires, beliefs, values, and goals (henceforth commitments). more precisely, people must be able to reason about, make, and carry out the plans necessary to consent or object to the coercive institutions to which they are subject. to secure sufficient autonomy people need not be perfectly autonomous. people need only possess a few conditions for autonomy. the book appeals to these conditions for autonomy to secure broad agreement on the autonomy argument’s second premise. at least it is not plausible to reject this premise because the conditions for autonomy it relies upon are too demanding. those who accept fuller (e.g. kantian) conceptions of autonomy might run a similar argument for more significant obligations to the global poor. second, what is necessary to ensure that people secure sufficient autonomy will vary with the case. coercive institutions must do whatever is necessary (and permissible), to ensure that their subjects become and remain autonomous until and unless they autonomously relinquish their ability to do so. what is necessary depends on how close one is to being able to secure such autonomy and what resources one already has. in cold climates, for instance, one may need to secure heat. in the tropics, heat is usually unnecessary. some will be able to secure sufficient autonomy as long as they are free from interference. others, however, need assistance to secure sufficient autonomy. the coercive institutions to which these people are subject may have to provide this assistance. if, for instance, a person is in a coma from which she could recover with proper medical care and she is not receiving such care from friends, family, or benefactors, then the coercive globalization and global justice in review 157 leap 2 (2014) institutions to which she is subject must provide it. these institutions have a responsibility of last resort. an institution does not lose legitimacy if it does not help someone secure sufficient autonomy and this person does not have the potential to secure such autonomy. when they are very young, children are not able to secure any autonomy at all. most children who receive proper care will be able to secure sufficient autonomy as they get older. if no one else does so, a legitimate coercive institution must help these children secure such autonomy once they are old enough. it is possible to defend the condition for legitimacy in the autonomy argument’s second premise in two steps. what follows will argue, first, that coercive institutions can only be legitimate if as many of their subjects as possible secure sufficient autonomy. second, it will argue that such institutions must do what they can to ensure subjects secure this much autonomy. it is possible to defend the first claim by appeal to the nature of liberalism (leaving the possibility constraint implicit where its importance is minor). the second claim follows from the first and some observations about the nature of ensuring and coercive institutions. 3.1. the first point necessary for establishing the enabling condition at the heart of liberalism is the concern for individual freedom. recently liberals have focused primarily on arguing that coercive institutions must be decent, if not fully just (rawls 1993; pogge 1989). an equally powerful strand in liberal thought, however, expresses the idea that the actual relationship between the rulers and each ruled person must be voluntary in some way. liberals deeply concerned about individual freedom disagree about what makes the relationship between the rulers and the ruled voluntary. they all agree, however, that this relationship can only be voluntary if the ruled possess at least some freedom. this freedom is not constituted by the social order and it is compatible with significant constraints on social life (waldron 1987: 133). the key idea is that subjects must be free to determine their actions and shape the nature of their relationship with the coercive institutions to which they are subject (waldron 1987: 132). although individuals may not have a choice of whether or not they are subject to a coercive institution, subjects must be able to exercise some control over the way they react to their subjection. subjects should get to decide whether or not to abide by, dissent from, or consent to coercive institution for themselves (waldron 1987: 146). political liberals almost unanimously agree, for instance, that people have a right to dissent from the rule of the coercive institutions to which they are subject by conscientious objection, non-violent protest, passive resistance, and so forth. 158 nicole hassoun leap 2 (2014) to consent to, or dissent from, coercive institutions in these ways, people must be able to reason about, make, and carry out some significant plans in light of their beliefs, desires, values, and goals; they must be able to secure sufficient autonomy. 5 (recall that the conditions for sufficient autonomy are quite minimal people secure sufficient autonomy when they secure basic reasoning and planning capacities). so liberals implicitly accept the first claim embodied in the enabling condition for legitimacy; those living under coercive institutions must be able to secure sufficient autonomy for the coercive institutions to which they are subject to be legitimate. will kymlicka puts the point this way: “liberalism is committed to (and perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community, should they come to see them as no longer worthy of their allegiance” (kymlicka 1992). the book explains, at some length, why liberals of many persuasions should accept the first part of the second premise of the autonomy argument; for coercive institutions to be legitimate, their subjects must secure sufficient autonomy. consider, here, just why libertarians, in particular, should endorse the first part of the second premise of the autonomy argument. there is a wellknown argument in the literature for the conclusion that libertarians should be actual consent theorists. very roughly, on the relevant version of actual consent theory, coercive institutions must, insofar as possible, secure their rights-respecting subjects’ consent until, and unless, they give up the right to consent. any agent, or institution, may be justified in coercing those who violate others’ rights. to use an example from john simmons, even “the third reich was justified in prohibiting rape and punishing rapists” (simmons 1999). but coercive institutions usually do more than this. when they create norms, rules, and procedures governing the use of force, for instance, they prevent people from defending their own rights. this is clearly the case for (even libertarian) states, which claim a monopoly on coercive force within a territory traditionally defined. since libertarians hold that everyone has a basic right to defend their rights, consent is required for such coercion. assuming this argument goes through, ggj notes that, in order to actually consent, people must be able to do so. this requires at least basic reasoning and planning capacities sufficient to autonomously consent (i.e. sufficient autonomy). 5. recall that this just presupposes some minimal conditions for full autonomy —one need not have coherently structured values e.g. to have the basic reasoning and planning capacities at issue. globalization and global justice in review 159 leap 2 (2014) 3.2. the second point necessary for establishing the enabling condition why must coercive institutions do what they can to ensure subjects sufficient autonomy? the preceding argument entails that when coercive institutions subject people who cannot secure sufficient autonomy to coercive rules and do not do what they can to ensure subjects secure this autonomy, they are illegitimate. this is because coercive institutions are not justified in exercising rights-constraining coercive force over rights-respecting people who could, but have not, secured sufficient autonomy. yet coercive institutions exercise such force. if coercive institutions continue to exercise coercive force, legitimacy requires that they do what they can to ensure subjects secure sufficient autonomy. coercive institutions do continue to exercise this force (insofar as they remain coercive institutions). so, they must do what they can to ensure subjects secure sufficient autonomy. there are a few caveats to this conclusion. others may have primary responsibility for enabling those subject to coercive institutions to secure sufficient autonomy. moreover, if people secure this autonomy on their own, with the help of friends and/or benefactors, or give up their right to do so, the coercive institutions to which they are subject need not do a thing. these coercive institutions must generally step into the breach, however, if help is required. it is only if they do this that as many of their subjects as possible will secure sufficient autonomy. there may also be other conditions for institutional legitimacy. coercive institutions may even be justified in doing other things before enabling their subjects to secure sufficient autonomy. 4. the third premise the third premise of the autonomy argument is this: most people must at least be able to secure some minimal amount of food, water, shelter, education, health care, social and emotional goods to secure sufficient autonomy. recall that, to secure the sort of autonomy at issue, people must at least be able to reason about, make, and carry out some significant plans on the basis of their commitments. even without explaining this condition for autonomy in any detail, it should be clear that those who lack basic food, water, shelter, education and health care are likely to suffer from autonomy undermining disabilities. malnutrition inhibits one’s immune system’s ability to fight infection and poor nutrition is linked to many non-infectious illnesses. 6 similarly, if 6. scurvy results from a lack of vitamin c, beri-beri from a lack of thiamine, pellagra from niacin deficiency, and macrocytic and microcytic anemia from folic acid and iron deficiencies, for instance. there is also a lot of evidence that decent nourishment is important for good 160 nicole hassoun leap 2 (2014) people lack adequate shelter, they may be exposed to environmental hazards including disasters, pollutants,. parasites, and bacteria and acquire diseases, like dysentery, tetanus, typhoid, cholera, or heptatitis from flood water or unsanitary living conditions (red cross 2007). those without basic health care, food or water are at risk of diseases causing disabilities or premature death (ibid.) incompatible with securing sufficient autonomy. less obviously, those without basic education, emotional and social goods may suffer from autonomy undermining disabilities (woolcock 2001; doyle 2002). basic education, emotional and social goods are often necessary for securing decent living conditions, health care, livelihood opportunities, and earning power (marmot 2004). those who lack (formal or informal) elementary education may not develop, or maintain, the reasoning and planning skills they need to secure sufficient autonomy. 7 those who lack basic emotional and social goods, like self-esteem, are at high risk for mental and physical illness, suicide, and early death from other causes (cullen and whiteford 2001; brock 1999; hudson 2005; woolcock 2001). “fear, insecurity, dependency, depression, anxiety, intranquility, shame, hopelessness, isolation and powerlessness... such experiential elements of a bad life... [often impact] ... agency” (brock 1999: 195). it is true that some people are able to secure sufficient autonomy without being able to obtain even minimal education or social or emotional goods. but, this kind of severe deprivation will undermine most people’s ability to secure sufficient autonomy. 5. the fourth premise before arguing that there are many coercive international institutions, ggj sketches a conception of coercion. it explains that an institution is coercive when individuals, or groups, violating its dictates are likely to face sanctions for the violation. a sanction is a punishment or penalty. coercion usually creates conditions under which the coerced have no good alternative except to do what their coercer wants them to do. this is usually explained by the fact that the coerced are threatened by sanctions. depending on the kind and amount of coercion and so forth, coercion may or may not undermine autonomy to any significant degree. usually, it engages the will of the cognitive functioning. children’s mental functioning can even be impaired if their mothers do not receive proper nourishment during pregnancy. keratomalacia which results from vitamin a deficiency, kwashiorkor which results from protein deficiency, and iodine deficiencies can all lead to severe disabilities and death. see leathers and foster 2004. 7. stress may contribute to a host of autonomy-undermining mental disorders. stress can, for instance, cause panic attacks and depression. psychological disorders can reduce the ability of one’s immune system to fight infection. see beaton 2003. the causal evidence suggests that perception of low social standing may increase stress which reduces immune functioning and can harm health in other ways as well. globalization and global justice in review 161 leap 2 (2014) coerced. still, people can be coerced into doing what they would otherwise do freely. furthermore, institutions can be coercive even if they do not coerce anyone into doing anything. if, for instance, a state only creates just laws and everyone willingly obeys, it may still be coercive. the state is subjecting people to coercive laws, though it never has to sanction anyone for disobedience. ggj notes that the preceding analysis leaves a lot open. much hangs on what counts as a violation, a punishment or penalty, and a good alternative (anderson 2006). some hold that only threats can be coercive while others say sanctions can include withholding an offered good. there is also disagreement about the appropriate baseline relative to which something counts as a sanction. it is not clear, for instance, whether one can be sanctioned in ways that do not violate rights. the book allows that some international institutions are not coercive. non-binding treaties like the declaration on the rights of disabled persons are not coercive. nor are non-governmental organizations that offer only voluntary programs, normally, coercive. ggj argues, however, that there are many coercive international institutions. it does so by providing examples that should appeal to those with widely divergent accounts of coercion. many international institutions’ dictates are binding and non-voluntary. (since libertarians tend to think there is a lot of coercion in international affairs, what follows will not focus on addressing libertarians, in particular, though the book provides additional examples that are intended primarily to address libertarians.) there are many ways the international institutions governing trade exercise indirect coercion. institutions like the world trade organization (wto) and the north american free trade agreement (nafta) impose sanctions on countries that violate property rights or the rules of the market. states enforce these sanctions. the nafta sanctioned mexico for prohibiting metalclad from operating a toxic waste dump in san luis potosi, for instance. mexico had to pay metalclad 16 million us dollars in damages (wallach 2005). the wto found the us guilty of violating its rules with the byrd amendment. it allowed prosecuting countries to impose import duties on the us until the us repealed the act (european union, 2005). recently, the wto sanctioned the european union (eu) by allowing the us to impose tariffs on eu goods because the eu had used import licensing requirements to support caribbean banana producers (british broadcasting company 1999). in many cases, laws passed by states as a result of wto rulings eventually coerce businesses and individuals into abiding by the rulings. the united nations (un) also exercises indirect coercion. the un security council imposes economic sanctions, air traffic controls, and arms embargos on countries, and groups within countries, that threaten 162 nicole hassoun leap 2 (2014) international security. the un has, for instance, sanctioned rhodesia, iraq, south africa, serbia, montenegro, yugoslavia, somalia, libya, haiti, sudan, rwanda, sierra leon, ethiopia, eritrea, and groups within cambodia, angola, and afghanistan (roberts 2001). the un security council also authorizes the use of force against countries threatening international peace. when iraq invaded kuwait the un authorized the use of force to stop the invasion. the un-mandated international security assistance force of about 30,000 troops was involved in military action in afghanistan from 2001 until 2014 (united nations 2003). moreover, many countries’ participation in international institutions is not voluntary. countries often pay significant penalties if they do not abide by wto, un, world bank or international monetary fund (imf) rules. sometimes countries do not have other good options and so are not free to resist these organization’s conditions. highly indebted poor countries facing default, for instance, may have to abide by imf conditionality. furthermore, some argue that international institutions bear responsibility for poor countries’ having no reasonable option but to abide by their rules by having contributed to their impoverishment. 8 at least in such cases, international institutions are indirectly coercing individuals in the way that a man with a gun indirectly coerces someone if he forces another person to threaten the first. 9 many international institutions also exercise direct coercion. un peacekeeping forces exercise direct coercion by, for instance, taking over territory, patrolling borders, and creating safe havens for refugees. those who attempt to wrest control from the un, or enter its protectorates or safe zones without permission, face sanctions for the violation. peacekeeping forces have been deployed in places as diverse as congo, iran, lebanon, sinai, yemen, the golan heights and cyprus. between 1988 and 1999 alone, the un initiated forty peacekeeping missions (roberts 2001). other international institutions also coerce individuals directly, sometimes in ways that violate rights. consider, for instance, what happened as the humanitarian crisis in the balkans developed. the un imposed an arms embargo against the former yugoslavia, a flight ban over bosnia and herzegovina, and economic sanctions against montenegro and serbia. nato enforced these measures. in 1999, when the un peacekeeping force failed to prevent the srebrenica massacre, nato bombed bosnia. nato then enforced the bosnia-herzegovina peace agreement under the auspices 8. this condition may not be necessary for coercion. for discussion see nozick 1969; zimmerman 1981; gorr 1986; mcgregor 1998/89; held 1972; van de veer 1979. 9. even if individuals’ states have other options and are thus partly responsible for coercing their people, international institutions may still be acting wrongly. knowing how states are likely to act, it may not be acceptable for these institutions to act in the ways that they do. but this paper sets this point aside. globalization and global justice in review 163 leap 2 (2014) of a un protectorate and brought individuals accused of war crimes to the hague. it thereby directly coerced, and enabled the court to coerce, individuals. eventually, nato ceded command in bosnia to the eu, which deployed its own troops (nato 2007). 6. conclusion many people resist the idea that there are any obligations of justice to the global poor. if the autonomy argument goes through, these people are mistaken. legitimacy requires that coercive institutions do what they can to ensure that all of their subjects with the potential to secure sufficient autonomy secure adequate food, water, shelter, education, health care, social and emotional goods. the second half of ggj argues that there are many things we can do to help people secure what they need for sufficient autonomy. so, the book concludes, in a world where 18 million people die annually of easily preventable poverty-related causes, there are many things we can and must do to ensure that everyone secures what they need. 10 bibliography anderson, s., 2006: “coercion”, stanford encyclopedia of philosophy, http://plato. stanford.edu/entries/coercion/. british broadcasting company, 1999: “wto approves banana sanctions”, http:// news.bbc.co.uk/2/hi/business/322938.stm. brock, k., 1999: “‘its not only wealth that matters it’s peace of mind too’: review of participatory work on poverty and illbeing”, institute of development studies: birmingham. buchanan, a., 2004: justice, legitimacy, and self-determination: moral foundations for international law, oxford: oxford university press. christiano, t., 2004: “political authority”, stanford encyclopedia of philosophy, http:// plato.stanford.edu/entries/authority/. cullen, m., and whiteford, h., 2001: “inter-relations of social capital with health and mental health”, mental health and special programs branch commonwealth department of health and aged care discussion paper. canberra: commonwealth department of health and aged care. doyle, r., 2002: “calculus of happiness: assessing subjective well-being across societies”, scientific american 287/5 :3. european union, 2005: “u.s. congress repeals byrd amendment but allows for a transition period”, no. 128/05. 10. see world health organization 2004. although the autonomy argument does not establish this conclusion, coercive institutions must also allow individuals to meet their basic needs in a decent, legitimate way. no one should have to scavenge under burning heaps of garbage to survive. 164 nicole hassoun leap 2 (2014) gaus, g., 2003: “liberal neutrality: a compelling and radical principle”, in perfectionism and neutrality: essays in liberal theory, s. wall and g. klosko (eds.), new york: rowman and littlefield publishers. gorr, m., 1986: “toward a theory of coercion”, canadian journal of philosophy 16, 3: 383-406. hart, h. l. a., 1955: “are there any natural rights?”, the philosophical review 64: 175-191. hassoun, n., 2009: “meeting need”, utilitas 21, 3: 250-275. — 2014: “coercion, legitimacy, and individual freedom: a reply to sondernholm”, journal of philosophical research 39: 191-198. held, v., 1972: “coercion and coercive offers”, coercion: nomos 14. hudson, c. g., 2005: “socioeconomic status and mental illness: tests of the social causation and selection hypotheses”, american journal of orthopsychiatry 75, 1: 3-18. kymlicka, w., 1992: “the rights of minority cultures: reply to kukathas”, political theory 20, 1: 142. landenson, r., 1980: “in defense of a hobbesian conception of law”, philosophy and public affairs 9, 2: 134-159. leathers, h., and foster, p., 2004: the world food problem: tackling the causes of undernutrition in the third world, colorado: lynne rienner publisher. locke, j., 1690: second treatise on civil government, 1990, ed. c. b. macpherson, indianapolis: hackett. marmot, m., 2004: status syndrome: how your social standing directly affects your health and life expectancy, london: bloomsbury. mcgregor, j., 1998/1989: “bargaining advantages and coercion in the market”, philosophy research archives 14: 23-50. nato 2007: “what’s on nato’s agenda?”, north atlantic treaty organization. nozick, r., 1969: “coercion”, in philosophy, science, and method: essays in honor of ernest nagel, ed. w. morgenbesser, st martin’s press, 440-472. pogge, t., 1989: realizing rawls, new york: cornell university press. rawls, j., 1993: political liberalism, new york: columbia university press. red cross, 2007: “american red cross urges public health precautions”, red cross: washington d.c. risse, m., 2006: “what to say about the state”, ksg working paper no. rwp06-008, cambridge, mass.: harvard university. roberts, a., 2001: “united nations”, in the oxford companion to politics of the world (second edition), ed. j. krieger, oxford: oxford university press. simmons, j., 1979: moral principles and political obligations, princeton: princeton university press. — 1999: “justification and legitimacy”, ethics 109, 4: 739-771. united nations, 2003: “security council seeks expansion of role of international effort in afghanistan, to extend beyond kabul”, press release sc/7894. security council 4840th meeting (pm) 13/10/2003. http://www.un.org/news/press/ docs/2003/sc7894.doc.htm. van de veer, d., 1979: “coercion, seduction, and rights”, the personalist 58: 374-381. waldron, j., 1987: “theoretical foundations of liberalism”, philosophical quarterly 37, 147: 133. globalization and global justice in review 165 leap 2 (2014) wallach, l., 2005: “slow motion coup d’etat: global trade agreements and the displacement of democracy”, multinational monitor 26: 1-2, http:// multinationalmonitor.org/mm2005/012005/wallach.html. woolcock, m., 2001: “the place of social capital in understanding social and economic outcomes”, isuma 2, 1, http://www.oecd.org/innovation/research/1824913.pdf. world health organization, 2004: “who ‘preparing for treatment’ programme”, call for tenders to who, annex table 2, geneva: world health organization. zimmerman, d., 1981: “coercive wage offers”, philosophy & public affairs 10, 2: 121-145. leap, 1 (2013) jury nullification and the bad faith juror travis hreno university of akron abstract jury nullification, that phenomenon whereby a jury returns a not-guilty verdict for a defendant it believes to be technically guilty of the alleged crime, is, obviously, a controversial issue. what is not a matter of controversy, however, is the fact that the law protects the jury’s ability to behave this way. much of the controversy therefore centers on whether juries ought to be informed of this ability to nullify free from legal redress. in this paper i examine a number of arguments both for and against the view that juries ought to be, in the words of the literature, fully informed. in the end i conclude that there is significant empirical evidence to suggest that, rather than simply promoting justice and mercy, as proponents of the instruction argue, fully informing a jury has the unforeseen consequence of encouraging juries to behave in a manner i label bad-faith, and that such bad-faith juries in fact corrupt the principles of justice and fairness that are the cornerstones of the trial system. keywords: jury, jury nullification, fully-informed juries, jurors’ rights, judicial instructions. jury nullification refers to the actions of a jury in a criminal trial who, despite believing the defendant to be guilty of the crime charged, nevertheless return a verdict of not guilty. the jury’s ability to do so without fear of redress is a well-established element of the criminal justice system.1 this is 1. see, for example, horning v. district of columbia, 41 s.ct. 53 (1920), where holmes, j. stated: “[t]he jury has the power to bring in a verdict in the teeth of both law and facts”; morissette v. united states, 342 u.s. 246, 275 , 72 s. ct. 240, 256, 96 l. ed. 288 (1952): “but juries are not bound by what seems inescapable logic to judges”; united states v. moylan, 417 f.2d 1002, 1006 (4th cir. 1969), cert. denied, 397 u.s. 910 (1970): “if the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence... if the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any 54 travis hreno leap, 1 (2013) an important point: it is a well-established fact that nullifying jurors are behaving within the bounds of the law. their verdict must be accepted; their liberty not at risk for nullifying. it is not surprising, of course, that such behaviour on the part of the jury elicits much controversy within the criminal justice system. after all, the idea of a jury intentionally freeing someone who is technically a criminal in all but verdict is prima facie troubling, to say the least. however, even those who see jury nullification to be a somewhat pernicious element of the jury system do not advocate trying to remove the ability to so act from the jury.2 one of the most active controversies regarding jury nullification, however, both in the courts and among legal theorists, centers on whether juries ought to be informed that they have this ability to nullify 3. as the law currently stands in most north american criminal jurisdictions, a trial judge’s instructions to the jury are to make no reference to the jury’s ability to nullify.4 while the constitutions of maryland, indiana, oregon, and georgia currently have provisions guaranteeing the right of jurors to “judge” or “determine” the law in “all criminal cases”, it is by no means clear whether this implies a right to be explicitly informed that they may nullify. broadly speaking then, the question surrounding judicial instructions to the jury regarding jury nullification is, as i said above, this: given that juries have the legally recognized ability to nullify free from redress, ought they to be so informed? proponents on both sides of the issue often tend to focus on effects-based arguments to support their views —arguments that balance the costs against the benefits of informing jurors of their privilege to nullify.5 in this paper i propose to examine and endorse one effects-based argument against informing jurors of their privilege to nullify— an argument i call the bad-faith objection. reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision” (emphasis added); u.s. v. dougherty, 473 f.2d 1113, 1130 (d.c. cir., 1972): “the jury has an ‘unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge...”. 2. for instance, simson (1976), while arguing that jury nullification does more harm than good to the promotion of a just legal system nevertheless states that “any measures calculated to diminish significantly the scope of the jury’s current power to nullify bear unacceptable repercussions for the system as a whole” (simson, 1976: 524). see, also, united states v. datcher, 830 f. supp 411 (m.d. tenn., 1993), at 412, where the court stated that “to deny a defendant the possibility of jury nullification would be to defeat the central purpose of the jury system”. 3. see, for instance, a. scheflin and j. van dyke (1980: 51); barkan, s. (1983: 38); horowitz i. (1985: 25); united states v. krzyske, 836 f.2d 1013 (6th cir. 1988); state v. hokanson, 140 n.h. 719, 721 (1996); u.s. v. navarro-vargas, 05 c.d.o.s. 4311. 4. see, for instance, sparf v. united states, 15 s.ct. 273 (1895); horning v. district of columbia, 41 s.ct. (1920); united states v. burkhart, 501 f. 2d 993 (6th cir. 1974); united states v. avery, 717 f.2d 1020 (6th cir. 1983), cert. denied, 466 u.s. 905 (1984). 5. for why i chose to describe jury nullification as a “privilege”, see t. hreno (2008). jury nullification and the bad faith juror 5555 leap, 1 (2013) before i do so, however, i will briefly outline the main positions advanced by both sides of the nullification instruction debate. any detailed analysis of these positions is, however, beyond the scope of this paper. there are four main effects-based arguments put forth by those who support giving the nullification instruction to jurors. these are: the community standards argument. when a jury nullifies it is ensuring that the standards of the community are brought to bear on the administration of the criminal law.6 the freedom from government oppression argument. when a jury nullifies it is ensuring that the citizenry cannot and will not be victims of oppressive legislation or oppressive enforcement of otherwise acceptable legislation.7 the mercy argument. a nullifying jury is in a position to add an element of mercy to situations where a strict adherence to the law might otherwise be cruel.8 the justice argument. a nullifying jury is in a position to add an element of justice to situations where a strict adherence to the law might otherwise be unjust.9 these four arguments are actually of two broad types. the first two arguments —community and oppression— are in fact arguments for why the jury is a desirable institution. these arguments have the following form: one good thing about the jury is x (where x stands for, in this case, either the promotion of community standards or the protection from government oppres6. see, for instance, williams v. florida, 399 u.s. 78 (1970) at 100: “[t]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence”. 7. see, for instance, roscoe pound says that “jury lawlessness is the greatest corrective of law in its actual administration. the will of the state at large imposed upon a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers” (r. pound, 1910: 18). 8. see, for instance, united states v. dougherty, 473 f.2d 1113 (d.c. cir., 1972), at 1131-2: “human frailty being what it is, a prosecutor disposed by unworthy motives could likely establish some basis in fact for bringing charges against anyone he wants to book, but the jury system operates in fact so that the jury will not convict when they empathize with the defendant”. 9. see, for example, united states v. dougherty, at 1142: “the doctrine [of nullification] permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice. the drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is “unlawful” but not blameworthy, any more than they can draw a bold line between an accident and negligence. it is the jury... that must explore that subtle and elusive boundary”. 56 travis hreno leap, 1 (2013) sion). the jury can only x if it is also free to nullify in some cases. since the nullification instruction promotes instances of nullification, the instruction ought to be given. the second group of arguments —comprising the mercy and justice arguments— are really arguments in favour of nullification itself. mercy and justice are good things, and are virtues that ought to be present in our criminal justice system, according to these arguments. a jury can only promote these virtues (when the law fails to do so) if it can nullify. since the jury is more likely to nullify than otherwise if the nullification instruction is given in such situations, the instruction ought to be given. those who oppose giving the instruction do so, for the main part, on the grounds that a jury, left to its own discretion, simply cannot be trusted to act consistently with the principles of justice. consider the reaction of the american courts. leventhal, j., for instance, condemned jury nullification in united states v. dougherty,10 stating “[t]his so-called right of jury nullification is put forward in the name of democracy, but its explicit avowal risks the ultimate logic of anarchy”.11 there is, in general, a belief among some members of the judiciary that the practice and promotion of jury nullification will corrupt the pursuit of justice within the criminal justice system and subvert the rule of law in a very real and substantive manner. i refer to arguments of this type as anarchy arguments.12 i am willing, for the sake of argument, to grant to the pro-instruction side of the controversy that their reasoning has prima facie plausibility. the same, however, simply cannot be said for the anarchy argument. as i said earlier, any detailed examination of these arguments is beyond the scope of this paper. but a few words must be said regarding the failure of the anarchy argument. obviously, anarchy seems like the sort of thing to avoid in a justice system, so if giving the jury nullification instruction is in any way implicated in an increase in judicial anarchy, that would be a very serious indictment. but does the anarchy argument have merit? will informing jurors of their nullificatory discretion promote anarchy and subvert the rule of law? fortunately, we can look to the states of maryland and indiana, both of whom contain within their constitutions provisions for juries to be informed of their privi10. supra, note 1. 11. ibid., at 1133 [emphasis added]; see also, state v. mcclanahan, 212 kan. 208, 216, 510 p.2d 153, (1973) at 159, where the court stated, in regard to jury nullification that “[d]isregard for the principles of established law creates anarchy and destroys the very protections which the law affords”. 12. see a. scheflin and j. van dyke (1980: 85-90) for an in-depth discussion of this perand j. van dyke (1980: 85-90) for an in-depth discussion of this per-and j. van dyke (1980: 85-90) for an in-depth discussion of this per-j. van dyke (1980: 85-90) for an in-depth discussion of this per-van dyke (1980: 85-90) for an in-depth discussion of this per(1980: 85-90) for an in-depth discussion of this per-1980: 85-90) for an in-depth discussion of this per-: 85-90) for an in-depth discussion of this per-85-90) for an in-depth discussion of this per-) for an in-depth discussion of this perfor an in-depth discussion of this perspective. jury nullification and the bad faith juror 5�5� leap, 1 (2013) lege to nullify in criminal cases.13 it seems reasonable, therefore, to assume that these states might serve as a kind of laboratory, as it were, in which to witness the operation of the nullification instruction. maryland’s constitutional provision, for instance, states that “[i]n the trial of all criminal cases, the jury shall be the judges of law, as well as of fact, except that the court may pass upon the sufficiency of the evidence to sustain a conviction”.14 because of this the following instruction is given to criminal jurors in maryland members of the jury, this is a criminal case and under the constitution and the laws of the state of maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. so that whatever i tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. and you may apply the law as you apprehend it to be in the case.15 the indiana state constitution contains a similar provision, which states that “[in all criminal cases whatever, the jury shall have the right to determine the law and the facts”.16 the right of a jury to be so instructed was affirmed by the indiana supreme court in 1967.17 while neither of these constitutional provisions make explicit reference to nullification, it is clear that this is what the concept of “judging the law” is meant to refer to. after all, to be in the position to judge the law is to be in the position to decide for one’s self whether it would be appropriate to apply the law to the facts. in the words of the wiley 18 decision, nothing the judge says regarding the law is binding upon the jury. there is really not too much that can be said in response to the anarchy argument other than to point out that whatever the legal systems of indiana and 13. the georgia constitution also has a similar provision which holds that “[i]n criminal cases... the jury shall be the judges of the law and the facts” (art. i, sec. 1, para. 11, subsec. a) however, “it has long been settled that this language... means that jurors are “made absolutely and exclusively judges of the facts in the case [and] they are, in this sense only, judges of the law””, hall v. state, 410 s.e.2d 448 (ga., 1991) at 451 [quoting harris v. state, 9 s.e.2d 183 (ga., 1940)]. 14. md. const., declaration of rights, art. 23. 15. wyley v. warden, maryland penitentiary, 372 f.2d 742 (4th cir., 1967) at 743, n. 1. 16. ind. const. art. 1, § 19. 17. 248 ind. 566, 230 n.e.2d 416 (1967). the court stated here that “[i]t appears to this court that art. i, § 19 taken in connection with the presumption of innocence is far from an outmoded, archaic, anachronism. rather, despite its venerable age, it appears to be in the vanguard of modern thinking with regard to the full protection of the rights of the criminal defendant”, at 421. 18. wyley v. warden, maryland penitentiary (743, n. 1). 58 travis hreno leap, 1 (2013) maryland may be known for, it is certainly not for juridical anarchy caused by jurors exercising their discretion to acquit contrary to the law. i don’t pretend to have any figures to back this claim up, nor do i even claim to know how one might go about measuring such a thing as juror-caused juridical anarchy —if such a thing is even possible—. the point i’m trying to make here is that those who appeal to the anarchy argument tend to focus on what might happen if the nullification instruction were to become institutionalized, while ignoring its effects in those jurisdictions where it already is institutionalized. there is, however, one consequence-based objection to the nullification instruction that i believe is not only successful (that is, it is both relevant and persuasive), but is also able to meet the challenges posed by the arguments in favour of the instruction. i call it the bad faith objection. essentially, i contend that the nullification instruction can encourage jurors not only to nullify the law, but can also indirectly encourage them to “nullify” a great many of the procedural elements in place to ensure a fair and just trial. in essence, the nullification instruction has, i contend, the unforeseen, but unavoidable consequence of encouraging jurors to act in bad faith and in such a way so as to subvert the concept of a fair trial and increase the likelihood of unwarranted convictions. let me explain. the nullification instruction essentially informs jurors that they are free to disregard the judge’s instructions regarding the law. in other words, the judge is saying something akin to: “i am going to give you an order regarding how the law in this case is to be interpreted. however, you are free not to follow that order”. but given that instruction, what is to prevent the jury from wondering whether all such instructions from the bench are similarly discretionary in nature?.19 once a juror comes to the realization that she can ignore a particular judicial instruction free from reprimand, presumably she’ll realize that what protects her from reprimand when she ignores the judge’s instructions regarding the law will also protect her from reprimand when she ignores other judicial instructions. so how does this affect the notion of a free trial and how does this increase the likelihood of problematic convictions? to begin with, our notion of a fair trial includes, among other things, the presumption of innocence (included in this presumption is the idea that a defendant’s decision not to testify in his or her defense is not to be taken as prima facie evidence of guilt), fair rules of evidence (based on traditional notions of legal relevance: if evidence does not make any element of the crime more or less likely, such evidence is legally irrelevant and is to be disregarded when considering culpabil19. there is a recursive nature to this problem. after all, the judge could inform the jurors that her instructions regarding the law are the only such instructions they are free to ignore, but again, once that door has been opened, what is to prevent a juror from wondering whether that order too is discretionary? jury nullification and the bad faith juror 5�5� leap, 1 (2013) ity), and a burden on the prosecution to prove the defendant’s guilt “beyond a reasonable doubt”. all of these elements of a fair trial are given to the jury via instructions from the bench. if a juror is of the mind (correctly, i might add) that she can safely ignore any of these other judicial instructions then the very notion of a fair trial becomes corrupted. for instance, it is not entirely uncommon for evidence or testimony to be introduced in trial that is subsequently ruled to be inadmissible. in such situations a judge may simply instruct the jury to ignore such evidence or testimony and not let it play any part in their deliberations. but, of course, this is a judicial order, and of the type that can be safely ignored (unlike a judicial order to, say, answer questions during voir dire honestly and completely).20 if this order is ignored, and the evidence or testimony in question is taken into consideration, then the defendant is not judged on evidence relevant to the alleged crime, but on extraneous facts. of course, one might argue that the distinction between relevant and extraneous evidence is a question of law, and hence, such behaviour on the part of the jury is nothing more than an instance of nullification. but then consider the principle that the decision not to defend oneself on the stand is not to be taken as evidence of guilt. judges give that particular order precisely because it is human nature to consider it suspicious when someone does not try to defend himself or herself. jurors, too, have to struggle against that tendency, and it is a struggle that all agree ought to be encouraged, fostered and supported. moreover, this principle is at the heart of the ideal that it is the prosecution’s responsibility to prove guilt, not the defendant’s responsibility to prove innocence. again, the problem here is that once it becomes clear that one judicial instruction can be safely ignored, it soon becomes obvious that a great many others can as well. it is an established principle of our criminal justice system that the burden of proof rests with the prosecution. will jurors feel they have the privilege to ignore this as well? i will return to this question. it seems obvious that the nullification instruction might encourage jurors to disregard important judicial instructions regarding the procedural and substantive constraints embedded in the notion a fair trial. the standard elements of a fair trial (objective rules of evidence, the presumption of innocence, and the burden of proof resting with the prosecution) are all safeguards put in place in an attempt to minimize the possibility of wrongful convictions. the fact of the matter is, however, that such safeguards are, in effect, discretionary. that is, the jury can ignore all or some of them with complete impunity.21 when juries ignore such judicial instructions regarding 20. ignoring this order would most likely result in a charge of perjury. 21. of course, some redress is available to those convicted as a result of this in the form of appeals, but since juries do not issue written decisions, nor are their deliberations monitored, it is not at all clear that such an avenue is effectively open to most. we simply do not know most of the time why a jury decided to convict. 60 travis hreno leap, 1 (2013) the law it is not hard to imagine that in some instances their deliberations might tend towards a guilty verdict even in cases where a strict application of the law might demand the opposite verdict. this is, obviously, cause for concern. after all, while many of the proponents of the nullification instruction argue that the jury’s privilege to behave in such a manner is more than simply an oversight, that it is, in fact, a design feature of the jury system,22 the same simply cannot be said about the “privilege”.23 to ignore judicial instructions regarding the procedural and substantive elements of a fair trial. no one could possibly argue that this is either a design feature of the jury system or a positive element thereof. let’s be clear here. my objection is not that jury nullification will lead to more unjust convictions. nullification, by definition, can only result in acquittals. rather, the claim i am making is that the nullification instruction itself might lead to more unjust convictions by indirectly encouraging jurors to ignore judicial instructions that are designed to guarantee a fair trial. hence, this objection directly implicates the nullification instruction, though not the institution of jury nullification itself.24 of course, up to this point my arguments have been speculative in nature: the jury might behave in a bad-faith manner to the detriment of justice and fairness if given the nullification instruction. but would jurors actually behave this way. for any pragmatic approach to this issue, that is the relevant question.25 i claim that there is reason to worry that, indeed, they would. moreover, my claim isn’t merely that juries who receive the nullification instruction might thereby convict more often (though this would be worrisome enough); i also argue that they will return guilty verdicts precisely in those cases where it is particularly important that all of the rules of a fair trial are maintained. in particular, i am referring to those cases where there is high degree of moral opprobrium and revulsion attached to the alleged crime. consider a scenario where the defendant was accused of, say, pedophilia. let us suppose that the evidence presented at trial was circumstantial at best, and that after the defense made its case it seemed unlikely that the burden of proof could be met. in these sorts of situations one might worry that the knee-jerk reactions nearly all of us have of “where there’s smoke there’s fire”, and “better safe than sorry”, might very well combine in the minds of the jurors so as over-ride the judicial instructions regarding the burden of proof 22. see, for instance, a. scheflin and j. van-dyke (1980). j. van-dyke (1980). van-dyke (1980). (1980). 23. if that’s the proper way to describe it. 24. this is different from the anarchy objection we have been looking at heretofore where the practice of jury nullification itself was seen to be the problem and the instruction was only implicated to the degree that it promoted instances of jury nullification. 25. of course, even the speculative challenge is cause for concern. we ought not to be too comfortable with the idea of juries that might behave this way. jury nullification and the bad faith juror 6�6� leap, 1 (2013) in a way that, i will argue, would not happen if the defendant was being accused of some more morally neutral crime, such as, say, income tax evasion. that is, the jurors might very well convict the defendant even though if the case were identical in every respect except that the crime alleged was, in some sense, morally neutral (e. g., income tax evasion) they would not. while this concern is somewhat speculative in nature, it is fairly well enough established to have found voice in many of the procedural elements of the jury trial. this is why the bench issues orders to the jury cautioning them against being unduly influenced by the nature of the charge; this is why jurors are vetted during voir dire to ensure that they can evaluate the evidence free of prejudice (victims of sexual assault, for example, do not generally get to be jurors on cases involving sexual assault). while this sort of “moral prejudice” is perhaps unavoidable, giving the nullification instruction, i intend to show, will only exacerbate this problem. as i mentioned above, it is a short logical leap from the realization that one judicial order can be safely ignored to the realization that a great many others can be as well. this is a significant challenge to the nullification instruction. if such an instruction is given, the worry goes, we might well end up with is a justice system whereby the type of crime a defendant is charged with, or the sort of person a defendant is, will end up playing a substantial and material role in the jury’s decision whether to convict or acquit. and whatever this may be, it is certainly not justice.26 as i said above, i do not intend for this to be a merely speculative claim. fortunately, there is empirical evidence that confirms what i have been saying. irwin horowitz, in “the effect of jury nullification instruction on verdicts and jury functioning in criminal trials” (horowitz, 1985), conducted a study designed specifically to answer the following question: “will the jury operate in a manner which is different than its normal function if given explicit nullification instructions?” (horowitz, 1985: 25). his findings were unambiguous and compelling, and prove ultimately to be detrimental to those who endorse the nullification instruction. the horowitz study involved 45 mock juries, 270 jurors, and three different criminal cases. the mock juries were divided into three groups of 15 each with each group hearing a different criminal case (murder, drunk driving involving vehicular homicide, and euthanasia). finally, each group was further divided into 3 groups of 5 mock juries, with each of these smaller groups hearing a different instruction from the bench regarding the proper purview of their authority in the case at hand. two of these groups received standard pattern juror instructions in 26. whatever the legal realist might say about the nature of law, no one argues that the law is improved morally or pragmatically when such prejudice is procedurally encouraged or tolerated. 62 travis hreno leap, 1 (2013) use today. the third group received explicit nullification instruction, or, as horowitz labeled them, radical nullification instructions (rni). jurors were told that: i) “although they are a public body bound to give respectful attention to the laws, they have final authority to decide whether or not to apply a given law to the acts of the defendant on trial before them” (horowitz, 1985: 30); ii) “they represent (the community) and that it is appropriate to bring into their deliberations the feelings of the community and their own feelings based on conscience” (ibid., 30-1); and “nothing would bar them from acquitting the defendant if they feel the law, as applied to the fact situation before them, would produce an inequitable or unjust result” (ibid., 31). after the juries heard their respective cases and related instructions, they retired to the jury-room to deliberate. these deliberations were recorded and later analyzed. this analysis yielded the following findings. rni juries spent more time discussing the implications of the nullification instruction than did either of the other two jury types. what is alarming is that rni juries spent significantly less time considering the evidence against the accused than did either of the other two jury types. we can see exactly why this is alarming by looking at the verdicts these different juries returned. for the murder case there was no difference —all returned guilty verdicts— the evidence “clearly indicat[ed] the defendant’s guilt” (ibid.). there were substantial differences between all three juries in the euthanasia case. a full 80% of the rni juries returned not guilty verdicts, whereas the number of not guilty verdicts for the other two juries was between 40% and 20%. this is in keeping, of course, with what proponents of the nullification instruction assume will occur. euthanasia is certainly illegal, but many people are nonetheless sympathetic to its practice in some situations.27 the drunk driving case, however, is a different story. here, while both standard pattern jury types returned not guilty verdicts 40% of the time, the rni juries, on the other hand, voted to convict in every instance. this is particularly distressing because these same rni juries also spent less time deliberating upon the evidence than did either of the other jury types. thus, the rni jury was more likely to condemn a defendant accused of drunk driving, and spend less time deliberating on the evidence when doing so. why? recall that these deliberations were monitored, and as horowitz explains it: in the drunk driving case, rni juries were more apt to convict the defendant of reckless vehicular homicide [than the other juries]... there was, however, at least a suggestive trend in the jury operating under rni that the defendant, as [an alleged] drunk driver, was perceived quite unfavourably. 27. the jurors in the euthanasia case heard testimony from the deceased’s wife that he had suffered great pain and had hoped for death to occur. jury nullification and the bad faith juror 6�6� leap, 1 (2013) current campaigns aimed at curbing drunk driving have received a good deal of publicity... at the time this study took place (ibid. emphasis added). in other words, the jurors felt a certain amount of moral condemnation towards the accused. and while we can speculate that perhaps all of the jurors felt this way, the fact remains that only the jurors who received the nullification instruction were more apt to let this influence their verdict and thus more apt to disregard or downplay any exculpatory evidence, and pay less attention to the principals regarding burden of proof when returning a verdict (ibid., 33). put another way, the nullification instruction, in some contexts, leads to more convictions —convictions based, not entirely on the evidence, but also on the moral nature of alleged crime—. what is of note for my argument is that at no point in the trial or jury deliberations regarding drunk driving did the issue of whether the law was just arise. thus, whatever effect the nullification instruction had on the jurors in those trials, it must have been in some arena of discourse beyond “whether or not to apply a given law to the acts of the defendant on trial before them”. after all, the actual acts of the defendant received less attention and consideration than demonstrated by the other juries. thus, rni juries must be considering other factors when deliberating on culpability, and importantly, ignoring the trial judge’s instructions regarding such things as rules of evidence. obviously, one must be wary of drawing too many conclusions from the results of one social experiment. but the fact remains that horowitz has supplied empirical data to a debate heretofore devoid of it, and the data does not look good for those who support informing the jury of nullification. i think it is now time to revisit the arguments made earlier in defense of giving the nullification instruction. recall that i chose not to take issue with the conclusion offered by advocates of this position. however, i believe we must weigh these benefits against the costs of giving the instruction. in doing so, a few points become immediately obvious. first, while the nullification instruction can certainly bring the standards of the community to bear on the administration of the criminal law, it can do so to the detriment of the accused, and not just to her benefit —regardless of her innocence—.28 secondly, while the nullification instruction can help ensure that the citizenry will not be victimized by unwarranted state action, it cannot ensure that individual defendants will not be victimized by unwarranted “moral prejudice” on the part of the jury. as a matter of fact, giving the instruction is almost a guarantee that some defendants will be victimized by unwarranted moral prejudice on the part of the jury. third, 28. it is important to bear in mind that the objection is not that nullification will work to the detriment of the accused. rather, the complaint is that the nullification instruction will do so, albeit indirectly. 64 travis hreno leap, 1 (2013) while the nullification instruction can add an element of mercy to the administration of the law, it is equally clear that giving the instruction can also add an extra-legal element of malice to the administration of the law. finally, while the nullification instruction can add an element of justice to situations where a strict adherence to the law might otherwise be unjust, it can also, as we have seen, promote great injustices. whatever crimes a person may be accused of, the moral nature of said crimes ought never to be a factor in the determination of her guilt or innocence. this is the very antithesis of justice. if horowitz’s conclusions are accurate then clearly whatever advantages to the administration of the law are realized by giving the nullification instruction are outweighed by the very real disadvantage that such an instruction can, and does, also promote unjust guilty verdicts. such an instruction, in other words, encourages jurors to deliberate in bad faith to the detriment of the accused. while the actual act of jury nullification can only operate in a liberty enhancing way (i. e., can only result in acquittals), the nullification instruction has the unfortunate consequence of potentially limiting liberties unduly in other unforeseen ways. hence, to those who see justice and fairness to be essential to our criminal justice system, the jury nullification instruction must be viewed as a potential area of conflict with those values. to put this another way: there seems to be, at the heart of the justice and mercy arguments in favour of nullification, a view consistent with that old saw that it is better for ten guilty men to go free than for one innocent man to be jailed. perhaps this is true. regardless, the reality of the jury nullification is that more guilty defendants will go free and more innocent defendants will be jailed.29 even if the likelihood of unjust convictions is small, such a risk seems inconsistent at best with that particular calculus of justice. bibliography barkan, s., 1983: “jury nullification in political trials”, social problems 31: 28-45. horowitz, i., 1985: “the effects of jury nullification instructions on verdicts and jury functioning in criminal trials”, law and human behavior 9: 25-36. hreno, t., 2008: “the jury nullification instruction and the de jure/de facto debate: a hohfeldian analysis”, public affairs quarterly 22: 231-251. scheflin, a., and van dyke, j., 1980: “jury nullification: the contours of a controversy”, law and contemporary problems 43: 51-115. simson, g., 1976: “jury nullification in the american system: a skeptical view”, texas law review 54: 488-506. 29. and no one argues that it is better for ten guilty men to go free and for one innocent man to be jailed. leap 3 (2015) egalitarian family values? sar ah stroud mcgill university abstract family values seeks to offer a compelling defence of the family in the face of concerns that the institution of the family disrupts fair equality of opportunity. brighouse and swift endorse the concern but think that the great value of family relationship goods is nonetheless sufficient to vindicate the existence of the family. this response applauds brighouse and swift’s insistence on the interests of parents in raising children and on the lov ing and intimate character of the parent-child relationship. however, it suggests that brighouse and swift’s egalitarian framework prevents them from taking the full measure of the above salutary commitments. keywords: family, parent-child relationship, love, egalitarianism, relationship goods, parents’ interests, equality of opportunity, intrinsic goods, positional goods harry brighouse and adam swift are our leading theorists of the family.1 their previous joint papers have greatly advanced our understanding of the ethics and politics of relations between parents and children. their work exemplifies a rare combination of qualities: it is bold, path-breaking, and yet rigorous and attentive to nuance. for this reason, we already owe a number of game-changing insights and argumentative strategies to brighouse and swift. i would number among the most significant of these a) their insistence on adults’ interests in parenting as an indispensable factor in the moral and political equation; b) their emphasis on the value of the parent-child relationship in particular; and c) their use of the latter to work out in a systematic and principled way the rights and priv ileges which attend, or ought to attend, parenthood. the above insights and strategy also drive the new book, family values. readers already familiar with brighouse and swift’s joint articles will not 1 following brighouse and swift, i will always mean by “the family” a “nuclear” family consisting of at least one parent and at least one child. 181 sarah stroud leap 3 (2015) find the authors taking a radically new approach here. instead, the elaboration at book length of their basic line of thought has given brighouse and swift the space to embed their core argument within a larger and more explicit overall argumentative architectonic. my remarks here will focus on the shape of that structure and the route it offers to the conclusions brighouse a nd sw if t a re a lready wel l k now n for endorsing. but i wa nt to beg in by lingering over a nd underlining t he sig nif ica nt insights t heir work has already brought to the table, and which continue to play a prominent role in this new book. to start with a), we owe brighouse and swift a great debt of gratitude for expanding the discourse around the family by highlighting the interests of (would-be) parents as well as those of children. i find much of the prebrighouse and swift literature on the family excessively, or too exclusively, child-centred; in much of this literature families and parents are treated essent ia l ly as dev ices to ser ve chi ldren’s interests. surely, however, as brighouse and swift emphasize, this is only part of the story. taking care of and raising children is a hugely rewarding and meaningful activ it y for many adults, one to which they freely choose to devote a substantial portion of their time and energy, and one which they may view as a central contributor to their own personal flourishing. parenting is, quite simply, what they want to do (or among the things they want to do) with their life (brighouse and swift 2014: 22). brighouse and swift insist (their word) on the importance of this fact, maintaining that “adults’ interest in parenting (and not only children’s interest in being parented) helps us to understand the moral basis of the family” (2014: 176). thus, to neglect these parent-centred factors in discussing the ethics of the family would be to omit a significant piece of the equation. i wholeheartedly agree; i w ill question only whether this insight and the shift in perspective which it induces receive their full due in family values. we also owe to brighouse and swift a more precise specification of the content of the adult interest in parenting just mooted. as per insight b), brighouse and swift propose that parents (and those who desire to be parents) have a strong interest, specifically, in establishing and participating in a parentchild relationship. this is shorthand for an intimate, loving relationship with a child in which the parent has both considerable responsibilities toward the child and considerable decisional authority over the child. brighouse and swift argue that relationships of this distinctive kind are of great value to both parents and children, and (as we shall see under c)) they use this value as the linchpin for deriving further ethical and political conclusions about the family. to place a valuable relationship so explicitly at the core of family egalitarian family values? 182 leap 3 (2015) ethics was a major conceptual advance,2 and one which fits in especially well with an inf luential strand in recent moral philosophy.3 again i think brighouse and swift are right to put the emphasis on the relationship between parent and child as the, or at least a, central ethical element when considering the family.4 i will again question, however, whether they have taken the full measure of the implications of this commitment. this last point brings us to c), brighouse and swift’s distinctive argumentative strategy for resolving questions about the rights and privileges that ought to at tend pa rent hood. t hei r si mple but i n novat ive idea is to deploy t he aforementioned value of the parent-child relationship as the sine qua non in assessing t he merits of putat ive pa renta l rights. if failing to accord parents a certain right or priv ilege would prevent the development of a valuable parent-child relationship, then that creates a strong moral and political case for granting parents that right or privilege, even in the face of possible mora l counter-a rg uments.5 on t he ot her ha nd, if disallowing parents a certain right or privilege would not impede the development of a f lourishing parent-child relationship, then that putative right or privilege sta nds ex posed a nd undefended aga inst a ny a rg uments t hat cou ld be ra ised aga i nst it. t h is double-edged cr iter ion a l lows us to adjud icate questions about legitimate parental rights or parental partiality in a principled way, taking us beyond mere reliance on intuition to discern their scope or limits. as mentioned earlier, in family values brighouse and swift embed these key insights within a larger argumentative superstructure, to which i will now turn. i w i l l t r y to bring out some points where resista nce to t heir conclusions can plausibly be traced back to unease with something more basic, namely their vision of the dialectical situation: their conception, for instance, of what kind of claim requires what kind of argument, or of where the burden of proof lies. job one, as brighouse and swift see it, is to offer a “defense” (2014: xi, xii) or “justification” (2014: 5, 20, 51) of the family. and it soon becomes clear 2 they credit schoeman (1980) with originally introducing this idea; but his account seems not to have had much inf luence on the subsequent literature in family ethics. 3 see for i n st a nce t he work of schef f ler (20 01), espec ia l ly “relat ion sh ips a nd responsibilities” and “families, nations, strangers”, and kolodny (2003). 4 i am pleased to see that word seems to be getting around that a parent’s relationship with his child is more important to both than any financial advantages the parent might be able to procure for his child by working more (brighouse and swift 2014: 136). from a recent entr y in the guardian’s “my family values” series: “the people w ith the biggest stereos at boarding school were the ones who saw their parents the least… you cannot cover up for a loss of time with money” (hassell, 2015). 5 “parents have the right to engage in those activ ities and interactions w ith their children that facilitate the realization of the extremely valuable goods that justif y the family in the first place” (brighouse and swift 2014:118). 183 sarah stroud leap 3 (2015) that what they have in mind is a distinctively consequentialist defense or justification. their aim, they tell us, is to demonstrate that and why it is “a good thing” (2014: i, 114) that the family exists: “to explain why it is good that children be raised by parents” (2014: 48). while brighouse and swift do not further explain the locutions “it is a good thing” or “it is good that”, such expressions are typically used to evoke a consequentialist conception of (impersonally or objectively) good states of affairs; and brighouse and swift’s approach to justifying the family confirms this interpretation. the task they set themselves is to show that and how the existence of the family realizes, or at least facilitates or makes possible, a distinctive set of desirable states of affairs: to prove, in short, that the world would be objectively poorer without families in it. the “familial relationship goods” alluded to earlier are the star players in this demonstration. some readers, however, may already be feeling uneasy with brighouse and swift’s felt need to provide a justification of this kind for the family. for one thing, it may well strike readers as rather an idle question whether it is “a good thing” that families exist. it is, i take it, practically idle to ask whether families should exist: as far as i know, no one anywhere is seriously advocating, let alone threatening to effect, the abolition of the family. there is thus no actual interlocutor demanding to be convinced that the existence of the family is preferable to its nonexistence, and in that sense no actual threat against which the family needs to be defended. there are two further, more theoretical reasons why a reader might doubt that there is really a question here which needs dialectically to be answered. brighouse and swift’s self-appointed task is to adumbrate the distinctive values and goods which the existence of the family makes possible. but one m ig ht doubt whet her pa rents ra isi ng ch i ld ren requ i res a sui generis justification in terms of the distinctive values it realizes, as opposed to simply falling under a more general and less demanding moral schema. as we noted earlier, being a parent is something that a great many adults very much want to do with their life. if someone very much wants to do x with her life, one might think that alone creates a significant moral presumption in favour of allowing her to do x—regardless, it would seem, of x’s specific content, or of whether her (or anyone’s) doing x would realize important objective values.6 as a significant (but not all-consuming) life activ it y, parenting cou ld perhaps be compa red w it h t he choice of a pa r t icu la r ca reer. if someone ver y much wa nts to be a ta x law yer (for insta nce), wou ld we 6 this presumptive permission could be defeated, e.g. if xing caused severe harm to the participants or to others. but this is a weaker standard of v indication than needing to establish that “it is a good thing” that the world contains people who x, or that people’s xing realizes a distinctive set of objective values. egalitarian family values? 184 leap 3 (2015) require proof that the universe would be objectively worse off without tax law yers in order to think it would be presumptively wrong to prohibit her from pursuing that career?7 in asking for a justification in terms of adding distinctive value to the universe, brighouse and swift set a high standard; but that is to place a burden of proof on the family which some will feel the family need not bear. to emphasize in this way the desires and choices of individual adults poi nts towa rd a f u r t her rea son one m ig ht be i l l at ea se w it h t he way brighouse and swift frame the issue. they write (2014: xi-xii) as if we as a society faced a question whose answer is to be decided collectively, namely, how we ought to arrange the bringing up of children. “in families” is of course one possible answer; but there are also other possible answers (such as “in state-run institutions”). as brighouse and swift see it, if we are to select the former option we should be sure it is the right choice, i.e. that it is better than the alternatives; whence the need to demonstrate the superiority of the family to other possible arrangements. but i find this way of describing the issue puzzling. at the risk of sounding thatcherite, i would have ventured that there is no issue facing us as a society, to be settled collectively, about how to bring up children: there are only indiv idual adults who want to parent children.8 i have expressed skepticism about whether the family really requires a “defense” or a “justification” of the consequentialist kind that brighouse and swift have in mind. but one might think it is at worst harmless to subject the family to such a test, since brighouse and swift make such a convincing case that it passes. as per insight b) noted earlier, brighouse and swift argue that the existence of the family does make possible certain distinctive goods, namely valuable parent-child relationships. a world which lacked families would be a world without those relationships, and thereby very much the poorer in at least one important respect. as it happens, brighouse and swift believe that the family is also the arrangement which best meets children’s needs and interests. for that reason alone, “if the family did not exist, it would be necessary to invent it; its invention would be morally required” (brighouse and sw ift 2014: x ii), and the world is indeed in a better state 7 one might argue that this case is not analogous, because being a parent essentially requires the existence (and the participation in the parent’s project) of nonconsenting partners with separate interests of their own, something not true of being a tax lawyer. however, the above general schema about x would seem also to hold of being, say, a dairy farmer. if what someone really wants to do with her life is to look after and interact with cows—nonconsenting partners in her project who have separate interests of their own—then surely that fact alone creates a presumptive moral case for allowing her to do just that. see the previous footnote for a gesture toward when that presumption could be overridden. 8 compare: there is no issue facing us as a society, to be settled collectively, about how to look after cows: there are only individuals who want to be dairy farmers. 185 sarah stroud leap 3 (2015) with families than it would be without. by contrast, could one say that it would have been necessary to invent tax law, or dairy farming, had no one spontaneously come forward wishing to engage in those activities? we do not normally demand this of activities in order to conclude that it would be prima facie wrong to prevent someone from engaging in them. even if the family can easily be shown to meet brighouse and swift’s high standard for justification, however, it is not harmless to ask for, and then to provide, such a justification. for there is a sting in the tail of brighouse and swift’s positive argument for the family: that argument is later used to limit the rights and privileges which parents can be said to enjoy. as we shall see, brighouse and swift accept only parental rights and privileges which must be granted if the distinctive values cited in the justification of the family are to be realized. any putative right or priv ilege which is not essential to the realization of those values is stricken from the list. this is the basis for many of brighouse and swift’s controversial conclusions, of which i will focus here on just one: that parents do not have the right to bequeath substantial wealth to their children.9 before examining how exactly they reach this conclusion, i must first, in the spirit of full disclosure, confess significant antipathy to it. i simply cannot bring myself to believe it! i am writing the first draft of this piece at my country house: an old vermont farmhouse surrounded by pasture and fields which my family was able to purchase this past spring only thanks to an inheritance my husband received from his late mother. (we would never have been able to buy a country house on my philosopher’s salary.) we are very sorry she is not getting to see her son plant fruit trees, her grandson learn the names of wildf lowers, or her granddaughter pick blackberries and make preserves. but she loved her son, and the rest of us, and we know she would be deeply gratified by all the new horizons her bequest has opened up for us. faced with this vivid awareness of what her bequest has made possible for her son and my family, i find it simply impossible to accept that my mother-in-law ought not to have been able to leave my husband that money, or that it would violate nobody’s rights to prevent or prohibit people from doing any such thing. let us look at the argument supporting this (to me) unwelcome conclusion. i reconstruct it as follows: (1) “the family is justified because it produces certain goods that would other w ise not be available or ... would be much more difficult to produce” (brighouse and swift 2014: 56), viz., familial relationship goods, which are “hugely valuable for many adults and 9 by “substantial” i mean wealth that exceeds what would be required in order to meet the child’s basic needs or to satisf y the parent’s duty of care toward the child. egalitarian family values? 186 leap 3 (2015) a l l ch i ld ren” (br ig house a nd sw i f t 2014 : 20). (just i f icat ion of the family) (2) the scope and limits of parental rights and privileges should— indeed must (brighouse and swift 2014: ix, x, 5, 54, 115)—be derived from the justification of the family. (methodological premise) (3) more specifically, genuine parental rights and priv ileges are limited to the smallest set necessary for the realization of the goods cited in the justification of the family. (4) therefore (from (1) and (3)), any supposed parenta l rights or pr iv i leges t he withholding of w h ich wou ld not jeopa rd i z e t he rea l i z at ion of fa m i l ia l relat ion sh ip good s — ot her w i se put, t he g ra nt i ng of wh ich is not cr it ica l to establ ish i ng or pa r t icipat i ng i n a va luable pa rent-ch i ld relat ionsh ip — a re not genuine parental rights. (5) the freedom to bequeath significant wealth to your child is not essential to establishing or participating in a valuable parent ch i ld relationship. such a freedom is largely exogenous rather than endogenous, to the parent-child relationship and to its value; withholding this pr iv i lege f rom pa rents wou ld t herefore not jeopardize the realization of familial relationship goods (brighouse and swift2014: chapter 5; see 119 for the internal-external contrast). (6) therefore (from (4) and (5)), parents do not have a right to bequeath significant wealth to their children. before delving more deeply into this “master” argument, i should note that brighouse and sw ift also offer what i consider to be an ill-adv ised narrower specification of their methodological premise: (2') the scope and limits of parental rights and privileges should— i nd e e d mu s t— b e d e r i v e d s ol e l y f rom th a t p or t i on of th e justification of the family which appeals to children’s interests (2'), however, seems clearly inconsistent with the conjunction of (1) and (2), and for that reason i propose to set it aside in the remainder of the discussion. if we are assuming that the correct account of parental rights is to be derived from the justification we offered for the family, and parents’ interests were an important element in that justification, then surely parents’ interests should not drop out of the picture as irrelevant when it is time to limn 187 sarah stroud leap 3 (2015) parental rights.10 if “it would be wrong to think that the well-being of ch i ld ren shou ld be t he sole cr iter ion by wh ich to a ssess ch i ldrearing arrangements”, why should “the rights and duties of parenthood” be “ident i f ied ent i rely by considerat ion of children’s i nterests” ? (brighouse a nd sw if t 2014: 121, w it h added emphasis a nd some words rearranged). what then of the original “master” argument? we should start by noting that (2) is questionable. it is not obvious that the same considerations used to justify the very existence of the family ought to be expected to settle the parameters of parental rights—let alone that that is the only way properly to settle those parameters (as their “must” implies). perhaps, having offered a consequentialist justification for the family—having established that it is “a good thing” for there to be families—we would go on to resolve questions about t he scope of pa renta l rights w it hin such fa mi lies in a completely dif ferent way. we might for example offer a non-consequentialist account of parental rights and privileges founded in the liberties it is proper to extend to autonomous agents as a function of their status and moral powers.11 second, (3) seems ad hoc even if we accept (2). why should parental rights be limited to the smallest set necessary for, rather than the largest set consistent with, the values cited in the justification of the family? let us grant that it’s very important that any rights or privileges accorded to parents be consistent with the realization of those goods. this would mean that any putative parental rights inconsistent with valuable parent-child relationships would need to be stricken from the list. but why strike putative parental rights that are perfectly consistent with the realization of such values? here i would expect brighouse and swift to cite the possibility that other considerations might militate against the granting of such rights.12 if there is an independent objection to parents’ having a certain right or privilege, then we should accept the latter as a genuine right only if we need to: only if we must accord parents such a right in order for families to realize the values that justify their existence. brighouse and swift press just this possibility against the putative right to bequeath wealth to your children. there is a powerful objection to parents’ having such a right, in their view: such bequests 10 brighouse and swift may be assuming that any parental right that went beyond what is required by children’s interests wou ld be against children’s interests. but t his is unwarranted. 11 frances kamm has been a pioneer in seeing rights as expressive of the moral status of rightsholders. see kamm (2013) for an accessible treatment. 12 in that case, (4) should strictly speaking be reworded so as to refer only to supposed parental rights or privileges to which objections could be raised, and (5) should make explicit that objections could indeed be raised to the putative freedom to bequeath significant wealth to your child. egalitarian family values? 188 leap 3 (2015) disrupt equality of opportunity. let me set out the argument for that conclusion, as i see it: (a) all people are of equal moral worth, equally valuable (brighouse and swift 2014: 23). (b) “the fact that people’s lives are equally important has distributive implications—implications about the distribution of opportunities to flourish” (brighouse and swift 2014: 27). in particular, it implies that those opportunities should be distributed fairly. (c) it is prima facie unfair for one person to have a greater prospect of gett ing a desirable job or ot her socia l ly produced rewa rd t ha n a second person of equal abilities and equal willingness to use them. (d) therefore, there is a well-founded objection to, and thus a reason to prevent or prohibit, any action which results in the state of affairs described in (c). (e) bequeathing significant wealth to your children is such an action. therefore there is a well-founded objection to, and thus a reason to prohibit or prevent, such bequests. if this argument is sound, then there is a morally considerable objection to granting parents a general permission to make such bequests. and if (5) in the “master” argument is also true, we cannot rebut that objection—as we might in certain other cases—by claiming that parents’ having such a permission is essential to the realization of familial relationship goods.13 the alleged right to bequeath significant wealth to your children would sta nd si lent in t he dock, unable to ma ke a ny (suf f icient ly compel ling) answer to the prosecution’s case. an indictment would appear forthcoming. without seeking to directly assess the soundness of the argument in (a)-(e) above, i do want to comment that it seems to prove an awful lot. if there is a st rong case for prohibit ing or prevent ing pa rents f rom bequeathing sig n i f ica nt wea lt h to t hei r ch i ld ren, t hen t here oug ht to be a si m i la r prohibition on parents’ gifting significant wealth to their children while they (the parents) are still alive. (otherwise i guarantee rich people will switch to the latter method.) and if parents are prohibited from bequeathing or gifting significant wealth to their children, then surely they ought to be prevented from bequeathing or gifting significant wealth to anyone else either. after all, the wealth they bequeath or gift would presumably have 13 an appeal to familial relationship goods, were it permitted, would not undercut the leg itimacy of t he objection but wou ld suggest t hat it out weighed is by somet hing more important, and thus does not prevail all things considered. “simply put, familial relationship goods are more important than fair equality of opportunity” (brighouse and swift 2014: 143). 189 sarah stroud leap 3 (2015) the same disruptive effect on fair equality of opportunity whether it went to their child or to someone else;14 and it would be very peculiar if parents were prohibited from giv ing to their children but perfectly at libert y to confer significant wealth on anyone other than their children. finally, even the restriction to significant wealth appears ad hoc if we are concerned with disruptions to fair equality of opportunity as such. even giving someone $100 for a nice shirt and tie, or a good haircut, will give him a better prospect of obtaining a desirable job than he had before. according to brighouse and swift’s reasoning, such a gift unfairly harms all those of similar abilities (and willingness to use them) whose chances of getting that desirable job just went down. in sum, if we are prepared to object to any action which produces a more unequal distribution of opportunities and prospects (across those of similar abilities, etc.) than the distribution which held prior to that action, there seems to be no limit to what we would have to stamp out. i suspect brighouse and swift would reply by underlining that they, too, are on record as being against “pursu[ing] fair equality of opportunity wholeheartedly” (2014: 36) or “all the way” (2014: 44). perhaps they agree that it would be ridiculous, if not intolerable, to forbid people ever to give anyone $100. but the moral i take from this is, i suspect, different from theirs. they see an admirable ideal whose moral force is sometimes outweighed by even more powerful considerations, such as the great value of familial relationship goods (see for instance 2014:33). i, on the other hand, see a plausible-sounding principle ((c) plus (d)) whose implications on closer inspection suggest that it is not an attractive ideal after all.15 i would also like to take issue with (5) in the “master” argument. there is of course some sense in which bequeathing significant wealth to your child is “external” to the parent-child relationship, simply in that such bequests necessarily take place after one party to the relationship has died. insofar as they literally postdate the person-to-person interactions which constitute a parent-child relationship, bequests take place outside rather than within the course of that relationship in a temporal sense. however, this very literal sense of “external” is not the one which is appropriate to the argument, and i think bequests cannot be so easily set aside from what is valuable in a parent-child relationship. let me explain why. 14 you might think disadvantaged recipients would be an exception to this rule; but in fact a large gift to a disadvantaged recipient advantages him relative to what used to be his disadvantaged confrères, and thus “contravene[s] … fair equality of opportunity” (brighouse and swift 2014: 132). 15 see stroud (2013) for more on principles which sound appealing as slogans but whose implications (ought to) cause us ultimately to reject them. egalitarian family values? 190 leap 3 (2015) a central component of the valuable parent-child relationship is that it is a loving relationship. in particular, the parent in such a relationship loves her child. it is a near-truism, and one that brighouse and swift endorse, that when you love someone you very much want him to flourish (2014: 123, 124, 132). (indeed, it is typical of love that you want to play some positive causal role in his f lourishing.) suppose, then, that you are in a position to expose someone you love to something that you take to be an intrinsic good—that is, to a potential intrinsic contributor to his well-being or f lourishing. it would seem to be part of love—and thereby part of the valuable parentchild relationship—that you will want (all else being equal) to do so. as a lov ing parent, you w ill naturally seek to expose your children to music, animals, nature, and whatever else you think is non-fungibly valuable. such behaviour is internal or endogenous to love, not external to and cleanly separable from the latter. note that i am not speaking of wanting to confer advantage on your loved one, where adva ntage is a n essent ia l ly compa rat ive not ion. (i a m not claiming that it is part of love to want your loved one to be in the top decile.) i actually think—and i take this to be broadly in the spirit of brighouse and sw if t’s ega lita ria n et hos—t hat t here is somet hing disreputable about w ishing for, and pursuing, purely positional goods for your loved ones, although it is an interesting question (which i will not take up here) whether and how this could be defended within moral theory.16 by contrast, it is hard to see anything objectionable in someone’s wanting to expose her children to intrinsic goods: what mistake could such a person be accused of making, and what grounds could there possibly be for seeking to restrict such conduct?17 unfortunately brighouse and swift think there are grounds for restricting it. for even exposing your children to what you take to be intrinsic goods may have instrumental effects which push your children ahead of others in the competition for socially produced rewards. this will inevitably occur if interacting with intrinsic, non-fungible goods tends to enhance skills, abilities, and character traits whose benefits are transferable to other, competitive contexts. (i would rather hope such interaction does tend in this way to improve your character.) when this happens, however, that will suffice to put your action under the disapproving purview of principle (d), which frowns on any action which results (even adventitiously) in a more unequal distribution of opportunities across those of similar ability, etc. than was the case prior to that action’s being performed. (d) will disapprove even if 16 brighouse and swift (2006) have themselves written eloquently on purely positional goods. for an argument that comparative judgements distract us from what is truly significant, see frankfurt (1987). 17 brighouse a nd sw if t seem to concede t he force of t his worr y when t hey discuss t he idea of equa l opportunity for well-being (2014: 42). 191 sarah stroud leap 3 (2015) the action was aimed only at bringing your children into contact with intrinsic goods, and not at all at procuring competitive advantage for them. it must be said that it is not at all obv ious how my son’s hav ing the opportunity to gaze at the night sky far from urban light pollution, or my daughter’s learning to use a scythe, is really likely to give either of them a (further) competitive advantage in the modern economy. however, i am perfectly prepared to believe that it might, through some indirect route.18 if their being exposed to these activities does have that effect, then—back to that country house again!—there is, as brighouse and swift see it, a moral case for keeping me from offering these goods to my children. and as we already underlined, this will be so even if the procuring of a competitive advantage for my children is not at all my aim in exposing them to these new experiences. for me this again casts doubt on the soundness of the essentially consequentialist egalitarian principle on which brighouse and swift rely.19 more broad ly, i wa nt to suggest t hat ega lita ria ns li ke brighouse a nd swift are playing with fire in granting broad licence to loving parent-child relationships. from an egalitarian point of view, love is dangerous; it threatens to break out of the tight constraints on beneficence which brighouse and swift seek to erect in the name of equality of opportunity.20 brighouse and sw if t might say t hey do not disag ree t hat love tends to spi l l outside t he boundaries they try to set, but in their view the balance of values favors putting a protective firewall only around the highly valuable “core” of the parent-child relationship—even though this means placing some actions taken out of love, and in the context of such a relationship, off limits.21 there is however an irony in brighouse and swift’s judgement of relative value on this particular point. for by their own admission, the prohibition not just of bequests, but of all the various ways in which parents might seek to use their superior financial resources to benefit their children (think private schooling), would have only an insignificant effect on the unequal distribution of prospects for desirable jobs, etc. across children. that is, parents’ direct use of money to benefit their children is—it turns out—a relatively minor contributor 18 perhaps (for instance) the patience francesca is forced to develop as she (slowly) learns how to swing a scythe will further advantage her for desirable jobs later on. 19 consequentia list because t he test which t he principle a rticu lates is concerned solely with what results from our actions. 20 a more fruitful, although more radical, approach for brighouse and swift’s purposes might be to challenge standard understandings of love and in particular its supposed tie to wishing to benefit the loved one. see along these lines ebels-duggan (2008). 21 brighouse and swift seem to take this line at times (2014: chapter 5, 132-137). this more nuanced view effectively concedes that such actions are indeed “internal” to love, but it maintains that the value of giving parental love more freedom to operate does not measure up to the disvalue of the resulting disruptions of fair equality of opportunity. egalitarian family values? 192 leap 3 (2015) to inequality of opportunity. (brighouse and swift allude to this at 2014: 31-32 and 125-127.) brighouse and swift thus seem overly optimistic when they say early on that they will “offer an account of ‘family values properly understood’ … that mitigates—massively mitigates—the conf lict with equality” (2014: 4; added emphasis). it would appear rather that the egalitarian value to be gained by decreeing some loving actions to be beyond the pale of interpersonal justification is unequal to its cost. bibliography brighouse, h. and swift, a., 2006: “equality, priority, and positional goods”, ethics 116: 471-497. — 2014: family values. the ethics of parent-child relationships, princeton: princeton university press. ebels-dugga n, k., 2014: “aga inst benef icence : a nor mat ive accou nt of love”, ethics 119: 142-170. frankfurt, h., 1987: “equality as a moral ideal”, ethics 98: 21-43. hassell, k., 2015: “jeremy vine: my family values”, the guardian www.theguardian.com/lifeandstyle/2015/sep/11/jeremy-vine-my-family-values kamm, f., 2013: “nonconsequentialism” in the blackwell guide to ethical theory, ed. h. lafollette and i. persson, 261-286, 2nd ed., chichester: wiley-blackwell. kolodny, n., 2003: “love as valuing a relationship”, philosophical review 112: 135-189. scheffler, s., 2001: boundaries and allegiances, oxford: oxford university press. schoeman, f., 1980: “rights of children, rights of parents, and the moral basis of the family”, ethics 9: 6-19. stroud, s., 2013: “they can’t take that away from me: restricting the reach of morality’s demands”, in oxford studies in normative ethics: volume 3, ed. m. timmons, oxford: oxford university press. http://www.theguardian.com/lifeandstyle/2015/sep/11/jeremy leap 3 (2015) four puzzles on gender equality philippe va n pa r ijs université catholique de louvain abstract there are dimensions a long which men seem to be disadvantaged, on average, relative to women. for example, they can expect to live less years; in a growing number of countries they are, on average, less educated than women; they form an electoral minority; and their greater propensity to misbehave means that the overwhelming majority of the prison population is drawn from their ranks. these disadvantages, if they are real, all derive from an unchosen feature shared by one category of human beings: being a male. does it follow that these advantages are unjust? key words : gender equa lit y, socia l just ice, polit ica l power, crimina lit y, phi losophy preamble part of my job consists in giving talks. many of them leave hardly any trace in my memory, but some of them i shall remember forever. one of these is the short speech i agreed to give in brussels on the 25t h of april, 2013 at the 2013 jump forum, a big annual event “for advancing women in the workplace.” what happened? over a year prior to the event, i had been asked by jump’s wonderfully dy namic director, my ex-student isabella lenarduzzi, whether i would agree to take part in a débat des philosophes on gender equality before an audience of hundreds of bright and active women. despite my lacking any specific expertise on the subject, i accepted her kind invitation to open that debate, on the assumption that it would provide an opportunity for a common ref lection on real and difficult issues, rather than for a rambling rehearsal of well-meaning platitudes. given the time limit (ten minutes for the initial input), i asked whether i could be gently provocative. “excellent,” isabella said. because of unexpected technical difficulties, the debate had to take place without simultaneous translation, and hence in english rather than 80 philippe van parijs leap 3 (2015) in dutch and french, as initially announced. for this reason, i probably skipped some qualifications. i did warn my audience that some of what i was going to say would be said ‘tongue-in-cheek’ but did not realize that this opaque metaphor meant nothing to many of them. yet, as at least part of the audience laughed when i expected them to laugh, i felt confident that i was being understood. i started realizing that something had gone wrong when booing joined t he clappi ng a f ter i f i n i shed. t h i s w a s soon con f i r med by t he f i r st com mentator: my speech, t he ma n sa id, had been a n i nsu lt to bot h women and philosophy. after several other reactions in a milder tone but a similar vein, i was given a couple of interrupted minutes to start clarifying what badly needed clarifying – obviously not enough to convince the lady in charge of the conclusion that, behind the appearance of some of the worst bullshit she had ever heard, something was hiding that even she might have found palatable. t he r e s u lt , i c on fe s s, w a s s ome pr e d ic t a ble f r u st r at ion . fac i ng a disapproving, even indignant, audience is part of the price we have to accept paying occasionally for playing our role as academics – i.e., people whose fate is not dependent on their popularity and who therefore have the freedom and responsibility to say what they believe is right even if their audience does not like to hear it. but the source of my frustration, in this case, was different. the part of the audience i had unintentionally upset, i felt, was not indignant because of what i said and thought, but because of what they had some reason to believe i said and thought, though never said or thought. and the fault, i realized, was mine. w hat follows is a w ritten version of what i did say on that occasion, without any significant alteration in substance or form. however, after the introduction and each of the four puzzles i presented, i have added (in italics) a slightly longer comment. these comments are meant to spell out more clearly what my ten-minute speech tried to say. i conclude with a brief epilogue on the connection between the philosophical questions i wanted to raise and the struggle for greater gender justice. 1. background: multi-dimensional injustice towards women i was invited to introduce a philosophical debate on equality between men and women. i want to do so in a way that befits a philosopher, that is, by questioning assumptions that are too easily taken for granted, by asking questions that may sound incongruous or that one would prefer not to ask four puzzles on gender equality 81 leap 3 (2015) oneself. in particular, as i am addressing an audience with an overwhelming majority of women, i want to draw attention to four dimensions along which gender inequality does exist, but in women’s favor. i am not claiming that they are all of the same importance, nor that they can, without qualification, be regarded as dimensions of gender injustice. i am claiming even less that the disadvantages incurred by men along these four dimensions currently offset the disadvantages incurred by women along many others. [t hese other dimensions do not only include those most commonly mentioned, such as the income gap on both an annual and hourly basis, the extent to which women and men occupy positions of political or economic power, or the extent to which men and women perpetrate violence on members of the other gender. they also include, for example, the fact that, on average, women (have to) spend more time and money on their external appearance, wear more uncomfortable shoes, cover or uncover parts of their body, or are de facto denied access to public spaces or means of public transport at certain times. this last aspect is of particular and growing importance, as highlighted, for example, by the conjunction of the motivation behind last year’s “picnic the streets” action on brussels’ central lanes and of sofie peeters’ superb documentary “femme de la rue.”1 sustainability will require us to live more and more packed together in cities, with urban housing becoming ever more expensive and hence private space ever smaller. this makes the quality and safet y of public spaces ever more important for the well-being of all, and freedom from threats and harassment in those places increasingly crucial for a fair distribution of access to such well-being between women and men.] nothing in what i am going to say amounts to belittling the importance of these various dimensions or to denying that the disadvantages incurred by women along these dimensions far exceed the advantages i am about to sketch. but i do want to question the view that the latter is true as a matter of necessity or that it will be true forever. 2. life expectancy life expectancy at birth is currently 82.5 years for european women and 76 for european men. one might be tempted to regard this as a minor advantage: an additional six years of life would be of greater value if they could be squeezed i n at age 30 or 40 rat her t ha n added at age 80. but t h is is a 1 “picnic the streets” is a movement that started with a massive unauthorized sit-in triggered by the opinion piece i published under that title in the belgian press in may 2012 and that led to the city’s decision to pedestrianize brussels’ central lanes. “femme de la rue” is a short film first broadcast in july 2012 that documented how women were being harassed in some streets of central brussels. 82 philippe van parijs leap 3 (2015) confusion. w hat hides behind the gap bet ween the average lengths of women’s and men’s lives is a greater probability for a woman to reach and enjoy her forties, her fifties, her sixties, and so on, not only her nineties. one necessar y consequence is that the gap bet ween men’s and women’s incomes is smaller on a lifelong basis than on an annual basis: on average, men get a significantly higher income than women in every year they live, but they live less years. my point, however, is more fundamental. as regards inequalities in life, there is something that is presumably even more valuable than income: life itself. [perhaps a better way of conveying my point is as follows. imagine a society in which one gender dies on average at age 50, the other at age 55, but the former has an average annual income 10 % higher than the latter (with everyone guaranteed a decent minimum income). if this is all you know, which gender would you prefer to belong to? my guess is that many of us would go for the longer life. if instead, you would prefer to belong to the gender with the higher annual income, reiterate the thought experiment with a 5% , a 1% or even a 0.1% income gap, while leaving the respective life expectancies unchanged. i doubt that anyone would need to go to such a low income differential before indicating a preference for the gender with a longer life expectancy. as long as most people would be willing to give up some income in order to live longer, women’s higher life expectancy reduces the inequality between men and women. this claim is not self-evident, as shown by two interesting objections. firstly, whereas the socially produced income inequality between the two genders is an injustice, should we not say that the inequalit y in life expectancies is not, because it derives either from a biological difference or a difference in lifestyles (or a combination of both)? in the former case, it is a natural fact, not a social injustice. in the latter case, it is a matter of choice for which people need to be held responsible, not of social circumstances which social justice requires us, as far as possible, to neutralize. but are just institutions not also required to reduce natural inequalities, say, between the more talented and the less talented, between the able-bodied and the handicapped? and are gender-specific lifestyles not a matter of social norms at least as much as of individual choice? secondly, doesn’t the alleged advantage of women in terms of life expectancy overlook the inequality in the distribution of care work generated by this very advantage? women do not only live five or six years longer than men, they are also on average two or three years younger than their male partner. this means that far more women than men are likely to still be around when their ageing partner is becoming frail and dependent. as long as much of the elderly care required in these circumstances is performed within the household, the necessar y consequence is a ver y significant inequalit y in the amount of four puzzles on gender equality 83 leap 3 (2015) domestic elderly care work performed by the two genders, which — as lives get longer and children fewer — may approximate or even exceed the size of the inequality in the respective amounts of domestic child care. note that this holds even under the unrealistic assumption that both the will and capacity to care for their partner are the same for men and women. in this light, men’s lower life expectancy might be interpreted as a trick to extract more care work out of women. its impact could only be neutralized if elderly care work were 100% outsourced — which hardly seems desirable, even if it were affordable — or if women had male partners on average 5 or 6 years younger than them — which, for whatever reason, does not seem on the horizon.] 3. educational achievement ever since the invention of school, men have long enjoyed a huge educational advantage over women. in most, if not all, developed countries, this has ceased to be the case for some years. in the european union, for example, the percentage of women with a higher education degree is 25%, compared to 22% for men. and in sweden, often regarded as the forerunner in matters of gender equality, the corresponding figures are 35% for women and 25% for men. isn’t the concern to reduce this inequality overshooting? [one may reply that some overshooting would do no harm. after centuries of massive inequalit y favoring men, a few decennia of some inequalit y favoring women would be welcome. however, even if today’s men were the descendants of yesterday’s men only and today’s women of yesterday’s women only, thereby forming two separate lineages, this sort of intergenerational revenge would have a hard time passing as justice between members of the current generation. if only because today’s men are just as much as today’s women the descendants of the female victims of yesterday’s injustice, i doubt anyone will, on reflection, take this objection seriously. far more serious is the objection that even though women are, on average, more highly educated than men, they still earn lower incomes. this would seem to make the injustice even worse: not only do women get paid less than men, but they do so despite studying harder. no doubt this paradoxical situation is due in part to the time it takes for differences in educational accomplishment to be reflected in differences in professional success, but also and probably to a larger extent to the fact that women choose studies that lead to less lucrative careers. if this is the main factor, can the paradox still be viewed as amplifying the injustice? whatever the verdict on the previous two issues, there is a third consideration worth pondering. irrespective of its specific content, the level of education 84 philippe van parijs leap 3 (2015) matters for reasons irreducible to earning power: it has a significant impact on health, for example, or on empowerment as citizens and household members. this is arguably why it features as an important separate variable in indexes of a countr y’s human development proposed as alternatives to gdp per capita. if we accept this proposition, we seem led again to the same sort of tradeoff as in the case of life expectancy: women’s emerging educational advantage should then be regarded as offsetting (albeit in small part) men’s economic advantage. or can this only be said if the educational advantage is due to a difference in innate ability rather than to a difference in effort?] 4. political power if you combine the first two inequalities, you are in a position to predict the growth of a third one. from women’s longer life expectancy, it necessarily follows, with universal suffrage, that they form a majority in the electorate. moreover, in countries in which voting is not compulsory, there tends to be a significant statistical correlation between level of education and actually using the right to vote. even in belgium, where the vote is supposed to be obligatory, the less educated, i gather, are over represented in the growing percentage of non-voters. consequently, the growing educational gap between women and men can be expected to express itself in a continuous strengthening of women’s electoral majority.2 if as a result of these trends women regularly cast over 60% of the votes, can it not be said that there is a political inequality in their favor, no doubt less outrageous as regards both size and source than the one that long prevailed in our so-called democratic past, but nonetheless real? moreover, this inequality would hold even if the people elected into power by t his predomina nt ly fema le electorate kept being most ly men. on t he assumption that the electorate is not stupid or blind, these people, whether women or men, w ill only be elected and re-elected if the policies they propose or adopt match the preferences of the female majority. [again, a simple thought experiment may make the point more vividly. suppose you can choose between two electoral systems: one in which only women can vote and only men can be elected, and one in which only men can vote and only women can be elected. which would you prefer? isn’t it obvious that those concerned with the fate of all women, rather than the career prospects of a few, should prefer the former to the latter? if this is the case, shouldn’t the fact that women form a growing proportion of the voters (if it is a fact) count as a significant political inequality in their favor? 2 this must be asserted with some caution, as one would need to verif y that, for any given level of education, men do not vote more than women and that the overall positive correlation between education and voting holds for both genders taken separately. four puzzles on gender equality 85 leap 3 (2015) moreover, this inequality in electoral power is one which, if they so wished (and contrary to the institutional assumption in the thought experiment of the previous paragraph), women could convert into an even greater inequality in their favor among those who hold political responsibilities. this would be the case, for example, if our electoral system were organized so as to aggregate the votes of women and men in a way essentially analogous to the way in which belgium’s electoral system aggregates the votes of flemings and walloons in belgium’s federal elections or the votes of (supposedly) french and dutch speakers in brussels’s regional elections: women would be required to vote for women only and men for men only.3 the seats in parliament would then be automatically distributed in proportion to the number of men and women in the electorate. if all the government needed were support of a majorit y in t he pa rlia ment (w it hout a f ur t her inst itut iona l const ra int analogous to the parity rules in the belgian and brussels governments), an all-female government supported by the female majority could rule the country in impeccably “democratic” fashion. there a re of course good reasons to avoid ex tending to t he gender divide the electoral pathology of belgium’s language community divide. it is important that those who want to govern a country should be electorally accountable to its whole population. but even w ith a strict analogue of belgium’s current electoral system, and hence in the absence of a guaranteed proportional representation of men and women in the elected assemblies, it is within the power of the electoral (and even greater voting) majority of women to vote into office a corresponding majority of women. indeed, under the french or british system of single-member constituencies, and on the reasonable assumption that women form the majority of the voting public in every one of them, women have the power to make sure that only women get into the parliamentary assembly. however, the point to which i want to draw attention holds irrespective of whether women use their power in this way. it holds even if they elected into office only male candidates, those ambitious enough to fancy exercising the increasingly unattractive job of politician, but driven by their very ambition to advocate and implement policies favored by the female majority.] 3 for its federal elections, belgium has a list-proportional system w ith prov incial constituencies. in flemish prov inces, there are only flemish candidates. and in walloon prov inces, there are only walloon candidates. for the regional elections in the officially bilingual region of brussels capital, there are two electoral colleges, with only dutch-speaking parties standing in one, and only french-speaking parties in the other. brussels voters can choose in which of these two colleges they wish to vote and are assumed to do so according to their own native language — an increasingly problematic assumption in a region with hundreds of distinct native languages. 86 philippe van parijs leap 3 (2015) 5. hormonal inequality the fourth inequality to which i want to draw attention is more delicate. a lthough part of what i am going to say w ill be said, as i hope you w ill notice, tongue-in-cheek, it is meant to draw attention to another important and difficult issue relating to the connection between gender injustice and gender inequality. as a point of departure, take the rather unsurprising fact i recently heard that over 95% of the consumers of prostitution services are men. why is this? this might have something to do with the fact that men’s annual incomes exceed women’s by a significant amount and that men therefore have more pocket money to spend on this expensive form of leisure. though pretty ignorant on these matters, i suspect that the cause is more basic and has something to do with the difference between male and female libido, their respective hormonal endowments, or some other physiological difference. no doubt this difference can be said to generate some of the most despicable cases of domination of women by men (whether clients or pimps). but does it not also reflect a gender-based inequality of needs, i.e., a form of handicap? men’s greedier libido turns them into handicapped individuals, sometimes even super-handicapped à la dominique strauss-kahn. whether the price to be paid for this handicap takes the form of expenditure on sexual services or of a fall into a reputational precipice, isn’t there here something to pity as well as to be indignant about? [attributing the frequency of some form of misdemeanor to the fact that the perpetrators are men rather than women does not disculpate them: an explanation is not an excuse, let alone a justification. most men, after all, are not prostitution clients, and however plausible the claim that the strong statistical correlation with maleness ref lects a genuine causal link, the role played by free will in the causal process is by no means irrelevant. this is arguably one key reason why we believe that prostitution services should not be subsidized in the way we believe psychiatric services and other forms of medical care should be. all of this hardly needs saying, i thought, but some of the reactions to the rather abrupt punch line of my speech suggest that stating the (fairly) obvious is not always a waste of time. there is, however, a deeper challenge here. consider the fact that young men are massively over represented among perpetrators of violent crimes (partly against women, but to a large extent against other men), and hence (luckily) four puzzles on gender equality 87 leap 3 (2015) also among prison inmates. here again, the hormonal story is not implausible.4 but the argument need not be fundamentally different if men and women had equally aggressive dispositions but men gave way to them more often simply because their genetic endowment makes them physically stronger. under modern conditions, it is fortunately less easy to get away with violence than in the era of genghis khan. has an advantage not thereby be turned into a disadvantage? can it not be said that men are handicapped relative to women because of their greater propensity to end up in jail as a result of acts they would not have committed had they been women? here again, it may be prudent to add that this is no excuse, nor justification, for their behavior. after all, there are men who have not spent one minute in prison any more than one cent on prostitution. however, think about the way we react to similar figures displaying strong correlations between social background and smoking, or between social background and criminality. people who grew up in poor families tend to smoke far more than people from rich families (which makes the tobacco tax one of the most regressive taxes ever implemented), and they are disproportionately in prision (in part, no doubt, but not only, because they tend to be sentenced more severely for the same crimes). is it not plausible to regard this as an aspect of the injustice they suffer? they did not choose to be poor, and had they been rich rather than poor they would not (probabilistically speaking) be wasting their money on cigarettes or their time behind prison bars. this should not prevent us from taxing the smokers or punishing the offenders, but should it not temper our indignation – especially if we happen to enjoy a more privileged background? indeed, should we not view such facts as one of the expressions of the injustice inflicted on the poor? in this light, let us return to those men who waste their money on prostitutes or misbehave in a way that gets them into trouble (whether incarceration or reputational precipice). they did not choose to be men any more than those born poor chose to be born poor, and had they been women rather than men, they would not (probabilistically speaking) have to bear these burdens. is the analogy between the two cases not so strong that it would be inconsistent to regard the inequalities mentioned as an aspect of an injustice suffered by the poor, but not as an injustice suffered by men? (note that the analog y holds irrespective of the validity of the hormonal diagnosis. if the difference between the behavior patterns of men and women has nothing to do with testosterone or any other physiological difference, but rather with the way in which boys 4 see paula casal’s striking piece, which helped inspire the formulation of this fourth puzzle: “love not war. on the chemistry of good and evil,” in arguing about justice, louvain-laneuve: presses universitaires de louvain, 2011, 145-156. freely downloadable at www.academia. edu/2396206/arguing_about_justice_essays_for_philippe_van_parijs_pul_2011_free_pdf www.academia.edu/2396206/arguing_about_justice_essays_for_philippe_van_parijs_pul_2011_free_pdf www.academia.edu/2396206/arguing_about_justice_essays_for_philippe_van_parijs_pul_2011_free_pdf 88 philippe van parijs leap 3 (2015) are socialized – say, being encouraged to play with guns rather than dolls –, the analogy would arguably be even closer). this brings us to my philosophical question. why is it that my intuition – and presumably yours – is different in the two cases? is it simply because of the contingent fact that these handicaps suffered by men can hardly be said to offset the many unjust inequalities that favor them, whereas in the case of the poor they are added to a whole series of other clearly unjust inequalities in the same direction? or is there a deeper, less contingent difference between the two cases? is the key difference, for example, that it is hardly controversial that a world without poverty would be a better world, whereas some doubt (perhaps wrongly) that a mankind without males would be a better mankind? if this is not the key difference, what is?] epilogue: a philosopher’s job as mentioned at the start, part of the job of a philosopher is to question assumptions, and one effective way of doing so is by formulating puzzles by asking, for example, (1) if society gives group b more money per unit of time while nature gives group a more units of time, can it always be said that there is an unjust inequality at the expense of group a? (2) if society gives group b more money and group a better education, can it always be said that there is an unjust inequality at the expense of group a? (3) if group b enjoys a majorit y among power holders and group a a majority among those who choose the power holders, can it always be said that there is an unjust inequality at the expense of group a? (4) if group b’s genetic endowment makes its members more likely to end up in prison, can this ever be counted as an injustice suffered by its members, none of whom chose not to be born a member of the less incarceration-prone group a? are these questions outlandish, far-fetched, deprived of any relevance to the most pressing issues and most urgent struggles for the sake of greater justice between men and women? at first sight, several of them certainly are. yet they are worth asking. for each of them is meant to invite further thinking on the ideal of equality of opportunity that underlies much of the struggle for greater gender justice. the equalization of opportunities requires that one should neutralize the impact on our life prospects of circumstances beyond our control – including our being born women or men –, while making us bear the consequences of the choices we make – including those made by virtue of preferences that may happen to differ markedly between women and men. four puzzles on gender equality 89 leap 3 (2015) taking seriously the questions raised above and addressing the difficulties they reveal is essential to clarify, refine, and sharpen this ideal, and thereby to strengthen the struggles they inspire. dismissing them, by contrast, deprives us of an opportunity to give a sounder basis to the struggle for greater justice along the gender dimension, as along any other. in particular, articulating the ideal in response to puzzling challenges is essential to put any particular struggle in a broader context: the concern for opportunities, the real freedom of those with least real freedom, irrespective of their gender, but among whom women are massively overrepresented. 219 issn 2341-1465 leap 2 (2014): 219-226 two pictures of the global-justice debate: a reply to tan* l aura valentini london school of economics and political science 1. introduction kok-chor tan’s review essay offers an internal critique of my perspective on global justice. tan grants my coercion-based account of the triggers of justice-obligations, but takes issue with my claim that, on that account, “global justice requires more than statist assistance, but less than full-blown cosmopolitan equality” (valentini 2011: 20, quoted in tan 2014: 201). in particular, tan thinks that, at the very least, my denial that egalitarian justice applies globally is under-argued. principles of international/global justice, he suggests, may well differ in content from principles of domestic justice, but this need not mean that they are not egalitarian in form. for example, he asks: “why can’t the global trade regime be governed by a principle that says that the gains of trade should be equally distributed among the relevant parties as a default (with specifications on when departure from this default is admissible, as when it advantages the less advantaged)?” (tan 2014: 204-5). this principle differs in content from the principles of justice that liberals defend at the domestic level —which do not concern the gains from trade— yet it seems egalitarian in form. and on the face of it, tan suggests, there appears to be little in my coercion-based account that rules it out as a candidate demand of global justice. tan’s thoughtful discussion gives me a welcome opportunity to clarify a misunderstanding about my view, which i suspect drives his critique. tan takes me to hold that “whatever [is] required for global justice, it will not include egalitarian commitments” (tan 2014: 204). but this is not what i argue in justice in a globalized world. instead, i only deny that “the egalitarian principles liberals adopt to assess domestic distributions of liberties, opportunities, and economic goods should apply to the world at large” (valentini 2001: 6, emphasis removed). the expression “full-blown cosmopolitan equality” in the passage quoted by tan does not refer to formally egalitarian principles in general, but to one specific class of such principles. * many thanks to paula casal, christian list, miriam ronzoni, and andrew williams, for their comments on an earlier draft of this response. 220 laura valentini leap 2 (2014) once this semantic difference in our understandings of “cosmopolitan equality” is clarified, our perceived disagreement on whether there could be principles of global justice that are egalitarian in form disappears. the semantic difference, though, reveals what is probably a deeper dispute between the two of us: a “meta-dispute” about what the debate on global justice is, or should be, about. tan and i operate with different pictures of that debate. to better substantiate these claims, in what follows, i will (i) characterize the controversy between cosmopolitans and statists, (ii) sketch my position in justice in a globalized world and, on this basis, (iii) outline where i suspect the disagreement between tan and myself really lies. 2. cosmopolitanism and statism in justice in a globalized world, i aim to offer an account of international justice that steers a middle course between statism and cosmopolitanism. these two perspectives, as i characterize them in the book, offer different answers to what i call “the question of extension”, namely “whether [liberalegalitarian] principles of domestic justice should extend to the world at large” (valentini 2011: 5). cosmopolitans answer the question in the affirmative, statists in the negative. 1 before proceeding further, it is worth noting that tan’s critical discussion of my book appears to be implicitly conducted not against the background of this question, but of a different one: “what socio-economic distributive principles, if any, apply beyond borders?” 2 this question is both narrower and broader than the one i address in the book. it is broader insofar as it does not focus exclusively on justice. it is narrower insofar as it concentrates on the distribution of a specific class of goods, i.e., socio-economic goods, while justice simpliciter ranges over other types of goods too (e.g., liberties). 3 having said that, the contrast between statism and cosmopolitanism i draw in justice in a globalized world can be recast as a disagreement about socioeconomic distribution, and thereby rephrased in terms of different answers to the question implicitly underpinning tan’s critique. to do so, let me begin by noting that principles concerning the distribution of socio-economic goods may differ along the following three dimensions: their grounds (g); the distributive pattern they mandate (p); and the recipients of the relevant 1. in valentini (2011: 6-10) i offer an overview of these two positions. furthermore, chs. 2 and 3 of the book discuss cosmopolitanism; chs. 4 and 5 discuss statism. 2. this emerges from the section of tan’s review titled “poverty and global inequality: humanitarian and egalitarian duties”. 3. by “socio-economic goods” i mean resources broadly construed. for simplicity, i do not problematize how exactly socio-economic goods are conceptualized, namely the relevant “distribuendum”. for discussion see gosepath 2011. two pictures of the global-justice debate: a reply to tan 221 leap 2 (2014) distribuendum (r). the general structure of these principles is the following: “ground g requires socio-economic goods to be distributed in line with pattern p between recipients r”. different ways of specifying parameters g, p, and r lead to substantively different socio-economic distributive principles. statists and cosmopolitans specify the parameters differently. first, all cosmopolitans hold that justice grounds global distributive obligations. justice is a special type of moral concern, one that generates obligations correlative to rights, which are in principle rightfully enforceable. for instance, the obligation to pay the (fair) price for a good that one has purchased is a paradigmatic obligation of justice: it is correlative to the seller’s right to payment and in principle rightfully enforceable, e.g., by the state. justice is contrasted with humanity. obligations of humanity are neither correlative to rights, nor rightfully enforceable. they require us to help needy strangers, using resources to which we are entitled on grounds of justice (barry 1991; buchanan 1987). while both cosmopolitans and statists hold that obligations of humanity apply across borders, for some statists humanity exhausts our international distributive obligations. concerns of justice simply do not arise beyond the state (nagel 2005). second, cosmopolitans hold that socio-economic goods should be distributed in accordance with broadly egalitarian distributive patterns. in other words, they are concerned with global relative as opposed to absolute deprivation. statists, by contrast, are unanimously committed to sufficientarian distributive patterns: for them, international justice requires that all relevant recipients have “enough” socio-economic goods. once the relevant threshold is met for all recipients, inequalities above that threshold are not morally significant. third, cosmopolitans hold that the recipients of global socio-economic justice are individual human beings. statists, by contrast, focus on internally legitimate political communities. in sum, cosmopolitans typically argue that global justice is domestic justice writ large, and requires egalitarian socio-economic distributions between individuals. 4 this is the sense in which they answer the “question of extension” in the affirmative. statists, instead, either argue that there is no such thing as “socio-economic justice beyond borders” (only global humanity), or require justice-based sufficientarian distribution between states (rawls 1999; miller 2007; blake 2001). against this backdrop, in justice in a globalized world, i articulate a view that attempts to steer a coherent middle course between these two families of positions. 4. in turn, this conclusion may be defended on either relational, or non-relational grounds. for the former, see e.g. beitz 1999 and pogge 1989. for the latter, see e.g. caney 2005 and beitz 1983. 222 laura valentini leap 2 (2014) 3. a brief sketch of my view after exposing what i take to be the shortcomings of cosmopolitanism and statism (valentini 2011: chs. 2, 3, 4, and 5), i develop a coercion-based account of the “triggers” of principles of justice (valentini 2011: ch. 6). i start from the liberal premise that individuals have a right to a mutually justifiable distribution of freedom, one under which each enjoys the social conditions to lead an autonomous life. since coercion always involves non-trivial restrictions of freedom, instances of coercion stand in need of justification: they must be shown to be consistent with a mutually justifiable distribution of freedom between the parties involved (valentini 2011: ch. 7). i call the principles establishing the conditions under which coercion is justified “principles of justice”. it is important to emphasize that my notion of coercion is somewhat heterodox. 5 i do not equate coercion with the imposition of commands backed by the threat of sanctions but, more broadly, with the imposition of non-trivial constraints on freedom. moreover, i suggest that coercion so understood comes in two variants. it can be perpetrated either by an agent (interactional coercion) or caused by a system of rules supported by a large enough number of agents (systemic coercion). from my perspective, both interactional and systemic coercion stand in need of justification. equipped with this normative framework, i argue that what principles of justice apply beyond borders —at any given time— depends on the forms of coercion existing in the international arena. in today’s world, both interactional and systemic coercion are present. instances of interactional coercion primarily involve states as collective agents (e.g., think about aggression or bilateral state relations more generally). instances of systemic coercion involve global or near-global systems of rules such as those sustaining the global economy (trade and finance). 6 i argue that the justification of international interactional coercion demands respect for the sovereign equality of internally legitimate (i.e., reasonably just) states. sovereign equality, in turn, requires every state to be in a position to control their affairs without being continuously interfered with or subtly dominated by other states and non-state actors. for example, consider the influence exercised by the united states over latin american countries during the cold war; or the influence that powerful corporations exercise over weak states. while states susceptible to these forms of 5. it thereby differs from other coercion-based accounts of the triggers of demands of justice, such as the one offered by blake 2001. 6. in valentini (2011: 193), i am explicit, however, that the rules governing the global economy need not exhaust global systemic coercion. two pictures of the global-justice debate: a reply to tan 223 leap 2 (2014) interference may be “formally sovereign”, they are much less sovereign, from a substantive point of view, than others (valentini 2011: 191). 7 my account of the justification of global systemic coercion is more tentative —as i admit in the book, and tan rightly notes. in particular, i argue that the rules governing global finance and trade should be compatible with a mutually justifiable distribution of freedom among those falling under their purview: states and their citizens. having said that, i also note that “[g] iven the cultural diversity and social complexity characterizing the global economy, instead of aiming for a specific and complete account of what global socio-economic justice requires, we are [...] on firmer ground simply establishing what it must exclude” (valentini 2011: 200). 8 i then go on to offer a few examples of policy reforms that would lead in this direction — including the implementation of more equitable rules in wto settings, and the creation of institutions to combat harmful tax-competition and global financial volatility. since i am not offering a full picture of what global justice, at the systemic level, requires, but merely pointing to practices that it must exclude, my account is rather open-ended. what i offer, as the book’s subtitle suggests, is a “normative framework” for thinking about global justice, rather than a definitive account of what global justice positively requires. 4. what tan and i really disagree about based on this sketch of the view in my book, it should be transparent that i do not deny that the “global trade regime [should] be governed by a principle that says that the gains of trade should be equally distributed among the relevant parties as a default” (tan 2014: 204-5); or indeed that principles of justice that are egalitarian in form should apply beyond borders. unlike other critics of cosmopolitan egalitarianism, i simply remain agnostic about this. i adopt a minimalist strategy suggesting only what global systemic coercion must exclude in order to avoid being unjust for sure. in light of this, i could perhaps be reasonably criticized for saying too little. but tan thinks i say too much, specifically, that “whatever [...] will be required for global justice, it will not include egalitarian commitments” (tan 2014: 204). i suspect that this misunderstanding is prompted by my claim that, on my view “global justice requires more than statist assistance, but less than full-blown cosmopolitan equality” (valentini 2011: 20). tan reads 7. for related discussion, see ronzoni 2012. 8. in valentini (2011: ch. 7), i draw a very similar conclusion in relation to domestic principles of justice concerning the distribution of income and wealth. i accept that domestic justice requires equality in the distribution of civil and political liberties, as well as opportunities, but i claim that “[w]hat economic inequalities are permissible beyond [a] basic-needs threshold is a question to be answered on a case-by-case basis, and which should be ultimately decided through the democratic decision procedures of each political community” (19 and 176-77). 224 laura valentini leap 2 (2014) the emphasis of this sentence as being on “equality”, and from this infers that i am generally averse to any form of egalitarianism beyond borders. but that sentence, and the book more generally, express aversion to “fullblown cosmopolitan equality”. as i have explained earlier, by this i mean the view that the principles of egalitarian socio-economic justice that apply domestically should extend globally, in the world as it is today. so i agree with tan that “egalitarian commitments can take different shapes, and there is nothing in the ideal that egalitarian justice has global reach that requires global principles to be replicas of domestic principles” (tan 2014: 206). the book does not argue against egalitarian commitments so broadly construed. having said that, tan’s reading of what i say may reveal a deeper disagreement between the two of us. for tan, “ultimately the dispute concerning global distributive justice remains a dispute between two basic forms of global obligations —egalitarianism versus sufficientarianism” (tan 2014: 207). that is, tan seems to focus exclusively —at least in his response— on disagreements concerning the distributive pattern mandated by principles of international political morality (probably taking “individuals” for granted as the relevant recipients). but as i have suggested above, principles of global socio-economic justice might differ along other dimensions too, specifically: grounds and recipients. 9 i take these further dimensions of disagreement to be central to the cosmopolitan-statist controversy as i understand it, namely the controversy i address in the book. 10 it should thus be no surprise that much of the book is concerned with those other dimensions as well (especially grounds) and thereby somewhat de-emphasizes the centrality of the “sufficiency versus equality” contrast. once those other dimensions are taken into account, contrary to what tan suggests, it is not true that “there is no third category or third wave of global distributive justice” (tan 2014: 207). 11 my view —whether one finds it plausible 9. as i said earlier, the specific nature of the “distribuendum” is also a possible, and important, locus of disagreement, which i omit here for brevity’s sake. 10. tan might object that “[o]ne does not forfeit one’s cosmopolitan egalitarian credentials just because one offers a global principle that specifies the limits of acceptable inequality differently from a domestic principle” (tan 2014: 215). this strikes me as a matter of definition, with little substantive import. what is more, i myself acknowledge a distinction between “strong cosmopolitanism” (i.e., the direct extension of domestic egalitarian justice to the global realm), and “weak cosmopolitanism”, which “places limits on permissible global socio-economic inequalities without insisting that they should coincide with those placed on domestic ones” (valentini 2011: 16-17). in valentini (2011: ch. 3), after an extensive critique of strong cosmopolitanism —my main target— i provisionally suggest that a “weaker” cosmopolitan position may be more defensible (without endorsing it). 11. the claim isn’t true even if it is understood as meaning that principles of global distributive justice can only be either egalitarian or sufficientarian. here are two simple counterexamples: “the gains of trade should be distributed so as to maximize the sum-total of utility” and “the gains of trade should be distributed in proportion to participants’ contributions”. these distributive principles exhibit neither a sufficientarian nor an egalitarian pattern. two pictures of the global-justice debate: a reply to tan 225 leap 2 (2014) or not— can be described as occupying a middle ground between statism and cosmopolitanism. specifically, like cosmopolitanism and some (but not all) variants of statism, my view holds that demands of socio-economic justice apply beyond borders. unlike cosmopolitanism, however, the view also acknowledges that states —provided they are internally legitimate— are important subjects of international justice. and unlike statism, it implies that global justice demands something more than the transfer of resources between “independent” political communities aimed at meeting a given threshold of sufficiency (what i call “statist assistance”): it requires deep restructuring of the rules governing international finance and trade, so as to remove clearly unjustifiable constraints on the freedom of states and their citizens. 5. conclusion tan and i do not disagree about the possibility that international/global socio-economic justice might include principles exhibiting an egalitarian distributive pattern. tan’s discussion of my work has been helpful in giving me the opportunity to clarify this point. that said, tan and i may well disagree about the relative importance of the “equality versus sufficiency” distinction in the global-justice debate, and possibly about how other parameters within that debate —e.g., grounds and recipients— should be specified. bibliography barry, b., 1991: “humanity and justice in global perspective”, in liberty and justice: essays in political theory 2, ed. b. barry, oxford: clarendon press, 182-210. beitz, c., 1983: “cosmopolitan ideals and national sentiment”, journal of philosophy 80: 591-600. — 1999: political theory and international relations, princeton, n.j.: princeton university press. blake, m., 2001: “distributive justice, state coercion, and autonomy”, philosophy & public affairs 30: 257-96. buchanan, a., 1987: “justice and charity”, ethics 97: 558-75. caney, s., 2005: justice beyond borders, oxford: oxford university press. gosepath, s., 2011: “equality”, the stanford encyclopedia of philosophy, ed. e. n. zalta, url = http://plato.stanford.edu/archives/spr2011/entries/equality. miller, d., 2007: national responsibility and global justice, oxford: oxford university press. nagel, t., 2005: “the problem of global justice”, philosophy & public affairs 33: 113-47. pogge, t., 1989: realizing rawls, ithaca: cornell university press. rawls, j., 1999: the law of peoples: with “the idea of public reason revisited”, cambridge, ma: harvard university press. 226 laura valentini leap 2 (2014) ronzoni, m., 2012: “two conceptions of state sovereignty and their implications for global institutional design”, critical review of international social and political philosophy 15: 573-91. tan, k. c., 2014: “sufficiency, equality and the consequences of global coercion”, law, ethics and philosophy 2: 190-209. valentini, l., 2011: justice in a globalized world: a normative framework. oxford: oxford university press. leap 3 (2015) do women enjoy a political advantage? majority position and democratic justice1 pi e r r e -é t i e n n e va n da m m e université catholique de louvain abstract philippe van parijs suggests that there might be a political inequality in favor of women, taken as a group, stemming both from their life expectancy and their supposed higher participation in elections due to their higher level of educat ion. he a lso wonders about t he status of t his inequa lit y. is it advantageous? is it unjust? does it partially counterbalance other disadvantages or injustices? this papers starts by assessing and qualif ying the alleged inequalit y from an empirical perspective. it then considers van parijs’ normative questions and argues that we should not consider the inequality as an advantage, nor an injustice, because mere membership in a majority group cannot plausibly be judged so. where women have strong common interests, they have no power; where they have electoral power, they have no overarching common interests. key words: political equality, gender equality, life expectancy, education, democratic justice introduction in his provocative and stimulating paper on gender inequalities, philippe van parijs discusses four puzzles. i focus on the third, which concerns an alleged political inequality in favor of women, taken as a group, stemming both from their life expectancy and their supposed higher participation in elections due to their higher level of education. van parijs recognizes that, all things considered, women suffer many more disadvantages than men, but wonders about the status of this inequality: is it advantageous? is it 1 i am very grateful to paula casal for her numerous useful comments on earlier drafts of this paper and linguistic advice. i also thank siba harb and leap’s anonymous reviewers for various excellent suggestions. 117 pierre-étienne vandamme leap 3 (2015) unjust? does it partially counterbalance other disadvantages or injustices? i argue that we should not consider this inequality as an advantage, nor an injustice, because mere membership in a majority group cannot plausibly be judged so. 1. a general puzzle about these puzzles before considering van parijs’ puzzle, i feel i should say a more general word about the questioned appropriateness of his paper, if only because it has engendered offended reactions. i have found around me that most men considered the puzzles amusing and stimulating, whereas most women found them inappropriate, if not stupid. it is certainly easier to discourse with lightness over the possible advantages of being a woman when you do not experience everyday domination nor bear the symbolic weight of an enduring oppression. therefore, even though i agree with van parijs that the questions he raises are “worth asking” (van parijs 2015: 88) and take this puzzle as an invitation to ref lect upon the interesting issue of democratic justice, i also agree with several of his critics that the puzzles are of little practical relevance and therefore somewhat odd in the writings of such a philosophe engagé. 2. the extent of gender political inequality van parijs ma kes t wo empirica l hy pot heses. first, t hat women form a potential majority in all constituencies with universal suffrage where they enjoy longer life expectancy. although men are more numerous at birth almost every where in the world, it is true that women outnumber them in the population of most advanced democracies, such as western europe and north america. by contrast, the sex ratio tends to be reversed in africa and asia.2 second, he suggests that this unequal balance of electoral power might be increased by a larger participation of women in elections, thanks to their higher level of education in several countries. this is more controversial. it has generally proven true in the history of democracy that the level of education increases electoral turnout (norris 2004: 175). the correlation between education and women’s turnout is expressed by the fact that in developed countries, where they are likely to have a more equal access to education, the gender gap has disappeared: women participate in elections 2 see the cia’s “world factbook” https://www.cia.gov/library/publications/the-worldfactbook/fields/2018.html https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html do women enjoy a political advantage? 118 leap 3 (2015) at least as much as men (norris 2002).3 in contrast, in newer democracies, where unexamined religious norms and/or sexist social norms reducing women’s educational opportunities tend to be more pervasive, women’s turnout to elections is lower. in recent history, though, there seems to be a clear secular trend, expressed in the generational variations in women’s turnout (norris 2002) and political orientation (stevens 2007: 52-58). is it then the case that, in contexts where women are on average more highly educated, the inequality in electoral turnout is reinforced? not really. in advanced democracies, w it h t he exceptions of t he united states and sw it zerla nd – which somet imes a lter t he genera l picture –, educat ion seems to have almost no effect anymore on turnout (przeworski 2010: 94). the impact of education on electoral participation is generally higher in less aff luent countries, which usually show less gender equality and less female participation in elections.4 therefore, where the impact of education on turnout is high, women might not otherwise enjoy high turnout or a higher level of education. what is more, even where higher education does increase turnout, a reversed tendency might counterbalance it, as a low education profile seems to affect women’s (lower) turnout much more than men’s (norris 2002). in sum, the accumulation of the t wo advantages env isioned by van parijs – participation and education – is plausible in the u.s., and possibly switzerland, yet much less elsewhere. this does not affect his hypothesis that longer life expectancy might constitute a political advantage, but it restricts the extent of the supposed inequality of political power. now, what could somewhat increase the plausibility of van parijs’ claim is the amusing fact that “sur veys find more people say ing that they have voted than the actual polling figures confirm” (stevens 2007: 49) and “men are slightly more likely than women to misrepresent having gone to the polls” (verba et al. 1997: 1054). this, however, is unlikely to increase significantly women’s actual electoral power. a more promising path for van parijs could be to consider the effects of age on turnout, which used to worry him (van parijs 2011). as he knows, older people tend to vote more than younger people (norris 2004: 125; van parijs 2011: 35). and contrary to what he seems to assume (van parijs 2015), the ratio of elderly women to elderly men is higher than the ratio of women to men at younger ages (cia 2014; casal 2015). in light of developed democracy’s 3 they often have more or less equal rates of turnout, and as they often outnumber men in those societies, they often (yet not always) outnumber them in elections. 4 this with reservations, as little information is available about turnout rates broken down by sex. see norris 2002. 119 pierre-étienne vandamme leap 3 (2015) tendency to face an ageing population, one might thus think that the imbalance of electoral power is increasing in the west. however, the sex differential in life expectancy is now narrowing with the years in developed countries after having peaked between 1970 and 1980 (glei and horiuchi 2007). so, while differences in turnout according to age may slightly increase the imbalance of electoral power, ageing will probably not. political action, however, is not reducible to participation in elections.5 this brings in another reason for tempering van parijs’ hypothesis that women could enjoy some political advantage. it seems that “[w]ith respect to most forms of political activity other than voting, women are slightly less active than men” (verba et al. 1997: 1053).6 this comes from the fact that they generally have less resources to spend on political activity than men, but also that they have on average less interest in – and knowledge about – politics. this difference, it appears, “persist[s] at each educational level” (1060), and can be explained both by their perception of politics as a man’s game – their interest and knowledge increase in constituencies with female (potential) representatives – and a gender differentiated political education. in addition to this, their lower participation in the workforce also negatively affects women’s engagement with politics in the broader sense (et al. 2001: 198-218). finally, the potential electoral advantage cannot be taken in isolation from the rest of the process characterized by a marked underrepresentation of women in parliaments, local government, media, or lobbying. elections constitute only a part of politics and turnout does not amount to political engagement. rather than a political inequality in favor of women, it would thus be more appropriate to talk about a potential electoral inequality in their favor or, more precisely, a potential inequalit y in active suffrage, dwarfed by an unfavorable inequalit y along most other dimensions of inf luential political action. 5 this is not denied by van parijs, but somewhat obscured by his tendency to use a schumpeterian model of democracy. see van parijs 2011. 6 marien et al. (2010) recently arrived to the opposite conclusion, using a broader data set t ha n burns, sch lozma n a nd verba, who ma in ly focused on t he us. more crosscountr y investigation wou ld be necessa r y. yet what seems to account for t he dif ference is mainly a different understanding of political participation. marien, hooghe and quintelier conclude that women are more active in non-electoral politics because they consider charity donations and products boycotting – both performed more often by women than men – as i mpor ta nt “pa r t icipat ion acts.” yet it seems to be i n act iv it ies produci ng i n f luence on institutionalized politics (party membership, party meetings, direct contacts with politicians) that women are generally less active than men – except for signing petitions (marien et al. 2010). furthermore, if you consider the money invested in political action beside the time dedicated to it, the imbalance of influence in favor of men becomes more apparent (burns et al. 2001: 68). do women enjoy a political advantage? 120 leap 3 (2015) 3. is this inequality unjust? is it even an advantage? having a qualified picture of the extent of the (potential) inequality in active suffrage in favor of women, we can consider its normative implications. if the inequality in active suffrage is only caused by an unequal use of an equal opportunity to vote, one might argue that there is no injustice. for there being procedural injustice, one needs to trace back the unequal turnout to unequal opportunities. w hen men’s turnout is lower than women’s, it might be because they are on average younger and less educated. life expectancy does not affect men’s opportunities to vote, since at each age, all other things being equal, they have equal opportunities to do so. what about their lower educational achievements? they cannot plausibly stem from unequal educational opportunities, but they might result from unequal educational abilities. if this were the case, one may argue that this involves some procedural injustice in countries where education has an impact on turnout. this small disadvantage, however, would be cancelled by all the other advantages politically enjoyed by men, which provide them many more opportunities of political influence than women. moreover, if women’s higher educational achievements are due to unequal opportunities in the job market (mora 2015), men suffer neither unequal educational opportunities nor unequal voting opportunities, and there is no procedural injustice. van parijs seems nevertheless more concerned w ith people’s use of their votes than with procedural justice. what he invites us to consider are the implications of being in a majority or minority position in a constituency. here the problem is not procedural. that women have more power because t hey a re more numerous is procedura l ly irreproachable : it is t he ver y implication of the basic principle of political equality – one person, one vote. the worry is that they could turn this numerical advantage into a substantial injustice. van parijs’ approach is radically consequentialist, as illustrated by his past discussion of the disenfranchisement of the elderly (van parijs 2011: 31-66). to be member of a minority group cannot by itself be considered as an injustice, but a minority position makes groups more vulnerable to injustices. as people differ along many lines in characteristics, we are all potentially members of a minority group. what can be considered as democratically unjust – or can lead to substantive injustices – is to have political institutions 121 pierre-étienne vandamme leap 3 (2015) arranged in such a way that majority groups are allowed to exert domination over minorities.7 but domination should not be understood here as philip pettit (2012) does. according to him, it is sufficient for there being domination that one agent has the possibility or power to arbitrarily interfere with the choices and actions of another. yet such understanding of domination is of little use for exploring democratic justice in group relationships because virtually all potential majorities dominate potential minorities. ian shapiro, for example, defends a conception of domination that is more useful for our purpose. he suggests that having the capacity to interfere with people’s basic interests “does not itself constitute domination; rather it creates the potential for domination” (shapiro 2012: 324).8 what matters for democratic justice is therefore to assess the plausibility of the threat that one group will take advantage of a favorable balance of power to actually dominate another by systematically favoring its ow n interests at the expense of the other’s. it is the case, for example, when an ethnic group outnumbers another one towards which it is hostile, or because the employed largely outnumber the unemployed. there you find ground for justifying constitutionally protected rights for minorities, in order to avoid this specific kind of domination. to the contrary, we do not consider people with blue eyes as disadvantaged because in a minority, as it is unlikely that they are going to suffer a political disadvantage because of this imbalance of power. they can take part in multiple more plausible majority coalitions, as does the minority sometimes formed by men. i mean by this that it will prove easy for men, as for the blue-eyed, to build a coalition of interests or convictions cross-cutting sexes and eye color. now, it seems quite implausible to consider the fact that women generally outnumber men as an advantage, because where they could take advantage of their number, they lack the interest in doing so. the only common interest of women which could bring them together despite the diversity of their socio-economic interests and their diverging values is the avoidance of male domination. this explains general progresses towards more gender equality since the advent of universal suffrage. yet, in the countries where they are the most oppressed – say, saudi arabia –, women are not allowed to vote. in oppressive democracies, where they are entitled to vote but lack education 7 i say “democratically unjust” because social injustices are not reducible to domination. nevertheless, contrary to a just society, a just democracy cannot eliminate all kinds of unfair advantages. politically relevant majorities will always enjoy an advantage – stemming from the inescapable use of majority rule –, which it should be the aim to minimize, at least in such a way as to reduce political domination. 8 as shapiro suggests, pettit’s understanding of domination “partly accounts for [his] schizoid attitude toward the state” (shapiro 2012: 321), as it pushes him to defend multiple veto players that can lead to a political stand still. do women enjoy a political advantage? 122 leap 3 (2015) and freedom of conscience, they can vote but either do it less than men – see india –, or do it against their common interest – be it under the pressure of their male relatives or because they have internalized some oppressive ideology. only in countries where they have equal access to education and are freed from ideological domination could they use their number as an advantage and “convert [it] into an even greater inequality in their favor” (van parijs 2015: 85). but in those contexts, their common interest – reducing male domination – does not seem strong enough to offset their divergent interests and values.9 take the u.s. as an example. since the 80s, contrary to their previous tendency, women have tended to support democrats more than men at every election (stevens 2007: 55-56). moreover, since 1964, women systematically outnumber men in presidential elections, with a difference reaching 7.2 million votes in 1996 (norris 2002).10 one could then wonder why republicans do not adapt t heir prog ra ms – on reproduct ive issues for ex a mple – to catch more fema le votes. such a n i nt u it ion seems to be endorsed by van parijs when he says that “on the assumption that the electorate is not stupid or blind, [the representatives], whether women or men, w ill only be elected a nd re-elected if t he policies t hey propose or adopt match t he preferences of the female majorit y” ( van parijs 2015: 84). yet the latter preferences vary along many dimensions and are not sufficiently tied together to ma ke women’s votes a n at t ract ive speci f ic ta rget for republicans. conflicts of economic interests and (religious) values largely dominate the competition for votes. targeting one gender group at the expense of consistency regarding those more sensible issues is risky for both parties. women, as everyone, assign priorities to some political goals over others, and seldom are their special interests – those they share only w ith women – on top of the list. this probably explains why historical attempts to create women’s parties “have generally proved short-lived” (stevens 2007: 100). for all these reasons, it seems implausible to characterize the larger number of women among voters as an actual advantage, and even more as an injustice. it could be advantageous for them in a hy pothetical world with full consciousness of their common interests and no division along other lines. then, only, would we have to take it seriously and possibly design institutions in such a way as to reduce their possibilities of turning this 9 w hat is more, these countries have generally adopted strong anti-discrimination laws which undermine the possibility of a domination of men by women. these laws do not make male domination disappear, as it is rooted in pervasive social norms, but they would most probably impede new forms of domination. political power is not unchecked. 10 this could be due both to demography and education, as the latter does have an effect on turnout in the us. 123 pierre-étienne vandamme leap 3 (2015) advantage into an injustice.11 in the meantime, men can sleep soundly. conclusion i have argued that the electoral power imbalance between men and women is a fact in advanced democracies, yet not very significant – contrary to van parijs’ hy pot hesis –, a nd to be considered a longside a reversed power imbalance along other dimensions of political action neglected by his a rg u ment. t hen i have cla i med t hat for a major it y to exer t pol it ica l domination, and thus turn a numerical advantage into an unjust democratic advantage, it needs power and overarching common interests. where women have strong common interests, they have no power; where they have electoral power, they no longer have overarching common interests. the fact that they constitute a potential electoral majority is thus unlikely to constitute an injustice someday nor to counterbalance (even modestly) other political disadvantages – such as the fact that women are underrepresented, less politically stimulated, and have fewer resources for political engagement. bibliography burns, n., schlozman, k. and verba, s., 2001: the private roots of public action: gender, equality, and political participation, cambridge: harvard university press. casal, p., 2011: “love not war. on the chemistry of good and evil,” in arguing about justice: essays for philippe van parijs, ed. a. gosseries and y. vanderborght, 145155, louvain-la-neuve: presses universitaires de louvain. — 2015: “distributive justice and female longevity,” law, ethics and philosophy 3: 90 106. cia, 2014: “the world factbook,” https://w w w.cia.gov/librar y/publications/theworld-factbook glei, d., and horiuchi, s., 2007: “the narrowing sex differential in life expectancy in high-income populations: effects of differences in the age pattern of mortality,” population studies 61: 141-159. marien, s., hooghe, m. and quintelier, e., 2010: “inequalities in non-institutionalized forms of political participation: a multi-level analysis of 25 countries,” political studies 58: 187-213. mora, j., 2015: “women’s greater educational efforts as a consequence of inequality,” law, ethics and philosophy 3: 107-115. norris, p., 2002: “women’s power at the ballot box,” voter turnout since 1945: a global report, international institute for democracy and electoral assistance: 95-102, 11 note that this hypothetical power imbalance might bring, overall, more justice, as it seems that most crimes and injustices are committed by men (casal 2011; pinker 2011), and van parijs argued elsewhere (van parijs 2011) that we should opt for the democratic arrangement most favorable to justice, even at the cost of political equality. https://www.cia.gov/library/publications/the-world-factbook/ https://www.cia.gov/library/publications/the-world-factbook/ do women enjoy a political advantage? 124 leap 3 (2015) http://w w w.idea.int/publications/v t/upload/v t_screenopt _ 2002.pdf 2004: electoral engineering: voting rules and political behavior, cambridge: cambridge university press. pettit, p., 2012: on the people’s terms: a republican theory and model of democracy, cambridge: cambridge university press. pinker, s., 2011: the better angels of our nature: the decline of violence in history and its causes, london: penguin books. przeworsk i, a., 2010 : democracy and the limits of self-government, new york: cambridge university press. shapiro, i., 2012: “on non-domination,” university of toronto law journal 62: 293-335. stevens, a., 2007: women, power and politics, new york: palgrave mcmillan. van parijs, p., 2011: just democracy. the rawls-machiavelli programme, colchester: ecpr press. — 2015: “four puzzles on gender equality,” law, ethics and philosophy 3: 79-89. verba, s., burns, n., and schlozman, k., 1997: “knowing and caring about politics: gender and political engagement,” the journal of politics 59: 1051-72. http://www.idea.int/publications/vt/upload/vt_screenopt_2002.pdf 166 issn 2341-1465 leap 2 (2014): 166-176 libertarian welfare rights: can we expel them? charles goodman binghamton university abstract in globalization and global justice, nicole hassoun presents a new and fundamental challenge to libertarian political thought. her legitimacy argument tries to show that natural rights libertarians are committed by their own principles to a requirement that their states recognize and meet the positive welfare rights of certain merely potentially autonomous persons. unfortunately, this argument suffers from two flaws. hassoun needs to show, but has not shown, that the libertarian state would have to infringe any of the negative rights of the merely potentially autonomous in such a way as to require consent from them. moreover, the libertarians could arrange their institutions, justifiably by their own lights, so as to expel all indigent, merely potentially autonomous persons from their territory. this second solution is intuitively unpalatable, but may be no more morally problematic than the basic natural rights libertarian view itself. keywords: ibertarianism, positive rights, nicole hassoun, autonomy, john locke. 1. introduction: the legitimacy argument much recent work on global justice has focused on attempts to convince libertarians that the processes of globalization generate significant obligations to help the global poor. the work of thomas pogge and others towards this goal has recently been supplemented by nicole hassoun’s important book globalization and global justice. hassoun presents a new, fundamental, and apparently devastating challenge to libertarian political thought. according to hassoun’s legitimacy argument, natural rights libertarians who reject anarchism, defend the state’s monopoly on force, and accept actual consent theory, cannot explain how it is morally legitimate for them to coerce certain non-autonomous but potentially autonomous persons. in order for a libertarian state to exercise jurisdiction over these persons, it must provide them, insofar as it can, with what they need to become autonomous. thus libertarian welfare rights: can we expel them? 167 leap 2 (2014) the normative legitimacy of even a libertarian state would depend on its practical recognition of certain positive welfare rights. hassoun focuses our attention, as other writers have, on the horrifying moral tragedy of our time: the plight of the global poor in a world that contains so much affluence. libertarians are aware of this tragedy, and have no need to minimize it. they propose to relieve the misery of the poor by extending free trade, the rule of law, and the institutions of capitalist society to every part of the globe. since these institutions have repeatedly succeeded where no others have in transforming poor countries into rich countries, they constitute the only approach on which we have any reason to rely for saving the world’s poor from their wretched condition. hassoun would disagree with this program; and she offers various empirical arguments for the importance of foreign aid in helping to alleviate global poverty. but regardless of the outcome of the empirical debate about what measures would most effectively help the poor, libertarians must still contend with hassoun’s case for the claim that, contrary to their view, potentially autonomous people have positive welfare rights that can be grounded in considerations about individual freedom and consent that libertarians themselves accept, and that governments cannot be legitimate if they do not appropriately respond to these rights. libertarians advocate the creation of minimal states that do nothing other than protect the negative rights of their citizens. such states would have police forces, courts, and armies, and would use them to punish crime, deter aggression and enforce contracts, but would not collect taxes from citizens for any other purpose beyond these. call a minimal political institution of this type a libertarian state. those who claim that only a libertarian state would be legitimate, because any more extensive state would violate the natural rights of citizens, i will call natural rights libertarians (see nozick 1977). two prominent theorists, thomas pogge and james sterba, have attempted to show that the natural rights libertarian position, as just explained, is unstable: under contemporary conditions, their view should imply stringent, enforceable duties to help the global poor. for example, pogge draws on the lockean understanding of property rights to try to show that unless we provide the global poor with considerably more resources than they now possess, we will be violating their negative rights (pogge 2002: 208-9). sterba claims that by enforcing property rights, the libertarian state violates the poor’s right to take what they need to survive; this conflict of rights should be resolved in favor of a duty to aid (sterba 2005: 47-48). but, as hassoun points out, libertarians have been unconvinced by these arguments. some “reject sterba’s conclusion because they do not believe that a conflict of rights generates a duty to aid the poor”. others have tried to show “that libertarians are likely to reject pogge’s baseline for harm”. (hassoun 2012: 168 charles goodman leap 2 (2014) 91). thus, the arguments of pogge and sterba remain controversial. hassoun therefore proposes her own, new argument, which attempts to show in an entirely different way that the basic moral principles that underlie natural rights libertarianism should, properly understood, require institutions that redistribute resources towards the poor. although this argument is framed in ways that address the global poor, the core of the argument is applicable to a single libertarian state. thus, despite the fact that hassoun’s book as a whole is directed to addressing issues of global justice, i will be focusing on her argument primarily as it applies domestically. on p. 92 of globalization and global justice, hassoun states her legitimacy argument as follows: 1 (1) coercive institutions must be legitimate. (2) roughly, for a coercive institution to be legitimate it must ensure that its subjects secure sufficient autonomy to autonomously consent to, or dissent from, its rules (henceforth sufficient autonomy.) (3) everyone, to secure this autonomy, must secure some food and water, and most require some shelter, education, health care, social support, and emotional goods. (4) there are many coercive international institutions. (c) so, these institutions must (roughly) ensure that their subjects secure food, water, and whatever else they need for autonomy. i will not be questioning any of premises 1, 3, or 4. premise 1 is accepted, in some form, by nearly everyone. premises 3 and 4 look like straightforward empirical truths. so what supports premise 2? 2 according to hassoun, natural rights libertarians should accept actual consent theory: they should hold that coercive institutions are legitimate only if those subject to them have actually consented to their rule. she persuasively argues that the standard objections against actual consent theory should not be acceptable to libertarians. so a libertarian minimal state must secure the actual consent of autonomous persons that live on its territory. but what about those who are merely potentially autonomous, such as children, or the curably mentally ill? they are still subject to the coercive force of the law of a libertarian state. in order for the state to be 1. the “legitimacy argument”, as discussed here, is a form of the more general autonomy argument that has been adapted to apply to libertarian theories. although hassoun believes, and attempts to show in her chapter 2, that all persons, whether autonomous or not, do have positive welfare rights, the intention of the legitimacy argument is to show specifically that, even on purely libertarian assumptions, persons who are merely potentially autonomous would have positive welfare rights against a libertarian state. 2. premise 2 starts with the word “roughly”. hassoun explains the qualifications to this premise that she thinks are necessary at 93-94. they involve those who do not respect the rights of others; those who can never become autonomous; and those who somehow give up their right to consent. none of these qualifications will be relevant to the argument of this paper. libertarian welfare rights: can we expel them? 169 leap 2 (2014) justified in infringing their rights through coercion, hassoun argues, it must do what is necessary to get their actual consent. but since these merely potentially autonomous individuals do not presently have the normative capacity to grant valid consent, so long as they remain as they are, the state cannot get what it needs from them. so it is morally required to provide them with whatever they need in order to become autonomous, so that they can eventually consent to its rule. this legitimacy argument would, then, require that the curably mentally ill should receive treatment at public expense, and that children should have their basic needs met and should be provided publicly with sufficient education to become autonomous. since these goods and services will be paid for from taxation, the legitimacy argument entails that citizens of a minimal libertarian state have robust positive duties towards the merely potentially autonomous; should these duties not be fulfilled, their state becomes normatively illegitimate. to derive premise 2 from actual consent theory, hassoun needs the plausible assumption that even a libertarian state would have to employ coercion against those living in its territory, including those who are only potentially autonomous. but how, exactly, would the libertarian state use coercion against merely potentially autonomous citizens? when we separately examine the various rights that non-autonomous persons might have, we can identify what may be a serious flaw in this argument. 2. first reply: the rights of the merely potentially autonomous for present purposes, we can say that, from the kind of libertarian perspective we are examining, individuals have natural rights to bodily integrity, property, self-defense, and punishment. the right to bodily integrity is a trivial consequence of the basic libertarian premise of self-ownership. rights to property are the result of the appropriation of unowned natural objects and their transformation through labor. various widely accepted and uncontroversial human rights, such as rights to free speech, free association, due process in criminal cases, and so on, are seen by libertarians as flowing from these two more basic rights to bodily integrity and property. the other two basic natural rights authorize responses to rights violations by others. the right to self-defense gives us limited permissions to respond to violations that are occurring in the present or are likely to occur in the future; the right to punish gives us limited permissions to respond to violations that have occurred in the past. there is no clear reason why a libertarian state would have to commit aggression against non-rights-violating potentially autonomous persons in its territory, depriving them of their rights to bodily integrity. nor would the 170 charles goodman leap 2 (2014) libertarian state arbitrarily confiscate their property. but there is a problem about whether it would be permitted to ask the merely potentially autonomous to pay for its protective services, since they are unable to give valid consent to the contract that authorizes payment for such services. of course, the citizens of such a state could agree to offer protective services to the potentially autonomous for free. in the case of merely potentially autonomous people who have no valuable resources, this may be the only option. but for those merely potentially autonomous citizens who own some resources, perhaps through inheritance or gift, another approach may be available. since they choose to pay the fee for protection, the autonomous citizens of the libertarian state apparently consider that the benefits they receive from this protection outweigh the costs. this is not because of idiosyncratic preferences on their part. the human need for protection against violence is as widely shared as the needs for shelter and food. thus, we can safely be confident that, if potentially autonomous people receive protection from the state at the expense of being required to pay for it, they will benefit, on net, from the exchange. so perhaps the state can coerce them to pay taxes, or require their guardians to pay taxes on their behalf and out of their property, for paternalistic reasons. obviously libertarians protest vigorously against paternalist coercion directed against rational adults; but it should be almost equally obvious that libertarians are not required by the logic of their position to reject the paternalist coercion of small children, animals, or other non-autonomous or merely potentially autonomous beings with interests. hassoun restricts her argument to libertarian views that do not make it easy to justify coercion of the potentially autonomous for the benefit of others (90,) but that restriction does not rule out views that allow coercing such persons for their own benefit. i conclude from these considerations that, in requiring those potentially autonomous beings on their territory who own valuable resources to contribute some of those resources to the defense of their society from violence, the libertarians would not wrong those beings. would the libertarian state need to take away the potentially autonomous inhabitants’ right to self-defense? it’s not clear why it would. most likely, citizens of a libertarian state who had the appropriate cognitive and physical abilities would retain a robust right to defend themselves against actually occurring violent attacks, especially in emergencies when the police or other agents of the state happen not to be present. some individuals who lacked the capacity for full autonomy might, in spite of their immaturity or cognitive impairments, still be capable of accurately perceiving that they were under violent attack and of defending themselves in a proportionate manner. the libertarian state could recognize the right to self-defense of both its autonomous and non-autonomous citizens in the same way. of course there might be some inhabitants of the state’s territory who are so young, or so gravely mentally impaired, that they are unable to recognize libertarian welfare rights: can we expel them? 171 leap 2 (2014) when they are under attack, or to assess the seriousness of the attack so as to be able to respond in a reliably proportionate way. but, libertarians could argue, those non-autonomous individuals don’t have a right to self-defense, and so the libertarian state can’t be accused of depriving them of any right by forbidding them to defend themselves. that leaves only the right to punish as a potential source of hassoun’s moral criticism. the libertarian state would insist on requiring all inhabitants of its territory to surrender the individual right to punish that, according to natural rights theory, they would have had in the state of nature, and providing them instead with a claim to impartial justice as administered by its courts. it’s primarily for this reason that the natural rights libertarian position is not a form of anarchism. but why is it permissible to take away, without consent, the right to punish held by the merely potentially autonomous? this deprivation can’t be justified on paternalist grounds. when the libertarian state requires a specific individual to surrender her right to punish, the motivation for doing so is not primarily to benefit that individual herself, but rather to protect others from the consequences of being punished by her in a biased or disproportionate manner. so if the merely potentially autonomous have a right to punish at all, then depriving them of it poses a serious moral problem. but do they? locke would have said, i think, that they do not. to have a right to punish in a lockean state of nature, a being must be capable of knowing the law of nature and of administering punishment in a proportionate manner. thus locke writes that a man in the state of nature has no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictates, what is proportionate to his transgression, which is so much as may serve for reparation and restraint (locke 1982: ii.8. emphasis in original). to exercise this limited power of punishment, someone would seem to need those faculties which locke calls “calm reason and conscience”. indeed, the proper use of punishment by a being in the state of nature would seem to require a fairly sophisticated deployment of rationality. locke writes that “each transgression may be punished to that degree, and with so much severity as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like” (locke 1982: ii.2). some might question whether an adult of ordinary intelligence, or even a panel of experts on criminology, would be able to do a good job of ascertaining the correct punishment for a particular offense, on this conception. but locke, defending his conception of the law of nature as including a scale of appropriate 172 charles goodman leap 2 (2014) punishments, insists that “it is certain there is such a law, and that too, as intelligible and plain to a rational creature, and a studier of that law, as the positive laws of commonwealths, nay possibly plainer...” (locke 1982: ii.12). however plausible or implausible this may be, locke surely could not have claimed, without recourse to innate ideas or other views that he explicitly denied, that a human who has not yet become rational would nevertheless be able to know this law. and if you can’t know, even approximately, what punishments it would be appropriate to administer, you can’t have or claim a right to punish others, even if they encroach upon your undoubted rights. 3 when the right to punish is understood in this lockean way, it is unclear that there would ever be a case of someone who was merely potentially autonomous, in the sense of being insufficiently rational to have the normative power to consent to the authority of the state, who would yet be sufficiently rational in certain specific respects so as to have a right to punish. nevertheless, suppose that, in rare cases, this condition is met. someone meeting this condition who was deprived of the right to punish by a libertarian state would be no more wronged than an unusually mature and responsible fifteen-year-old who is denied the right to drive a car in today’s society. a libertarian state could reasonably expect the ability to make a rational assessment about proportionate punishment to be strongly correlated with the measurable aspects of rationality that it takes to be sufficient evidence of the normative power to consent to the authority of the state. the state must draw a line somewhere; if the line is defensible on its own terms, then despite the elements of arbitrariness in its construction, those on the “may not punish” side of the line are not wronged by it. if these lockean views, or some modernized version of them, turn out to be defensible, then hassoun will be unable to support premise 2 of her legitimacy argument. it is clear that a libertarian state would sometimes have to use coercion against merely potentially autonomous persons. however, in doing so, this state could defensibly claim that it would not violate or take away any of their rights. in dealing with merely potentially autonomous persons living on its territory, the libertarian state would not take away their rights to person or to self-defense. it could take some of their property to pay for its protective services, but this can be given an acceptable moral justification; and the state would not invade their property rights in any other problematic way. if the merely potentially 3. recent scholarship on locke reaches conclusions about what the natural right to punishment requires that are consistent with the claims i make in this paragraph. see, for example, ward, 2009: 233: “the problems locke identified in the state of nature are inextricably connected to the natural power to punish, which places a heavy cognitive burden on the private judgment of individuals who are expected to resist the impulses of excessive self-love and perform ex tempore highly complex moral reasoning related to difficult questions about reparation, restraint, deterrence, and mutual assistance”. libertarian welfare rights: can we expel them? 173 leap 2 (2014) autonomous persons did have a right to punish, the libertarian state would have to take it away, and this would be difficult to justify; but since, at least in general and in typical cases, they have no such right, there is no charge to answer. however, if the libertarian state would not, in coercing the merely potentially autonomous, ever have to violate their rights, then it would not need to obtain their consent. and if it would not need to obtain their consent, it would not need to provide them with the goods and services they would need to become autonomous. hassoun has good reason to claim that libertarian theory implies that a libertarian state would need to get the consent of all autonomous persons subject to its laws; but she cannot claim the same thing about merely potentially autonomous persons. so premise 2 does not follow from actual consent theory; and no other justification for premise 2 has been provided. 4 3. second reply: expulsion suppose that i am wrong about this issue, and that hassoun can find a way to show convincingly either that there are merely potentially autonomous persons who nevertheless retain a right to punish, or that the libertarian state would, for some other reason, be morally required to get the consent of the merely potentially autonomous. libertarians will still have another way to reject premise 2, and thereby, to resist the legitimacy argument. this second strategy may not be very appealing, but it strikes me as being in accord with the basic normative logic of the overall libertarian position. to understand it, let’s begin to think through some details of the kind of situation hassoun’s argument must be invoking. of the potentially autonomous persons living in a libertarian state, some will have family members who love them and have the desire and capacity to provide them with what they need to become fully autonomous. since their needs are being met, they pose no special moral problem for the libertarian state. other potentially autonomous persons will have resources of their own, perhaps obtained through inheritance or through their own labor, with which they can purchase what they need in order to become fully autonomous. again, they pose no special moral problem. so the people we need to concern ourselves with are obviously those who do not have, and 4. note that a non-libertarian state or international institution would coerce its citizens in many more ways, and for many more reasons, than a libertarian state would. therefore the reply i have offered on behalf of the libertarians wouldn’t be available to defenders of such a state. as a result, the objection i have been pressing does not cast doubt on the validity of hassoun’s autonomy argument (45) as applied to coercive international institutions designed on a non-libertarian basis. 174 charles goodman leap 2 (2014) cannot obtain through legal, private voluntary transactions, the resources necessary to meet their needs. let’s say, then, that annie is a young and impoverished orphan, trying to survive in a libertarian utopia. almost all of the land in the libertarian society will be privately owned. the only exceptions would be facilities associated with the state’s legitimate protective role, such as police stations, courts, and military bases. it would not be difficult to justify refusing to let annie stay in these facilities. if the society’s military bases and police stations were transformed into homeless shelters, those structures would no longer be able to carry out their rightsprotective functions effectively. so libertarians would be on firm ground in claiming that, if annie is going to live in the libertarian state, she’ll have to stay on private property. would it be permissible, though, for a property owner to allow annie to stay on his land, but without providing her with what she needs in order to grow up and become autonomous? before considering hassoun’s arguments, we might have thought so. but if we adopt hassoun’s view, it will now turn out that by giving annie permission to stay on his land, the property owner in question is consenting to a situation whose moral result will be the existence of an obligation, binding on his fellow libertarian citizens, to provide annie with resources. this is because, once the property owner gives annie permission to stay on his land, she will be subject to the jurisdiction of the libertarian state; as a result, according to hassoun, she will have positive welfare rights, which the property owner’s neighbors will have to pay for. in allowing annie to stay on his land, and thereby creating a situation in which his fellow citizens acquire positive duties, the property owner is arguably violating their negative rights by imposing costs on them without their permission. given that allowing annie to stay would violate other citizens’ rights, it would be legitimate for the citizens of the libertarian state to make an agreement, perhaps at the constitutional convention that establishes their form of government, restricting the ability of landowners to harbor indigent potentially autonomous persons such as annie. according to the agreement i am imagining, the property owner is free to let annie stay, but only if he also accepts an individual obligation to ensure that annie gets what she needs to become autonomous. obviously it would also be permissible for charitable organizations to take on such responsibilities. it might turn out that annie, and all those similarly situated, would end up getting their needs met due to the voluntary charity of the libertarian state’s citizens. in such a happy scenario, hassoun would have little to criticize. of course, the happy scenario probably would not be realized. so, if no one agrees to help annie meet her needs, under the agreement that forms part of the constitution, no one is allowed to let annie stay on his property. with no place in which she can legally stay, annie would effectively be expelled from the libertarian libertarian welfare rights: can we expel them? 175 leap 2 (2014) state. the result of the agreement will be that all potentially autonomous persons who remain in the libertarian state will receive what they need to become autonomous. no residents will any longer be in a position to claim libertarian welfare rights against the state. this reply to hassoun’s argument depends on the fact that premise 2 does not explicitly address the possibility that some persons who are currently subjects of a state will not remain so. once we notice this possibility, we would have to consider modifying premise 2 to read (2*) for a coercive institution to be legitimate, it must ensure that those of its subjects who remain under its jurisdiction secure sufficient autonomy to autonomously consent to, or dissent from, its rules. if annie had a right to remain in the libertarian state, this modification would be of little significance. but the libertarians could arrange their institutions in such a way that, by their own standards, there is no place in the state’s territory where annie has a moral right to be. therefore, premise 2* does not entail the conclusion of the legitimacy argument. 5 is this solution morally acceptable? i am sure that most readers will think that it is not. the thought of wretched annie, waiting alone in the station for the train that will take her to an unknown and precarious future, is enough to inspire pity and compassion in most people, and as a result, the response that more is owed to her than she is getting. but if you had that intuition, would you have been attracted to natural rights libertarianism in the first place? the idea that it is permissible for all the property-owners in the society to agree to exclude annie from their land, as a way of avoiding the obligation to meet her needs, seems so morally objectionable as to be outrageous. but it is objectionable in the same way, to the same extent, and for the same reasons, as the libertarian position itself. 4. conclusion the history of the twentieth century showed, to everyone willing to open their eyes and learn, that markets have many important benefits and advantages. surely, though, the important truths in the libertarian position would be 5. for this solution to be available, there must be someplace outside the libertarian state for annie to go. that is, if libertarians adopt this solution, they must oppose a global government. given their emphasis on the practical importance of decentralization and competition between jurisdictions, i doubt that libertarians will find this claim unpalatable. note that, as a result, the constitutional solution defended here does not in any way undermine the appeal of the autonomy argument (45) as directed against noon-libertarian international institutions of global scope. i do not here consider the deeply problematic situation that would arise for the libertarians if other states refused to admit annie. 176 charles goodman leap 2 (2014) better expressed through a view that rests the justification of markets on those benefits and advantages. surely we can recognize, and value, the enormously important good consequences of allowing individuals broad scope to make their own choices in economic matters, while also recognizing the failures and limitations of markets in some instances, and the need for prudential regulation. surely we can recognize, and deplore, the depressing tendency for governments to make problems worse in trying to solve them, and to ignore the unintended consequences of their actions, while also recognizing that in cases of externality, asymmetric information and market failure, there is sometimes no alternative to government action. surely a consequentialist understanding of the advantages and disadvantages of markets would be better than a libertarian one. however convincing these claims may be, though, they do not fully address the theoretical motivations behind the natural rights libertarian position. that position must be shown to be unacceptable on its own terms. hassoun has offered us a novel and very interesting way of trying to do so. i regret to say, however, that her argument seems unsuccessful to me. for all its promise, the legitimacy argument turns out to leave natural rights libertarianism just as strong as it was before. bibliography hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, new york: cambridge university press. locke, j., 1982 [1689]: second treatise of government, ed. richard cox, wheeling, il: harlan davidson. nozick, r., 1977: anarchy, state and utopia, basic books. pogge, t., 2002: world poverty and human rights, malden, ma: polity press. sterba, j., 2005: the triumph of practice over theory in ethics, new york: oxford university press. ward, l., 2009: “locke on punishment, property and moral knowledge”, journal of moral philosophy 6: 218-244. 210 issn 2341-1465 leap 2 (2014): 210-218 legitimate coercion: what consent can and cannot do nicole hassoun binghamton university 1. a new argument for duties to aid the global poor globalization and global justice’s first chapter sketches a traditional autonomy-based argument for human rights, arguing, like others have done, that coercive institutions must ensure that their subjects secure food, water, and whatever else they need for sufficient autonomy. unfortunately, this argument is not likely to convince skeptics about positive rights. so, the book provides a new argument for significant duties to the global poor. this symposium focuses on its most controversial claim: to be legitimate, coercive institutions must ensure their subjects secure sufficient autonomy to consent to their rule. i thank charles goodman, peter stone and kokchor tan for this opportunity to sharpen this claim further in response to their insightful criticisms and the leap editors, particularly paula casal, for constructive observations throughout this exchange. 1 2. understanding libertarianism: reply to goodman in his probing commentary, charles goodman denies my claim that libertarians must endorse actual consent theory. goodman starts with an interesting question: “how, exactly, would the libertarian state use coercion against merely potentially autonomous citizens?” (goodman 2014: 169). he wants to know what libertarian rights states violate if they do not ensure that people secure basic capacities. goodman does not think libertarians must accept actual consent theory to avoid violating rights. 2 i believe that when states claim a monopoly on the exercise of coercive force within a traditionally defined territory without securing their rightsrespecting subjects’ consent, they violate individuals’ basic libertarian rights to protect their rights. libertarians often talk about rights to person, property, 1. i am also grateful to marcus arvan, thom brooks, and darrel moellendorf for helpful comments on this reply. 2. libertarians’ reluctance to endorse any obligation to ensure that people secure basic capacities is part of what makes my argument interesting. legitimate coercion: what consent can and cannot do 211 leap 2 (2014) and punishment. nonetheless, i believe libertarians are also concerned with protection as they do not require individuals to punish rights violators. so states need justification to prohibit even potentially autonomous citizens from protecting their rights (or punishing others who pose a rights-violating threat to them). libertarians should agree that these people must be able to consent (and must actually consent) to the state, otherwise it is illegitimate. states cannot take money to pay for protective services from rightsrespecting people who have not consented to give up their property. taking money from them would violate their property rights. people may also prefer to maintain their right to protect their rights or hire others to do so. so those who would institute a state must ensure that potentially autonomous people secure the capacities they need to consent (and actually consent) before prohibiting these people from protecting their rights. of course, in our world, states already exist. still, to legitimately coerce people in the future (to exist as legitimate states) they must ensure that everyone secures what they need to consent (and secure consent). states do not take away individuals’ right to self-defense. they wrongly limit this right. they claim a monopoly on the exercise of coercive force. they specify which things count as self-defense and which do not. without consent, libertarians should maintain that this violates the basic libertarian right to self-defense. moreover, libertarians will reject goodman’s claim that we do not wrong potentially autonomous people capable of punishing without violating rights by prohibiting them from doing so. goodman misleadingly asserts that a potentially autonomous person with this capacity who is prohibited from exercising it “would be no more wronged than an unusually mature and responsible fifteen-year-old who is denied the right to drive a car” (goodman 2014: 172). libertarians believe these are both grievous wrongs. as goodman points out, some potentially autonomous people receive the help they need from their families, friends, or benefactors, but some do not. even some of those with resources require help. they must consent to others using their resources even for this purpose. 3 goodman wrongly suggests that the state can coerce potentially autonomous people for paternalistic reasons. if states can ensure their subjects secure the capacities they need to consent, the cost of doing so cannot justify riding rough-shod over basic libertarian rights. i allow that it may be acceptable to coerce people for their own benefit. still, i doubt libertarians will take this line in general. we cannot take sleeping people’s money and give them some benefit when we can wake them. even if it costs something to wake them and get their consent, we must do it. so i do not see how we can “conclude... that, in requiring those potentially autonomous 3. it is not enough if people can, in some way, obtain the help they need (e.g. if they participate in the right way in markets), they must have the capacities they need for consent. 212 nicole hassoun leap 2 (2014) beings on their territory who own valuable resources to contribute some of those resources to the defense of their society from violence, the libertarians would not wrong those beings” (goodman 2014: 170). libertarians may also deny that every person benefits from being a part of a state. 4 goodman plausibly claims that, to punish others, people “need those faculties which locke calls ‘calm reason and conscience’”, but some nonautonomous people have these abilities (goodman 2014: 171). some who have these faculties cannot consent to a state. there are schizophrenics, for example, who can work, drive, and defend themselves and others, but are unable to engage in much political reasoning. finally, consider goodman’s example of annie —intended to show that even when someone does need help, it may be impermissible for private citizens in a libertarian state to provide it. in laying out the case, goodman starts by asserting that: almost all of the land in the libertarian society will be privately owned. the only exceptions would be facilities associated with the state’s legitimate protective role, such as police stations, courts, and military bases. it would not be difficult to justify refusing to let annie stay in these facilities. if the society’s military bases and police stations were transformed into homeless shelters, those structures would no longer be able to carry out their rights-protective functions effectively. so libertarians would be on firm ground in claiming that, if annie is going to live in the libertarian state, she’ll have to stay on private property (goodman 2014: 174). so goodman asks if it would be permissible: for a property owner to allow annie to stay on his land, but without providing her with what she needs in order to grow up and become autonomous? ... by giving annie permission to stay on his land, the property owner in question is consenting to a situation whose moral result will be the existence of an obligation, binding on his fellow libertarian citizens, to provide annie with resources. in allowing annie to stay on his land ... the property owner is arguably violating their negative rights by imposing costs on them without their permission (goodman 2014: 174). 4. that is, it is a live question why it would be in their interest to be a part of a large protective organization —some may prefer to be in small organizations. incidentally, nozick has to bring in considerations of consequences to justify depriving them of their right to do so. i believe the anarchists rightly object to this and say consent is required for consistent adherence to basic libertarian principles. the upshot of my argument is that consent leads to welfarism as opposed to anarchism. legitimate coercion: what consent can and cannot do 213 leap 2 (2014) consider a few reasons to worry about this case. first, this response relies upon some questionable empirical claims. if people would consent to any state at all, they might consent to giving a state more land than needed to secure some public goods —like national parks. even if this is not the case, the libertarian state could expand to help people by purchasing land from citizens to create homeless shelters. of course, the money to do so would presumably come from taxes. so this would be a kind of libertarian welfare state. this kind of taxation poses a threat to the coherence of libertarianism, but i am completely happy if my argument establishes that libertarianism is incoherent because it both requires and prohibits a welfare state. moreover, “by giving annie permission to stay on his land” the property owner may not be “consenting to a situation whose moral result will be the existence of an obligation” that amounts to violating negative rights of co-citizens (goodman 2014: 174); many uses of property impose costs that do not violate libertarian rights. goodman must offer more argument to make his case. that said, the idea that we must prohibit private property owners from doing what they want with their property would only provide reason to think that libertarians face another terrible dilemma, and that we should reject their view. goodman’s final proposal is most promising but also unsuccessful. he says that “it would be legitimate for the citizens of the libertarian state to make an agreement, perhaps at the constitutional convention that establishes their form of government, restricting the ability of landowners to harbor indigent potentially autonomous persons such as annie” (goodman 2014: 174). 5 if no one offers voluntary aid, goodman says “annie would [have to] effectively be expelled from the libertarian state” (goodman 2014: 174-75). he takes this as an alternative to rejecting libertarianism. however, i take it that the distinction between libertarianism and anarchism hangs on whether or not states can maintain a monopoly on coercive force within a territory without having to cede land to the non-autonomous. libertarians believe they can. anarchists reject this conclusion. at least, annie cannot be removed from land she owns within the libertarian state’s borders. people would also violate her basic libertarian rights if they forced her to sell her land or removed her from un-owned (state) land. if all of this land is necessary to protect negative rights, that poses yet another problem for libertarians and provides reason to reject their theory. 5. not everyone in a libertarian state would be so uncharitable. 214 nicole hassoun leap 2 (2014) 3. beyond the social contract: reply to stone in his thought-provoking commentary, peter stone worries that many liberals will reject the claim that legitimate coercive institutions must ensure that their subjects secure sufficient autonomy. stone thinks my argument relies on an ambiguous idea of consent. moreover, he says some liberals deny “‘that people have a right to dissent from the rule of coercive institutions by conscientious objection, non-violent protest, passive resistance, and so forth’ (stone 2014: 185).” stone notes, for instance, that “the democratic theorist and the hypothetical consent theorist ... have very different things in mind when they identify political systems as consensual, even if both endorse democratic institutions” (stone 2014: 187). for the “hypothetical consent theorist, it would not be the democratic rights that form the critical locus of consent. it would be the hypothetical consent itself” (stone 2014: 186-87). my argument does not rely on an ambiguous idea of consent. pace stone (2014: 177), i do not claim people must actually consent to coercive institutions’ rules. contrary to what stone claims, i believe that people must have the capacities to consent. i give a detailed account of these capacities on which everyone must be able to do at least some (instrumental) reasoning and planning. i then derive the premise that legitimate coercive institutions must ensure their subjects secure sufficient autonomy to consent from several contractualist (and non-contractualist) theories. i argue that on plausible hypothetical, democratic, and actual consent theories, legitimate coercive institutions must ensure that their subjects secure these capacities. i believe we should reject theories on which rulers legitimately coerce people who lack basic freedoms under their rule. we should, for instance, reject hypothetical consent theories on which people cannot even object to coercive rule (stone 2014: 187). we cannot justify existing coercive institutions by appeal to the idea that people “could conceivably consent to arrangements without democratic rights” (stone 2014: 187). people should at least be able to maintain basic freedoms under coercive rule. similarly, we should reject any account of democracy that does not involve a constitution, or some other means of protecting basic capacities. such views fail to respect individual freedom. this does not beg the question against them. it provides reason to reject implausible versions of the views once we see their shortcomings clearly. stone, rightly, notes that my argument can be expanded. after explaining the general argumentative strategy, i take libertarianism to be the stalking horse for liberalism. i do not engage with the details of every, or even a wide range of, communitarian, democratic or hypothetical consent theories. however, i devote a whole chapter to arguing that on actual consent theory, and libertarianism, legitimate coercive institutions must ensure their subjects legitimate coercion: what consent can and cannot do 215 leap 2 (2014) secure sufficient autonomy. moreover, even some of those i do not address —including some consequentialists— might accept this conclusion. 6 both stone and kok-chor tan worry, however, that libertarians will reject the idea that consent requires any basic capacities. as stone puts it, “many libertarians are very attracted to the idea that consent authorizes practically anything. if someone wants to consent to slavery, then so be it” (stone 2014: 185). tan also worries that, on libertarianism, people need not have sufficient autonomy to consent to coercion (tan 2014: 200). moreover, stone points out that actual consent theorists and “libertarians are usually lukewarm at best about democratic rights” (stone 2014: 185). he says that “if people grant consent to arrangements with such rights, fine, but they could just as easily consent to some other arrangement... indeed, the entire idea of a “right to dissent” must seem strange to an actual consent theorist” (stone 2014: 186). even if libertarians maintain that people can consent into slavery, they should not deny that free consent requires basic capacities. at least, people should be able to object to coercive rule until, and unless, they give up their right to do so. the severely mentally disabled, young children, the comatose, and those deluded by hunger cannot enter into free contracts. for contracts to be free, people must be able to consent. libertarians defend slavery because they want to ensure the fidelity of free contracts. 7 still, people need basic capacities to enter into free contracts. 4. basic rights: reply to tan in his helpful essay, tan worries that my argument is circular, starting from an “‘autonomy-based’ human right to food, water and other means of subsistence” (tan 2014: 207). 8 he suggests this undermines the strand of my argument addressed to libertarians, in particular. libertarians notoriously deny a right to autonomy exists. my argument does not start by assuming a right to autonomy. rather, i address liberals who believe that people must maintain a basic minimum of 6. philosophers like john stuart mill endorse basic rights, e.g. to freedom, even if they offer an indirect or instrumental justification for them that appeals to consequentialist considerations (mill 1983, ch. 5). my argument rules out views that ride rough-shod over individuals’ rights and allow that it is normally acceptable to coerce some people just for others’ benefit. my argument will address consequentialists, and others who reject natural rights, as long as they agree that it is generally necessary to justify coercion to the coerced and this justification requires that people at least have the capacities they need to object, or consent, to coercive rule. 7. stone is right that “those deeply concerned with rights of democratic participation (like most egalitarian liberals) have little use for actual consent” (stone 2014: 186). 8. if that were the case, kok-chor tan would be right to object that since “there is an autonomy-based human right to subsistence, it is not clear why the presence of coercive institutions is ... a necessary condition of the duty to provide subsistence” (tan 2014: 198). 216 nicole hassoun leap 2 (2014) freedom under legitimate coercive rule. 9 the key idea is that people should be free to shape their relationships with their coercive institutions. 10 different liberals understand this freedom in different ways but, i argue that, on plausible liberal theories, it entails a commitment to sufficient autonomy. although people might not be able to do without coercive institutions, they should at least get to decide for themselves how to react to their subjection. 11 people should at least be able to object, or consent, to coercive rule. if people require assistance to secure the requisite autonomy, and no other agent or institution provides it, their coercive institutions must do so, on pain of illegitimacy. it is easiest to see how my argument against libertarians does not presuppose a right to autonomy. libertarians believe people have basic rights to person, property, and to self-defense. 12 i argue that libertarians must endorse actual consent theory because coercion constrains an individual’s exercise of these basic libertarian rights. roughly, if rulers claim a monopoly on coercive force over all of their rights-respecting subjects within a traditionally defined territory without securing their consent, they violate people’s rights to protect themselves. 13 at least rights-respecting potentially autonomous people must consent to such coercive rules. to actually consent to coercive rules, people must be able to consent. 14 moreover, this requires sufficient autonomy (the ability to reason and plan). so, if no one provides these people with the assistance they need, even libertarians should agree that their coercive institutions must do so. 15 tan rightly suggests that my argument provides the missing premise in an argument for egalitarian duties. i argue that many coercive international institutions exist. so, if coercion grounds egalitarian duties, like michael 9. coercion threatens to violate individual’s basic freedom (as well as their equality and autonomy). it does not always undermine freedom, equality, autonomy, or harm people, but it is certainly capable of doing so. 10. i take it we should respect everyone, free or not; people should be able to shape their relationships with their coercive institutions. 11. hassoun 2012: 58. 12. although i am not convinced people have such inviolable rights, in addressing the libertarian, i consider what follows from this claim. one might worry that in attempting to address all liberals, the book does not adequately address any of them, but doing so fully would have been exhausting. so the book focused on providing a detailed look at how the argument might go in the hard case of the libertarian and on illustrating the general argumentative approach. i hope that it provides fertile ground for future inquiry. whether or not one sees the book as offering a unified argument or several distinct arguments will depend on whether one looks only at the major premises of the argument or at its sub-premises. 13. ggj does not address anarchists who think that states can simply cede territory to rightsrespecting people who do not consent to their rule nor those who claim international institutions’ coercion can be justified without ensuring that all of their subjects secure sufficient autonomy. 14. on the view that libertarians are committed to requiring actual consent, see, e.g., simmons 1999 and long and machan 2008. 15. on some liberal views, autonomy is constitutive of the basic freedom at issue, but my argument does not rely on this being the case. legitimate coercion: what consent can and cannot do 217 leap 2 (2014) blake, for example, maintains, there are international egalitarian duties. 16 i also agree with tan that people might not have the capacity to consent to, or reject, coercive offers in situations of extreme inequality. 17 none of this, however, undermines my response to the libertarian. moreover, pace tan, i do not endorse skeptics’ attempts to raise “the justificatory bar for global justice ...[or] duties of humanitarian assistance” (tan 2014: 199) by recognizing their existence and taking the time to see where their arguments go astray. rather, i try to extend the consensus on these important duties. 5. conclusions let me recap. first, pace goodman, libertarians hold that if we prohibit people from protecting their rights without consent, we wrong those capable of protecting their rights without violating others’ rights. people can only be deprived of the right to protect their rights with consent. most libertarians do not believe we can coerce such people for paternalistic reasons. rulers cannot rightly expel these people from, at least their own, privately held property. if we must prohibit private land owners from letting nonautonomous people onto their land, that only worsens the dilemma at the heart of libertarianism. it provides further reason to reject the view. second, pace stone, my argument does not rely upon an ambiguous understanding of consent. i argue that, whatever account of consent contractualists endorse, they should agree that legitimate coercive rule requires that people have basic capacities to consent. moreover, my argument addresses many non-contractualists, including some consequentialists. third, pace tan and stone, even if libertarians believe that people can freely consent to whatever contracts they like, they should agree that people need some basic reasoning and planning capacities to enter into free contracts. finally, pace tan, my argument is not circular. the idea of freedom from which it starts does not presuppose, but grounds a right to, autonomy. libertarians, for instance, hold that people only have basic rights to person, property, and punishment. i argue that coercion, in constraining the exercise of these basic rights, requires justification. on libertarianism, i suggest, states must secure consent to avoid violating rights and people require sufficient autonomy to consent. tan and stone are right, however, that it is possible to extend my argument in many ways. it may even ground global egalitarian obligations. much room remains for future research. 16. i do not, however, endorse blake’s view. 17. elsewhere (e.g. hassoun 2013) i defend much more robust obligations to aid people above this threshold than in the book. 218 nicole hassoun leap 2 (2014) bibliography goodman, c., 2014: “libertarian welfare rights: can we expel them?”, law, ethics, and philosophy 2: 166-176. hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, cambridge: cambridge university press. — 2013: “human rights and the minimally good life”, res philosophica 90, 3: 413-438. — 2014: “coercion, legitimacy, and individual freedom: a reply to sondernholm”, journal of philosophical research 39: 191-198. long, r., and machan. t., 2008: anarchism/minarchism: is a government part of a free country?, london: ashgate press. simmons, j., 1999: “justification and legitimacy”, ethics 109: 739-771. stone, p. 2014: “social contract theory in the global context”, law, ethics, and philosophy 2: 177-189. tan, s., 2014: “coercion and global obligations: a commentary”, law, ethics, and philosophy 2: 190-209. leap, 1 (2013) zoopolis, intervention, and the state of nature* oscar horta universidad de santiago de compostela abstract in zoopolis, donaldson and kymlicka argue that intervention in nature to aid animals is sometimes permissible, and in some cases obligatory, to save them from the harms they commonly face. but they claim these interventions must have some limits, since they could otherwise disrupt the structure of the communities wild animals form, which should be respected as sovereign ones. these claims are based on the widespread assumption that ecosystemic processes ensure that animals have good lives in nature. however, this assumption is, unfortunately, totally unrealistic. most animals are r-strategists who die in pain shortly after coming into existence, and those who make it to maturity commonly suffer terrible harms too. in addition, most animals do not form the political communities zoopolis describes. the situation of animals in the wild can therefore be considered analogous to one of humanitarian catastrophe, or to that of irretrievably failed states. it matches closely what a hobbesian state of nature would be like. this means that intervention in nature to aid nonhuman animals should not be limited as donaldson and kymlicka argue. keywords: animal ethics, animal rights, intervention, sovereignty, speciesism, state of nature. 1. introduction zoopolis: a political theory of animal rights is a novel, brilliantly argued and very instructive book. it addresses some of the most important topics in animal ethics in a fresh and original way, and opens new lines of inquiry. this paper focuses on what i consider the most significant problem zoopolis tack* for very helpful comments, i thank paula casal and three anonymous referees, two of who later revealed themselves to be lori gruen and andrew williams. i am also grateful to participants in the discussion of zoopolis at the universitat pompeu fabra, including alasdair cochrane, sue donaldson, and will kymlicka. 114 oscar horta leap, 1 (2013) les: whether and to what extent we should aid animals living in the wild. this controversial problem has received some recent attention (sapontzis 1984; ng 1995; bonnardel 1996; kirkwood and sinsbury 1996; bovenkerk et al. 2003; clement 2003; cowen 2003; fink 2005; clarke and ng 2006; nussbaum 2006: ch. 6; dawrst 2009; simmons 2009; horta 2010a; mcmahan 2010a, 2010b; palmer 2010; cunha 2011; torres aldave 2011) but remains relatively neglected. in fact, some may be surprised by my choice of focus here, but no other human practice affects a larger number of individuals than our decision regarding what we owe to animals in nature. zoopolis claims that nonhuman animals living in the wild should be recognized as forming sovereign communities of their own, analogous to human sovereign political communities, which should be respected.1 accordingly, like in the case of aiding other human societies, aiding animals in nature is sometimes permissible, and sometimes obligatory. but zoopolis claims intervention must not disrupt the very structure of the assisted communities, and should not be rejected by the animals involved. also, the aim of such assistance should be to bring the animal community back to a state in which it may self-regulate without external help. in practice, this means supporting many forms of intervention in nature to help animals, but it rules out some forms of substantial intervention. so, for instance, whilst donaldson and kymlicka would support vaccinating an animal population to save its members from a lethal epidemic, they would oppose altering trophic chains to avoid mass starvation, even if this could be done harmlessly (e. g., by supplying both food and contraceptives so that the additional food does not result in future starvation). many will find that zoopolis overestimates our duties towards animals in the wild. in fact, most assume that we have no reason to aid them because (a) we have no such moral obligations or (b) such animals do not really need our help. i agree with zoopolis’ refutation of (a) (see ch. 2, especially 24, 29, 35), but with regards to (b) i will argue that animals in nature are in a far worse situation that zoopolis assumes. therefore, i will advocate more extensive intervention. zoopolis claims that nonhuman animals living in the wild should be treated as members of sovereign communities. the authors write: what sort of competence is needed for sovereignty? we would argue that for wild animals —as indeed for humans— what matters for sovereignty 1. it is mainly external sovereignty that donaldson and kymlicka seem to have in mind here. they do not claim that nonhuman animals are aware of themselves as sovereign communities, or that individual animals must obey their communities’ legitimate institutions (171174). instead, they claim that they constitute communities and that “our obligations to them are those of international justice, including respect for their territory and autonomy” (15). zoopolis, intervention, and the state of nature 11�11� leap, is the ability to respond to the challenges that a community faces, and to provide a social context in which its individual members can grow and flourish (175). these two conditions are not specified in detail. the authors do not, for example, indicate the extent to which the relevant challenges must be successfully met by animals in nature or what kinds of social context animal communities have to form. the first half of this paper discusses the first condition, the second the latter condition. 2. why animals can seldom respond to the challenges they face in nature the best way to examine whether animals can respond to the challenges nature poses to them is to see whether they can survive them. population dynamics studies this. the equations used in this field to calculate how animal populations fluctuate consider basically two factors: “r”, which denotes the population’s reproductive rate, and “k”, which denotes an environment’s “carrying capacity” and so determines the survival rate of the animals in those populations (verhulst 1838; macarthur and wilson 1967; pianka 1970)—. as a result, there are two main reproductive strategies in nature, as donaldson and kymlicka recognize (176-177). some animals have very few descendants and invest a great deal in each offspring, whilst others invest little or nothing in the survival of their offspring, but have huge progenies. now, animals of the first type, the k-strategists, are a tiny minority. the majority of animals (including invertebrates —which are the most numerous—, fishes, amphibians, reptiles...) are r-strategists. moreover, even those who look after their descendants often have very large numbers of eggs or offspring, which will be wasted. for, if a population remains stable, only one descendent per parent can survive on average. this means that the overwhelming majority of those animals that come to existence never make it to maturity. they starve to death, are killed by other animals or die in other ways. because their lives are short and challenging, they experience almost no enjoyment. they do, however, experience a great deal of suffering, since starving or being eaten alive is normally very painful for sentient creatures. the lives of sentient animals thus typically contain much more suffering than wellbeing. it is worth noting, moreover, that whilst some r-strategists lay hundreds of eggs, others, such as many fishes, lay millions of them. so, for each individual that survives, the number of individuals that come into existence only to suffer and die is enormous (sagoff 1984; ng 1995). in addition, adult animals do not live in paradise either. they also suffer greatly and endure 116 oscar horta leap, 1 (2013) painful deaths due to predation, parasitism, disease, injuries, harsh weather conditions, hunger, malnutrition, thirst, fear and other causes (darwin 2007 [1860]; dawkins 1995; dawrst 2009). due to all this, suffering and early death vastly prevail over happiness in nature. the lives of animals in the state of nature are like hobbes imagined the lives of humans without states: “poor, nasty, brutish and short”, usually in “continual fear and danger of violent death” (1981 [1651]: ch. 13). when people think about animals in the wild, however, they tend to think of adult, healthy mammals rather than of all the millions of individuals from different species who die soon after coming into existence. the resulting, unrealistically rosy picture of what most wild lives are like can taint our judgement regarding intervention. this is a problem, i think, with the theory presented in zoopolis. donaldson and kymlicka point out that “[a]nimals have evolved to survive under these conditions, and are competent to do so” (182). they also write that “[w]ild animals are competent both as individuals and as communities” (175). and they claim that although individual animals suffer and die, such suffering and death is not catastrophic, because the communities go on existing (176, 182). we may say that animal populations are “competent” in the sense that animal populations and species often manage to persist through time (though extinctions also take place). this claim, however, cannot be correct when we consider what ultimately matters, namely individual animals. as we have seen, only a tiny minority are able to survive the massive challenges that life in nature poses for them. the overwhelming majority fails and dies. therefore, they cannot be claimed to be competent in this respect. the opposite is true: they normally do very poorly and suffer and die in great numbers. zoopolis initially acknowledges that the suffering that animals experience in nature supports some interventions, and argues against the idea that helping animals impairs the flourishing of the aided species (see everett 2001). the authors claim: to invoke the flourishing argument against all such interventions runs dangerously close to sanctifying natural processes as inherently morally good or benign. the fact that a deer’s nature has been shaped by processes of predation does not mean that the deer finds fulfillment in being eaten alive (165). this suggests that opposing significant intervention in support of animals in need of aid cannot be good for animals living in the wild. the next section offers further reasons for this by assessing some of zoopolis’s arguments against significant intervention. zoopolis, intervention, and the state of nature 11�11� leap, 1 (2013) 2.1. sovereignty: intrinsically or instrumentally valuable? donaldson and kymlicka claim that intervention in nature is acceptable provided that it does not curtail the sovereignty of groups of animals. explaining why that sort of interference would be bad for them, the authors compare interfering with animal sovereignty with violations of human sovereign communities, such as the nazi invasion of poland, or the interventions aimed at creating new markets or controlling resources at the expense of the members of the relevant communities (181). such interventions, however, are objectionable for reasons other than their failure to respect sovereignty: their purpose is to benefit those who intervene at the expense of the subjects of the intervention. therefore, they are entirely unlike altruistic and beneficial humanitarian interventions. so they give us no reasons to oppose interventions in cases where being left to one’s own devices is disastrous for the unassisted community. we may think that significant intervention would be necessarily harmful for nonhuman animals because the very fact that they cannot rule their own destiny is intrinsically bad for them. however, donaldson and kymlicka argue against the view that ruling one’s own destiny is intrinsically valuable when they consider domestic animals. they present several strong arguments that show that there is nothing inherently bad about domestic animals’ lack of autonomy and depending on others (83).2 we may think that unlike domestic animals, animals in the wild have certain features which make the possibility to rule their own lives valuable. donaldson and kymlicka, however, do not claim that domestic animals lack the features that would make being able to rule one’s own life valuable: they argue that the life as a being who does not rule her or his own life can be just as fine as the life of a being that does so.3 zoopolis explains that depending on others can be instrumentally bad but denies it is intrinsically bad. it sees nothing wrong with aiding domestic animals so that they can live good lives. if this is so, however, there should not be anything wrong with aiding animals in nature so they can live good lives too.4 if sovereignty is valuable only instrumentally, not intrinsically, then it is not valuable when only intervention can save most individuals from suffering and death. 2. zoopolis argues against exploiting domestic animals and explains how domestication can harm animals (82), but once domestic animals exist, zoopolis sees nothing wrong with domestic animals living dependent but happy, not exploited, lives. 3. due to this, zoopolis’s arguments not to value autonomy intrinsically apply equally to humans and nonhuman animals. 4. zoopolis rejects massive intervention to help wild animals on the grounds that it will turn the world into a giant zoo. this is inaccurate, however, as zoos are profit making exploitative ventures where animals suffer. instead, massive intervention would mean caring positively for animals, as in sanctuaries. and zoopolis claims that domestic animals may live wonderful lives in animal sanctuaries. 118 oscar horta leap, 1 (2013) 2.2. autonomy, flourishing, risk avoidance and preference frustration what, then, is the reason for granting animals sovereignty? zoopolis (especially ch. 6) appears to assume that this would allow these animals to live autonomous and flourishing lives. this seems very intuitive. autonomy, however, can be limited not only by humans but also by other animals and their environment. since remaining alive is a condition to enjoy autonomy, animals that die shortly after birth lack autonomy. much the same applies to flourishing, which is assumed to require being able to exercise one’s physical and mental potential in good health (nussbaum 2006: esp. 346-352) — something impossible if one does not live long enough. one cannot, thus, invoke autonomy and flourishing to oppose intervention in aid of animals in the wild. zoopolis claims that saving animals in nature from living dangerously would deprive them of the challenges that make their lives worth living (242). it argues in favor of this by saying, as an example, that sparing children all risks impoverishes their lives. the problem with this argument is that we would reach very different conclusions were the chances of surviving the risks much smaller than they tend to be with human children. for example, we would remove children from waters filled with crocodiles even if swimming amidst crocodiles was really thrilling for them. as we have seen above, this is the situation which most nonhuman animals face in the real world. another argument zoopolis considers is that intervention is objectionable if it frustrates the preferences of animals (see 177) or if the animals do not consent to it. but what if the actually resisted interventions would have been accepted if the animals knew they were going to be good for them? rescuing a stray dog or a trapped animal may be a hard job due to the resistance of the animal but most of us would claim that it is good for the animal. defenders of desire-based conceptions of value can accept this too, since, given more information or a sharper understanding, the animal would have also preferred to be aided. the animal wants the rescuers to go away because of fear of harm or death, rather than a desire to escape unaided. thus, respecting a desire to live can sometimes involve intervention. but then there is no plausible account of informed preferences that allows local intervention (such as feeding a single starving animal) whilst disallowing more extensive interventions (such as feeding a whole population).5 5. support for substantial intervention will also follow from an account of value based on mental states, according to which the only source of value (or disvalue) would be positive and negative experiences. on this view any intervention that increases the wellbeing of animals in the wild without causing greater harm will make things better for them. zoopolis, intervention, and the state of nature 11�11� leap, 1 (2013) 2.3. intervention in situations of catastrophe having rejected four arguments against intervention (appealing to autonomy, flourishing, excessive risk avoidance, and preference satisfaction) let us turn to zoopolis’s conditions for permissible intervention. the intervention must prevent a catastrophe, leave animals in a situation such that they are henceforth able to exercise their sovereignty, and keep food cycles unaltered (182). these three stipulations, however, may not be met if the intervention is to succeed. let us see why. given the abovementioned facts of population dynamics, animals in nature are in a permanent state of humanitarian catastrophe. if we follow zoopolis in employing political categories to illuminate animal ethics, then most animals in the wild are living in irretrievably failed states incapable of ever being transformed into sovereign communities that respect their members’ interests. there is just no previous non-catastrophic state that might be desirable to restore. to avoid catastrophe, we need to bring about a completely new scenario. furthermore, limited intervention cannot solve this situation, since it is due to structural features of ecosystems. kymlicka and donaldson realize this when they note that ecosystemic processes involving food cycles are part of the “stable structure of self-regulation of wild animal communities” (182). those stable processes are the ones that condemn most animals to short, dreadful lives. like most other causes of disvalue in nature (predation, parasitism, malnutrition, disease...) r-selection results from the need to compete for scarce resources. this is also what determines that food cycles cause most animals to suffer and die shortly after coming into existence. there is no moral reason against altering food cycles, when food cycles are the cause of the suffering, and there is no reason to restore a previously existing situation, if it was disastrous for most and a new one is possible. 2.4. k-strategists zoopolis is most plausible in the case of some k-strategists, since their lives are not as bad as those of most r-strategists. however, first, k-strategists are extremely rare in comparison with r-strategists; second, many are not social animals that can form sovereign communities, and third, k-strategists have interests that conflict with those of other animals. chimpanzees, for instance, sometimes hunt r-strategists, sometimes other social k-strategists (e. g. colobus monkeys) and sometimes wage war on each other. kand rstrategists, moreover, share the same habitat, and we should not fail to assist r-strategists for the sake of the k-strategists’ sovereignty. fourth, even if 120 oscar horta leap, 1 (2013) k-strategists do better than r-strategists, they still endure terrible hardships, with most dying before adulthood, and suffering predation, disease, parasitism, injuries, hunger, and other natural factors. so there may be ways in which we could improve their lives. iii. can animals form sovereign communities? i have argued, pace zoopolis, that animals do not successfully meet the challenges of living in the wild. i shall now argue that most of them do not constitute sovereign communities. to be sure, some animals form communities, and many live in shoals, swarms, or herds. these, however, may not be political communities. political communities need some kind of political agency, even if by that we simply understand some form of decision making that takes place collectively or by some of the members who have the authority and/or the legitimacy to do so. one can be a mere member of a community, without being able to exercise citizenship in the sense of agency, but there has to be somebody who is an agent. if no one in a community exercises sovereignty, that is, if no one makes decisions regarding the life of the community, it is hard to see how such sovereignty can exist. now, some animal communities are structured societies with leaders that make decisions about political questions, such as where to migrate or when to fight or prefer flight. in these cases the second condition for sovereignty (that is, that animals form political communities in nature) is met, even if significant intervention to aid these animals is still justified for the abovementioned reasons. some animals, however, both among kand rstrategists, live in groups that make no political decisions. they cannot be meaningfully described as belonging to any communities. we could argue that their communities are the zoonoses or biotic communities ecologists describe. in ecology, however, ‘community’ refers to interacting biocenoses, that is, groups of living beings that interact with each other and with their environment. this is certainly not the meaning we give to this term when we speak of communities in social or political philosophy, or in common language. we can broadly define communities as groups of interacting individuals with some kind of cohesion, common aims and some form of collaboration or reciprocal support.6 so the question here is whether it makes sense to describe non-social animals as belonging to a community. some species have mutualist relations with others that benefit all the involved parties. but most relations are either of commensalism, which benefits some but does not affect others, amensalism, with some unaffected and others 6. for some, there cannot be a political community without a sense of community but i shall not pursue this line here. zoopolis, intervention, and the state of nature 121121 leap, 1 (2013) harmed, antagonism, with some benefiting by harming others (parasitism, predation...), or competition, which is bad for all the involved. these forms of interaction do not form a community any more than warring armies form one.7 therefore, ecologists’ biotic communities are not the communities political theorists talk about. some animals display parental behavior, but family relationships — with the possible exception of the eusocial animals such as ants, bees, synalpheus shrimps and others — are not the type of relationships that constitute political communities of the type zoopolis invokes, which are more like large nations than like small families. most animals do not live in the communities donaldson and kymlicka have in mind. they live in a state of nature in all the senses of the term. 4. is significant intervention doomed to fail? in light of the previous sections, we should reject zoopolis’s claim that “the flourishing of individual wild animals cannot be separated from the flourishing of communities” (167). for most animals, the continuity of their community takes place at their expense, and many do not even live in communities. considering the degree to which most animal lives are nasty, brutish and short, we should favor helping them with significant interventions. donaldson and kymlicka maintain that such interventions cannot succeed (182, 288, n. 29). they also argue that if the only reason against intervention is practical such a reason would not justify non-intervention but rather research to achieve the required knowledge in the future. they write: perhaps we don’t yet know how to do this, but if the only objection were fallibility, then we could at least be starting with small-scale pilot projects, in order to build up our knowledge about how to re-engineer nature so as to reduce suffering overall (164). this argument seems right, and rebuts the other claims they make regarding the impossibility of success of substantial interventions to improve the lives of animals in nature. furthermore, donaldson and kymlicka appear to be right here regarding the course of action we should currently pursue to best help animals suffering in the wild. instead of intervening massively right now, the most effective agenda seems to be to invest our efforts in learning how to be able to do it successfully in the future, and carry out today only the practicable interventions zoopolis supports, such as vaccinating animals 7. violent interactions can be part of the life of a community but a community cannot consist only of them. 122 oscar horta leap, 1 (2013) from diseases, feeding animals in cases of starvation, and rescuing them in cases of accident. these interventions can help to spread the idea that we should be concerned with the harms that animals suffer in nature. this view appears counterintuitive but its alternatives are even less acceptable. the “hands off” approach, which is unacceptable for humans, should also be opposed if we reject speciesism 8 or, at least, if we accept that the interests of nonhuman animals have non-trivial moral importance. it is worth noting, moreover, that significant intervention to help animals in nature is not necessarily less feasible than the policy proposed by kymlicka and donaldson. they argue that the recognition of animal sovereignty would entail that humans should stop building on places that are now not occupied by them. but we can be certain that this is not going to happen. humans will keep on building roads; villages and cities will grow, mining activities will expand, and so on. the idea that this expansion should stop altogether is no less ambitious than the view that we should intervene in nature significantly to reduce the harms suffered by animals. in fact, it is very unlikely that either of these two courses of action will be fully carried out in the near future at least. but both are nevertheless feasible, and can actually inform some of the policies we may implement. finally, we must acknowledge that we are already intervening in nature in massive ways, through agriculture, industry, fishing, building or mining. therefore, the dispute is about who should be the beneficiaries of our intervention and why, rather than whether there could be large scale interventions at all. 5. the question of habitat preservation intervention to assist animals in nature may be opposed if we are concerned not with the interests of animals, but with ecological conservation (sagoff 1984; rolston iii 1992). zoopolis explicitly reject this. it distances itself from the “natural law” tradition or other causes other than the interest of animals (especially ch. 2, sec. 2 and 3), and its subtitle indicates it defends a theory of animal rights — not an environmentalist theory. some of the arguments invoked in zoopolis, however, resemble environmental arguments (e. g., 289, n. 34).this is, i believe, due to the rosy picture of life in the wilderness that drives the authors’ opposition to intervention. this happens in the case of the idea that the reduction of wilderness harms animals (156, 160-161). it might be argued that wilderness destruction may harm animals if it involves 8. speciesism is discrimination against those who do not belong to a certain species (hor-speciesism is discrimination against those who do not belong to a certain species (horta 2010b). zoopolis, intervention, and the state of nature 12�12� leap, 1 (2013) their death or reduces their wellbeing in any other way. but donaldson and kymlicka seem to think that habitat destruction is bad because it allows fewer animals to exist. but it is hard to see how this could be so. first, those that nevertheless come into existence cannot be harmed by the fact that they are not more numerous. it would have to be, then, the ones who never come into existence. but the claim that it is wrong or bad to fail to bring into existence potentially happy individuals is a very controversial idea in population ethics (glover 1977: ch. 4; parfit 1984: ch. 16; singer 2011 [1979]: 87-90). second, in any case, what appears to be uncontroversial is that we should not bring to existence beings with lives that are expectably bad for them. and we have seen that in nature this is what happens in the case of most animals. hence, zoopolis’s assumption that the loss of habitats is bad for animals because it means that fewer animals live, although very popular and intuitive at first, is actually questionable and entails serious problems within population ethics. 6. conclusion zoopolis presents a political theory that aims to give nonhuman animals the protection they need to be capable of having good lives. i wholeheartedly share this aim and applaud the authors’ effort in developing such an original and thought-provoking theory. i also share their opposition to animal exploitation and their support for intervention in nature to aid nonhuman animals. our views diverge when they claim that such intervention should be limited in certain ways. i have argued such a claim is scientifically underinformed, and defended substantial intervention in nature. the assumptions that animals live valuable lives in nature and that we lack any reasons to assist them are widespread, and so many readers will regard my own view as counterintuitive. i hope, however, that donaldson, kymlicka, and others will eventually come to recognize it as sound. and i am optimistic that they might eventually do so since the most fundamental arguments i have presented rely on empirical considerations concerning animal population dynamics and community ecology. bibliography bonnardel, y., 1996: “contre l’apartheid des espèces: à propos de la prédation et de l’opposition entre écologie et libération animale”, les cahiers antispécistes 14, url = http://www.cahiers-antispecistes.org/article.php3?id_article=103. bovenkerk, b., stafleu, f., tramper, r., vorstenbosch, j., and brom, f. w. a., 2003: “to act or not to act? sheltering animals from the wild: a pluralistic account of a conflict between animal and environmental ethics”, ethics, place and environment 6: 13-26. 124 oscar horta leap, 1 (2013) clarke, m., and ng, y. k., 2006: “population dynamics and animal welfare: issues raised by the culling of kangaroos in puckapunyal”, social choice and welfare 27: 407-422. clement, g., 2003: “the ethic of care and the problem of wild animals”, between the species 10/3, url = http://digitalcommons.calpoly.edu/bts/vol13/iss3/2/. cowen, t., 2003: “policing nature”, environmental ethics 25: 169-182. cunha, l. c., 2011: “o princípio da beneficência e os animais não-humanos: uma discussão sobre o problema da predação e outros danos naturais”, ágora: papeles de filosofía 30: 99-131. darwin, c., 2007 [1860]: “charles darwin to asa gray, may 22nd 1860”, the life and letters of charles darwin, vol. ii, ed. f. darwin, 431-432, middleton: the echo company. dawkins, r., 1995: “god’s utility function”, scientific american 273: 80-85. dawrst, a., 2009: “the predominance of wild-animal suffering over happiness: an open problem”, essays on reducing suffering, url = http://www.utilitarian-essays.com/wild-animals.pdf. donaldson, s., and kymlicka, w., 2011: zoopolis: a political theory of animal rights, new york: oxford university press. everett, j., 2001: “environmental ethics, animal welfarism, and the problem of predation: a bambi lover’s respect for nature”, ethics and the environment 6: 42-67. fink, c. k., 2005: “the predation argument”, between the species, 13/5, url = http:// digitalcommons.calpoly.edu/bts/vol13/iss5/3/. glover, j., 1977: causing death and saving lives, harmondsworth: penguin. hobbes, t. 1981 [1651]: leviathan, harmondsworth: penguin. horta, o., 2010a: “the ethics of the ecology of fear against the nonspeciesist paradigm: a shift in the aims of intervention in nature”, between the species 13/10: 163-187,url = http://digitalcommons.calpoly.edu/bts/vol13/iss10/10. — 2010b: “what is speciesism?”, journal of agricultural and environmental ethics 23: 243-266. kirkwood, j. k., and sainsbury, a. w., 1996: “ethics of interventions for the welfare of free-living wild animals”, animal welfare 5: 235-243. macarthur, r. h., and wilson, e. o., 1967: the theory of island biogeography, princeton: princeton university press. mcmahan, j., 2010a: “the meat eaters”, the new york times (19 september),url = http://opinionator.blogs.nytimes.com/2010/09/19/the-meat-eaters/. — 2010b: “a response”, the new york times (28 september), url = http://opinionator.blogs.nytimes.com/2010/09/28/predators-a-response/. ng, y. k., 1995: “towards welfare biology: evolutionary economics of animal consciousness and suffering”, biology and philosophy 10: 255-285. nussbaum, m. c., 2006: frontiers of justice: disability, nationality, species membership, cambridge: harvard university press. palmer, c., 2010: animal ethics in context, new york: columbia university press. parfit, d., 1984: reasons and persons, oxford: oxford university press. pianka, e. r., 1970: “on rand k-selection”, american naturalist 104: 592-597. rolston iii, h., 1992: “disvalues in nature”, the monist 75: 250-278. sagoff, m., 1984: “animal liberation and environmental ethics: bad marriage, quick divorce”, osgoode hall law journal 22: 297-307. sapontzis, s. f., 1984: “predation”, ethics and animals 5: 27-38. zoopolis, intervention, and the state of nature 12�12� leap, 1 (2013) simmons, a., 2009: “animals, predators, the right to life and the duty to save lives”, ethics & the environment 14: 15-27. singer, p., 2011 [1979]: practical ethics, 3rd ed., cambridge: cambridge university press. torres aldave, m., 2011: “de lobos y ovejas: ¿les debemos algo a los animales salvajes?”, ágora: papeles de filosofía 30: 77-98. verhulst, p. f., 1838: “notice sur la loi que la population poursuit dans son accroissement”, correspondance mathématique et physique 10: 113-121. leap 5 (2017) symposium on julie rose’s free time guest edited by tom parr 31 tom parr leap 5 (2017) symposium on julie rose’s free time: an introduction tom parr university of essex in the united kingdom, more than thirty percent of those in paid employment express a desire to work fewer hours. some of these individuals are willing to accept a corresponding reduction in pay, but others cannot countenance such a sacrifice: economic security must take priority.1 moreover, these attitudes are by no means unique to the uk, with many people across the world feeling that they spend too much of their time at work. but things do not have to be this way. policymakers have at their disposal a variety of tools that can reduce working hours and, more generally, enhance the amount of free time that citizens enjoy. these include direct measures, such as working time regulations and the provision of free childcare, and indirect measures, such as policies that strengthen the power of trade unions. in free time, julie l. rose persuasively argues that governments should make greater use of these tools. she does this, first, by establishing the case for a right to a fair share of free time; and second, by showing that, in order to protect this right, it is necessary to do more than regulate society’s distribution of income and wealth. rose’s book makes important contributions to our understanding of the concept of “free time”, the nature of citizens’ rights to free time, and the moral status of available instruments for ensuring that free time is distributed fairly. this symposium brings together a series of thought-provoking papers that explore rose’s arguments in further detail in order to advance the debate around the equitable distribution of free time, as well as a range of related issues. rose opens the symposium with a short precis of her book, which acts as a useful introduction to the discussions that follow. the first commenter is robert e. goodin, who addresses the problem of how to conceptualise discretionary time. more specifically, goodin takes issue with what he calls the “empirical inscrutability” of rose’s account, and appeals to this concern to motivate support for his preferred alternative, which makes use of “social benchmarking”. 1 for recent data, see office for national statistics (2018). d oi : 10. 310 0 9/l e a p. 2017.v 5.02 symposium on julie rose’s free time: an introduction 32 leap 5 (2017) the next two articles focus on rose’s claim that citizens have a right to a fair share of free time. jeppe von platz attempts to expose a serious ambiguity in rose’s arguments: either she relies on a “vacuous notion of fairness” or, contrary to what rose claims to have established, what citizens can claim is merely an adequate share of free time. lucas stanczyk then draws attention to the possibility that many aff luent citizens who complain about being overworked – and who complain more than others about being overworked – are not in fact denied their fair share of free time. stanczyk concludes by ref lecting upon the implications of this possibility for the justifiability of the policies that rose defends. the final two commenters are désirée lim and rosa terlazzo. lim’s task is to construct a republican case for granting citizens a fair share of free time, which can supplement rose’s own argument. she builds her case by showing how citizens’ enjoyment of a fair share of free time can be instrumentally important to realising non-domination. terlazzo employs rose’s framework to draw attention to another neglected resource to which citizens might have claims, namely a “sense of moral entitlement to make use of basic liberties”. the symposium concludes with a response from rose that elaborates her view and that replies to the objections that have been raised. i hope that this symposium advances our understanding of issues of considerable political concern, and that it prompts further discussion about the appropriate regulation of the labour market. i am grateful to the authors for their contributions, to the papers’ referees for their constructive feedback, and to clare burgum and serena olsaretti for all of their help. bibliography office for national statistics, 2018: “emp16: underemployment and overemployment” (edition: february 2018). _goback leap 3 (2016) distributive justice and female longevity1 paul a c asa l icrea & pompeu fabra university abstract this paper discusses philippe van parijs’ claim that men’s lack of female longevity constitutes an injustice, whether this is caused by asocial factors or by gendered lifestyles. this response argues that, like others, such as john kekes and shlomi segall, van parijs underestimates the resources of egalitarian liberalism to avoid this implication. one explanation treats individuals as liable for gendered life-shortening behavior, for example, when they value either life-shortening lifestyles or the choice between lifestyles, and one cannot say society has not “done enough” for them. a second explanation claims a trait is not a relative advantage when it is systematically part of a package of traits that do not constitute a relative advantage. a third explanation claims a trait is not an advantage when its value to the trait bearer is conditional, and the relevant conditions are unlikely to be fulfilled. keywords: r. m. dworkin, hypothetical insurance, john kekes, gender, natural and social inequality, t. m. scanlon, shlomi segall introduction in “four puzzles on gender inequality” (2015), philippe van parijs presents his first puzzle thus: “as long as most people would be willing to give up some income in order to live longer, women’s higher life expectancy reduces the inequality between men and women” (2015: 82). this first puzzle is probably the most familiar of the four van parijs addresses. for example, when john kekes (1997) sets out to discredit egalitarian liberalism, he uses the idea of women having to compensate men for lacking female longevity as a reductio 1 i thank aurora pujol, josé luis martí, and particularly andrew williams for helpful comments on an earlier draft. i also thank two ver y thorough anonymous referees. i also t h a n k je s ú s mor a , l au r a s á nc he z de l a sier r a , a nd ha n n a h web er for t hei r e x c el lent editorial assistance. distributive justice and female longevity 91 leap 3 (2015) of t he ta rgeted v iew.2 rat her t ha n f inding it absurd to t reat women as relatively advantaged by their greater longevity, van parijs cannot think of a way to avoid the conclusion. he envisions only two ways to challenge it. one is to cla im t hat g reater fema le longev it y is eit her (i) due to men’s lifestyle and, therefore, something men are liable for, or (ii) biologically based and, thus, something justice does not require society to amend. he states that (i) is not available to those who hold that social norms shape gender-specific lifestyles, and (ii) is not an option for those who believe just institutions should also reduce inequalities derived from natural talents or disabilities (82). a final option he considers involves deny ing female longevity is a significant benefit, given the way those final years are spent. i shall follow this useful map to describe in more detail the territory it charts, and draw some routes he does not consider. like van parijs, i shall not establish the facts, but focus on the normative implications of different factual assumptions. kekes finds the idea of compensating men for their lower longev it y particularly ridiculous because he regards the variation as a product of biology rather than of unjust social practices (1997: 104). however, i agree with van parijs that it is not plausible to regard greater female longevity as an entirely asocial phenomenon and then argue that only inequalities that are socially generated can be unjust (nagel 1997; daniels 2007; pogge 1989: secs. 15-16, 1995 and 2000). along with kekes, and others such as shlomi segall (2010: 105-10), van parijs gives the impression that liberal egalitarianism lacks the resources to deny plausibly that it is unjust that men lack female longevity. in contrast, i shall argue that there are plausible liberal egalitarian views that hold individuals l iable for t he ha r m f u l consequences of their gendered lifestyles, and that deny that individuals lacking a certain trait are owed compensation when they identif y w ith t hei r t ra it-dest roy i ng lifestyles or when they value having the choice between different lifestyles. furthermore, even if we assume the variation in longevity between men and women depends entirely on asocial factors, plausible liberal egalitarian responses are still available. one such response claims a trait is not a relative advantage when it is systematically part of a package of traits that do not constitute a relative advantage. a final option, which van parijs also considers, is to deny a trait has value to the trait bearer if its value is conditional, and the relevant conditions are unlikely to be fulfilled. i shall proceed to examine the options just noted, referring both to mainstream normative theories and to scientific explanations. my main hope 2 for convenience, like van parijs, i shall compare men and women; and like kekes, i shall refer to “compensations.” the relevant measure, however, is not how far individuals or groups are from one another but how far they are from what they would have in a just society. 92 paula casal leap 3 (2015) is to show the complexity of van parijs’ first puzzle. some deem compensating men for their lesser longevity obviously absurd whilst others find it just as obv ious that liberal equalit y rightly mandates such compensations. in contrast, i think that both reactions are mistaken, and that the puzzle is not only very difficult but also an interesting litmus test to sort important variants of plausible forms of egalitarian liberalism. i am also sure that if a random mutation resulted in women starting to die far ahead of men many of those who currently find van parijs’ suggestion absurd would start listing lesser longevity as one of the disadvantages women suffer. but i shall leave the defense of his position to van parijs, and focus on some plausible responses liberal egalitarians could give, and which he has so far neglected. 2. the social hypothesis: life-shortening gendered behaviour a lthough women live longer on average than men, there are remarkable differences in the variation among different societies. this suggests that social factors play some important role in explaining gender-based variations in longevity. for example, in 2013 women outlived men by twelve years in belarus, but only by one year in san marino, and men outlived women by four years in tonga (who 2015). in europe, women outlive men by eleven years in lit hua nia, whi le in more gender ega lita ria n societ ies li ke sweden, netherlands, and the united kingdom, the gender gap is just around three years (eurostat 2015). further evidence of the importance of social factors refers to changes in the gender gap within one society across time. for ex a mple, a s gender equa l it y i ncrea ses i n eu rope, t he longev it y gap is shrinking (eurostat 2015). in china, the projection of current trends shows that as more people survive their 80th birthday, women become more prevalent in the last age group (fig. 1). fig 1. chinese life expectancy pyramids in 2000 and 2050. source: world population prospects, 2004 revision (2005)3. 3 http://www.prb.org/publications/articles/2006/chinasconcernoverpopulationagingandhealth.aspx percentage percentage male malefemale female http://www.prb.org/publications/articles/2006/chinasconcernoverpopulationagingandhealth.aspx distributive justice and female longevity 93 leap 3 (2015) now, longevity may depend on social factors without also depending on gender-specific lifestyles. for social factors could include, for example, a reform in the publicly-funded health service or the adoption of a certain tradition or sport w ith an unexpected differential impact on male and female life expectancy. improved hygiene and obstetric care, for example, reduced women’s death in childbirth, creating a longevity gap which was not so noticeable before. longevity varies from one society or one period to another for social, but not always gendered, reasons. let us assume, however, as van parijs does, that if the causes are social, they involve gender-based variations in lifestyle (see also segall 2010: 108). the causes generally listed involve different factors. some are unhealthy habits such as some pleasurable forms of consumption like drinking alcohol, smoking, taking drugs, or eating without measure whatever one fancies. others involve risky activities such as speeding, drunk driving, dangerous sports, and the sort of behav ior displayed in internet v ideos w ith labels such as “extreme idiots.”4 a third factor involves occupational hazards, and a fourth, violence or a greater tendency to commit suicide or homicide, or to be killed or injured in fights (see fig. 2). white, non-hispanic black, non-hispanic hispanic men women men women men women injuries 70.8 22.3 49.0 14.8 55.7 13.0 homicide 6.4 2.6 102.2 11.3 28.0 4.0 suicide* 24.6 5.0 14.5 2.4 12.8 2.9 cancer 6.0 4.5 6.7 6.3 5.7 5.4 heart disease 5.0 3.0 13.8 7.4 4.6 2.0 hiv** — — — 5.7 — — fig. 2: leading causes of death for men and women aged 20-29 in the us in 2007, deaths per 100,000 (prb 2010). most feminists, and perhaps most liberal egalitarians, tend to hold social rather than biological explanations of gendered behavior, and so they may find the lifest yle explanation of longev it y plausible. this, however, does not commit them to the view that if a man’s behavior is gendered, he is not liable to bear the burdens arising from it. there are different explanations of why inferring a lack of liability is a non sequitur. i cannot rev iew them all but several are not hard to guess. first, denying liability for the bad consequences of gendered behavior would 4 see, for example, https://w w w.youtube.com/watch?v=px a xbzegtua https://www.youtube.com/watch?v=pxaxbzegtua 94 paula casal leap 3 (2015) have undesirable consequences as it would leave us w ithout important incentives to avoid behavior that is both undesirable and gendered. leaving consequences aside, one may argue that it is not fair that, while men can indulge in drinking and eating without gaining weight or being so strongly penalized by society, women must exercise self-restraint and then compensate men for not having exercised it. this is unfair because if a already had all the fun of a carpe diem lifestyle, b should be allowed to keep the benefits of the self-restraint exercised. otherwise it would be like making women who diet pay for the slimming treatment of those who overeat. second, since male violence and risk-taking are already among the main causes of death for young women, one cou ld a rg ue t hat women have a lready pa id w it h a significant reduction in their own longevity and shared in the costs of male behavior. regarding occupational hazards, some would argue that if both a and b want jobs, and jobs that involve (on-balance advantageous) combinations of benefits and drawbacks, it will be unfair to give a the job, and make b compensate a for the job ś drawbacks (including possible longevity losses). assuming it is not the dead but living people to whom compensation is or is not owed raises further problems. it would not make sense to compensate men who avoid all life-shortening behavior and are thus likely to live long. for then there will be nothing they have to be compensated for, and they will be unfairly enjoying both the extra years and the compensation for lacking them. but it would make even less sense to compensate individuals who, despite engaging in all the life-shortening gendered behavior, still escape the fate for which they are supposed to be compensated. we would be giving extra resources to people who remain alive despite their eating without selfrestraint or their indulging in other imprudent activities. this seems just as implausible, if not more. it may seem more plausible if, instead of granting monetary compensations to the men who stay alive, we invested more on men’s health and spent less on pregnancy or cervical cancer, as shlomi segall at one point suggests to illustrate the case (2010 : 108). but if pecuniar y compensations are not justified, neither are these in-kind compensations. if there is nothing to compensate men for, they will be enjoying both the extra years and the compensation, and this would be unfair. (both pregnancy and cervical cancer, moreover, come about because of sperm, which arguably makes it even more unfair). another possibility would be to force men to adopt female lifestyles. but men may resist this option. this could be because they prefer life-shortening lifestyles or because they value having the choice, the mere opportunity of engaging in activities with some risk of self-harm. adapting an example proposed by scanlon to explain the value of choice, let us imagine that there is an area with extremely nasty nettles in bloom distributive justice and female longevity 95 leap 3 (2015) that cause a terrible rash (scanlon 1998: 256).5 the authorities mark the area and warn people about the consequences of wandering through the flowering nettles. scanlon argues that even if it is difficult to see any value in getting a nasty rash, there is generic value in being able to choose rather than be forced to do the right thing all the time. thus, having fenced off the area and issued all the warnings, we could say that society had done enough to protect individuals from the danger (see scanlon 1998: 249-294; voorhoeve 2008; williams 2006). scanlon then asks us to imagine there is a curious woman who really wants to see what is happening in the fenced area, and so decides to go in to check it out (scanlon 1998: 257). he denies she will then have a claim on society for help or compensation, since she had an adequate opportunity to avoid the harm. there could be exceptions to this conclusion that scanlon would accept. for example, if we can stop her rash by showering her with the public park’s watering hose, it would be such an easy rescue that she could have a complaint if she were not showered. in other cases, perhaps during a drought, she could not make such demands. another plausible exception would be that of individuals or groups who are already victims of injustice or live below a minimum threshold and take some risks to escape their dire condition. since such exceptions do not apply to the case of men indulging in unhealthy habits, let us add to the picture some gender stereot y pes and claim that the woman was a victim of female curiosity or love for f lowers, and so was engaging in self-harming gendered behavior. or suppose a man wants to enter the fenced area to show off how tough he is or because of a gendered sensat ion-seek i ng desi re, or a gendered aut hor it y-def y i ng attitude. would this change anything? it is implausible to assume that the mere fact that such behavior can be associated with gender stereotypes makes a difference. it would make a difference if the signs were unclear or if the individuals were children. but adults who chose to ignore the clear sig ns do not have a leg it imate compla int if t hey come out w it h a rash, regardless of whether theirs was a case of typically male, female, sport-fan, or ideological foolishness. in t he ca se of l i fe-shor ten i ng gendered behav ior, t he ca se aga i nst compensation is even stronger that in the example of the nettles because incursion into the fenced area is a one-off event rather than recurrent behavior, like eating and drinking excessively, driving recklessly, picking fights, and general carelessness. if the behavior that causes a man to have 5 i have modified scanlon’s original example because it involved hazardous waste, which may suggest corporate responsibilit y for extremely nast y and premature deaths in deprived areas. 96 paula casal leap 3 (2015) a shorter life span is traceable to choices that men pursue repeatedly, and even identify with, the case for compensation is even less plausible. given that we cannot plausible claim society has not done enough for men, or compare the case to that of an easy rescue, liberal egalitarians who believe in accommodating t he va lue of choice would not compensate men for undesirable, gendered behavior. needless to say, for desert theorists, making the prudent, non-violent, law-abiding poor reward the imprudent, violent, careless rich is exactly the opposite of justice (see, for example, arneson 2007). but let us now examine what follows if sex variations in longevity do not depend on behavior but respond to some other explanations scientists have proposed, and which i sum up below. 3. the asocial hypothesis: the evolutionary explanations on average, women live longer than men. it would be puzzling for scientists if they did not, as this is normal for females in other species. a traditional explanation in the case of humans is that estrogen protects women from cardiovascular disease. another explanation is that having only one copy of the x chromosome makes males more vulnerable to harmful recessive mutations (pan 2012).6 the latter explanation could also account for the alleged female tendency to form a tighter cluster near the mean while more males are outliers, occupying more extreme (desirable and undesirable) positions (cronin 2008). sexual differences in longevity, however, are greater in species with a history of polygyny (i.e., of males mating with several females) and tend to be g reater t he la rger t he si ze of t he ha rems. thus, in ver y polyg y nous mammals, like elephant seals, males are almost twice as large as females and females almost twice as long-lived as males.7 in contrast, in less polygynous species, sex differences in either size or longevity may be much smaller. the massive bowhead whales can sur v ive t wo centuries, whi le small insects may survive only two weeks because, across species, a large size correlates with longevity. by contrast, between the sexes of the same species, the reverse obtains: if the females of a species are much smaller than the males of the same species, they tend to live much longer. 6 a recent ly proposed ex pla nat ion is t hat t he qua l it y-screen i ng process of ou r mitochondrial genes only happens through females, and so mitochondrial mutations may be weeded out when t hey a re ha rmf u l to fema les but not when t hey a re ha rmf u l to ma les (camus 2012). 7 male southern elephant seals weigh 11,000 pounds and live around 15 years, whilst female southern elephant seals weigh 2,000 pounds and live around 24 years. see, for example, http://www.marinebio.net/marinescience/05nekton/esbody.htm. http://www.marinebio.net/marinescience/05nekton/esbody.htm distributive justice and female longevity 97 leap 3 (2015) in species with a polygynous history, when compared to females, males are: (i) larger and better armed or ornamented; (ii) more aggressive; (iii) more drawn to competitive interaction and aggressive play; (iv) more likely to engage in escalating violence, leading to injury or death; (v) more eager to mate; (vi) less discriminating about mates; (vii) more prone to high-risk behav ior, particularly when pursuing females (dar w in 1872; thornhill and palmer 2000 : 37); (v iii) more likely to die prematurely in accidents, combat, or f rom d isea se (da ly a nd w i lson 1983); (i x) less long-l ived through physiological malfunction (hamilton 1966); and (x) conceived and born in larger numbers, roughly balancing their dying prematurely in larger numbers from violence, disease, malfunction, or imprudence (alexander et al. 1979). these characteristics could cause men to lack some of the selfrepair mechanisms that women have because there would not be much point in nature investing in self-repair systems for those likely to die of other causes any way (diamond 1993: 110). other explanations refer to the social usefulness of females for youngsters of eit her sex. in polyg y nous species, ma les a re more ex pendable t ha n females not only because fewer males are needed for reproduction, but because offspring benefit more from females. one example is the grandmother effect, observable in matriarchal societies like those of orcas, where older females guide and protect the young, surviving menopause and outliving males by several decades (brault and caswell 1993). think too about how male lions wait for the females to bring home the bacon, and having killed all the cubs they did not sire, leave only scraps for their own offspring to eat. youngsters sometimes do so much better without their large, sexually aggressive male parent around that the best such males can do for their offspring is what some actually do: go away and die to avoid competing with their own kin. longevity is known to correlate not only with size in the two ways explained above but also with cultural transmission. elephants, great apes, and other highly intelligent, self-aware, cultural creatures, like orcas, lactate for many years. they do so not because they need the milk, but because they need to intersperse the pregnancies to allow mothers enough time to provide their offspring with an education. lactation, however, is also connected to the high incidence of polygyny in mammals, since such devoted mothers are very easy to exploit: they will not abandon the offspring in which they have invested so greatly, even if they are abandoned or exploited themselves. the large investment per infant typical of these species is adaptive because its members are long-lived, so education and cultural transmission tends to pay off. in the case of humans, the large human brain required for extensive learning involves large additional costs for child-bearing women, and this 98 paula casal leap 3 (2015) may have also resulted in their greater longevity: a very large brain for babies, combined with a pelvis not initially designed for bipedal walking, makes human births exceptionally dangerous even for young and healthy mothers. given these facts, if women died younger and were fertile until they were about to die, both mothers and their infants would die in even larger numbers. female longevity might then be a consequence of how much more costly it is to have offspring for female humans compared to other female primates (diamond 1993: 117). and since mothers pass their genes to their sons, men could have then benefited from an increase in their longevity (relative to that of all other apes) without having to pay the costs. appealing to these considerations, some may respond to van parijs in at least four ways. first, one may respond by arguing that the main beneficiaries of female longevity are actually men. female longevity is not a trait that is explained by its benefits for females but by its benefits to offspring of both sexes. moreover, possessing this trait comes at a high price for women since it is connected to the extraordinary danger and difficulty involved in giving birth, as well as to smaller size in females, and inequality and reproductive exploitation. without pay ing these costs, men also benefit from female longevity since they benefit when they are young males, they benefit from their own offspring being safe, and it is likely that they have also benefited with increases in their own longevity. on this view, then, one could argue that is not males, but rather females that ought to be compensated for the costs of securing collective longevity. a second reply would involve arguing that the inequality in longevity is not unjust because its removal would make humans worse off. if so, rawlsians, for example, would deny such beneficial inequalities are unjust. if these explanations are correct, van parijs’ assumption that, if longevity has a biological explanation, then men’s lack of female longevity is unjust, would be a non sequitur. a third answer to van parijs would be to argue that if males die younger because of their propensity to attack others in order to monopolize more females, while females live longer because of their useful caring services, in a way we are back to the explanation of longevity in terms of “gendered” lifestyles discussed earlier. van parijs, however, may argue that evidence of gendered lifestyles having evolutionary roots only reduces men’s liability. but this is too rushed. first, everything has evolutionary roots, and we do not generally deny all liability. second, for some theories of liability, the fact that humans have an evolutionary past is taken for granted and makes no difference at all. third, we are sufficiently monogamous and sufficiently unlike seals, orcas, and lions that although some may be tempted to behave like such animals, we are not hardwired to do so, and most of us do not. distributive justice and female longevity 99 leap 3 (2015) a fourth and final answer to van parijs is to deny compensation on the ground that a trait cannot be considered an advantage when it is inextricably linked to other traits that cannot, on the whole, be considered an advantage, which is precisely what scientists are telling us with these explanations. ronald dworkin and other advocates of equality of resources (dworkin 2000), for example, would deny that individuals have any claim simultaneously to enjoy the advantages of a condition and the advantages of lacking the condition. take a case (suggested to me by andrew williams) involving a basketball player whose exceptional success depends on unusual height that is also correlated with premature death and terrible backaches. dworkin would deny another shorter player is relatively disadvantaged in a compensationsupporting sense when he prefers only the taller player’s success, and does not regret lacking the package of traits on which it depends. on this view, men have no legitimate complaint regarding female longevity because, as the biological explanations suggest, giving birth and living a few more years are tightly linked and part of the same package, like the height and the backache, the suffering and the medals. and people are not entitled to have their cake and eat it too, enjoy an able body and yet insist in competing in the paralympics, or be compensated for not being able to do so. there are, moreover, further arguments against compensating men inspired by dworkin’s work on equality. as many readers probably know, for dworkin a fair distribution of external resources is one which could have emerged from a hypothetical auction where individuals enjoy equal bidding power (2002: 67). when the process is complete nobody envies the bundle of resources others have ended up with, since they could have also bid for those resources themselves. against this background of equality of resources, equally situated individuals then purchase insurance against what they by their own lights consider a relative misfortune (clayton 2000; williams 2002, 2004). now, since men do not normally regard being male as such a misfortune, they are not entitled to compensation for lacking female longevity, or female hormones, or female breasts. by contrast, some transgender persons who very much want to have female bodies, and even give birth and breastfeed, w ith or w ithout the extra longev it y, but have a male anatomy, should be compensated. dworkin’s view supports assisting these individuals with their sex-reassignment needs through a publicly-funded health ser v ice because people would have insured against being born with a body which does not match their self-identified sex when others possess such a body. some may worry that this dworkinian criterion for justifying or denying compensations depending on whether individuals identify with their condition may not always favor feminist demands. in response to this worry, one may 100 paula casal leap 3 (2015) a rg ue t hat t he d work i n ia n cr iter ion ca n not be used aga i nst fem i n ist demands because what women want (equal pay, respect, political representation, and so on) has nothing to do with being male or female. few expressions in the history of thought are as unfortunate as the freudian and lacanian “penis env y,” when what women want and demand does not depend on maleness or anatomy. thus, if men do not suffer from the reverse condition (say “womb env y”) but are perfectly happy to be men, and identif y with being men and do not consider being male a misfortune, they have no claim to compensation because in their own opinion they are not the victims of bad luck. they would have insured against illness or disability but not against being male. the same will apply to a religious believer who ends up not only with a lower life expectancy but lower welfare throughout his life because of the constant fasting that his religion demands. if this person identifies with his faith and does not regard it as a craving or disability, he does not have a complaint. he cannot both pity the atheist’s lack of faith and think of his own faith as a blessing whilst still plausibly claim to suffer from relatively bad luck. similarly, there is no injustice if this believer dies younger purely as a result of a faith he welcomes and the corresponding religious activity he willingly pursues (dworkin 2002: 119, 138; williams 2002: 378). dworkin’s account, thus, is an example of a view that does not claim that justice concerns exclusively that which has a social origin, and still denies that men’s lack of female longevity constitutes an injustice. van parijs may want to reject dworkin’s account and all forms of egalitarian liberalism that conclude men’s lack of female longevity is not unjust, and he may be able to offer good reasons for doing so. my main point, however, is that his road map is not exhaustive: there are more exit routes on offer than he allows. in fact, van parijs even omits to mention his own proposal regarding how to evaluate variations in internal assets, namely undominated diversity, according to which targeted transfers and other measures must make sure that no person’s lifetime internal endowments are regarded by all as inferior to that of someone else (van parijs 1997, ch. 3). on this view, men are owed no compensation because there is no agreement on their endowment being inferior – there may even be a consensus on the denial of this claim. so it seems that not only scanlonians and dworkinians but even van parijsians may deny it is unjust that men lack female longevity. regarding rawls, his theory of justice has been widely interpreted as denying that it is unjust that men lack female longevity (barclay 1999; segall 2010, 99ff and clayton 2001). the first statement of his view was understood as claiming that justice requires equalizing individuals’ natural primary distributive justice and female longevity 101 leap 3 (2015) goods when a deficit in those goods resulted in an unequal access to social primary goods, namely income, wealth, the basic liberties, and the social bases of self-respect. since men are not disadvantaged in their access to social primary goods, however, there is no injustice that needs to be corrected. rawls’ later justice as fairness. a restatement (2001), however, contains a section on sen’s capability approach (rawls 2001: 168-176), which suggests that the widely held interpretation may not be the only position a rawlsian may take in this debate. instead, some rawlsians may argue that longevity is a capability and that enjoying greater capabilities matters even if it does not alter an individual’s access to primary goods. so rawlsians may accept that differences in longevity can have independent relevance for justice. since most people disregard this aspect of rawls’ restatement of his theory, we can safely conclude that most liberal egalitarians deny that men’s lack of female longevity is unjust. let us now turn to the final question van parijs raises which concerns the value rather than origins of greater female longevity. 4. is female longevity a significant benefit? van parijs begins by granting that hav ing some extra years may not be significantly valuable, and that concession seem plausible. women’s extra years may come when they are too old, weak, disabled, or dependent to achieve anything very valuable with the extra time. they may spend most of the time asleep, ill, in and out of hospital, and with their mind and energy focused on coping with the problems of female old-age: frequent falls and fractures, arthritis, incontinence, deafness (cutting people off socially, which affects women more), stress, insomnia, depression, and dementia, which claim more female than male victims. longevity, then, is only conditionally valuable, and the last few years of one’s life are the ones more likely to detract from the total value of one’s overall existence. as van parijs notes, it would be great to have some extra years if they could be “squeezed in at age 30 or 40” (2015: 82) rather than prolonging the worst bit of one’s life. i agree again. van parijs, however, goes on to add: “but this is a confusion. what hides behind the gap between the average lengths of women’s and men’s lives is a greater probability for a woman to reach and enjoy her forties, her fifties, her sixties, etc., not only her nineties” (82). van parijs does not indicate the extent to which men’s prospects of reaching middle age are smaller than women’s, and if that gap is not itself significant, he has not made any progress in showing that women enjoy a significant benefit here. moreover, van parijs does not cite any data supporting his claim, and population pyramids like those indicated earlier (fig. 1) suggest that the number of males and females at ages 30 and 40 remain largely the 102 paula casal leap 3 (2015) same until we reach the very last, and least desirable, stage of life. thus, even if his qualification is relevant, the differences in probabilities may not be sufficiently large as to constitute a significant advantage. there are also likely to be regional variations, and so depending on your birthplace you may be a victim of female infanticide or die in childhood from “the pattern of neglect” (the systematic dismissal of a daughter’s nutritional or medical needs), you may be killed by your rapist, stoned by religious fanatics, burned for witchcraft, killed for dowry, or die in childbirth or from domestic violence. as different factors combine, over a hundred million women are missing (sen 1990). of course, things are different in developed societies. but there, if you are prudent and look after yourself, the chances of dy ing young are so small for both women and men that some small difference in what is already a remote chance may not be very significant. in addition, as van parijs notes, women are not only poorer but also need to stretch their scarcer resources over more years, which makes them in one respect poorer still. having said this, however, he adds that there is an income difference (and he mentions income differences of 5%, 1% and 0.01%) that individuals would accept in exchange for increased longevity. three observations are needed here. first, women do not only have to stretch the fewer resources they have over a few more (equally costly) years. in fact, it is in those final years that the costs of surviving often skyrocket. second, women are not only poorer but much poorer than men and much worse paid. and so that the reader is not left with the wrong impression, it is worth noting that income differences are much larger than those van parijs suggests in his thought experiment. in spain, for instance, the gender income difference is 33.7% (eurostat 2015b), so that if a man makes 1,000€€ a month, the woman would only make 666€, receiving just 2€€ for every 3€€ a man secures. third, just as we cannot imagine that the extra years are additional years in our 30’s or 40’s, we cannot imagine these are additional years of a typical male life, with all the drinking or speeding included. for the alleged advantage consists mainly in the final years of a female life, with its poverty, illness, stress, and subordination to men. it is unlikely, then, that men would prefer these female ‘advantages’, and if they are tempted to do so they should consider van parijs’ final, and most original, observation regarding longevity. he notes that besides living longer, women are also on average two or three years younger than their male partner. this means that far more women than men are likely to still be around when their ageing partner is becoming frail and dependent. as long as much of the elderly care required in these circumstances is performed distributive justice and female longevity 103 leap 3 (2015) within the household, the necessary consequence is a very significant inequality in the amount of domestic elderly care work performed by the two genders, which — as lives get longer and children fewer — may approximate or even exceed the size of the inequality in the respective amounts of domestic child care. note that this holds even under the unrealistic assumption that both the will and capacity to care for their partner are the same for men and women. in this light, men’s lower life expectancy might be interpreted as a trick to extract more care work out of women (2015: 82). what this means is that women’s somewhat longer lives are not really theirs: whatever their vocation, they are effectively conscripted as nurses, cooks, and cleaners. not long after they finish cleaning and feeding their children, they may end up stuck with the far less pleasant chore of cleaning a nd feeding old men, of ten f irst t heir ow n fat her a nd t hen t heir elderly spouse. hav ing looked after their partner day and night, they then see them die, and go on to age and die alone themselves. van parijs sees no way out of this. since deterring men from marr y ing younger women seems difficult, if not impossible, and getting them to outsource their elderly care seems to him not only costly but undesirable, he thinks we face here a blind alley. if we accept this pessimistic conclusion, it becomes easier to deny men are missing out on any significant benefit. but perhaps we should explore ways to change women’s situation in those final years. let us consider the age gap first. the age between spouses correlates with higher divorce rates (francis-tan and mialon 2015), and so we may have additional reasons to nudge people into reconsidering divorcing to marry somebody much younger. van parijs himself once proposed a tax on the age difference between partners to reduce the chances of the wife leaving a less senior job than her husband’s in order to care for their children (van parijs 2001). such a tax could serve other functions too, and it could even be progressive: the rate could be adjusted so an elderly millionaire starting his fourth marriage to a barely adult beauty queen would pay a higher tax than a less wealthy man whose marriage involves a smaller age gap. and since the gap correlates with income inequality and other aspects of the social structure (casterline 1986), it may also spontaneously shrink as society becomes more just. regarding elderly care, i favor more outsourcing. some countries out source care by combining the elderly individual’s savings with state aid, for exa mple, by adva ncing f unds t hat t he state ca n t hen recover once t he deceased’s home is sold. most developed countries outsource childcare despite the fact that it is important for the development of the child (but often not for the elderly) to be cared for by a specific person, and despite 104 paula casal leap 3 (2015) the fact that it is far more delightful for a person to wash and feed her own child than an old man. one may prefer to see and talk to one’s spouse or female relative rather than a paid carer, but then one can always invite them to visit rather than force them to be there performing all sorts of tasks, such as treating bedsores, that not everybody is cut out for. caring for an elderly person often requires the ability not to feel faint or nauseous when confronted with certain sights and smells, the ability not to take criticisms personally, and the strength not to drop a man’s body when moving it. if a young male professional is much better than an aging wife at all of this, it is not desirable to rely on her performing such tasks. moreover, it is unfair that after a lifetime of being paid so much more, men cou ld go on to ex pec t women to c a re for t hem g rat is. i n stead, ever y body should feel under a duty to save to avoid becoming, in effect, slave-drivers in their old age. i certainly do not see how one could have a right to turn a rare and modest advantage for women into yet more unpaid and unchosen female labor. as dworkin would say, we may disagree about to what extent we should compensate people for a certain disability, but we should agree that a just society will not turn individuals’ natural advantages into a liability by engaging in some sort of slavery for either the talented or the long-lived. conclusion van parijs claims that lacking female longevity is an injustice against men, if it is caused by a gendered lifestyle. i have argued that on some plausible views, such as thomas scanlon’s, at least under some circumstances in which society can be said to have "done enough" for some individuals, they can be expected to bear the consequences of their life-shortening behavior, whether or not it is influenced by gender stereotypes. van parijs also argues that if men’s lack of female longevity is due to asocial factors, then it is an injustice against men. i have argued that on some plausible views, such as ronald dworkin’s, it is not an injustice if, as scientists suggest, having female longevity is inextricably linked to being female, and men identify with their condition and do not consider it bad brute luck. finally, van parijs notes various reasons to deny female longevity is a significant benefit. one of them concerns the informal conscription of unpaid female labor for elderly care. i have argued such conscription should end. until it does, however, i agree with van parijs that it greatly diminishes the value of what was already at most a very modest benefit. distributive justice and 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oxford university press. — 2001: “real freedom, the market and the family,” analyse und kritik 23:106-31. — 2015: “four puzzles on gender inequality,” law, ethics and philosophy 3. voorhoeve, a., 2008: “scanlon on substantive responsibility,” journal of political philosophy 16:184-200. w ho, 2015: “life expectancy data by countr y” http://apps.who.int/gho/data/ node.main.688?lang= en. williams, a., 2002: “equality for the ambitious,” philosophical quarterly 52: 377-389. — 2004: “equality, ambition and insurance,” proceedings of the aristotelian society, supplementary volume lx xviii: 131-150. — 2006: “liberty, liability, and contractualism,” egalitarianism ed. n. holtug and k. lippert-rasmussen. oxford: clarendon press: 241-61. http://apps.who.int/gho/data/node.main.688?lang=en. http://apps.who.int/gho/data/node.main.688?lang=en. 03 kollar.indd the distinction between taxation and public service in the debate on emigration1 e sz t e r kol l a r goethe university frankfurt abstract are taxation and public service requirement for prospective emigrants justifiable in a liberal state? brock thinks that taxation and service are normatively on a par. by contrast, blake thinks that public service is impermissible, and only justified under emergency conditions when the liberal state itself is under threat. i argue that neither brock nor blake have adequately argued their case. brock’s normative grounds for obligations and how exactly prospective emigrants incur enforceable obligations are not spelled out in sufficient detail. as a result, she is too quick to draw an analogy between taxation and service requirement, without considering the morally salient difference between the two. i discuss a plausible ground, fair reciprocity in social cooperation, and draw out its implications for brock’s view. by contrast, blake has not adequately shown that restricting life plans directly is unjustifiable, while restricting life plans indirectly by reducing the resources available to persons is justifiable. his account only shows that public service requires a different, more compelling justification than taxation. he does not, however, offer adequate support for the extreme justificatory burden he places on public service requirement. both authors owe us an account of the resources and powers that can be legitimately claimed for purposes of social justice; whether there is a tenable normative boundary between transferring resources to the needy versus providing socially useful services to them. 1 i am grateful to paul bou-habib, serena olsaretti, the participants of the debating brain drain workshop at the goethe university frankfurt, and the anonymous referees for their very helpful comments on earlier versions of this paper. i am also grateful for the support of the german research foundation (dfg) for enabling me to work on this paper. 03 kollar.indd 109 21/4/17 13:26 110 eszter kollar leap 4 (2016) keywords: brain drain, emigration, fair reciprocity, ownership of talents, emigration tax, public service introduction one of the hardest questions about the brain drain concerns the tension between the needs of source populations and the freedom of the migrating professionals, and whether any kind of constraint on the latter is ever justifiable. gillian brock and michael blake’s debating brain drain takes on this difficult challenge, provides a rich set of normative arguments, and shows how they figure in the policy arena of skilled labor migration. the normative discussion assumes the perspective of poor source country governments that face the task of ethically guided policy-design in a deeply unjust world, where wealthy receiving countries fail to discharge their duties of international justice. what may source countries permissibly do to address the problem of high skilled emigration? in this commentary, i focus on a key disagreement between brock and blake. is a public service requirement for prospective emigrants justifiable in a liberal state? brock thinks that taxation and service are normatively on a par. by contrast, blake thinks that public service is an impermissible path to liberal justice, and only justified under emergency conditions when the liberal state itself is under threat. i argue that neither brock nor blake have adequately argued their case. brock’s grounds of obligations and how exactly prospective emigrants incur enforceable obligations are not spelled out in sufficient detail. as a result, she is too quick to draw an analogy between taxation and service requirement, without considering the morally salient difference between the two. by contrast, blake’s account only shows that public service requires a different, more compelling justification than taxation, and does not show that it is impermissible in liberal states. blake does not offer adequate support for the extreme justificatory burden he places on a public service requirement. 1. reciprocity and the benefits of social cooperation brock provides a variety of reasons why skilled emigrants have moral obligations towards their country of origin or training. these include the duty to reciprocate for the benefits received; fair return for government investment; loyalty to fellow citizens in upholding institutions; responsibility for creating disadvantage, and responsibility for the 03 kollar.indd 110 21/4/17 13:26 the distinction between taxation and public service... 111 leap 4 (2016) unintended harmful side effects of skills shortage. these special moral responsibilities, brock argues, jointly provide the ground for state restrictions on emigration (brock and blake 2015: 65-68). the various sources of duties that serve as the building blocks of brock’s position problematically draw together two separate normative questions: 1) do skilled workers have moral responsibilities towards their country of training or origin? 2) can states legitimately coerce them to discharge those responsibilities? (also see eyal and hurst 2014) a variety of moral obligations may arise from brain drain, but not all of them are legitimately enforceable in a liberal state. we need to unpack the grounds of obligations owed by emigrants towards those who remain, and analyze more precisely the way in which they give rise to obligations that are enforceable by liberal states. i focus on two related grounds for emigration restrictions, both of which concern what persons owe to their society in virtue of having received certain benefits, in particular, those of education and of social cooperation more generally. these grounds are: (a) that governments must pursue a fair return on their investments and (b) the duty to reciprocate for the benefits received from social cooperation. as brock writes, “governments are entitled to claim compensation from those who will benefit from their investment” (brock and blake 2015: 68). skilled professionals accumulate “debts that are typically discharged by being a productive member of that society in adulthood” (brock and blake 2015: 68). the argument for fair return on investment rests on the idea that the education and training of medical skills, both in public and private institutional settings, may be seen as part of a collective enterprise jointly sustained by all through research, training, health care, which involve a broad range of social and economic resources, the rule of law, general services and infrastructure, public safety, human corps, and so on (brock and blake 2015: 76). poor countries allocate scarce public resources to supply socially valuable skills, such as medical training, and they do that with the expectation that trained doctors will deliver health care services over the course of their productive lifetime. how do individuals incur enforceable obligations for enjoying the social goods jointly produced in a cooperative scheme? how should we understand the underlying ideal of justice or fairness and the nature of the normative relationship that gives rise to such obligations? these are the questions that need further analysis for a better understanding of brock’s position. 03 kollar.indd 111 21/4/17 13:26 112 eszter kollar leap 4 (2016) one possible way of understanding the basis of reciprocity owed by the emigrants may be the contribution made by those left behind. on a contribution based reciprocity account, however, duties of distributive justice arise only among (potential) net contributors to the cooperative surplus. the unappealing implication of this account is that those who, for whatever reason, lack the capacity to contribute are not entitled to social resources.2 this account would be inconsistent with brock’s moral concern with the unfulfilled needs of those left behind and her commitment to the imperative of moral equality, according to which “[a]ll human beings needs and interests matter … and deserve equal consideration” (brock and blake 2015: 25). so why reciprocity is owed to everyone, and not merely to (potential) contributors, requires a different justification. a more plausible account of why would-be emigrants have obligations to their home society is rooted in the idea of fair reciprocity in social cooperation (rawls 1971). the departure from the contribution-based account is that moral standing is not attached to the capacity to contribute to the social product. the fair reciprocity account acknowledges the morally arbitrary distribution of natural abilities. moreover, it recognizes that a person’s capacity to contribute depends in part on the design of the cooperative framework and the rules that govern the production and distribution of social goods. it starts from an assumption of fundamental moral equality, so the terms on which social goods are produced and confer value on the talents and abilities of individuals must be justified from a benchmark of equality. fair terms render the benefits drawn from the scheme of morally legitimate entitlements. what equal citizens owe one another and governments may justifiably enforce is the duty that each plays their part in upholding the fair terms of cooperation. according to brock the minimal requirement of a fair scheme is that its social and political arrangements support “the core ingredients for a decent life” (brock and blake 2015: 25). when the labor supply for one or more of these core ingredients is critically low, those who lack secure access to these important goods have a reasonable complaint. the complaint is that when emigrating professionals leave and deploy their skills abroad unconditionally,they fail to discharge part of their duty of fair reciprocity in sharing the burdens and benefits of an ongoing scheme of social cooperation. this, on my view, is the more plausible way of spelling out the idea of reciprocity underlying brock’s account. however, there are two problems that arise: 1) do higher burdens depend on higher capacity? 2) is a compulsory public service requirement included in the fair terms of cooperation? 2 for a critical discussion of this view see, for example, buchanan (1990). 03 kollar.indd 112 21/4/17 13:26 the distinction between taxation and public service... 113 leap 4 (2016) the first is a matter of clarification. brock thinks that those with greater capacity should contribute more. as she writes, we “often think it fair to treat people differently on the basis of the varying ways in which they can contribute to promoting justice” (brock and blake 2015: 245). we do this, according to her, when we accept differential tax burdens. on an account of justice as fair reciprocity, however, differential contributions to uphold fair terms do not, strictly speaking, depend on differential capacities. the idea is not that those with higher talents or skills ought to shoulder greater burdens, because they are more talented, as brock seems to think. rather, the idea is that they may legitimately expect higher social rewards for their initially undeserved capacities on the condition that background institutions are fairly arranged to the benefit of the least advantaged. a fairly organized social scheme has to strike a difficult balance between providing incentives for the talented to develop and deploy their skills and allowing them to obtain benefits on terms that those who gain less have no reason to reject. this, i believe, is a more plausible way of understanding the normative underpinnings of a fair tax system. the second problem runs deeper and concerns a key disagreement between brock and blake. should upholding fair terms of cooperation include a public service requirement for would-be emigrants, as brock thinks? or is compulsory public service an impermissible requirement of liberal justice, as blake thinks? (i return to blake’s account in the next section.) brock seems to think that there is no morally significant distinction between making societal demands on a person’s material resources and her labor, so the move from income tax to a one or two-year public service requirement is a relatively straightforward one. she argues that if the coercive state practice of redistributive taxation is justified for the benefit of others, then providing services that involve our labor may also be required for the benefit of others. brock draws the analogy between the two when she writes that “redistributive taxation involves, in effect, having to labor for the benefit of others” (brock and blake 2015: 97). while i welcome her conclusion that a highly conditional service requirement may sometimes be justified, her claim that taxation and service are analogous is too quick, and unfounded. there are relevant disanalogies between requiring persons to pay taxes and to dedicate labor hours to sustain background justice. these disanalogies require careful consideration before we can draw the conclusion that mandatory service, of some sort, is permissible for furthering social justice. liberal political morality draws a sharp distinction between two aspects of rightful ownership of our talents. it holds that persons have a 03 kollar.indd 113 21/4/17 13:26 114 eszter kollar leap 4 (2016) strong, nearly exclusive, right to control what happens to their capacities and how they are put to use. the right to control the use of our talents is justified by reference to our fundamental interest in autonomy and pursuing valuable ends for ourselves. by contrast, the right to draw material benefits from the use of our talents importantly depends on the contribution and cooperation of others. rightful ownership of the material benefits depends on the idea of fairness embodied in the terms of social cooperation (christman 1991). so how we use our talents and what kind of benefits we may permissibly obtain are justified in a different way. the normative distinction between the right to control the use of our talents and the right to benefit from our talents is thought to ground the moral significance of the distinction between service and taxation, at least among liberals. the challenge for brock, then, is whether she can provide an adequate justification of compulsory service consistent with her liberal commitments. does she think that a person’s right to control the use of her talent can sometimes be restricted by liberal states? the conditions under which such a restriction is justified would need to be spelled out and shown to be consistent with liberalism. at places, brock seems to cross the bounds of liberal political morality. she writes, that “[t]hose people who have received the necessary training are, in a way and in part, community investments” (brock and blake 2015: 62). it is important to distinguish the skills that are developed and trained through societal investment from the persons who carry them. skills are in a way and in part community investments for which fair returns may be claimed. but persons themselves are not. much depends, then, on how brock would, if pressed on this point, fill in “in a way” and “in part” in the sentence above. she would need to elaborate on how exactly skills depend on the investment made by others, and how, in virtue of this contribution-dependence, state restrictions on the deployment of skills may be justified. there is another more general understanding of fairness as fair play that comes to the fore in parts of brock’s account. she relies on a general principle of fairness when she argues that emigrants owe a fair return for the benefits received from their home society. the principle of fairness holds that when people engage in a benefit-producing activity they incur enforceable obligations to do their fair share (olsaretti 2013). in the joint production of a public good, such as public safety or public health, everyone who enjoys the benefits should do their fair share. however, even on this account, further argument would be needed on brock’s part. there is considerable disagreement about the nature of the good produced, the nature of cooperation, and the relevant constraints under which the fair 03 kollar.indd 114 21/4/17 13:26 the distinction between taxation and public service... 115 leap 4 (2016) play principle applies. is the intention to benefit from the scheme a necessary condition? or is the idea that the goods produced are taken to be “presumptively beneficial” sufficient to incur obligations? (klosko 1987) these are some of the questions brock would need to answer for a more compelling account of prospective emigrants’ enforceable fair share. to conclude, brock still owes us an account of how we should understand the moral significance of the distinction between taxation and public service, and under what conditions the state can restrict the right to control the way we deploy our talents and skills. her answer from consent underpinning educational contracts does not go far enough because it does not address the deeper question raised here about the terms of cooperation we may justifiably consent to, in the first place. are the terms of the contract the state offers to students fair to start with? if so, why? 2. the justificatory burden for tax ation and public service blake’s response to the alleged analogy between taxation and public service is that this is the inverse of an old argument made by robert nozick, who famously objected to redistributive taxation as tantamount to forced labor (nozick 1974). brock, according to blake, should be seen as turning the above claim around: if we think income taxes are permissible then we should also think that forced labor is permissible (brock and blake 2015: 174). blake thinks that both of them are wrong for the same reason, so what could be said in response to nozick should be a good enough response to brock. blake here rehearses the standard liberal view according to which individuals have an exclusive right to decide what happens to their bodies and how they use their talents, which bars others from interfering. however, they do not have an exclusive right to the income that f lows from the use of their talents. talents are considered inviolable, personal resources not up for grabs for social purposes, and should not be distributed in the name of social justice. by contrast, income and wealth are social resources that may be claimed appealing to the idea of fairness in cooperation. in the remaining part of my commentary i analyze this fundamental difference between brock and blake’s view. are talents and labor hours more similar to organs and body parts as blake thinks, or closer to income and wealth, as brock thinks? i cannot hope to settle this question in a short 03 kollar.indd 115 21/4/17 13:26 116 eszter kollar leap 4 (2016) commentary or provide an alternative answer in the space available.3 what strikes me as problematic in blake’s reply, however, is that he simply takes for granted this sharp distinction. in responding to brock he does not argue for the view, but rather, spells it out. i do not claim that there should not be any distinction at all between what kind of powers and resources we can and cannot claim for purposes of social justice. i do think, however, that the way we draw the line should be more carefully examined. the question to be asked is whether there is a normatively relevant distinction between the use of our talents and the benefits that flow from them that renders the former inviolable. cécile fabre (2006) has questioned the standard liberal way of drawing the boundary and whether we have an exclusive right to control our body and person. she argues for a highly qualified right to personal integrity. her starting point is that the state should provide its citizens with a minimally f lourishing life, including opportunities to form and revise their plans of life. with respect to others who fall below the threshold of sufficiency, “if it is true that we lack the right to withhold access to material resources from those who need them, we also lack the right to withhold access to our person from those who need it” (fabre 2006: 2). she endorses an analogy between distributing social resources to those in dire need and distributing “personal” resources. that is, under conditions of extreme deprivation, other persons may have a justified claim to things liberals take to be inalienable parts of our person. these things, on fabre’s account, include the body, its organs, the maternal womb, and our talents and skills that are necessary for addressing the basic needs of others. fabre’s endorsement of the legitimacy of transgressing bodily integrity (under certain limited circumstances) is highly controversial. the idea of “body exceptionalism”, namely the belief that there is “a prophylactic line that comes close to making the body inviolate, that is, making body parts not parts of social resources at all” (dworkin 1983), is an important liberal assumption that i do not question here. i do think, however, that fabre’s question, i.e. whether skills (rather than talents) and labor may be considered social resources to be claimed by others under conditions of extreme scarcity, is worth considering in the context of the brain drain. the question is whether there is a tenable normative boundary between transferring resources to the needy versus providing socially useful services to them. what distinguishes the use of talents from the income that f lows from them, according to blake, is that talents come attached to persons. there is 3 i argue for a middle ground between their two positions in kollar (manuscript) . 03 kollar.indd 116 21/4/17 13:26 the distinction between taxation and public service... 117 leap 4 (2016) a difference between the coerced transfers of goods and coerced restrictions of life plans. he writes that life plans are a “more dangerous and difficult site of coercion” (brock and blake 2015: 175). i argue that blake has not adequately shown that restricting life plans directly is unjustifiable, while restricting life plans indirectly, by reducing the resources available to persons, is justifiable. in fact, he has only claimed that there is a difference between the two, and that restricting life plans directly is more difficult to justify. so, if his objection to brock is that taxation and service require different justifications, and that the latter requires very compelling reasons, then we agree. there is still room for disagreement concerning what counts as adequate or strong enough liberal justification for coercively restricting life plans. on one extreme, blake thinks that the justificatory burden is so high that only a state of emergency can meet it. only states that face emergencies may permissibly suspend liberal rights. he also thinks that the current critical health worker shortage in sub-saharan africa might qualify as such a dire situation (brock and blake 2015: 210).4 on the other extreme, fabre thinks that those in dire need have legitimate claims on the material resources as well as service provision of the provider, as long as they do not jeopardize the provider’s prospects for a minimally f lourishing life. on my view there is a plausible middle ground between these two extremes. we need not put the bar of justification as high as the state of emergency, as blake does. the claim that liberal states can justifiably restrict our right to control the use of our talents under less than emergency conditions is what would need to be established here.5 we should also not put the bar of justification as low as the service provider’s claim to a minimally f lourishing life, as fabre does. instead, we may set the relevant circumstances to be unfavorable conditions of extreme scarcity in skills for essential goods, and make service requirement conditional upon the provider’s prospect for a reasonably autonomous life. it seems that under conditions of critical skills shortage, where non-coercive incentives have proved to be futile, a carefully designed short-term compulsory service program that allows ample room for the personal autonomy of prospective emigrants may be justified. forcing a medical graduate in south africa to deliver health care services locally for 20 years is clearly ruled out because neither the critical shortage nor the reasonable autonomy conditions are met. a one-year service requirement in sierra leone may, however, pass 4 i have argued elsewhere why i think blake’s emergency justification of compulsory medical service fails. see kollar (2016) and the response by blake (2016). 5 i argue elsewhere that a qualified service requirement may be part of the fair terms of benefiting from skills across borders under conditions of extreme scarcity in source countries. see kollar (2016: fn. 3). 03 kollar.indd 117 21/4/17 13:26 118 eszter kollar leap 4 (2016) the test of an autonomy-sensitive measure under extreme skills shortage and resource scarcity coupled with the dire burden of disease. to conclude, i have argued that blake has not successfully shown that public service is an unjustifiable policy measure in a liberal state. he has only shown that it requires a more compelling justification than taxation. blake thinks that a public service requirement amounts to the suspension of a liberal right that requires an emergency justification. i think that under unfavorable social conditions, public service may be justified as a moral constraint on our right to control our talents. the question is a complex one and our divergence in the answer points to a deep, but reasonable, disagreement. bibliography blake, m., 2016: “on emergencies and emigration: how (not) to justify compulsory medical service”, journal of medical ethics doi:10.1136/medethics-2016-103493. brock, g. and blake, m., 2015: debating brain drain: may governments restrict emigration, oxford: oxford university press. buchanan, a., 1990: “justice as reciprocity versus subject-centered justice”, philosophy & public affairs 19: 227-252. christman, j., 1991: “self-ownership, equality, and the structure of property rights”, political theory 19: 28-46. dworkin, r., 1983: “comment on narveson: in defence of equality”, social philosophy and policy 1: 24-40. eyal, n., and hurst, s., 2014: “do health workers have a duty to work in underserved areas?” in routledge companion to bioethics, eds. j. d. arras et al., new york: routledge. fabre, c., 2006: whose body is it anyway? justice and the integrity of the person, oxford: oxford university press. klosko, g., 1987: “presumptive benefit, fairness and political obligation”, philosophy & public affairs 16: 241–259. kollar, e., 2016: “what is worng with the emergency justification of compulsory medical sevice”, journal of medical ethics. — (manuscript): “brain drain, the ownership of talents and fair terms of emigration” nozick, r., 1974: anarchy, state and utopia, new york: basic books. olsaretti, s., 2013: “children as public goods”, philosophy & public affairs 41: 226 258. rawls, j., 1971 (2nd ed. 1999): a theory of justice, cambridge, mass.: harvard university press. 03 kollar.indd 118 21/4/17 13:26 06 blake ethics.indd ethics, politics, and emigration m ich a e l bl a k e university of washington abstract in my chapters from debating brain drain, i argue that the brain drain represents a moral tragedy; it is a moral problem, to which no solution exists that is both effective and morally permissible. against this, kieran oberman, joseph carens, and eszter kollar argue that we ought to approach the question of the brain drain with alternative theoretical assumptions, on which that problem might be more tractable. this paper responds to these critics, and shows why their own alternative analyses are not without significant difficulties. in the end, i suggest, we cannot solve the problem of the brain drain without abandoning those parts of liberal political thought that make it morally attractive. keywords: emigration, justice, virtue, international law, freedom. introduction the only point of writing philosophy, i often think, is the conversation that comes after. if that conversation features disagreement, that isn’t a sign of disrespect, but a sign that the work in question deserves to be taken seriously, so that its shortcomings can be better understood. being criticized, then, isn’t a bad thing; in fact, it’s the best anyone who writes philosophy can reasonably hope for. none of that makes the criticism easier to deal with, of course. there are times when, in face of criticism, i want to retrench, and defend my view against all those who would dispute it. there are other times — perhaps fewer —when what i want to do is simply admit that there’s something wrong with my view, or a problem i’m not sure how to solve. there are still other times when what i most want to do is figure out how the disagreement actually began; what it is that the critics accept that i do not. much disagreement, after all, begins in the margins, with the 06 blake ethics.indd 146 21/4/17 13:28 ethics, politics, and emigration 147 leap 4 (2016) unarticulated assumptions about where arguments begin —and where they end. in the present context, i want to use this last strategy, and understand how it is that my critics and i disagree about the ethical analysis of political institutions. there will be, i expect, some retrenchment along the way —but i am primarily interested in understanding where my critics and i disagree, rather than in vindicating my view against their criticisms. i want to focus on three of these critics in particular— kieran oberman, joseph carens, and eszter kollar —and show that their criticisms stem from particular visions of how to bring ethical norms to bear on politics. i will focus only in passing on the essay of hillel rapoport; his empirical conclusions are welcome, but do not in themselves do more than support my conclusions. i can’t deal with all of the criticisms my critics raise, of course; doing so would require more space, and brain, than i have at present. i want, instead, to see how my view might be accepted, even in the face of their criticisms, as a valid inference from a plausible set of assumptions about how ethics and politics might be related. those who disagree with that set of assumptions, of course, will find in this essay no independent reason to accept my conclusions. the best way to explain my assumptions, though, is with reference to the alternative moral framework used by oberman; it is to that task, then, that i now turn. 1. kieran oberman: on ethics, justification, and love oberman, in the course of his wide-ranging critique of my view, asserts that we can simply use the state to enforce someone’s moral duty to his or her fellows —a possibility he says seems to have simply escaped me. perhaps it did; but i think there are a number of follow-up questions that seem to have escaped him.1 let’s start with this one: which duties, exactly, 1 oberman also argues that my description of the supposed “liberal orthodoxy” rests on a mistaken view of international law, which distinguishes different categories of human rights, with different degrees of inviolability. in this, he cites article 28 of the universal declaration of human rights, which makes no such distinction; and the international covenant on civil and political rights, which does permit such distinctions, but whose legal force is much less clear. (my adopted country, for instance, has signed the iccpr subject to five reservations, five understandings, four declarations, and one proviso.) more to the point, though, i take the simple statement of right in the udhr as a concise statement of a view i believe worth defending; article 28 is not the blank check oberman seems to imply, but a fairly limited principle consistent with the view of emergency justifications i defend here. if oberman were proven right about international law more broadly, though, so 06 blake ethics.indd 147 21/4/17 13:28 148 michael blake leap 4 (2016) are rightly susceptible to collective political enforcement? many things are ethical duties —from the duty to avoid murder, to the duty to donate a sufficient quantity of one’s income to charity, to the duty to consider environmental and health effects when choosing one’s lunch. which of these is rightly within the state’s coercive grasp? one answer, of course —which seems to be oberman’s— is to treat this as a question to be answered only with reference to aspects of these broad moral duties, such as their stringency, relative importance, and so on. this analysis of emigration seems to undergird oberman’s five conditions, which he presents as an alternative approach to the morality of the brain drain. but many of us think this isn’t quite enough; are there no limits on what politics ought to concern itself with? isn’t there something more required than the bare existence of a moral duty, before we can start using law to order people about? are there some duties, perhaps, that are merely duties of virtue, rather than obligations of right? perhaps if something is an obligation of right, could it not be possible that we ought not think that politics is licensed to require it; could there never be a right to do what is wrong? to make things even worse, let’s take another question oberman ignores: what do you do in cases of serious moral disagreement? you say i have a duty to become a vegan; i say cheeseburgers are morally permissible. we both want to use law to coercively prevent (or, perhaps, mandate) the consumption of beef. is our contest to be settled only with relation to how many people our respective moral arguments convince, or is something more required before we can figure out what is compatible with justice in political life? thoughts such as these are, in historical terms, what gave john rawls’s contractarian methodology its particular appeal. rawls’s methodology requires that we take individuals as having rights to have the coercive powers of the state justified to them, taken as individuals with their own interests and non-infinite quantity of altruism; indeed, rawls speaks in political liberalism of those who are least advantaged as having a veto right over distributive principles —a veto he takes to be expressive of the sorts of respect for persons that precludes us from using another as a mere means for the benefit of another (see rawls 1993: 282). rawls wants to give those coerced, in other words, a sort of veto right against principles that propose to justify policy simply with reference to the interests and needs of others. instead, the original position is supposed to justify principles with reference to individuals considered as rational agents, whose asset can be much the worse for that law. the “liberal orthodoxy” i describe is either a defensible conclusion, or it isn’t —i don’t claim that its status as orthodoxy is an independent reason to support that conclusion. for details on the united states’ approach to the iccpr, see http:// hrlibrary.umn.edu/usdocs/civilres.html. 06 blake ethics.indd 148 21/4/17 13:28 ethics, politics, and emigration 149 leap 4 (2016) given with reference to self-interest, within a set of constraints modeling what we take to be —here and now— an expression of morally appropriate limits on self-interested dealing. all this is familiar. it is often described with reference to the concept of hypothetical consent —the thought, that is, that we ought to be presented with justification for political coercion to which we could be expected to agree. this agreement is hypothetical, and describes a morally appropriate context within which that consent is made; it does, however, insist on seeing people as possessed of their own capacities to pursue individual interests and goals, to which some appeal must be made in the course of justification. rawls’s difference principle, for example, provides the least advantaged with a reason, to accept the inequality they face; we appeal not to the altruism of the least well-off, but to the principle that any alternative social arrangement would make them worse off. we do not simply appeal to altruism and moral duty in the course of seeking justification for inequality. oberman simply ignores all this, and claims that rawls’s methods are compatible with simply asserting a moral duty and taking it as sufficient justification for political coercion. if they were, of course, rawls might have stopped after writing “two concepts of rules” in 1955; a great many trees died needlessly in the seventies. the arguments oberman gives in defense of this proposition, moreover, seem wrong to me as well. oberman argues that rawls has no problem with some people being “forced to make sacrifices for the sake of others”; indeed, he claims, that’s what the two principles of justice require. this is simply wrong; it would be true only if the baseline of expectations were whatever we acquired in the open market —which rawls explicitly denies.2 instead, our baseline of expectations is equality, and those whose income is taxed do not make “sacrifices” of anything to which they had moral title. oberman similarly argues that laws against rape protect victims, not rapists. that, too, seems simply incorrect; such laws protect everyone, including rapists. (most of us, in our better moments, think that even rapists have moral and legal rights against sexual assault in prison.) rapists have bodies, and those bodies are rightly protected against violent assault. such laws could be justified to all who are embodied, as ref lecting norms that are rightly made the subject of government coercion. the point, of course, is that we can justify the right of the state to coercively protect bodies —by punishing those who transgress against the bodies of others— to all people, in the contractarian manner described above. the simple appeal to moral duty 2 “as understood in justice as fairness, reciprocity is a relation between citizens expressed by principles of justice that regulate a social world in which everyone benefits judged with respect to an appropriate benchmark of equality defined with reference to that world” (rawls 1993: 17). 06 blake ethics.indd 149 21/4/17 13:28 150 michael blake leap 4 (2016) is not enough; and, more to the point, it is not needed. the rawlsian argument begins with the justification to all, taken as creatures with both limited altruism and a capacity to hold a conception of the good —as individuals to whom justification must be given in terms more substantive than the simple assertion of duty permits. what, then, can this sort of methodology permit, when it comes to the right to prevent exit? i think the answer is: very little. that the state should have the right to protect bodies, by punishing those who assault them, seems justifiable to all those who are embodied. that the state should have the right to insist upon permanent allegiance, by preventing the exit of those who are otherwise able to leave that state and join another —well, i await what sort of justification could be provided that would pass the tests of reciprocal justification. as should be clear by now, a simple assertion of moral duty will not be enough. the justification has to be one that parties in something like the original position would accept; i cannot imagine what, consistent with rawls’s view, that justification could be. oberman’s method is, i think, wrong as an interpretation of rawls’s methodology, but also wrong as a piece of ethical reasoning. rawls was right to look for something apart from naked assertions of duty as required for the legitimate exercise of political power. what politics is must be understood, before we can understand what politics ought to be. those whose exit is prevented must be given a justification for why it is that the state should have this sort of power; oberman has provided none. instead, throughout oberman’s critique, it seems as if the thought that politics is transformative —that it alters what we owe to one another, and that what states do gives rise to special duties of justification to specifically those subject to that state power —is not so much argued against as ignored. politics is, instead, some sort of afterthought to pre-existing moral rights and duties. take, for instance, oberman’s thought that states have taken over the world’s surface, and must therefore (as compensation?) let us move about that surface. this seems an odd view of ethics; i accept, instead, the kantian argument that our first duty in the state of nature is to leave that state of nature, by setting up territorial states. the division of the world into states does not leave our moral rights alone, but creates the circumstances under which the defense of rights is possible —as well as new obligations and rights, specifically held between fellow nationals. against this, oberman offers the thought that we cannot justify exclusion with reference to the obligations of citizenship, since people fall in love with particular others, not with states. i think he’s right about the empirical story; if i met a man who loved his state more than his spouse, i would 06 blake ethics.indd 150 21/4/17 13:28 ethics, politics, and emigration 151 leap 4 (2016) think that man had missed something important about both marriage and patriotism. i’m not sure, though, why this tells us anything at all about political right. there is a suggestion, here, of a sort of sentimental consequentialism: the most powerful emotion wins, and love trumps borders. i think this misdescribes the moral terrain. politics is a realm in which we are able to do what is ordinarily forbidden; we can intend to use violence and coercion against individual persons, and call that violence right. this permission to use coercion gives rise —on rawls’s vision, and on my own —to distinct forms of ethical obligation. we have to figure out, in short, not just what ethics full stop would say about desirable goals, but what it is that coercive political institutions are ethically permitted to do. on my view, this gives rise to a limited but real right to exclude even those whose lives might be made much better through the rights of migration. to take his example: we have no obligation to let nazma become a member of our legal community, even though she has fallen in love with someone already here, and this fact can be justified with reference to the distinct duties that fellow citizens will have towards each other —duties that oberman’s account neglects entirely. (they may not be as poignant as the value of love for the lover, but the duties of citizenship do not thereby warrant being ignored completely.) we may, in other words, have to let love bow before politics. this does not seem, in other contexts, so morally problematic. if i fall in love with a particular painting on oberman’s wall, he does not thereby acquire a duty to let me enter his house; the fact that i love that painting more than he loves his house isn’t sufficient to overcome his rights of property. the relationship he has with his house —let’s imagine he’s not particularly sentimental about it— is, and should be, a source of duties, quite apart from the strength of my sentimental attachment. oberman would, of course, reply that his house is not a country, and he would be right to make that reply. that doesn’t, however, change the moral story: we have reason to examine the nature of each institutional site, and examine what duties and rights might emerge, being quite careful to figure out how those rights and duties can be justified. property rights —like sovereignty, or the control of borders— may or may not be justified in their present forms; their justification, though, must examine more than the strength or centrality of some pre-political moral norms. or so, at any rate, it seems to me. oberman wants to do away with all that, and simply ask: what moral duties are the strongest, such that we have the right to prevent exit? how can we fulfill these moral values, using only free-standing moral values such as proportionality, efficiency, and so on? his view is coherent, at least, and i can see why it might attract its adherents. that does not stop it from resting on a view of political ethics i find impossible to support; 06 blake ethics.indd 151 21/4/17 13:28 152 michael blake leap 4 (2016) once that view is abandoned, his arguments against my own conclusions seem to fall as well. 2. joseph carens: on ethics, virtue, and policy joseph carens picks up, in part, the challenge raised by oberman: can’t we simply assert that those who emigrate from a developing country are, in fact, morally wrong in doing so —perhaps even unjust? carens supplements this question with a further complaint: what justifies my use of the concept of justice, as intrinsically connected with state coercion? this, as carens recognizes, is not so much a disagreement with my view as a dispute about terminology —coupled with a request that i actually do something i avoid, which is describing whether or not those who emigrate violate ethical duties in doing so. the more central challenge raised by carens has to do with the possibility of an effective response to the challenge of the brain drain. i suggest that there are empirical and philosophical reasons to think that a developed state’s policy of excluding migrants from developing countries would be unlikely to make the world a more just place. carens disputes these, and asks: if we could exclude such migrants, wouldn’t we have a solid moral reason to do so —indeed, perhaps a duty? as before, these worries ref lect, in part, a distinct vision of the relationship between politics and ethics; carens and i disagree about what would have to be in place for a given policy to be rightly considered mandated by justice. we can begin, though, with the first worry: what justifies me in linking justice so closely to the notion of political enforcement? what prevents us, similarly, from regarding the protagonist of stoner —who frustrates his parents’ desires, and overturns their settled expectations that his education would help their farm— as unjust? after all, we can regard a great many things —from states, to states of affairs, to individual persons— as exhibiting or failing to exhibit the virtue of justice. carens is absolutely right about this; we could choose a more or less capacious account of what it is to which the term “justice” applies. i would only say, in my defense, that rawls and kant seem to use the language in terms rather similar to my own. john rawls describes his subject in a theory of justice as social justice, which he takes to be the primary virtue of social institutions (rawls 1971: 7). this gloss is specified, in political liberalism, as making reference specifically to the coercive institutions of a democratic state. rawls is, thus, not interested in “justice” simpliciter, but justice as a particular sort of normative concept suitable for the analysis of coercive political institutions. before rawls, of course, immanuel kant described public right as involving a necessary connection to the coercive 06 blake ethics.indd 152 21/4/17 13:28 ethics, politics, and emigration 153 leap 4 (2016) enforcement of law; the job of public institutions was not to make people morally perfect —duties of beneficence and self-respect, for instance, were described by kant under the heading of the doctrine of virtue, rather than the doctrine of right— but to coerce people into respect for the public rights of others. as paul guyer notes: the central idea of kant’s legal and political philosophy is that we must not only define right, but also institute a system for the coercive enforcement of that right —namely, a state; “the coercive enforcement of right is then not merely permissible but mandatory” (guyer 2014: 307). all this, i must say, seems unproblematic to me; i am surprised that carens finds this link between political coercion and the concept of justice so idiosyncratic. all this is separable from carens’s more substantive question, though: what can we say about those who, like stoner, satisfy themselves, rather than those who sacrificed so much? stoner’s parents purchased an education for their son, with the expectation that he would use that to become an effective farmer; he thwarted their wishes. is he not morally pernicious —even unjust, on a broader notion of that term —in so doing? my answer, i’m afraid, is: no —or, at least, not necessarily. stoner may have some duties of beneficence, on which he is obligated to take account of the interests and ends of others in forming his own plan of life. he would, in other words, be failing at the task of being a righteous person, were he to ignore every opportunity to make the success of other’s goods as a part of his own good. he might well take his parents’ plans as providing one particular avenue within which he might fulfill his duties of beneficence. his parents, though, are not wronged —and cannot call him unjust— if he refuses this particular course of action. his duty is an imperfect one, and his parents are not entitled to the particular sorts of actions that his decision to remain on the farm would entail. (indeed, if stoner’s antipathy to farming were great enough, he might be betraying a duty to himself, were he to embark upon a life wholly alien to his own values and ends.3)this does not, of course, determine how we ought to see the ethical quality of those who leave their developing countries for well-paid lives in developed societies; if their departure causes the wholesale devastation of those left behind, we would perhaps be right to revisit the relevance of stoner as an analogy. for my purposes, i want the analogy to stand for only this: we are not morally wrong, and certainly not unjust, in all those cases in which we frustrate the wishes of those who helped educate us. the individual has a right to build her life that is capable of trumping the wishes of those who would prefer she built it along other lines. 3 stoner might, for instance, be rightly criticized as abandoning his duty to build a life of value to himself (see hill 1973). 06 blake ethics.indd 153 21/4/17 13:28 154 michael blake leap 4 (2016) i will revisit this thought when i examine the arguments of eszter kollar. for the moment, i will transition to the final, and most significant, of carens’s challenges. i paint the brain drain as a problem without a simple solution —a moral tragedy, as i describe it, without a permissible policy solution capable of transforming the world from unjust to just. what, asks carens, is wrong with the thought that we might exclude the highlyeducated? do countries receiving migrants not have a strong obligation to cease doing so in ways that contribute to underdevelopment? against this, i raise empirical and philosophical objections; carens rejects both. on the empirical front, carens thinks it is simply implausible that the refusal to permit emigration would lead to brain waste and undocumented migration. i note only, in passing, that hillel rapoport’s contribution to this exchange provides some empirical evidence that this contention might be not only plausible, but likely. if returns to education are reduced, through reduced ability to transform that education into desirable forms of life, then fewer people will seek that education.4 mobility rights for the well-educated, in contrast, tend to increase the number of people who want to become well-educated, and not all of those people will in fact end up leaving their countries of origin. carens is right, perhaps, that this is beside the point: no-one endorses futile and counter-productive policies. (at least, we hope that no-one does, once they’re aware that they’re futile.) so: let’s imagine that the policies might actually succeed in making the world better —less unequal, with less glaring forms of deprivation and poverty. are these policies an adequate solution to our difficulties? might they be mandatory, as requirements for liberal states? my answer here cannot be that states cannot refuse these migrants; my own view is that it is permissible for states to refuse many migrants — although carens is quite right that my view does not permit me to exclude nearly as many migrants as international practice now permits. i am, in other words, committed to the thought that this policy is permissible. the policy does, however, not seem to me to be an ethical necessity, and this is true in part because i do not think that this sort of policy would suffice to solve the problem of skilled emigration. there are two reasons for this. the first is that the policy here seems to be only one pathway through which an ethically mandatory end might be reached; it does not count as an ethically mandatory means. all states of the world with the capacity to do so have an obligation to work for global justice —which includes both economic and political rights. this is a complicated task, and it is made more complex because that task necessarily falls on a plurality of political 4 “most of economics can be summarized in four words: ‘people respond to incentives.’ the rest is commentary” (landsburg 1993: 3). 06 blake ethics.indd 154 21/4/17 13:28 ethics, politics, and emigration 155 leap 4 (2016) agents, each of which has obligations to the world and to their own citizens. if a political community decided to emphasize some other pathway — through extensive development policies, for instance —it might therefore be able to make the claim that it was now doing enough. i think actual states making this claim are suspect —no state is, to be brief, doing enough, however we might understand that concept. but i do not want to therefore describe as mandatory a policy that is, instead, one possible means to a mandatory outcome. the second reason for this relates to what i called paternalism in the book; i am now convinced that i should have described this in other language. i believe, to put it in the most general terms, that politics in the ordinary sense requires that political coercion be justified to those over whom political coercion is exercised, and that democratic contestation is part of that justification. politics is only justified when those people over whom power is exercised have a right to contest that exercise —to have, in short, some role in speaking back to, and in making, the policies that control them. i think that this is not only morally required for legitimate governance, but also empirically required as a goad against moral corruption. (when you do not have to answer to someone, it is tempting to infer that their interests and needs are exactly would you would most want them to be.) what is most problematic about the proposed restrictions on emigration is that it proposes to use some people —the would-be migrants —as sites for the benefit of others; and neither of the parties in question —neither the would-be migrants, nor those whose interests are at stake — will have any meaningful say in how that policy is drafted or interpreted. this is a fairly significant problem; it could not be solved, i think, without a more robust set of international institutions than we now have, and i am not sure that we have any morally permissible pathway from where we are now to those institutions. if we stay with the politics we have, then, we would have to have domestic citizens voting for a policy that mildly disconveniences them, significantly disconveniences the would-be migrants, and to some unknown degree provides advantages for foreign citizens. i think we would be unlikely to have such proposals raised; even if the empirics worked out —which i think they wouldn’t —i think we would be unlikely to be virtuous enough to avoid the temptations to mold the proposals until they ended up shifting the balance in our own favor. if i have not written about these proposals, it is because i think we are unlikely to end up doing this, and doing this well. i would end, though, with this admission to carens: if he could show me that rapoport is wrong, that the policy would actually help development, and that the policy were not susceptible to capture by the self-interest either of voters or of those politicians beholden to them, then i would vote for it. i think it is unlikely, 06 blake ethics.indd 155 21/4/17 13:28 156 michael blake leap 4 (2016) given the tenor of the ongoing election in the united states, that i will provided the opportunity to do so any time soon. 3. eszter kollar: on ethics, the body, and the realm of the political i mentioned above that the individual has, on my view, a right to his or her own plan of life; to build a life from the inside, that makes sense to him or her, even if some other form of life might help others. this thought is not, of course, unlimited; there are political constraints on what we can do — my freedom is rightly limited by the freedom of others, most notably. the appeal of the thought, though, is undeniable; it offers us a way of grounding the thought that there are some prices that politics cannot make us pay, and some sacrifices we cannot be asked to make. the question, though, is what we might use to understand the limits of what politics can ask of us. one way of asking this question involves simply asking the question from within political philosophy: what do we have good reason to think should be immune from political coercion? what can people not be made to do? another way of asking this, though, inquires about the conceptual, rather than the moral, limits of the domain of the political. what is that is immune from state coercion ab initio? what sorts of things are not subject to the wrangling of collective political decision-making? as an example of this latter strategy, we might note that rawls does not subject all goods to the principles of justice. natural primary goods, for instance, are prepolitical, in the sense that they are not the product of the political society at issue, and so not subject to redistribution by that society. we may justly redistribute the money i earn with the labor of my hands, for instance, but cannot justly redistribute the hands themselves. (even if i have three hands and you have none, i am free from redistributive surgery.) the money is the result of a political system, subject to collective political decision-making; the hands are natural, if by that we mean only that we do not look to political society to understand how they come into the world, or to whom they belong. at this point, we might introduce the objection of eszter kollar. kollar offers a challenge to my argument that the labor we perform is rightly regarded as immune from collective political interference. i tend, in brief, to think that forcing specific acts or patterns of acts is akin to the taking of the body itself; while not as invasive, it involves the state’s trespass on an area in which it has no right to proceed. the state can take my money, i have argued, but it cannot (rightly) force me to perform a particular form 06 blake ethics.indd 156 21/4/17 13:28 ethics, politics, and emigration 157 leap 4 (2016) of labor. kollar’s challenge, though, is why we should be satisfied with this particular cut between the political and the pre-political. she imagines several alternatives: one extreme view, given by cecile fabré, argues that even the body, dependent as it is on collective political decision-making, is rightly (at least in principle) subject to collective political control. on this view, we have no pre-political rights over the body, and a fortiori none over the money that body manages to earn. my own view, taken as the opposite extreme by kollar, argues that the rawlsian cut is correct: we have reason to regard the funds we earn as subject to political control, but not the body itself, nor the specific acts undertaken by that body.5 kollar asks, though: why are these the only options open to us? what reason do we have to not seek a more moderate solution, on which the body is neither as open to collective interference as on fabré’s view, nor as immune as on my own? kollar imagines a view on which we have robust, but limited, rights to regard our bodies as immune from collective political control; in cases of serious emergency, so long as our autonomy can be otherwise protected, we might have the right —on such a view —to insist upon particular forms of labor. what can be said to rule this sort of possibility out? kollar’s argument here is significant, and i think her challenge requires me to focus on something i have often simply ignored: what is it that makes something a valid part of the world of political life, versus something to which people have strong rights against political control. kollar believes, though, that the difference between money and the body is a difference in degree; both are subject to collective political control, at different times and in different ways. i think there is a difference in kind; money is distinct from the body, and from the actions undertaken by that body, in ways we have reason to respect. how can i vindicate this idea? i cannot say anything that is sufficient, i suspect, but there are at least three thoughts that occur to me. the first is that the body is distinct from money in how it relates to human agency. wealth is a social primary good; what this rawlsian concept means is that money is useful for a great many plans of life, but does not count as more than a mere means. one who regards his money as sacred, as something more than a tool for the acquisition of other people’s stuff and time, is making a mistake about the point of money. money helps the self get further along the road to the ends it has chosen. the body is, instead, constitutive of that self. having a body is a condition of having any ends at all. this is why, for me, fabré’s argument 5 i would note, in passing, that the libertarian view would include both money and the body as subject to this sort of pre-political right; robert nozick’s vision of the minimal state is produced precisely from the conviction that people have natural rights both to the body and to what that body acquires through labor and transfer. if i am extreme, then, there are at least those whose view is more extreme (see nozick 1974). 06 blake ethics.indd 157 21/4/17 13:28 158 michael blake leap 4 (2016) is unconvincing; it simply does not understand the relationship between the body and agency, between the self we are and the body we inhabit. i believe that something like this applies not simply to the body, but to the actions performed by that body. the state can, of course, tax my earnings, and so indirectly cause me to shift my patterns of agency in response; perhaps i would have to work more hours, were my tax bill to go up. but someone who proposes to force me to do a particular thing, in contrast, tells me that i shall pursue a particular end —in medicine, that i shall take the patient’s ends as my highest good, shall perform this role in a particular place, and so on. this is the direct provision of particular ends, in a way that seems to not just constrain my ends but to constrain my very person, and to replace it with another. my body, my agency, my self —all these are devoted, in a limited way, to the agential choices of another. this seems to be at the heart of the condemnation of specific performance in the legal history of the united states; it runs up against the constitutional prohibition of slavery. if there were not something different between the body and money, this would be a gross oversimplification —or, perhaps, evidence that the worst rhetorical excesses of libertarians are correct, and all taxation is indeed equivalent to forced labor. i think, instead, that forced labor is something different, and forced labor short of chattel slavery can be quite wrong indeed. if this distinction in kind is true, then we might have a right to be free from particular forms of labor even when the costs involved are quite great for others. think, for instance, of the novel the children of men, in which the human race loses the ability to reproduce (james 1992). there exists one woman —julian —who is capable of carrying a child to term. would it be acceptable to force julian to perform the particular sort of labor involved in reproduction? the consequences of not doing so, after all, would be the annihilation of humanity itself. my answer, though, would be that we are not right to force this sort of labor on julian, even at the cost of universal extinction. we do not have a right to treat the body in this way; julian has rights to that body that trump even the existence of the human race. kollar could resist this, of course, either by simply saying that julian might be rightly coerced into reproductive labor, or by (rightly) arguing that reproductive labor is distinct from other forms of labor (see satz 1992). nonetheless, there is still —on my view— something disquieting about all forms of enforced labor, even when they involve less intimate forms of labor than pregnancy. this leads to a second consideration: the body seems, not to put to fine a point on it, prepolitical. this is simply to disagree with fabré, of course; on my view, fabré —and, to a lesser degree, kollar —ignore the ways in which money and the body have distinct relationships with political society. both can of course be shown to depend, in different 06 blake ethics.indd 158 21/4/17 13:28 ethics, politics, and emigration 159 leap 4 (2016) ways, on political processes. the long-term health of the body requires the existence of a stable society; hermits can exist, but they don’t exist for long. money, in contrast, is necessarily social, and cannot exist but for sociallycreated rules. (a solitary castaway who builds a currency regime is just staving off boredom.) the difference, then, is that one is a practical necessity, while the other is a conceptual necessity. society is a practical necessity for the body to continue being an integrated body. money, though, does not even come into existence as a meaningful concept in the absence of those forms of human relationship that are constitutive of society. i think this is another way of rephrasing rawls’s idea that the natural primary goods are immune from redistribution, since they are not the product of social processes; the social goods are social precisely in that their existence only happens once society builds norms for those goods’ creation and allocation. there is, in short, an important difference in kinds between labor and taxation, and this could at the very least ground a resistance to accept the middle path kollar’s proposal represents. my third reason for resisting that pathway, though, is quite simple: even if we can arrive at cases in which we would be right to constrain labor directly, and to insist that some perform labor for the sake of others, we ought not give ourselves permission to act on that right. as i argue in the book, there seems to be a structural similarity between torture and forced labor: we can all come up with hypotheticals under which they would be morally permissible, but we all do (or ought to) recognize that we ought not give states as we know them the permission to determine that such an eventuality has arrived. states are made of people, and people are subject to self-serving analyses and moral corruption; the right to do what is generally prohibited, in these specific circumstances, often ends up becoming the right to do that prohibited thing when it is expedient. i think there is a reason, with torture, to insist that we ought to refuse to grant the permission to use it, even when we are aware that great benefits would follow —or great evils avoided —from that torture’s use.6 the program described by kollar is not a particularly egregious evil; certainly, forced labor is not as evil as torture, and kollar’s proposal involves insisting that one perform a particular job in a particular society, while leaving space for other autonomous pursuits —which is about as gentle as forced labor could be. nonetheless, forced labor still strikes me as the right description for what is demanded of the educated citizen under her proposal, and i think we are right to prevent even the mildest versions of the policy. if political history teaches us anything, i think it is that what we rarely give ourselves permission to do what will eventually be done with frequency and 6 see shue (1978). 06 blake ethics.indd 159 21/4/17 13:28 160 michael blake leap 4 (2016) enthusiasm; i am convinced that we ought to avoid giving ourselves this sort of permission, even if my other arguments about the nature of labor fail.7 in the end, kollar, like my other commentators, ref lects a distinct vision of the relationship between politics and ethics. for her, the realm of politics ought to be understood as involving even the body; for me, ethics itself requires that the domain over which we are permitted to exercise political power is curtailed. there is, in other words, a very great deal of philosophical work happening in the margins, with both of us operating from unstated visions of how it is that we might relate the demands of ethics to the realm of the political. i have learned much from her exchanges with me, as i have with oberman and carens; i am grateful to them for their care and attention, and look forward to the debates to come. bibliography guyer, p. 2014: kant, london: routledge. hill, t. e., 1973: “servility and self-respect”, the monist 57: 87-104. james, p. d., 1992: children of men, new york: knopf. landsburg, s. 1993: the armchair economist, new york: simon and schuster. nozick, r., 1974: anarchy, state, and utopia, new york: basic books. pratchett, t., 2005: thud!, new york: harper collins. rawls, j., 1971: a theory of justice, cambridge: harvard university press. —1993: political liberalism, new york: columbia university press. satz, d. 1992: “markets in women’s reproductive labor”, philosophy and public affairs 21: 107-131. shue, h., 1978: “torture”, philosophy and public affairs 7: 124-143. 7 terry pratchett’s sam vimes expresses this well. “beating people up in little rooms —he knew where that led. and if you did it for a good reason, you’d do it for a bad one” (pratchett 2005). 06 blake ethics.indd 160 21/4/17 13:28 leap 3 (2015) a blatant case of over-accommodation1 va l e r i a ot ton e l l i genova university abstract van parijs asks whether the fact that men engage in regrettable behavior at much higher rates than women could be seen as a “handicap” due to their hormonal set-up, and therefore as a dimension of gender inequality to men’s disadvantage. i argue that this suggestion rests on unwarranted assumptions about the meaning of gender equality and the causes of men’s behavior. moreover, even if for the argument’s sake we grant these unwarranted assumpt ions, it is easy to show t hat no unfa irness is suf fered by men because of their (supposedly) unbalanced hormonal constitution. indeed, if any injustice is done by our current social arrangements, it is injustice to those who suffer from the over-accommodation of this highly dangerous and destructive trait of men’s character. keywords: gender equality, hormones, disabilities, violence introduction it is a known fact that men get themselves into trouble much more often than women do. they commit 95% of murders worldwide (unodc 2013), over 95% of recorded rapes in europe (heuni 2014), and every where have a greater tendency to engage in inappropriate or wrongful sexual behavior. the vast majority of serial killers, prostitute killers, serial rapists, and sociopaths in general are also male. as a result, men are more likely than women to spend long terms in jail and suffer from social disgrace. in his piece on gender equality, van parijs suggests that this phenomenon can be traced to hormonal causes. he does not produce any account of how this may be so, but refers to an intriguing article by paula casal (2011) in which scientific evidence on the correlation between high testosterone levels, typical of males, and aggressive, unempathetic, careless, and anti-social 1 for helpful suggestions, i thank paula casal and three anonymous referees. 126 valeria ottonelli leap 3 (2015) behavior is discussed. van parijs asks whether the fact that men engage in regrettable behavior at much higher rates than women could be seen as a “handicap” and therefore as a dimension of gender inequalit y to men’s disadvantage. van parijs’ puzzle about hormonal inequalit y relies on a biased and incomplete description of the facts at hand. once the facts are reassessed a nd more accurately described, it becomes clea r t hat no unfa irness is suffered by men because of their (supposedly) testosterone-driven behavior. indeed, if any injustice is done by our current social arrangement, it is injustice to those who suffer from the over-accommodation of this highly dangerous and destructive trait of men’s character. moreover, van parijs’ argument not only assumes a description of our social world that is deeply misleading and inaccurate, but also rests on factual and normative assumptions that are highly controversial. i intend to accept such assumptions for the sake of my argument. however, it will be worth making them explicit and show how disputable and unwarranted they are. this is where my discussion will start. 1. two unwarranted assumptions behind the fourth puzzle van parijs’ arguments rest on two main premises. the first concerns t he meaning of gender inequality; the second concerns the hormonal bases of men’s behavior. let’s start with his notion of gender inequality. from the way in which van parijs frames the puzzle on hormonal inequality and the other puzzles he considers, it looks as if what he has in mind by gender inequalit y are differences in opportunities for welfare or resources bet ween men and women. this is not a n obv ious presupposit ion. in t he rich a nd high ly sophisticated literature on gender inequality (for some useful surveys, see squires 2000, ch. 4; walby 2004; verloo and lombardo 2007), indeed, such a metric of equality is far from central. even when comparisons between levels of achievement in terms of resources or welfare are made (see for example young 2001; phillips 2003), in most cases they are not taken as releva nt per se, but as indicators of ot her dimensions of injust ice a nd gender inequa lit y. for exa mple, women’s higher unemploy ment rates, lower income, a nd g reater ha rdship resu lt ing f rom divorce a re ta ken as signs of the domination, oppression, and exploitation that women suffer in our societ y. considering the intricate and fascinating philosophical questions that are involved in these debates, it is puzzling that van parijs a blatant case of over-accommodation 127 leap 3 (2015) assumes as unproblematic that the relevant notion of equalit y at stake must be some version of equality of opportunity for welfare or resources. w hat is even more disconcerting is that this unwarranted assumption evidently leads van parijs to believe that the only alternative to posing the unorthodox questions he asks is to restate mere “well-meaning platitudes” (van parijs 2015: 79). once we assume a different notion of gender equalit y than the one chosen by van parijs, such as equality as non-domination or democratic equality as the equal access to full citizenship, it becomes evident that his remarks are in need of much further analysis. merely pointing at a highly circumscribed welfare loss or an unsatisfied preference will not do. the second highly controversial assumption that van parijs makes is that men’s criminal and sexually inappropriate behavior is explained by hormones. this cannot be the full story. if violent behavior were simply driven by male hormones, we would not be able to explain why, for example, in 2012 in south africa there were 31 homicides per 100,000 people (and 64.5 in 1995), 39.3 in jamaica, 90.4 in honduras, 7 in moldova, 7 in west bank and gaza, and just 1 in the netherlands, italy and spain (unodc 2013). of course, in all these countries most killers are men, but such huge variations in homicide rates suggest that the reason cannot be an evenly spread feature like testosterone. the same should be noted about sexual behavior. rape, sexual harassment, or paid sex cannot be interpreted as the mere satisfaction of an impellent physiological urge (pateman 1988: 198). in truth, at a point in his discussion, van parijs considers the possibility that the bases of men’s behavior are not hormonal, but rather social and environmental. he suggests, however, that his analysis of the disadvantage suffered by men “holds irrespective of the validity of the hormonal diagnosis” (van parijs 2015: 87). in the following discussion, i will treat van parijs’ puzzle in its straightforward, unqualified version based on the hypothesis that men suffer from a “handicap” caused by their hormonal constitution. in fact, as i will note at the end, van parijs is right that the conclusions we may reach on this puzzle can easily be extended to the case in which men’s behavior is determined by environmental factors rather than hormones. 2. why is men’s “handicap” not treated? i interpret the hormonal puzzle as a matter of justice. i do so not only because this is how van parijs formulates it when summing up the four puzzles at the end of his discussion (2015: 88), but also because the debate about gender equality he contributes to is in fact a debate about justice. discussing gender inequality is not making humorous lists of relative pros and cons of being 128 valeria ottonelli leap 3 (2015) a woman or a man, or asking ourselves which gender we should “pity” the most. we ask about inequalities between men and women because we worry that they are a matter of social injustice. i therefore assume that van parijs points to hormonal inequality because he thinks that there is something wrong with the fact that, in our society, a biological feature leading to dysfunctional behavior, which therefore can be described as an unchosen “handicap,” determines the fate and opportunity for welfare and resources of those affected. in order to assess whether men’s levels of testosterone can be treated as a handicap that raises issues of justice, we may compare it to standard cases of disabilities, for example someone who has lost her capacity to walk. given the conception of equality that we are assuming here, she suffers injustice to the extent that her unchosen handicap affects her prospects of success in terms of welfa re or resources. in order to redress t hat injust ice, if her disability is due to a reversible medical condition, she should have access to adequate healthcare. when this is not possible, society should accommodate her needs and abilities, by removing all the architectural barriers, social rules and practices that cause her physical constitution to be a disadvantage. to the extent that this is unfeasible, she must be compensated. now, consider van parijs’ worry about men’s hormonal constitution. what is the nature of this alleged genetic handicap? van parijs admits that high levels of testosterone do not imply that men can never manage to repress their instincts in order to avoid their worst expressions, but believes that high levels of testosterone induce a tendency to lose control and engage in various forms of anti-social behavior (yildirim and derksen 2011). in fact, mu rders a nd rapes a re on ly t he most d ra mat ic ex pressions of such a biological disposition. in the literature van parijs indirectly refers to, high levels of testosterone are associated with aggressive (montoya et al. 2012), uncaring, unempathetic (zilioli et al. 2014), and risk-taking (stanton et al. 2011) behav ior; t his not on ly ma kes men prone to v iolent crimes, but a f fe c t s a l l t hei r i nter ac t ion s w it h ot her p e ople a nd t hei r e v er yd ay activ ities (legato 2006). if we assume that it is something built into men’s constitution, then this actually looks like a ver y unfortunate condition, w h ich shou ld be recog n i z ed a s a ha nd ic ap. i f we a re wor r ied about injustice, then we should ask whether our society is doing enough to treat, accommodate, or compensate men for such an impairing disability. if not, men could legitimately complain about our current social arrangement. as a matter of fact, in our societies we witness no attempt to treat male’s hormonal handicap. however, once we start inquiring about this lack of treatment, we realize that the analogy with other central cases of disability breaks down. the reason why men are not treated, in fact, is not because a blatant case of over-accommodation 129 leap 3 (2015) males are carelessly left to themselves with their impairing handicap, as is the case with other conditions that could be treated but are not. rather, the reason why men are not treated is that male aggressive, unempathetic, careless, and risky behavior is taken, and has been taken for centuries, as the norm rather than a handicap. our whole social world has been organized around the notion that male behavior, as sociopathic as it may look to an enlightened mind, is just normal – if not the model to emulate. of course, the norm is not described as being aggressive, unempathetic, and prone to risk-taking; the use of these disapproving descriptions is ruled out exactly because male behavioral predispositions have always been and still are very much taken as the golden standard. rather, those attitudes, typically feminine, that depart from the male constitution taken as the norm are described as feeble, overly risk-adverse, and women are taken to be exceedingly prone to swooning, fainting, and crying. in this respect, like in others, women are conceived as men “minus certain attributes whose paradigm is morphological” (irigaray 1985: 27); women’s feeble character is traced to their ill-developed biological constitution. in fact, the proposal that men’s disposition to v iolent and aggressive behav ior could be treated as a handicap and changed through a direct i nter vent ion on t hei r hor mona l con st it ut ion wou ld be perceived a s horrif y ing. a lthough the alteration of female hormonal constitution is of ten read i ly accepted, be t hat for bi r t h cont rol or ach ievement s i n competitive sports, any curtailment of male hormonal constitution tends to be perceived as an unbearable form of violence. this is exactly because those hormonal traits that make males so unfit for healthy social interactions are, in fact, cherished by our culture. 3. how men’s handicap is over-accommodated with other disabilities, it is often the case that when they fail to be recognized as unchosen handicaps, they fail to be accommodated by social institutions as well. this is the case, for example, with many conditions that received scientific and social recognition only recently, such as fibromyalgia, seasonal affective disorder, or genetic proneness to obesity. here is another point at which the parallel between men’s handicapping hormonal constitution and other central cases of disability breaks down. in fact, the failure to recognize men’s “handicap” as such does not result in a lack of accommodation by social institutions, since it is, indeed, seen as perfectly normal and even valuable. as a consequence, the tastes, values, and needs of men, and especially of the most aggressive among them, have shaped our entire social and political system, reaching an almost perfect level of accommodation. 130 valeria ottonelli leap 3 (2015) van parijs seems to suggest that this was true once, in the remote times of genghis khan, but it is no longer the case in our highly civilized society in which physical violence no longer provides a social advantage. however, the genetic trait we are considering here is not violent behavior per se, but the high levels of testosterone that make males aggressive, competitive, ca reless, a nd prone to risk. those t ra its, in fact, st i l l const itute a ver y valuable factor of social advancement and prestige, and are still associated w it h h ig her probabi l it ies to occupy top-ra n k posit ions i n econom ic orga ni zat ions a nd polit ica l inst itut ions. the capacit y for “leadership” continues to be celebrated in our society and its major economic and social domains; empirical studies show that such capacity is consistently associated with aggressive, competitive, and careless behavior (alimo-metcalfe 2010). not surprisingly, a strong association has been found between possessing high testosterone levels and being rewarded as a “leader” in firms and social h iera rch ies i n genera l (sher ma n et a l. 2015). l ack of “r isk-aversion” a nd “compet it ive agg ressiveness” a re considered const itut ive of good entrepreneurship (rauch et al. 2009), and this is seen as giv ing men a comparative advantage (sapienza et al. 2006; lim and envick 2013). even in the apparently peaceful, enlightened, and highly civ ilized academic world, being competitive, aggressive, and not “too nice” is rewarded in terms of career and prestige ( van den brink and benschop 2012: 515-16; bell and king 2010). there’s more. in fact, if we look at how our major institutions and social pract ices a re bu i lt a nd work, we rea l i ze t hat ou r t reat ment of ma les’ unfortunate hormonal constitution represents indeed a rare case of overaccommodation of an impairing disabilit y. to see how this may be so, consider that wherever a public policy for the accommodation of people with disabilities exists, an important condition is included, which we might call a “safety proviso”2: the accommodation and inclusion in social, political, and economic institutions of people with disabilities should not cause grave risks to the safety and health of third parties. for example, in many western countries, as people get older they have to pass physical examinations at increasing ly shor ter inter va ls in order to renew t heir driver’s license. someone who suffers from narcolepsy cannot be hired as an air-traffic controller or as a school bus driver. of course, this does not mean that their disabi lit ies shou ld not be addressed or t hat t he cost of ca rr y ing t hem should fall only on those affected. people who cannot drive should have access to cheap and easily available public transportation; those who, for medical reasons, cannot be hired in certain jobs must have an adequate choice of alternative careers. however, no wrong is done to them if they are 2 a much discussed example is section 504 of the americans with disabilities act of 1990 a blatant case of over-accommodation 131 leap 3 (2015) prevented from engaging in those activ ities which would result in very h ig h r i s k s for ot her p e ople. i nde e d, t he s a fet y pr ov i s o i s si mpl y a requ i rement of justice; it rightly protects the welfare and opportunities of those who might be affected by risky or dangerous activities. if we take seriously the idea that due to their high testosterone levels men tend to engage in agg ressive, risk y, ca reless, or even sociopat hic behavior, then we immediately see that not only the hormonal disability that affects men is largely accommodated in our society, but, in fact, it is unduly over-accommodated, since in t heir case t he sa fet y prov iso is massively violated. unlike poor-sighted people wanting to f ly planes, men are not prevented from engaging in activities and taking up roles that are likely to put other people at risk if carried out by someone with such an unbalanced constitution. in fact, men represent the vast majority in those jobs in which testosterone-driven aggressive, risky, and careless behavior is most likely to cause serious damages. in western countries, 75% to 90% of those who work in law enforcement a re men; women a re on ly 10 % of t he police workforce in portugal,3 13% in spain,4 13% in italy and the u.s.,5 15% in france, 22% in the netherlands and 28.2% in the u.k.6 men still occupy the vast majority of public offices and are still dominating politics, especially in those executive roles that require making life-and-death decisions on the fate of millions of people. men represent 93% of political leaders (heads of state or heads of government) in the world;7 88% of u.s. state governors are men; 88% of mayors of u.s. major cities are male; 8 in europe, 66% of members of national supreme courts are men;9 they make up 82% of those sitting in decision-making bodies of central banks;10 they are 73% of senior ministers in national cabinets; and 89% of leaders of major political parties 3 http://w w w.theportugalnews.com/news/only-one-in-10-psp-officers-is-awoman/6061 [last accessed 12 february 2016]. 4 http://w w w.elnortedecastilla.es/salamanca/201510/17/mujeres-ganan-poderrepresentan-20151017123638.html [last accessed 12 february 2016]. 5 http://w w w.criminaljusticeschoolinfo.com/women-law-enforcement.html [last accessed 12 februar y 2016]. 6 http://sputniknews.com/europe/20151202/1031099667/uk-women-police. html[last accessed 12 february 2016]. 7 http://w w w.unwomen.org/en/what-we-do/leadership-and-politicalparticipation/facts-and-figures [last accessed 12 february 2016]. 8 http://w w w.fairvote.org/election-of-women-in-our-100-largest-citiesdisadvantaged-by-districts [last accessed 12 february 2016]. 9 http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/ judiciary/supreme-courts/index _en.htm [last accessed 12 february 2016]. 10 http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/ business-finance/central-banks/index _en.htm [last accessed 12 february 2016]. http://www.theportugalnews.com/news/only-one-in-10-psp-officers-is-a-woman/6061 http://www.theportugalnews.com/news/only-one-in-10-psp-officers-is-a-woman/6061 http://www.elnortedecastilla.es/salamanca/201510/17/mujeres-ganan-poder-representan-20151017123638.html http://www.elnortedecastilla.es/salamanca/201510/17/mujeres-ganan-poder-representan-20151017123638.html http://www.criminaljusticeschoolinfo.com/women-law-enforcement.html http://sputniknews.com/europe/20151202/1031099667/uk-women-police.html http://sputniknews.com/europe/20151202/1031099667/uk-women-police.html http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.fairvote.org/election http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/judiciary/supreme-courts/index_en.htm http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/judiciary/supreme-courts/index_en.htm http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/business-finance/central-banks/index_en.htm http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/business-finance/central-banks/index_en.htm 132 valeria ottonelli leap 3 (2015) are men.11 although in europe women are the majority of physicians under 35, men still dominate the higher ranks of the medical profession12 (they occupy 86% of top posit ions in ita ly;13 89% of leadership posit ions in germany;14 and they represent 72% of consultants in the u.k.)15. 83,7% of the u.s. active army,16 almost 90% of the u.k. army,17 85% of the french army,18 and 93% of the italian army19 are still composed by men. such an over whelming presence of men in dangerous, difficult, and ha zardous jobs presumably causes countless episodes of killings, torture, physical aggression, humiliation, maltreatment, medical malpractice,20 physical injuries, and deaths by negligence each year.21 moreover, we should also be aware that the breach of the safety proviso in the case of men would produce even more victims if the non-hormonallyhandicapped half of humanity, i.e. women, did not put in practice a whole array of everyday techniques in order to avoid or untrigger men’s violence and aggression. these span from coping strategies in abusive relationships (waldrop and resick 2004), to self-imposed curfews at night (bondi and metha 1999), to the simple act of switching to the opposite sidewalk when a group of men approaches. the non-hormona lly-handicapped ha lf of humanity constantly works at reducing the toll that the over-accommodation of men’s disability would otherwise exact. but this of course has enormous socia l costs in terms of oppor tunit ies for resources or welfa re, which disproportionately affect women. 11 http://w w w.unwomen.org/en/what-we-do/leadership-and-politicalparticipation/facts-and-figures [last accessed 12 february 2016]. 12 http://w w w.healthcare-in-europe.com/en/article/11487-male-female-doktors. html [last accessed 12 february 2016]. 13 http://w w w.quotidianosanita.it/lavoro-e-professioni/articolo.php?articolo_ id=12545 [last accessed 12 february 2016]. 14 http://w w w.healthcare-in-europe.com/en/article/11487-male-female-doktors. html [last accessed 12 february 2016]. 15 http://w w w.theguardian.com/society/2010/aug/22/women-doctors-top-nhsjobs [last accessed 12 february 2016]. 16 http://w w w.army.mil/women/today.html [last accessed 12 february 2016]. 17 http://w w w.huffingtonpost.co.uk/2015/03/27/women-britsh-armed-forcessexism_n_6940538.html [last accessed 12 february 2016]. 18 http://w w w.lemonde.fr/societe/article/2014/04/15/l-armee-sous-pression-pourconforter-la-place-des-femmes_4401356_3224.html [last accessed 12 february 2016]. 19 http://w w w.esercitoitalianoblog.it/donne-nellesercito-italiano-nemici-dentroe-fuori/ [last accessed 12 february 2016]. 20 throughout the world men in the medical profession are consistently much more likely than women to be sued for malpractice and this can be traced to differences in their personality traits (firth-cozens 2008). 21 compare for example the striking data on deadly road accidents caused by men’s reckless behaviour (al-balbissi 2003). http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.quotidianosanita.it/lavoro-e-professioni/articolo.php?articolo_id=12545 http://www.quotidianosanita.it/lavoro-e-professioni/articolo.php?articolo_id=12545 http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.theguardian.com/society/2010/aug/22/women http://www.army.mil/women/today.html http://www.huffingtonpost.co.uk/2015/03/27/women-britsh-armed-forces-sexism_n_6940538.html http://www.huffingtonpost.co.uk/2015/03/27/women-britsh-armed-forces-sexism_n_6940538.html http://www.lemonde.fr/societe/article/2014/04/15/l-armee-sous-pression-pour-conforter-la-place-des-femmes_4401356_3224.html http://www.lemonde.fr/societe/article/2014/04/15/l-armee-sous-pression-pour-conforter-la-place-des-femmes_4401356_3224.html http://www.esercitoitalianoblog.it/donne a blatant case of over-accommodation 133 leap 3 (2015) in our society, the only measure that is taken to prevent the disastrous effects of men’s high testosterone levels are criminal laws against violent offences. these are a very poor way to address the risks posed by men’s handicap. they only offer an ex post response when the damage has already been done, are highly ineffective even as a deterrent to prevent future damages, a nd dispropor t ionately a f fect people f rom poor socia l backg rounds or members of stigmatized ethnic groups. the real target of these measures is not men’s per vasive and highly damaging aggressive, careless, and risktaking behavior, but the kind of violent personal aggressions that are likely to occur and be persecuted in deprived social contexts. these considerations should also help us see why – as van parijs remarks (2015: 87) – we pity members of racial minorities and other disadvantaged groups for the high rates of incarceration they suffer, while we do not tend to do the same with men. a short answer is that it is mainly male members of t hose d isadva ntaged g roups, rat her t ha n men i n genera l, who a re incarcerated and therefore should complain about the unfairness of our social arrangements.22 this is a case of intersectionality in which race and cla ss play a f u nda menta l role. moreover, i f we t r y to d isenta ng le t he various determinants of high incarceration rates, we see that race and class on one hand, and gender on the other, play a completely different role. to the extent that incarceration can be traced to poverty, racism, lack of education, a dysfunctional family env ironment, or inadequate legal defense, it strikes us as an odious side effect of more fundamental forms of d i sadv a nt age c reated by ou r soc ia l i n st it ut ion s. to t he ex tent t hat incarceration can be traced to men’s proneness to aggressive, careless, and risky behavior, it strikes us as a poor and ineffective attempt to mitigate the most atrocious effects of the over-accommodation of such a dysfunctional behavioral trait. conclusion i have mainly focused here on the over-accommodation of men’s proneness to risky, aggressive, and careless behavior. however, it should be clear that parallel considerations could easily be extended to men’s exasperated libido. our society provides for all sorts of accommodations and over-accommodations of men’s sexual appetites, and prostitution is just one of the most evident expressions of such a bias towards men’s constitution and the fundamental friendliness to men’s sexuality that is a constant of most human societies. 22 western and pettit (2010), for example, report that 68% of african american men born after 1970 who have dropped out of high school have prison records, vs. only1.2% of white males with college education. 134 valeria ottonelli leap 3 (2015) it should also be clear that our response to van parijs’ puzzle on hormonal inequality would be the same even if we assumed that men’s behavior has social, rather than hormonal causes. stressing the importance of socialization in the formation of men’s character would only make the central point of our response more evident: men’s aggressive, risk-taking, and careless behavior, far from being a disadvantage, is indeed cherished and accommodated in our society, and those traits of character are actively encouraged and rewarded since early infancy. what would be different, if we dismiss the hypothesis that men’s behavior is determined by hormones, is our picture of what it would take for our society to achieve justice, by redressing and preventing all the wrongs, dangers, and harms coming from the over-accommodation of men’s behavior. if we took the hormonal hypothesis seriously, then ideally, a just society would consider the dismal (and very costly) prospect of massively medicating males or excluding them from those jobs and roles in which their high testosterone levels create unbearable risks for other people. if we instead see men’s dysfunctional behav ior as ma in ly determined by env ironmenta l causes, just ice w i l l be achieved through a different and much more appealing path: by pursuing more en lightened met hods of ma le socia li zat ion, a nd a col lect ive reevaluation of which character traits should count as good and valuable among human beings. bibliography al-balbissi, a.h., 2003: “role of gender in road accidents,” traffic injuries prevention, 4: 64–73. alimo-metcalfe, b., 2010: “an investigation of female and male constructs of leadership and empowerment,” gender in management: an international journal, 25: 640-48. bell, e. and king, d., 2010: “the elephant in the room: critical management studies conferences as a site of body pedagogics,” management learning 41: 429–442. bondi, l. and mehta, a., 1999: “embodied discourse: on gender and fear of violence,” gender, place and culture, 6: 67-84. casal, p., 2011: “love not war. on the chemistry of good and evil,” in arguing about justice. essays for philippe van parijs, ed. a. gosseries and y. vanderborght, 145157, louvain: louvain university press. firth-cozens, j., 2008: “doctors with difficulties: why so few women?,” postgraduate medical journal, 84: 318–20. heuni, 2014: european sourcebook of crime and criminal justice statistics 2014, helsinki, european institute for crime prevention and control. irigaray, l., 1985: speculum of the other woman, ithaca: cornell university press. lim, s. and envick b.r., 2013: “gender and entrepreneurial orientation: a multi-country study,” international entrepreneurship and management journal 9: 465-482. legato, m.j., 2006: why men die first, new york: palgrave. a blatant case of over-accommodation 135 leap 3 (2015) montoya, e.r. et al., 2012: “testosterone, cortisol, and serotonin as key regulators of socia l aggression: a rev iew and theoretica l perspective,” motivation and emotion, 36: 65-73. pateman, c., 1988: the sexual contract, stanford: stanford university press. phillips, a., 2003: “defending equality of outcome,” journal of political philosophy, 12: 1-19. rauch, a. et al., 2009: “entrepreneurial orientation and business performance: an assessment of past research and suggestions for the future,” entrepreneurship theory and practice, 33: 1042-2587. sapienza, p., zingales, l., maestripieri d., 2009: “gender differences in financial risk aversion and career choices are affected by testosterone,” pnas 106: 15268– 15273. sherman, g.d. et al., forthcoming: “the interaction of testosterone and cortisol is associated with attained status in male executives,” journal of personality and social psychology. squires, j., 2000: gender in political theory, cambridge: polity press. stanton, j.s., liening, s.h. and schultheiss, o.c., 2011: “testosterone is positively associated with risk taking in the iowa gambling task,” hormones and behavior, 59: 252–256. unodc, 2013: global study on homicide 2013, new york, united nations publications. van den brink, m. and benschop, y., 2012: “gender practices in the construction of academic excellence: sheep with five legs,” organization 19: 507-24. verloo, m. and lombardo, e., 2007: “contested gender equality and policy variety in europe,” in multiple meanings of gender equality, ed. m. verloo, 21-50, budapest: ceu press. walby, s., 2004: “the european union and gender equality: emergent varieties of gender regime,” social politics, 11: 4-29. waldrop, a.e. and resick, p.a., 2004: “coping among adult female victims of domestic violence,” journal of family violence, 19: 291–302. western, b. and pettit, b., 2010: “incarceration and social inequality”, daedalus, 139: 8-19. yildirim, b.o. and derksen, j.j.l., 2011: “a rev iew on t he relationship bet ween testosterone and life-course persistent antisocial behavior,” psychiatry research 200: 984–1010. young, i.m., 2001: “equality of whom?,” journal of political philosophy, 9:1-18. zilioli, s. et al., 2015: “testosterone, cortisol and empathy: evidence for the dualhormone hypothesis,” adaptive human behavior and physiology, 1: 421-433. leap, 1 (2013) global injustice and redistributive wars* k asper lippert-rasmussen aarhus university abstract on pogge’s view, we —people living in rich countries— do not just allow the global poor to die. rather, we interfere with them in such a way that we make them die on a massive scale. if we did the same through military aggression against them, surely, it would be permissible for these people to wage war on us to prevent this. suppose pogge’s analysis of the causes of global poverty is correct, and assume the moral permissibility of self-defence by poor people in the hypothetical military action scenario just mentioned. if these assumptions are correct, poor countries could start just and, even possibly, morally permissible redistributive wars against us provided various additional conditions are met. to avoid misunderstanding, i should stress that my main claim is the conditional equivalence claim, namely that if pogge’s analysis of the causes of global poverty is correct, our relation to poor countries is morally equivalent to one in which we each year killed many of the global poor by military means. i do not claim (i) that pogge’s analysis is correct; (ii) that, as a matter of fact, it is morally permissible for poor countries to wage redistributive wars against rich countries; (iii) that it is not the case that anything that is impermissible for poor countries to do in the latter situation involving military aggression —e. g. deliberately targeting rich civilians— is impermissible in redistributive wars as well. keywords: doing vs. allowing harm, global justice, just ad bellum, just cause, poverty, proportionality, thomas pogge. * a previous version of this paper was presented at the meeting of the philosophy in the field group, september 23, 2010, at oxford institute for ethics, law and armed conflict, nuffield college, october 7, 2010, and at university of newcastle, february 23, 2011. i am grateful to cecile fabre, seth lazar, laura valentini, and andrew williams for extremely helpful written suggestions. also, i thank gustaf arrhenius, yitzhak benbaji, lene bomann-larsen, thom brooks, patrick emerton, nir eyal, søren flinch midtgaard, helen frowe, axel gosseries, michael gross, mattias iser, peter jones, graham long, jeff mcmahan, roberto merill, james pattison, massimo renzo, joão rosas, cheyney ryan, shlomi segall, guy sela, victor tadros, uwe steinhoff, and gerhard øverland for very useful comments. 66 kasper lippert-rasmussen leap, 1 (2013) 1. introduction according to philippa foot, it is sometimes morally worse to bring about a bad outcome than merely to allow it. highlighting the intuitive pull of the distinction, foot writes that “(m)ost of us allow people to die of starvation in india and africa, and there is surely something wrong with us that we do; it would be nonsense, however, to pretend that it is only in law that we make the distinction between allowing people in the underdeveloped countries to die of starvation and sending them poisoned food. there is worked into our moral system a distinction between what we owe people in the form of aid and what we owe them in the way of non-interference” (foot 1981: 26-27). many have contested the coherence or moral relevance of the distinction between doing and allowing harm (see bennett, 1995; kagan 1989). for present purposes, however, i will assume that there is some such distinction and that it possesses moral relevance such that it is harder to morally justify harming people than to morally justify allowing them to be harmed. my enquiry takes its point of departure in thomas pogge’s account of global poverty. if his account is correct, foot’s example fails to illustrate the contrast between bringing about and allowing a bad outcome. on pogge’s view, we do not just allow the global poor to die and, accordingly and unlike what foot suggests, we do not merely fail to meet a positive duty by not sending them food. rather, we interfere with them in such a way that we make them die.1 and poor people die on a massive scale as a result of our interfering with them. pogge (2008: 24) estimates that there is “a stable toll of 18 million premature deaths per year from poverty-related causes”. suppose we —people living in rich countries— killed 18 million people in india and africa each year by sending them poisoned food to save ourselves from some rather insignificant costs per capita-wise, or did so through military actions. if so, india and african countries might well act justly were they to wage war on us to prevent our hypothetical mass killing of their citizens. suppose too that pogge is correct that we bring about this massive number of deaths each year in poor countries, and assume the moral permissibility of self-defence by poor countries in the hypothetical poisonand military action scenarios. an obvious question now arises: would poor countries not similarly be engaged in a just —perhaps even morally permissible— war, were they to take up arms to force us —people living in rich countries— to 1. nowhere does pogge write that we kill poor people. i am not certain why he is reluctant to put his point in these terms. he does however write things like: “the global economic regime that our countries designed and impose kills more efficiently than the nazi extermination camps” (pogge 2010a). global injustice and redistributive wars 6�6� leap, 1 (2013) eliminate the unjust global structure that we impose on them thereby causing deaths among them on such a massive scale? when addressing the issue of what can and should be done to eliminate global poverty, pogge restricts himself to consider the question of what we —rich people— should do to alleviate or eradicate global poverty. i want to address the question of global poverty from a different perspective: what can they —poor people— permissibly or, at least, justly do to us —rich people, comparably speaking, like you and me, i assume— in order to end global poverty, provided that we do not do what we have a duty to do to eradicate poverty?2 i shall argue that if pogge’s analysis of global poverty is correct, poor countries could start just and, even possibly, morally permissible redistributive wars against us provided various conditions are met (valentini, forthcoming). these include the obviously satisfied condition that we do not ourselves take what, according to pogge, are the inexpensive steps that would enable the elimination of global poverty. indeed, given the stakes at hand they could do so without wronging us, even if these wars would involve a very large number of civilian casualties in rich countries. for reasons to be explained, it is much more unlikely that such redistributive war will be morally permissible than that they will be just. my defence of these claims is based on a number of simplifying assumptions. one is that the world divides into two groups of states: poor states populated with poor people only and rich states populated with rich people only. hence, in my hypothetical world when a poor state attacks a rich country, it is in effect poor people waging war against rich people. accordingly, i set aside (except when otherwise stated) very pertinent complications about how a wealthy elite that autocratically rules a poor country for its own benefit and in ways that harm its poor citizens can justly wage war against a rich country on grounds of the harms imposed by rich countries on its poor citizens (fabre, forthcoming: chapter 3). similarly, i ignore the issue of responsibility in relation to rich people who oppose their government’s policies on global justice issues and try to resist them in vain, or the issue of (not so rich) people living in rich countries —say, a shop assistant at macy’s— whose contribution to the unjust policies of their country is much smaller than that of some of their more influential co-citizens. this issue is not specific to redistributive wars and arises in the exact same form in relation to defensive wars (satz, 2005: 50).3 my main concern is to defend an equivalence claim: if 2. for dramatic effect, i refer to rich people as “we” (author, reader, etc.) and poor people as “them”. 3. i use “defensive wars” in a narrow sense, i.e. as referring only to armed resistance against military aggression. by using the phrase “redistributive wars”, i do not imply that any 68 kasper lippert-rasmussen leap, 1 (2013) ever there is a situation in which, say, the shop assistant at macy’s is liable to attack in a defensive war waged against her country’s unjust aggression, the same applies to a situation in which her country takes part in imposing an unjust global structure.4 finally, i will not address the issue of whether, given the correctness of pogge’s account, punitive wars against rich countries are justified (brooks 2007). to avoid misunderstanding, let me emphasize that my main claim is a conditional equivalence claim, namely that if pogge’s analysis of the causes of global poverty is correct, our relation to poor countries is morally equivalent to one in which we each year killed 18 million of them by military means. so, first, i do not claim that pogge’s analysis is correct and, second, anything that might be impermissible for poor countries to do in the latter situation involving military aggression —e. g. deliberately targeting rich civilians— might, consistently with all i say here, be impermissible in redistributive wars as well. some may view my main conclusion —that poor countries waging redistributive wars against us are acting justly given pogge’s analysis of the causes of global poverty— as a reductio of pogge’s analysis. i do not share this view: we should accept or reject pogge’s analysis on other grounds. moreover, i do not see any glaring absurdity in extending traditional theories of jus ad bellum to allow for cases where, under certain conditions, states can justly or morally permissibly start redistributive wars (beitz 1975: 388). several theorists have attempted to extend these theories to allow for just military intervention for humanitarian causes, having in mind cases where a powerful rich country intervenes in a poor country to stop its ruling elite, or a bigoted section of its population, from killing large numbers of people (caney 2005: 227-262; holder 2008). what i am proposing is that it is not only true that certain wars can be just or permissible when started by a third party to protect a group of people from an unfolding or threatening humanitarian disaster. war can also be just and permissible when the likely victims of this humanitarian disaster start it themselves to avert the disaster befalling them. this can be so regardless of whether the immediate causes of death are disease or malnutrition rather than bullets or machetes. in extending just war theory to allow for just and permissible humanitarian interventions by some people on behalf of others, we should also allow for unjust distribution imposed by some countries on others is a just cause for war. obviously, redistributive wars to eliminate poverty are easier to justify than redistributive wars to eliminate small, but unjust, inequalities between wealthy states. also, by the term “redistribution” i do not suggest that no redistribution takes place between rich and poor countries in the absence of redistributive wars. 4. i thank laura valentini for pointing out the need for stating this simplifying assump-i thank laura valentini for pointing out the need for stating this simplifying assumption. global injustice and redistributive wars 6�6� leap, 1 (2013) similar intervention by people on their own behalf even when the cause of their plight is the (largely) non-military imposition of an unjust global structure. on the assumption that self-defence is no harder to justify than a third-party’s defence of someone against aggression, in one way at least it is difficult to resist this further step once one has admitted just humanitarian interventions. similarly, most would allow that people may wage civil war on a regime unjustly reducing them to severe poverty.5 if pogge is right there is an international institutional structure not relevantly different from that found within states. given this assumption, it is hard to see why this point about the justifiability of waging civil war does not extend to waging war against states. 2. pogge on global poverty pogge’s claim that our relation to the massive number of poverty-related deaths in poor countries is one of doing harm has not been met with unanimous agreement, and various theorists have contended that we do not harm poor people without necessarily objecting to the claim that we ought to eliminate global poverty (patten 2005; risse 2005a; risse 2005b; risse, 2005c; satz 2005. for replies: pogge 2005b). here i want to bypass the issue of whether pogge’s analysis of global poverty is correct to focus on what follows regarding the morality of redistributive wars if his analysis is true. thus, if you do not accept pogge’s analysis of the nature of global poverty you need not disagree with me, even if you think the conclusions i draw do not apply to the world as it is. before getting to the moral question of what poor people can permissibly do to improve their situation, i need to state how pogge understands the way in which we bring about poverty in poor countries. it is easy for people living in rich states to be impressed with the fact that some countries that were equally poor some decades ago are now tremendously unequally poor, and some are no longer even poor by western standards. it is also tempting for us to infer that what explains poverty must be the presence or absence of certain national factors, say, a well-functioning political system, political incompetence of local rulers, or the absence of a growth inducing work-ethics.6 pogge does not deny that such factors are part of the causal background of global poverty. assuming that it is the whole picture, however, amounts to what he calls “explanatory nationalism” insofar as doing so ignores the very significant causal contribution of a global insti5. i thank andrew williams for this point. 6. david miller (2007: 238-247) defends a form of explanatory nationalism. �0 kasper lippert-rasmussen leap, 1 (2013) tutional structure that includes, for example, the international trade regime regulating the flow of capital and goods (pogge 2008: 17-18).7 in pogge’s view, powerful western states largely control global institutional structures and design them to serve their interests. one reason this is so is that many poor countries do not have the resources available that they would need to pursue their interests effectively at the negotiating tables where international agreements are finalized. as a result, poor countries often sign treaties only to learn later of the many ways in which these disadvantage them. another reason is that in those negotiations, rich countries have a much stronger negotiating position independently of the competence of their diplomats. the fact that many troublesome governments in poor countries have been toppled by the military intervention by rich countries, but no troublesome rich governments have been toppled by military interventions by poor countries, is a perspicuous manifestation of the fact of unequal power.8 the upshot is that poor countries get a rough deal, and this explains much of the suffering and premature deaths occurring there. pogge describes a number of ways in which the global order systematically works to the advantage of the rich and to the detriment of the poor. first, there is the mechanism involved in the resource privilege: we “confer upon a group in power” legal ownership over the natural resources in the country that they (mis)rule. accordingly, when a bunch of generals topple a democratically elected government we recognize their right to sell, say, their country’s oil resources and when oil companies buy these, we consider them the legitimate owners of the oil. a domestic analogue would be a case where we recognize gangsters who seized someone’s property as having acquired rights over it and would consider someone who bought this property from the gangsters as the new legitimate owner of it. not only does this make us complicit in the injustice being perpetrated against the person being robbed, our being so disposed gives gangsters an incentive to rob people.9 7. patten (2005: 23-24) argues that pogge gives explanatory nationalism a rather cavalier treatment and at times fall for the opposite, equally biased view, explanatory cosmopolitanism, assuming that the large majority of poverty related deaths in poor countries are caused by the unjust global structure. see also cohen 2010: 30 and pogge 2010b: 182-191. 8. to keep the focus of justifi ability of redistributive war in the absence of military aggres-to keep the focus of justifiability of redistributive war in the absence of military aggression by rich countries, i assume that the imposition of an unjust global structure takes place through means other than military ones. 9. according to mcmahan, in cases where a country unjustly aggresses against another country and as a result “the probability that other countries would commit wrongs of a sort that would constitute a just cause for war” against the latter country, the former country is to “some degree responsible for the increased risk of further wrongful action by others” and this might serve as a justification for acts of aggression against the former country provided if this would serve to reduce the probability of the risks in question, see mcmahan 2005: 16. since, on pogge’s analysis, we impose an increased risk of military dictatorship on poor people by our unjust global injustice and redistributive wars ���� leap, 1 (2013) pogge believes that something analogous is true in international politics to such an extent that it may be a curse for a poor country to be rich in natural resources (wenar 2008). second, there is the mechanism involved in the international borrowing privilege. we have organized the international financial system in such a way that dictators can borrow money from banks in rich countries, siphon huge proportions off to their private bank accounts, and when they get overthrown we insist that the state, which they ruled over with no popular mandate, honours the financial commitments dictatorially undertaken. indeed, if a democratically elected government refuses to honour debts incurred by a former dictator, we will impose various sanctions on this country to make it pay “its” debts. not only does this impose hardships on poor people due to something for which they bear no responsibility, like the resource privilege this creates destabilizing incentives for military coups that inevitably work to the disadvantage of poor people by rendering democratic government in poor countries difficult to achieve (pogge 2008: 142). third, given that there is interaction between different states there has to be some kind of global structure. whichever it is, it is one we bring about and, given the much better bargaining position of rich countries, it is one that we impose on the rest of the world and, accordingly, the effects that this system produces are effects that we do not merely allow to occur, but effects that we bring about. in pogge’s view, there is no natural baseline global structure and, thus, no way we can say that its effects are merely effects we simply allow to occur. accordingly, if we insist on implementing an unjust global structure, i. e. one that will predictably produce an unjust global distribution because it will leave millions of people impoverished in a way that will violate their human rights (as pogge thinks is the case), we harm poor people unjustly (pogge 2008: 5; pogge 2005b: 55-56).10 if pogge is right, citizens of affluent, powerful states are “accomplices in a monumental crime against humanity” and “guilty of the largest crime against humanity ever committed”. pressing the point, pogge even draws a striking analogy between global poverty and the holocaust (pogge, 2008: 24; pogge 2005b: 59; pogge 2005a: 2).11 the holocaust’s victims, however, were imposition of a global structure, arguably this might similarly justify their aggressing against us provided this might reduce these risks. 10. pogge (2005b: 60) restricts the scope of this claim to “human rights deficits”. pogge (2008: 130) proposes “to call negative duty any duty to ensure that others are not unduly harmed (or wronged) through one’s own conduct”. as croft (2005: 29) points out this implies that “all duties entailed by any right are negative by definition”. 11. pogge (2005b: 67) writes that as “human rights are generally understood, it is in principle permissible to use force to stop” violations of them. however, he wants neither to deny, nor to affirm, such “enforcement permissions”. �2 kasper lippert-rasmussen leap, 1 (2013) justified in taking up arms to protect themselves from the nazis or perhaps even simply to preserve their sense of dignity by fighting back. nevertheless, pogge refrains from considering whether the victims of the unjust global structure are justified in taking up arms against us to prevent themselves being killed by poverty and the unjust global structure that we impose on them (pogge 2008: 11, 31, 141-142). indeed, pogge’s proposals seem surprisingly undemanding from a rich country perspective given his diagnosis of how we bring about global poverty. according to pogge, international economic inequality is now so large that we could eliminate world poverty at negligible cost to ourselves: “shifting merely 1 percent of aggregate global income... from [citizens of the affluent countries] to [the 46 percent of humankind who live below the world bank’s $2/day poverty line] would eradicate severe poverty worldwide” (pogge 2008: 2). a shift of this sort may not even be a net cost to affluent people, since eliminating world poverty will also promote democracy and reduce immigration pressures on rich countries (pogge 2008: 213). to bring about some such shift, pogge proposes that we impose a $3 tax per barrel of oil traded (global resource dividend) or that rich countries contribute less than 1% per of their gdp to a fund providing incentives for pharmaceutical companies to develop inexpensive medicine that will benefit the global poor. pogge might think that we are required to do more than what the previous paragraph indicates. but the fact of the matter is that we have not done anything remotely close to the modest proposals for the reduction of global poverty that he puts forwards. the question then becomes: since, in effect, we kill millions of global poor each year and since we could avoid doing so at very small cost to ourselves, could the global poor permissibly start a redistributive war against rich countries to eliminate global poverty? to give force to this question suppose that to avoid bearing the costs involved in pogge’s proposals for the eradication of global poverty we must each year kill 18 million people in poor countries by military means. no one thinks that the fact that rich people would avoid having to bear such costs would justify them in military aggression costing a number of innocent lives comparable to the number of innocent lives lost during the whole of wwi. since, given pogge’s analysis, the morally relevant difference does not lie in the fact that in the military aggression scenario we kill people whereas in the unjust global structure scenario, we merely allow them to die, the difference, if there is one, must lie elsewhere. so what is the morally relevant difference that makes redistributive wars harder to justify than self-defensive wars? global injustice and redistributive wars ���� leap, 1 (2013) 3. jus ad bellum the most obvious starting place for answering this question is the traditional just war theory account of jus ad bellum. it claims that the following conditions must be satisfied for the initiation of a war to be just or morally permissible:12 “(1) there is a just cause; (2) war is authorized by legitimate authority; (3) those waging the war have just intentions; (4) the costs incurred by the war are not disproportionate in comparison to the wrongs that justify the waging of war (proportionality); (5) war is the last resort; (6) the war has a reasonable chance of meeting its objectives; and, (7) its goal is a fair peace” (caney 2005: 191-192). assume these listed criteria are defensible. if so, we have an answer to our question if we can show that a defensive war waged by poor countries to prevent military attacks by rich countries threatening to kill 18 million of their citizens on a yearly basis can satisfy all seven conditions whereas an otherwise identical redistributive war waged by poor countries to undo an unjust global structure imposed on them by rich countries and threatening to kill 18 million of their citizens on a yearly basis does cannot satisfy those conditions. as will become clear, i am sceptical of the view that any of the mentioned criteria will support the relevant asymmetry. i shall also argue that some of the assumed conditions for jus ad bellum should be revised or rejected. some of the traditional jus ad bellum criteria we can set aside quite swiftly because their irrelevance to our search for a relevant moral asymmetry is obvious. for instance, whatever we think of the legitimate authority condition (2), it is irrelevant to our question.13 redistributive wars may be waged by a legitimate government —say, one that is democratically elected— just as defensive wars may be. consider next the just intention condition. note, first, that insofar as some such requirement applies, it is ad hoc not to impose a similar restriction on intentions to uphold peace —jus ad pacem we might call it—. provided that peace, unlike war, involved no relevantly similar harms, this would explain the relevant asymmetry, but since peace under an unjust global structure involves millions of deaths of innocents each year, this explanans fails. suppose poor countries can win a swift military victory and impose a just global structure, but that elites in poor countries refrain from waging war with the intention of preserving their privileges to the detriment of their poor citizens. surely it is incoherent to consider their promoting peace with the wrong in12. a war may be just and yet morally impermissible, if the country that war is waged against is liable to attack, but the consequences of attacking it are very bad. 13. i fi nd (2) implausible anyway. see mcmahan 2005; kamm 2004: 652.i find (2) implausible anyway. see mcmahan 2005; kamm 2004: 652. �4 kasper lippert-rasmussen leap, 1 (2013) tentions permissible and yet also consider wars waged with the wrong intentions and much less costly in human lives impermissible because they fail to satisfy the right-intention requirement? second, on the assumption that the intention to remove an unjust global structure that kills 18 million people a year is a just intention we can easily imagine redistributive wars being just (3).14 in principle, the aim of redistributive wars need not involve killing welloff civilians or occupying their countries, but may simply be to bring about a fair peace, where a fair peace involves a just global structure (7). in the case of the last resort requirement (5), we can easily imagine that a redistributive war is started after all other means that might reasonably be thought to eliminate the unjust global structure —e. g. negotiations, pleas, threats— have been tried and failed and that military force is the only available means left to oppose the unjust global structure. in any case, we should reject the last resort requirement at the level of fundamental moral principles of war.15 suppose one pursues one’s just aims by means other than the use of resorting to war, say, through a trade embargo. suppose also that one could achieve a quick military victory involving few casualties, but that the trade embargo would result in much greater sufferings. to insist on the injustice of war in this case on the ground that one can achieve one’s just aims without resorting to war, would rebel against the moral impulse behind the proportionality requirement. indeed, here the status quo, i. e. peace, should be chosen only as a last resort given the massive harms it involves. my conjecture is that most people find the last resort requirement plausible because they believe that war will almost always involve greater harms than alternative means of realizing just ends and, accordingly, that its status is that of a principle which states should aim to comply with —something like a rule of thumb— that is derived from more basic moral concerns. in sum, (2), (3), (4), and (7) seem unable to ground a moral asymmetry between redistributive wars and defensive wars. 4. the just cause requirement (1) the just cause requirement (1) is more complicated. on mcmahan’s view the just cause requirement “functions entirely as a restriction on the type of aim or end that may legitimately be pursued by means of war” (mcmahan 14. some deny that intentions matter to some deny that intentions matter to jus ad bellum. had the intention of us behind entering wwii been to enlarge american power, this would have made doing so no harder to justify than had its intention been to defend itself. but see mcmahan 2005; goodin et al. 2007: 669-677, 672-673. 15. it might well be a perfectly justifi ed rule at the level of conventions of war, it might well be a perfectly justified rule at the level of conventions of war, e. g. because states are all too likely to err on the side of thinking that their cause of war is just and that a military victory can be won swiftly and with few casualties. global injustice and redistributive wars ���� leap, 1 (2013) 2005: 4).16 some might think that the only just cause for war is self-defence against military aggression, in which case resistance against an unjust global structure is not a just cause. or at least this follows if we grant the difference between standard cases of military aggression and pogge’s scenario which consists in the fact that in the standard case aggression consists, inter alia, in the use of military means, whereas no such thing is the case in pogge’s scenario. does this difference make a moral difference to what means one can employ to defend oneself against a threat? i think not. first, the distinction between military and non-military aggression may not be entirely clear-cut and once we make it clear-cut, this distinction may not align perfectly with a morally relevant distinction. we might say that military aggression is aggression involving the use of military means thereby leaving us with the task of explaining what military means are. it will not do to say they involve the use of substances that can explode or damage the human body. human beings were involved in military aggression many centuries before gunpowder’s invention and a reconnaissance aircraft is a military means even if it not used directly to cause bodily damage. the best definition of what military means are is a quite general functionalist definition, i.e. military means are means that in a wide range of situations capable of destroying or incapacitating human beings or objects used by human beings in a way that is reliable and relatively direct. a gun is a military means because it satisfies this definition. but so is a device to jam computers. some might claim that one cannot reliably predict the identities of the persons who will be killed through an unjust structure and for that reason it does not qualify as a military means. but that will not do, unless we are willing to grant that items such as poison gas and nuclear weapons do not count as military means. but setting aside the issue of what falls under the proposed definition of military means, the more principled question is whether it matters morally to the permissibility of self-defence whether the means employed will kill one in a way that is reliable and relatively direct. if pogge is right, an unjust global structure reliably kills a very large number of people and we can be confident that it will continue to do so in the foreseeable future. hence, reliability cannot account for the purported morally relevant difference. directness might be different in that an unjust global structure tends to kill people in rather indirect ways. the causal chain leading from the negotiations at trips to the death of a poor person in kinshasa from the lack of cheap hiv 16. a just cause is a fact that renders the war justifi able, whether it is what motivates agent a just cause is a fact that renders the war justifiable, whether it is what motivates agent that wages war. �6 kasper lippert-rasmussen leap, 1 (2013) medicine may be very long and complicated. still, whether a causal chain is direct makes no difference per se to the permissibility of self-defence. so compare attacks with two different bombs. one produces a blast that directly affects people’s bodies thereby killing them. another bomb produces a blast that sets in motion a long and complicated causal chain that ends up resulting in the death of the same number of —perhaps the very same— people as the first bomb. it would be ludicrous to suppose that an agent acts less wrongly for using the latter bomb. long and complicated causal chains may generally involve greater uncertainty about the eventual upshot than short and direct ones, and likelihood of outcome may make a difference to permissibility of self-defence. similarly, in general the longer the causal chain is, the less likely it is that killing the initiator of the chain is necessary to avert the threat.17 but once we set these features aside, directness in itself seems not to matter morally. hence, even if considerations of directness explain why the unjust global structure is not aggression by military means, it cannot explain why one can do less to defend oneself against some such threat. note finally that many just war theorists think that one can justly resort to war in response to threats that are much less harmful than one that involves 18 million death per year. for instance, many think one may resort to war to prevent one from being expulsed from one’s homeland.18 second, let us set aside the issue of the exact nature of the difference between aggression involving military means and aggression involving nonmilitary means. still, it is not clear that it is never permissible to use lethal force in defence against non-military aggression. consider domestic analogies to each of the three elements identified above as elements in pogge’s account of how we harm the global poor starting with the resource privilege. suppose someone indicates to a gunman that if he seizes a democratically run family farm, she will buy the goods produced on the farm. she does so despite the fact the gunman is known to be a ruthless person and that if the gunman takes over the farm some members of the family are likely to be killed or otherwise seriously harmed by him and that all of them will lose their control over how the farm is run. in this case, members of the family would have a just cause were they to engage in hostile action directed at preventing the gunman from seizing the farm. also, if such action was futile, but they could remove the incentive for the gunman to seize the farm and thereby bring about that the gunman does not seize it by attacking the person who will buy the products and thereby creates the relevant incentive for the gunman they would have a just cause for doing so. similarly, poor coun17. i owe this point to seth lazar.i owe this point to seth lazar. 18. mcmahan (2005: 12) suggests that “it can be permissible to kill to prevent any sort of act that would wrongfully reduce a person to utter destitution”. global injustice and redistributive wars ���� leap, 1 (2013) tries have a just cause for starting a redistributive war against rich countries that create incentives for military coups by their policy to acknowledge the ruler’s absolute control over the natural resources of their country.19 the second mechanism that pogge mentions —that we create incentives to military coups through the international borrowing privilege— is in significant ways similar to the first one. but the last element in pogge’s view is trickier. consider pogge’s claim that there is no baseline global structure and that if we impose a global structure on poor countries that do not ensure that their human rights to a decent minimum is met, then we have harmed them. much here hangs on what pogge means by “imposing”. in principle, we could imagine scenarios in which rich countries merely allow the existence of an unjust global structure. suppose the present global structure has already been put into place —say, all international interactions are and must be run through a huge and extremely complicated computer— and was created by states and people that no longer exist. it is very complicated to change the global structure —it requires extensive changes to the computer software— and only rich countries can do that. however, since the global structure benefits rich people, they omit to change it, despite the unjust global distribution it results in. suppose the reason that the resulting global distribution is unjust is that people in poor countries risk contracting certain diseases existing independently of the nature of the global structure. if they had more resources —as much resources as they are entitled to— they would be able to treat these diseases, but under the present distribution they lack that ability. on my understanding of the doctrine of doing and allowing, this would a clear case of allowing harm. given that we could prevent this harm at very small costs to ourselves, we act impermissibly in not preventing it. the case would be like a case where we violate a positive duty to save a drowning person to avoid getting wet clothes.20 but we have not harmed these people and, giving the doctrine of doing and allowing, we had acted even more wrongly if we had not only omitted to change the global system, but actively imposed it on poor people. this case would be morally equivalent to the case in which we kill people in poor countries through military 19. not all poor countries have suffered from military coups, not all poor countries have suffered from military coups, e. g. india. so it would seem that poor indians cannot say that they have been harmed through this mechanism. something similar is true of china, although for different reasons. 20. some might say of such a case: “you killed him by letting him drown”. however, here some might say of such a case: “you killed him by letting him drown”. however, here our moral evaluation of the conduct determines whether we classify it as a case of killing or as one of letting die, see bennett 1989: 68-70. what we are interested in is the situation in which the moral difference derives from the fact that one case is correctly classified as a case of killing and the other as a case of letting die. in pogge 2010b: 193, he says that he conceives of harm “in terms of an independently specified conception of social justice”. because one can allow harm, a “justifized” account of harm is not a “justifized” account of doing harm. �8 kasper lippert-rasmussen leap, 1 (2013) aggression. since the case in which rich people impose an unjust structure on poor people is worse than one in which they merely refrain from changing it, the case in which they benefit from an unjust global structure is not as bad as one in which they kill poor people by military means. correspondingly, it might be easier to justify waging war in self-defence against military aggression than it would be to wage redistributive war to make rich people change the unjust global structure. i suspect that pogge will retort to this scenario by conceding that, in principle, the global structure is something the persistence of which we could imagine rich countries merely allowed, but insist that in our world the global structure is something that we reproduce continuously, i.e. by diplomatic negotiations, military interventions, and economic incentives. accordingly, we bring about the deaths that are caused by the global structure. in reply, one might ask what the relevant baseline situation is that we should compare the present situation with in order to determine which poverty related deaths are caused by us. presumably, not all such deaths are caused by us, since presumably some such deaths would occur even if we cooperated in bringing about a just global structure.21 pogge might say that there is no relevant baseline here. that all relevant situations involve a global structure and if we bring about a global structure that involves an unjust distribution, we have harmed those people who the global structure harms. as indicated earlier, i am sceptical about this view.22 but even if the view is true, it implies that there is a relevant difference between killing people through imposing an unjust global structure and killing people by other means where there is a clear baseline situation relative to which one can be said to harm them, i.e. one in which one refrains from military aggression, and as a result people survive who otherwise would be killed. as a final attempt to appeal to the just cause condition to ground the moral asymmetry of redistributive and defensive wars, one might appeal to the fact that in cases of military aggression the military aggressor intends the killing and maiming that will take place in the cause of war. even if the aggressor does not intend to kill enemy civilians, the aggressor does intend to kill enemy combatants. no such thing is true of rich first world countries that impose an unjust world order on third world countries. when first world countries lend money to dictators who control natural resources it is not 21. there might be people who flourish under the present unjust global structure that would perish under a just global structure. 22. the relevant baseline situation might be one in which rich countries stopped interact-the relevant baseline situation might be one in which rich countries stopped interacting with poor countries. global injustice and redistributive wars ���� leap, 1 (2013) part of their intention that this will undermine democratic political institutions, encourage military coups, and predictably lead to poverty. indeed, they might truly regret that dictators do what they do. suppose this difference in intentions exists and is morally significant. still, it is insufficiently important to rule out just wars. consider the following scenario. for some odd reason a nation can only avoid certain costs, say violent internal political strife, by firing missiles at another country. these costs will be avoided if the missiles are launched, whether they hit their targets or not. the aggressing country has no intention to subdue or harm its neighbouring country and launches the missiles only to avoid the costs mentioned. if self-defence by the targeted neighbouring country had been permissible had the aggressing country aggressed with standard intentions, in this case self-defence is permissible as well. however, it might be insisted that absence of aggressive intentions makes some difference to permissibility of self-defence, but, surely, no one contends that it makes such a big difference that in the case i imagine the nation attacked must stand idly by watching thousands of its citizens die simply because the attacking nation merely foresees these deaths. but if the absence of intentions to cause death and suffering makes no or only little moral difference to permissibility in the case of military aggression, why should it make any (larger) difference in the case of global structure aggression? suppose rich countries imposed an unjust global structure on poor countries with the intention of causing the global poor to suffer. on the view i am canvassing poor countries would be justified in waging a redistributive war in response and this justification would not disappear, or significantly weaken, because we change the example so that rich countries no longer intend to bring about this effect. if so, the difference in intentions of military aggressors and the imposers of an unjust global structure, supposing it to exist, cannot explain why war is justified in response in one case but not in the other.23 in sum, the just cause requirement, plausibly construed, does not rule out the possibility of just redistributive wars. with regard to the first two mechanisms through which the unjust global structure produces poverty, these would seem morally equivalent to cases involving military aggression. 23. a different line of argument would hold that whereas rich people are aware of how their countries causally affect the lives of poor people in the case of military aggression, typically, rich people are not aware of how their countries causally affect the lives of poor people through the imposition of an unjust global structure. however, this difference is insufficient to ground the relevant moral asymmetry. first, the fact that one does not believe that one, together with others, poses a threat is not sufficient for the impermissibility of lethal self-defence. many hold that it suffices that one ought to have known that one posed a threat and, second, many would say that even if it is not the case that one ought to have known, it is still permissible to take lethal defensive action against one. 80 kasper lippert-rasmussen leap, 1 (2013) as a slight modification that leaves this overall conclusion intact i have argued that the last component in pogge’s view might render redistributive wars harder to justify. 5. the proportionality requirement (4) and the no futility requirement (6) an obvious argument against the permissibility of redistributive war appeals to the proportionality principle (4), or to the futility requirement (6). according to the former requirement, starting a war is only permissible if “the relevant good effects a war can be expected to achieve are sufficiently important to justify the relevant expected bad effects” (mcmahan 2005: 674).24 according to the latter requirement, it is not justified to start a war to achieve global redistribution if there is no reasonable chance of achieving this.25 it may seem neither condition is met. for rich countries are militarily much stronger than poor countries. while voluntary global redistribution is pretty unlikely, it seems even more unlikely that rich countries will agree to redistribution as a result of a military aggression that they can easily defeat. even if we were to suppose, unrealistically, that there was a reasonable chance of achieving a just global structure through military action against rich countries by poor countries, we could expect the costs in lives to be tremendous. given the military hardware possessed by rich countries, redistributive wars will probably result in numbers of casualties well in excess of the two previous world wars. they will also involve damage to economies on such a scale that poor people, their supposed beneficiaries, will suffer massive harms greater even than (or: in addition to) those involved in global poverty. hence, it is unlikely that redistributive war will satisfy the proportionality and the non-futility requirements. i have several things to say in response. first, in relation to jus in bello it is common to distinguish between liability to being attacked and its being permissible to attack one. a person who is liable to attack is not wronged when he is attacked. he has no right not to be attacked that is either infringed or violated when he is attacked (mcmahan 2009: 10). it might nevertheless be 24. the formulation says “relevant” because arguably not all good and bad effects of a war are relevant to whether it satisfies the proportionality requirement, e. g. war might accelerate the development of life-saving medicine, but the lives saved in this way may be irrelevant to the proportionality requirement. 25. this shows that (6) is implausible. suppose that the proportionality requirement is satisfied and suppose that while waging war most certainly will not meet the objectives of those waging war —say, eliminating global poverty— but will come pretty close to doing so. it is implausible to deny, on account of the fact that the war failed to fully meet its objective, that it would be unjust. global injustice and redistributive wars 8�8� leap, 1 (2013) the case that it is impermissible to attack him, say, because attacking him will lead to very bad consequences. a similar distinction is drawn in relation to jus ad bellum. a state —or the citizens that compose this state— may not be wronged when some other state starts a war against it, say, because it is morally responsible for the existence of an unjust military threat to other states. yet, it may be impermissible to attack this state, e. g. because doing so will lead to mass killings and suffering (mcmahan 2005: 8). we may say that a war may be just, even if it is not morally justified. on the assumption that this distinction is also applicable to jus ad bellum, i believe that while the facts appealed to —that redistributive wars will be futile and the harms they involve disproportionate— imply that it might be impermissible for poor countries to start redistributive wars against rich countries, they do not show that rich countries are not liable to being attacked and that attacks wrong their citizens. the reason is that it is they, i.e. rich people, that prevent redistributive wars from having good results and that they act unjustly in making this the case.26 one’s liability to harm cannot diminish because one will act in certain unjust ways if threatened with that harm. if liability does depend on one’s ability to defeat self-defence and to impose disproportionate harms in the process of resisting one’s victim’s selfdefence, a country (or an individual attacker) may gain immunity against attack by building a doomsday bomb and making it certain that any attempt to resist this country’s aggression will result in its use. also, if the defender could defeat the attacker’s use of these disproportionate means in response to defensive action this might mean that the attacker would be liable to additional harms, i.e. harms to which he would not be liable were he not committed to employing these disproportionate means. but since it is hard to see why the attacker should not be liable to these extra harms simply because the defender has no way of averting the employment of the disproportionate means, this supports the view that rich countries are liable to attack despite their ability to defeat any attempt to impose a just global structure and to impose disproportionate harms on any poor country that tries. second, if the present line of argument encounters resistance i ask the reader to make some counterfactual assumptions. suppose that redistributive wars would not be futile. perhaps most members of rich countries are too old for military service, their electorates are extremely concerned about security and willing to sacrifice much of their wealth to restore (a less unjust) peace once the war proves not to be a walk-over, and poor countries have also acquired weapons of mass destruction and can draw on vast pools 26. rich countries cannot complain to poor countries that they are waging an unjust war rich countries cannot complain to poor countries that they are waging an unjust war on grounds of its violation of the proportionality requirement given that this disproportionate destruction is something they bring about. 82 kasper lippert-rasmussen leap, 1 (2013) of young men eager to join their armies. suppose too that the harms redistributive wars involve are proportionate to the wrongs avoided. perhaps after some fighting and tens of thousands casualties rich countries are willing to accept a peace that addresses the grievances of poor countries. granted these assumptions, would it then be permissible for poor countries to initiate redistributive wars?.27 i take it that many would, initially at least, resist this suggestion and, hence, that it is worthwhile to see if it can be defended. thirdly, the futility and the proportionality requirements are unable to ground an asymmetry between redistributive wars and defensive wars. suppose that rich countries would kill through military means 18 million people in poor countries a year. poor countries ponder the possibility of waging a defensive war against rich countries. however, if they do this it will be futile —they will not succeed in stopping rich countries from what they are doing— and the response by rich countries will be massive such that the proportionality condition is not met. on the jus ad bellum criteria waging a defensive war would not be permissible and it would not be so for exactly the reasons as why an otherwise comparable redistributive war would be impermissible. accordingly, while the two requirements may show why some redistributive wars are not permissible, they do not show that rich countries are not liable to redistributive war. nor do they show that there is any morally relevant asymmetry between redistributive and defensive wars. more generally, the conditions of jus ad bellum, when plausibly construed, do not rule out third party humanitarian intervention; nor do they rule out victims of aggression intervening in self-defence when third parties are permitted to intervene on their behalf. this may not be the normal understanding of jus ad bellum but it does make the doctrine as plausible as possible. note, finally, that the objection that redistributive wars against rich countries will involve the mass killings of innocent civilians as a side-effect and that this implies that hardly any redistributive wars are just is of little relevance to the present situation. first, according to pogge we are not innocent civilians in relation to the plight of the global poor. as he puts it: we are “accomplices in a monumental crime against humanity” (pogge 2008: 24). if so, harms to us (or many of us, at any rate) counts for less than harms to innocent civilians in proportionality calculations and, presumably, redistributive wars involving a huge number of killings of rich people are not unjust 27. note, first, that if the redistributive war aims only at eliminating global poverty, it might be rational for rich countries to accept the demands of poor countries rather than to engage in a war to avoid the comparatively small costs that, according to pogge, eliminating global poverty involves. second, while the proportionality and the futility requirement obviously are extremely unlikely to be met in the case of a full-scale redistributive war, it is unclear that they are very unlikely to be met in the case of various asymmetric forms of warfare aimed at eliminating the unjust global structure, see smilansky 2004: 798. global injustice and redistributive wars 8�8� leap, 1 (2013) on account of the proportionality requirement provided they are conducive to the undoing of the unjust global structure. second, even setting aside this point, considerations about the killing of rich innocents would not establish an asymmetry between redistributive and defensive wars, since many rich people are innocent in relation to their countries’ military aggression against poor countries. 6. a reductio of pogge’s position? none of the conditions in traditional just war theory explains why it would not be permissible for poor countries to engage in a redistributive war against us to undo the unjust and lethal global structure that, according to pogge, we impose on them. some might reason that since, obviously, it is unjust to start a war against states not bent on military aggression and since it would follow if pogge’s analysis of global poverty —its scope and its causes— is correct that it would be just for poor countries to aggress against us, pogge’s account of the causes of global poverty must be false, or at least regarded with the utmost suspicion. as i said, this paper aims neither to defend nor criticize pogge’s account of global poverty. hence, in this section i restrict myself to explaining why i do not think this particular line of argument has much bite. first, it might surprise us that we harm, and do not just allow harm to, poor people. but if we allow that, it is hard to see why they cannot impose considerable costs on us to stop us from imposing on them, e. g. by redistributive wars if necessary. if an agent will predictably kill someone provided she conducts herself in a certain way and she can avoid acting in this way at little cost to herself, the wrongness of the killing does not seem much, if at all, affected by the means employed. moreover, many people believe that it is permissible to fight just wars to avoid outcomes that seem morally much less bad than 18 million premature deaths. for instance, many believe that a state can permissibly fight a defensive war against mitigated aggression, i.e. defend itself against an aggressor that carefully minimizes enemy losses and merely aims to occupy the relevant territory to gain certain military advantages leaving the occupied people largely free to govern its own affairs. the conjecture that we are liable to redistributive wars provided pogge’s analysis of global poverty is correct may seem initially implausible largely because we, not someone else, are at the receiving end. second, even if, contrary to what i contend, it is an implausible conclusion, its implausibility is not a reason for rejecting pogge’s analysis. pogge’s analysis concerns the extent as well as the causal determinants of global poverty. no one would be tempted to infer from the putative permissibility of redistributive wars that, luckily, the extent of global poverty must be much 84 kasper lippert-rasmussen leap, 1 (2013) smaller than he contends. in response to that inference we would respond that there are various tests for determining the extent of global poverty and these are good or bad tests independently of whatever normative implications can be derived from the results one gets from applying them and various underlying normative principles. we should say something similar about ways of testing for the causal relevance of a certain factor. so, for instance, if we want to determine the causal relevance of the global structure, in principle, we could compare episodes in world history where the global structure has differed in relevant ways. if national differences have had the same causal impact in the epochs compared, this supports the view that global structure does not explain global poverty. if, on the other hand, national differences had very different impacts in the epochs compared, this suggests that global structure does play a significant role in the causing of global poverty. again, whatever normative implications the result of such comparisons may support is neither here, nor there.28 7. conclusion pogge argues that rich countries do not merely allow global poverty to persist by failing to help people. rather, we make global poverty exist by imposing an unjust global structure on poor countries. for the sake of argument, i have assumed that this claim is correct to see whether its truth would render us liable to redistributive wars, and perhaps even imply that it would be permissible for poor countries to attack us to bring about a just global order thereby saving the lives of millions of poor people. for this purpose, i have compared the present situation on pogge’s account with one in which rich countries kill 18 million poor people a year by military means. clearly, the traditional jus ad bellum criteria permit a defensive war in this case. i have argued that from the point of view of these criteria, on their most plausible construal, there is at most a marginal difference in the moral status of redistributive wars and the relevant hypothetical defensive war. finally, i have argued that this implication of pogge’s account fails to make the account implausible but that even if it did the implication would provide no reason to reject pogge’s appeal to the global structure to explain world poverty.29 28. while the fact that a causal analysis has results that support unwanted normative im-while the fact that a causal analysis has results that support unwanted normative implications gives us no reason to think that the results are false, it may give us a practical reason to double-check the results. also, the fact that the theorist conducting the analysis embraces the normative implications that the analysis supports might give us reason to believe that the analysis is more likely to be faulty than if the theorists disliked the normative results that it supports. none of what i say here contradicts these two claims. 29. whether redistributive wars would be just even if rich people merely fail to meet their positive duties to help poor people is a separate question that i have not taken a stand on here, global injustice and redistributive wars 8�8� leap, 1 (2013) bibliography beitz, c. r., 1975: “justice and international relations”, philosophy & public affairs 4: 360-389. bennett, j., 1995: the act itself, oxford: clarendon press, oxford university press. brooks, t., 2007: “punishing states that cause global poverty”, william mitchell law review: 519-532. caney, s., 2005: justice beyond borders, oxford: oxford university press. cohen, j., 2010: “philosophy, social science, global poverty”, thomas pogge and his critics, ed. a. jaggar, 18-45, cambridge, polity. croft, r., 2005: “human rights and positive duties”, ethics and international affairs, 19: 29-37. fabre, c., forthcoming: a cosmopolitan theory of the just war, vol. 1 (book ms). foot, p., 1981: virtues and vices, berkeley: university of california press. goodin, r. e.; pettit, p., and pogge, t. (eds.), 2007: a companion to contemporary political philosophy, 2nd edition, oxford: blackwell. holder, c., 2008: “responding to humanitarian crisis”, war: essays in political philosophy, ed. l. may, 85-104, cambridge: cambridge university press. kagan, s., 1989: the limits of morality, oxford: clarendon press, oxford university press. kamm, f., 2004: “failures of just war theory: terror, harm, and justice”, ethics 114: 650-692. luban, d., 1980: “just war and human rights”, philosophy & public affairs 9: 160-181. mcmahan, j., 2005: “just cause for war”, ethics & international affairs 19: 1-21. — 2009: killing in war, oxford: oxford university press. miller, d., 2007: national responsibility and global justice, oxford: oxford university press. patten, a., 2005: “should we stop thinking about poverty in terms of helping the poor?”, ethics & international affairs 19: 19-27. satz, d., 2005: “what do we owe the global poor?”, ethics & international affairs 19: 47-54. pogge, t., 2005a: “world poverty and human rights”, ethics & international affairs 19: 1-7. — 2005b: “severe poverty as a violation of negative duties”, ethics & international affairs 19: 55-83. — 2008: world poverty and human rights, 2nd edition, cambridge: polity press. — 2010a: politics as usual, cambridge: polity press. — 2010b: “responses to the critics”, thomas pogge and his critics, ed. a. jaggar, 175250, cambridge: polity. risse, m., 2005a: “do we owe the global poor assistance or rectification?”, ethics and international affairs 19: 9-18. — 2005b: “how does the global order harm the poor?”, philosophy & public affairs 33: 349-376. cf. luban 1980: 160-181, 177-178. similarly, pogge (2005b: 77) takes no position on the relative stringency to of positive duties to their “negative counterparts”. 86 kasper lippert-rasmussen leap, 1 (2013) — 2005c: “what we owe to the global poor”, journal of ethics 9: 81-117. satz, d., 2005: “what do we owe the global poor?”, ethics & international affairs 19: 47-54. smilansky, s., 2004: “terrorism, justification, and illusion”, ethics 114: 790-805. valentini, l. forthcoming: “just war, distributive justice, and the enforcement of entitlements”. wenar, l., 2008: “property rights and the resource curse”, philosophy & public affairs 36: 2-32. leap 3 (2015) advantage, authority, autonomy and continuity: a response to ferracioli, gheaus and stroud h a r ry br ighouse university of wisconsin-madison a da m s w i f t university of warwick abstract we address three critiques of our book family values: the ethics of parent-child relationships (brighouse and swift 2014), published simultaneously with this reply. in response to stroud (2016), we emphasize the specificity of parents’ rights, and the modesty of our claims about them, challenging her laissez faire position on parents' right to confer advantage on their children, and stressing the merely illustrative role that we give to fair equality of opportunity. in response to gheaus (2016), we clarify our “dual-interest” approach and the content of the adult interest in parenting, while defending the claim that that interest is releva nt to t he justif ication of a rra ngements for t he ra ising of children. in response to ferracioli (2016), we explain our views about how many adults may properly parent a child, the significance of ch i ld ren’s autonomy, a nd t he va lue of cont i nu i ng relat ionsh ips between parents and their adult children. keywords: family, children, right to parent, autonomy introduction it is gratifying to have our views subjected to such careful attention. much of our response will consist of clarification—explaining what we are a nd, perhaps more impor ta nt ly, a re not t r y ing to do. our a rg ument is wideranging in that we address a series of issues concerning the ethics of parentchild relationships that are often treated separately, and ambitious in that we offer a novel and unified theoretical approach to those topics. but in other ways it is modest, more modest than it has seemed to some readers. 221 harry brighouse & adam swift leap 3 (2015) bet ween them, our three critics offer a varied and contrasting set of objections. stroud (2016) focuses on the egalitarian or distributive dimension of our argument, challenging our views about the limited scope of parents’ rights to confer advantage on their children. gheaus (2016) addresses rather what we call the liberal challenge to the family: issues concerning the moral basis of the right to parent and of parents’ rights over their children. while stroud is enthusiastic about our “expanding the discourse around the family by high light ing t he interests of (wou ld-be) parents” (2016 : 1, orig ina l emphasis), it is precisely our willingness to give adults’ interests any role in justifying childrearing arrangements that troubles gheaus. ferracioli (2016), for her part, endorses a dual-interest approach like ours but thinks we have misidentified the interests! stroud raises the most general methodological questions. she generously credits us with some ‘game-changing insights and argumentative strategies’ (2016: 180) but it soon emerges that in her view we are playing the wrong game! so we begin by explaining what game we are and are not playing, and why we think it’s the right one. those explanations underlie our approach to parental partiality and parents’ rights to confer advantage on their children, which is the substantive aspect that stroud criticizes. they also provide a framework for discussing key issues raised in the other papers. it is precisely because there is something morally distinctive, sui generis we might say, about cla iming rights to cont rol a not her huma n being t hat gheaus is doubtful about our dual-interest account. our attempt to explain those rights depends on our specific conception of the parental role as fusing love and intimacy, on the one hand, and authority or control, on the other—a fusion that is challenged by both ferracioli and gheaus. 1. being specific stroud wonders both why we want a sui generis justification of parents’ rights and why we limit them to the minimum necessary. the answer is that we regard parents’ rights as distinctive, and distinctively problematic, in two ways that she appears not to. on the distributive side, parents’ rights and duties to act partially towards their children conf lict with ideals such as equality of opportunity; children will have better or worse prospects in life depending on their parents’ ability and willingness to confer advantage on them. this challenge demands an account of why exactly parents should be free to do things to, for, or with their children that benefit them relative to others, and what they should be free to do. the liberal challenge, on the other hand, arises from the fact that parent and child have distinct and sometimes conflicting interests, and children are vulnerable and non-consenting parties to the relationship. we need an explanation of why exactly adults advantage, authority, autonomy and continuity 222 leap 3 (2015) should have rights over children, which adults should have them, and what those rights should be. for us, then, the family raises specific justificatory questions that require specific responses, and explain why, for us, parents’ rights are the minimum compatible w ith the kind of parent-child relationship that w ill realize familial relationship goods for its participants. like many liberal theorists, we see relationships involving some people exercising authority over the lives of non-consenting others as prima facie problematic. that exercise requires justification, and limitation, because those subject to that authority can properly demand an account of why they should be, or should have been, subject to those people within that domain of decision. like many egalitarian theorists, we think that relationships creating inequalities of oppor t u n it y a re prima facie problemat ic. t hose i nequa l it ies requ i re justification, and limitation, because those on the wrong end of them can properly demand an account of why they should be worse off than others just because they were raised by different parents. to be sure, t he libera l cha l lenge is more distinctively problemat ic. controlling other non-consenting human beings requires special justification; that’s why parents’ rights to exercise authorit y over their children pose peculiar problems. indeed, they trouble gheaus enough for her to argue that “the claim to a right to control a child’s life must be grounded exclusively in the child’s interest, in which case there is no sui generis right to parent” (2016: 202). benefitting others, by contrast, is commonplace. people routinely act pa r t ia l ly in favor of pa r t icu la r ot hers—f riends, lovers, co-relig ionists, compatriots—and these other types of relationship might be invoked to justify their doing so. indeed, one might doubt that relationships of any kind are required to justify inequality-creating interactions. plausibly, there is a general prerogative—one that has nothing at all to do with relationships, valuable or other w ise—not only to pursue one’s self-interest but also to confer benefits on others in ways that depart from equality. indeed, conferring benefits on others might be part of what it is in one’s self-interest to do. stroud seems surprisingly unconcerned on both counts. for her (2016: 183), “one might doubt whether parents raising children requires a sui generis justification in terms of the distinctive values it realizes, as opposed to simply falling under a more general and less demanding moral schema… [b]eing a parent is something that a great many adults very much want to do with their life. if someone very much wants to do x with her life, one might think that alone creates a significant moral presumption in favor of allowing her to do x—regardless, it would seem, of x’s specific content, or of whether her (or anyone’s) doing x would realize important objective values”. 223 harry brighouse & adam swift leap 3 (2015) we are not sure quite what counts as a “presumption”, but for us—as for gheaus the specific content of x in the child-raising case puts the burden of justification on those claiming the right to engage in that particular activity. it is problematic to claim the right to control the current life, and inf luence the future life, of another human being by appeal to considerations other than that other’s own interests. according to stroud (2016: 184), “there is no issue facing us as a society, to be settled collectively, about how to bring up children: there are only individual adults who want to parent children”. as a claim about how parents should be allowed to raise their children this is false. our society is constantly making collective decisions on such controversial questions as what kind of discipline parents should be permitted to exercise, what forms of medical treatment they should be permitted to administer or obstruct, what kind of education they should be permitted or required to provide for their children. but it also looks mistaken as a claim about whether there should be parentchild relationships—or, according to our stipulation, “families”—at all. the mere fact that individual adults want to parent children is not sufficient to establish the moral propriety of their doing so. her view on the distributive side is also surprisingly laissez faire. readers may disagree with our view that parents do not have the right to bequeath substantial wealth to their children, but surely few will reject it so quickly. disclosing that an inheritance from her husband’s mother made possible the purchase of the vermont farmhouse in which she wrote the first draft of her paper, she writes (2016: 185): “she loved her son, and the rest of us, and we know she would be deeply gratified by all the new horizons her bequest has opened up for us. faced with this vivid awareness of what her bequest has made possible for her son and my family, i find it simply impossible to accept that my mother-in-law ought not to have been able to leave my husband that money: that it would violate nobody’s rights to prevent or prohibit people from doing any such thing”. let us assume that the sum in question was indeed justly her motherin-law’s in the first place; that she had the moral, and not merely the legal, right to any say over it. even so, it is strange to think that one could assess whether she had the right to bequeath it to her son merely by awareness, however v iv id, of t he va lue of t he bequest to her a nd its benef icia ries. suppose t hat t he state had ta xed t he in herita nce suf f icient ly to ma ke purchasing the farmhouse impossible. would awareness of what could have been enjoyed in the absence of that tax make such a constraint on the bequest similarly “impossible to accept”? advantage, authority, autonomy and continuity 224 leap 3 (2015) we a nd st roud, t hen, approach t hese mat ters f rom ver y d i f ferent perspectives. but we must also emphasize the limits of our ambition. the f lip side of our offering a sui generis treatment of parent-child relationships is that we do not address all the rights that adults may properly claim with respect to the children they parent; we confine ourselves to those that invoke the fact that the adult is the child’s parent. we want to know when “because i am your parent” is a good answer to the question “why do you have the right to do that to, or with, me?” we want to know when “because i am her parent” is a good answer to the question “w hy do you have the right to do that for her?” (see brighouse and swift 2014: 120). other good answers to such questions might be available. perhaps parents have permissions, deriving from sources other than the familial relationship, that permit them to pursue their own projects in ways that will affect what they may legitimately do, all things considered, by way of exercising authority over their children’s lives (see brighouse and swift 2014: 121-2). perhaps they have permissions to confer benefits on anybody they like, including their children, which derive from a more general moral schema of the kind that stroud mentions. it would be a different task to engage with those other justifications. as far as our theory of parents’ rights is concerned, we are interested only in what kinds of partiality, and what exercises of authority, can be justified specifically on the ground that the other person involved is a child one is parenting. so stroud is mistaken in attributing to us (2016: 182) the v iew that “if disallowing pa rents a cer ta in right or priv i lege wou ld not impede t he development of a f lourishing parent-child relationship, then that putative right or privilege stands exposed and undefended against any arguments that could be raised against it” [original emphasis]. the putative right or privilege stands, for us, exposed and undefended only against the kind of argument that appeals to the fact that the alleged right or privilege holder is the child’s parent. indeed, when assessing what, all things considered, they should be free to do with respect to their children, we acknowledge the relevance not only of parents’ other roles or statuses but also of more indirect factors such as incentive considerations (see brighouse and swift 2014: 130-1). our contribution on the distributive side pursues a suggestion from samuel scheff ler, for whom parental partiality raises, in a particular form, the general issue of the “distributive objection” to special responsibilities that arise in the context of valuable relationships: “the problem with such responsibi lit ies is … t hat t hey may confer unfa ir benef it. … [s]pecia l responsibilities give the participants in rewarding groups and relationships increased claims to one another’s assistance, while weakening the claims 225 harry brighouse & adam swift leap 3 (2015) that other people have on them”. scheffler (2003: 102) observes that his account “is compatible with the view that the strength of one’s responsibilities depends on the nature of the relationships that give rise to them, and on the degree of value that one has reason to attach to those relationships. as far as the content of the responsibilities is concerned, we may assume that this too depends on the nature of the relationships in question . . .” [added emphasis]. our aim is to put the parent-child relationship under the microscope while allowing that a host of other considerations will be relevant to questions of leg it imate pa renta l pa r t ia lit y, a l l t hings considered, in a ny pa r t icu la r circumstances. it is compatible with recognition both that other relationships may generate ot her dist ribut ive cla ims a nd t hat indiv idua ls may enjoy prerogatives to favor themselves and others in ways that make no reference to relationships at all.1 whether we are playing the right game, or even a game worth playing, depends, then, on how important it is to identify, and isolate, this particular kind of justification. in our view, parents’ rights to exercise authority over their children are t y pically and substantially defended by appeal to the specific thought that the adults in question are indeed the child’s parents. we acknowledge that rights to benefit children are, by contrast, more often presented in a more general frame: “it’s my money and i can do what i want with it. if i want to leave it to my children or spend it on their education, that’s up to me”. but even here, distinctively familial considerations are often invoked, especially in attempts to justify blocking egalitarian measures. (“my job is to promote my child’s interests; you violate my rights as a parent if you interfere with my capacity to do that by, for example, limiting bequest, or restricting my freedom to spend my resources on her education”.) the task of identifying and isolating “family values properly understood”, and thereby exposing as unwarranted many such normative appeals to “the family”, seems to us a game well worth the candle. 2. conferring advantage that remains true even if, as stroud (2016: 191-192) claims, “the prohibition not just of bequests, but of all the various ways in which parents might seek to use their superior financial resources to benefit their children (think private schooling), would have only an insignificant effect on the unequal distribution of prospects for desirable jobs, etc. across children. that is, parents’ direct use of money to benefit their children is—it turns out—a relatively minor contributor to inequality of opportunity (brighouse and 1 a “relationship goods” approach may be relevant to those also. for an initial schematic move in one particular direction, see brighouse and swift (2011). advantage, authority, autonomy and continuity 226 leap 3 (2015) swift allude to this at 31-32 and 125-127.)” she thinks (2016: 192) that this admission makes “overly optimistic” our claim that our “account of ‘family values properly understood’ … mitigates—massively mitigates—the conflict with equality” [original emphasis]. but any appearance of tension between these two claims is illusory; dispelling that illusion may help to clarify our aim further. the first is an empirical point about existing societies. given current reward schedules, and the mechanisms by which people reach their places in the distribution, the direct use of parents’ money to benefit children may indeed be less significant contributors to inequalities of opportunity, between children raised in different families, than parent-child interactions of the kind endorsed and protected by our theory. the second is an observation about the kind of society that would be compatible with our account: it is perfectly possible to respect, and promote, what is important and valuable about the family without allowing parent-child relationships to produce anything like the inequalities of opportunity that they currently do. one way of doing this would be by reducing the extent to which children who participate in those relationships also benefit, in other ways, from doing so—that extent depends on how other social institutions are designed (see brighouse and swift 2014: 33). at present, “family values” are often invoked to defend not only the interactions w ithin the relationships but also the conferral of external benefits that they currently involve. by rejecting the claim that parents (qua parents) have the right to confer advantage on their children in ways that conf lict w ith fair equalit y of opportunit y, we challenge that defense. the game is still worth the candle, we believe, even when we add a further caveat: although we invoke “familial relationship goods” to identif y the interests that ground parents’ rights, we are explicit that the rights we are talking about are prima facie only. indeed, strictly speaking, the category of “familial relationship goods” is intended only to isolate those parent-child interactions that are “susceptible to justification by appeal to the parent-child relationship” (see brighouse and swift 2014: 146). some of those goods, and hence some of the interactions that produce them, are worthy of protection even when they conflict with fair equality of opportunity. others – such as the loving general promotion of one’s child’s interests – are not, we claim, weighty enough to warrant the cost in terms of that distributive value. just as one might have rights to benefit one’s children that do not derive specifically from the fact that one is their parent, so too one might not have, all things considered, the right to do things for them that one has, prima facie, in virtue of being their parent. perhaps, in a world where some lack what they need for mere survival, much of the time and energ y spent by 227 harry brighouse & adam swift leap 3 (2015) aff luent parents on the provision even of core familial relationship goods, for themselves and their children, exceeds the scope of any plausible right— especially where parents have more than one child. having identified a criterion for evaluating parent-child interactions as important contributors to valuable familial relationships, and so prima facie protected by parents’ rights, we offer a judgment about the considerations at stake in the conf lict between the advantage-conferring aspects of familial relationship goods, on t he one ha nd, a nd fa ir equa lit y of oppor tunit y, on t he ot her. but we explicitly refrain from offering judgments about the rights that parents have, all things considered, in circumstances (which we take to be our own) where the distributive ideal with which those rights might conf lict is more urgent than fair equality of opportunity (see brighouse and swift 2014: 143-5) we similarly refrain from considering what kinds of conferrals of advantage on children might fall under the parental dut y of care – the discharge of which is justified even where it conf licts with fair equality of opportunity – in circumstances where societal arrangements mean that those children face the risk, as adults, of falling into poverty or lacking medical treatment.2 a lot more is needed to get from (i) a criterion for identifying which parent-child interactions are and are not important enough to be worth protecting even where they conf lict with fair equality of opportunity to (ii) all things considered evaluations of particular prescriptions—whether political policies or indiv idual actions—in our current circumstances. indeed, a lot more is needed even, more modestly, to identify the precise content of parents’ rights in those circumstances. stroud doubts that fair equality of opportunity can bear the weight we put on it. we invoke that distributive principle as a criterion for distinguishing between different types of familial relationship goods. the “core” goods, as we term them, are important enough to be worthy of protection even when that undermines fair equality of opportunity. (though, as just noted, parents would have no complaint were institutions to be designed in such a way that that conflict was reduced or even eliminated.) but the good of generally having one’s interests promoted by a loving parent is not, we say, important enough to be worthy of similar protection; it should y ield to children’s interest in competing on fair terms with others. we agree with her that fair equality of opportunity is not a hugely weighty principle—we emphasize its limitations, and the importance of other distributive values, several times (see brighouse and swift, 2014: 33-5, 38-45, 143-8). maybe we are wrong to claim that, were it the only distributive consideration at stake, it could serve as a constraint on interactions in which the parent is lovingly motivated generally to further 2 for remarks on this issue in the specific case of school choice, see swift (2003: 119125). brighouse and swift (2014) attempts no analogous discussion of the more general issue. advantage, authority, autonomy and continuity 228 leap 3 (2015) the child’s interests. if so, that would be an objection to our proposed particular weighting of the conflicting values, not to our methodological approach. but we should also point out that our account of the core familial relationship goods leaves plenty of room for parental spontaneity and discretion in the way that they relate to their children (see brighouse and swift 2014: 140-3). that, combined with the recognition that loving parents will be spontaneously motivated to benefit their children quite generally, seems to us to leave sufficient room for the concern in question. in so far as the things that parents do to benefit their children are done as an inev itable part of a hea lt hy lov i ng relat ionsh ip, t hey a re protected by ou r t heor y. aga i n, though, our view is that the familial relationship itself cannot plausibly be invoked to defend any resulting conferral of advantage that gives children better chances than they would enjoy under fair equality of opportunity. the fact that one is spontaneously motivated to benefit one’s children, and hea lt hy relat ionships require space for sponta neit y, ex pla ins why one should be free to act on those motivations, but prov ides no objection to societal attempts to limit, or even eliminate, the impact of those actions on children’s prospects of the kind with which fair equality of opportunity is concerned. 3. claiming authority according to gheaus (2016: 196), “a right to parent is an anomaly by liberal lights: liberals acknowledge no other entitlement to exercise power over another individual legitimized in part by reference to an interest—no matter how important—of the one exercising power”. our dual-interest theory— and our positing different grounds for the right to parent and the rights of parents—is an attempt to strike the right balance between the interests of the different participants in the relationship. but we need to be clear about what exactly it means to have a dual interest theory, and where exactly adults’ interests come into the picture. to clarif y our approach, and our attempt to strike the right balance between the interests at stake, notice that there are at least three somewhat different issues under discussion: i. how children should be raised. here our argument for the family – for parent-child relationships – defends that practice against alternatives such as their being reared by professionals in state run childrearing institutions. ii. the content of parents’ rights: what rights parents can properly claim with respect to their children in virtue of being those children’s 229 harry brighouse & adam swift leap 3 (2015) parents. one can know that children should be raised by parents without having a full specification of parents’ rights.3 here we challenge conventional views that grant parents extensive rights to confer advantage on their children and to shape their children’s values. iii. how to match up children and adults in families. one can know that children should be raised by parents and what rights their parents should have without knowing who should parent, or by parented by, whom. here, inter alia, we reject both the view that genetic connection establishes an adult’s claim to parent a child and the claim that children have a right to be parented by the best available parent. in our view, different considerations are relevant to addressing these different issues. with regard to (ii), the content of parents’ rights, our account is exclusively child-centered. the rights in question are those needed properly to discharge the role of parent, which role is itself entirely fiduciary. but it’s a separate question, of type (iii), who has the right to be a parent, and our answer to that question invokes the adult interest in fulfilling the role (see brighouse and swift 2014: 121). understanding this position depends on keeping in mind the specific point with which we started: that parents’ rights are specifically the rights one has qua parent. the right to parent, by contrast, is one that one has, if one has it, simply as an adult. clarif ying the structure of our view does not show it is valid, or even coherent, but before moving on to that challenge, we can illustrate it further by attempting to address one of gheaus’ concerns. she is troubled, inter alia, by the right of parents to exclude others from having close relationships with their children, and attributes to us the view that parental authority includes a right to exclude those others “for reasons other than the protection of the child’s interest” (2016: 202). but, for us, the duty on the part of others not to undermine the relationship bet ween parent and child, like the right of parents to exclude others where it is likely to do so, derives entirely from children’s interests in the relationship (see brighouse and swift 2014: 87). it is precisely because—and only in so far as—it would be bad for children to have their familial relationships disrupted that parents have a right to exclude others from forming relationships with their children. that right, like all parents’ rights, is limited by, and justified in terms of, that fiduciary consideration. this is consistent with children having interests in relationships with other adults and indeed with facilitating such relationships being part 3 of course this is not an entirely separate enterprise. to justif y the family just is to justif y a child-raising arrangement in which particular adults have certain rights over the children they parent (see brighouse and sw ift, 2014: 86-7). still, the detailed and careful specification of the rights that one has, qua parent, is sensibly conceived as a further task, to be carried out after one has done enough to answer the first two questions. advantage, authority, autonomy and continuity 230 leap 3 (2015) of parents’ fiduciary role. gheaus may object that the right to exclude is not properly characterized as a right one that one has qua parent. rather, she might suggest, it should be seen as an aspect of the right to parent. after all the right to parent includes the right to exclude others. something of this kind, indeed, is true of all parents’ rights: the relationship involves various rights (and duties), so in claiming the right to parent one is claiming the rights of a parent. if, as we think, adults’ interests are relevant to deciding who has the former, then they are obviously relevant to deciding who gets the latter. so adult interests do indeed come into the story that explains why they have the right to exclude others from relationships with particular children; they come in as considerations taken into account by the procedure that grants to adults the (entirely fiduciary) rights that they have with respect to the children they parent. gheaus may yet be right to reject our view: we have not yet defended the claim that adults’ interests are indeed relevant considerations. but we doubt that those adults who, as a result of the allocation, are excluded from relationships with those particular children, have a valid complaint. their exclusion is the outcome of the right way of deciding who should get to exclude. let’s think about gheaus’ refugees. in her scenario, the refugees seem only to be refugees. there is a question about how they should be socialized into the host community but no suggestion that, having been socialized, they might in turn be involved in the socialization of future waves of refugees. suppose, instead, that migration is expected to continue, and that most of the current refugees, having been socialized, will come to have a strong interest in playing a socializing role for those future refugees. suppose we agree with gheaus (2016: 201) that “it is exclusively the refugees’ interests that determine the ideal way of socializing them”. which way of socializing refugees does in fact serve these refugees’ interests best? the answer will surely take into account not only their interests qua refugees, but also the future or prospective interest they are likely to develop, qua prospective socializers. imagine asking a refugee how she would like to be socialized: “would you rather be socialized in whatever way was best for you, or in a way that meant that your opportunit y to take your turn in socializing future refugees did not depend entirely on whether you were the best available socializer?” wouldn’t she reply: “i’m not sure i understand the question. the way of socializing me that’s best for me is the one that is best for me over my life as a whole. if it’s very valuable for me to have the opportunity to socialize future refugees, then the system of socializing that would be best for me, over my life as a whole, is unlikely to be one that makes that opportunity depend entirely on my being the best available socializer 231 harry brighouse & adam swift leap 3 (2015) of any one of them”. this is one sense in which a theory of childrearing arrangements could be “dual interest”: it takes into account people’s interests both as children and as the adults those children will become. if, as we claim, and gheaus does not deny, many adults do indeed have a weighty interest in parenting a child, then so do the children who are going to become those adults. they are the same people. on this interpretation, a child-centered view might be one that regarded as relevant only people’s interests as children, i.e. during the period of life in which they are children. such a position is deeply implausible. children’s interests in that sense are indeed important, and we agree that there has been a tendency to overemphasize the view of children as “adults in the making”, to see them too much as “becomings” and not enough as “beings”, and to underplay the value of what we might think of as the intrinsic or special goods of childhood. but, in standard cases, nobody would seriously suggest that we could assess childrearing practices by ignoring their formative impact on the adults that children become. indeed, this understanding of what it would mean for a theory to be child-centered would run contrary to standard usage in the literature. when philosophers talk about children’s interests in how they are raised, they include their developmental interests, their interest in developing capacities that will benefit them when they reach adulthood. those, like us, who frame their views in terms of a contrast between the childrearing interests of children and adults actually intend something different: by “children’s interests” we mean simply all those interests in how they are raised, including those that will affect their lives as adults, except the interest they will have, as adults, in how children are raised. we are interested in people’s lifetime interest in childrearing arrangements, but we separate out that particular adult interest for analytical purposes, and to show how giving it its proper weight qualifies the extent to which their other interests should determine those arrangements. a child-centred account, on this interpretation, would treat that adult interest as irrelevant to the question of how children should be raised. that too strikes us as implausible. to be clear, on this construal, a dual interest view does not guarantee that any particular child will be raised by the particular adult(s) who would in fact have been best for her over her lifetime. nor do children collectively have a claim to that particular allocation of adults to children that will be best, overall, for children over their lifetimes. the point is not that, once we have the right account of children’s lifetime interests, they do have a claim to the best available parents after all. rather, they should be parented according to childrearing arrangements—understood as a way of arranging the raising of children and, more specifically, a way of arranging who is parented by whom—that advantage, authority, autonomy and continuity 232 leap 3 (2015) is best for them over their lifetime. the rationale for a dual interest view is that the price, for children themselves, of being parented according to childrearing arrangements in which children are parented by their best available parents will be too high. discussing how much we owe children, matthew clayton (2015: 251) points out that: “what is best for us as children … may not be best for us taking our lives as a whole when we factor in the costs of fulfilling the duty to provide the best childhood for any offspring we might have”. similarly, the way of arranging the raising of children that is best for us “as children” may not be best for us taking our lives as a whole, when we factor in the costs of fulfilling the duty to provide children with the best way of raising them “as children”. an entirely child-centered way of arranging the raising of children, in either of the senses we have identified, will be costly in two different ways. first, it could leave adults who have a weighty interest in parenting unable to do so simply because there would not be any children for whom their pa rent ing wou ld be best. second, less obv iously, a nd empirica l ly less plausibly, it could require adults who have no interest in parenting—indeed whose lives would go much worse—to serve in that role, simply because, as it happened, en l ist i ng t hei r ser v ices wou ld be opt i ma l for ch i ld ren. thinking about people’s interests over the life course, this surely gets the intra-individual balance of interests wrong. what about a child who will never reach adulthood, so has no interest in being able to parent? it might seem that her interests are decisive against the claims of any would-be parents. but what drives our intuition in that case may be not the fact that she is a child but rather that her life’s shortness, and her failure to develop into adulthood, mean that she will be so badly off, on a lifetime view, that her interests during the short time that she has should be regarded as decisive. think instead about children whose lives w ill other w ise go normally, but who, as it happens, have no interest in themselves becoming parents. it is true that we cannot say to them that their lifetime interests are better protected by a way of arranging childrearing that gives some weight to the adult interest in parenting. but it is not clear to us why the interests of adults who do have that interest should be ignored altogether. imagine a parent saying to her child: “i know that someone else would have done a better job of parenting you. i know, further, that you will not personally benefit from the way in which our societ y’s childrearing arrangements protect people’s interests in becoming parents. but i hope you agree that it was so wonderful for me to get to be your parent that you don’t have any complaint against me for parenting you, despite not being the person who would have parented you best, or, more relevantly, not being the parent you would have had under a system that regarded children’s 233 harry brighouse & adam swift leap 3 (2015) interests as the only ones that matter. after all, i was good enough”. of course there is a question about quite how much worse than the relevant alternative a parent could be before the child did indeed have a complaint; that is the quest ion of whet her “good enough” shou ld be const r ued in absolute or comparative terms (see shields 2016). but to resist gheaus’ objection we need only defend the v iew that adults’ interests should play some role in deciding childrearing arrangements. two considerations, both raised by gheaus’ example, might seem to lend support to the view that only children’s interests should count. one is the suggestion, more than hinted at by the analogy with refugees, that children are in a parlous state and in need of rescue. this would correspond to the thought that childhood is a “predicament”, an unfortunate state, certainly inferior to adulthood (schapiro 1999). suppose childhood is a predicament from which people need to be rescued. would it follow that they should be rescued in the way that was best for them, without any regard to the interests of the rescuers? when we think of refugees, of course, we typically imagine them to be not only in desperate need through no fault of their own but also victims of injustice. but unless we regard children as wronged simply by being brought into ex istence, we doubt t he a na log y holds. indeed, in standard rescue cases it’s not obvious that potential rescuers have to rescue in the best possible way, and with no regard to the costs, to them, of different ways of rescuing. in the case of children, we need to keep in mind that, for all we know, children may go on to have much better lives, overall, than those who parent them—even if their interests are not the only ones that determine how they are raised. with that clearly in mind, why should we only think about them when deciding how they should be raised? perhaps, however, the problem is specifically that the child is subject to the authority of the parent. she needs others to exercise control over her and, as we have said, there is something distinctively problematic about one person claiming a right to authority over another on grounds other than that other’s interests. this is what gheaus (2016: 200) calls ‘the republican response’: “if it were possible to promote the refugee’s current well-being and future autonomy without locking her into any particular relationship, then giving you—or another private individual—authority over her would be w rong because it wou ld ma ke her subject to (perhaps benevolent) domination”. this frames the point in relation to issue (i): should children be raised by parents (in families) at all? but it applies also to issue (iii). grant, for the sake of argument, that it is best for children to be raised in families. one might still think it objectionable, on republican grounds, to advantage, authority, autonomy and continuity 234 leap 3 (2015) subject particular children to the authority of particular adults except on the grounds that the matching-up of children to adults is optimal for the children.4 it is misleading to give too much emphasis to the idea that parents have a n interest in exercising aut horit y as such. gheaus is more ca ref u l, but ferracioli (2016: 217) claims that we vindicate “the current model of parental authority” by arguing that parents have an interest in “exercising authority over ch i ld ren”. ou r ex posit ion of t he adu lt i nterest empha si z es t he normative significance of the particular combination of features of the parenting relationship (see brighouse and swift 2014: 88-93). it’s valuable to play the fiduciary role, and to have responsibility for decisions affecting the child’s upbringing, in the context of a relationship with other distinctive features, which might be summarized as loving intimacy. controlling, or exercising authorit y, plays a key role in our analysis because this is the distinctively troubling aspect of the relationship, and the one that has led some theorists to develop entirely child-centered accounts. but that does not mean that it is the interest in controlling, or exercising authority, that does the work on the adult side. someone who wanted to parent in order to control or exercise authority over a child would be badly missing the point. both gheaus and ferracioli press us on the way in which our account of the parent-child relationship fuses intimacy and authority. we emphasize t he va lue to t he ch i ld of ex per ienci ng her pa rent a s bot h lov i ng a nd authoritative, as well as the adult interest in having some responsibility for a nd discret ion over how she conducts her relat ionship w it h her chi ld. (imagine the reading of prescribed bedtime stories as the dutiful execution 4 at the end of her paper, gheaus considers how the way that children come into the world might relate to the question of how they should be raised and, if parented, who should parent them. it is, as she says, surely an important disanalog y between children and her refugees that children already have connections of various kinds to particular adults. although she ta lks about biolog y, a n a na ly tica lly distinct—t hough empirica lly of ten associated— connection should perhaps be particularly salient to those worried by the idea of adults appealing to their own interests to justif y claims to parent children. w hat’s objectionable, for gheaus, is an adult claiming a parenting relationship with a child on the ground that the relationship will benefit the adult. in general terms, we might say, the adult is using the— non-consent i ng— ch i ld a s a mea ns to t he adu lt’s ends. if gheaus t h i n k s t hat wou ld be troublesome in a world where babies were brought by storks, she shou ld surely be much more concerned about a world, like our own, where babies are typically produced in order to serve the interests of those producing them. it seems less problematic to allow hosts’ socializing interests to influence how refugees are socialized than it is to allow adults’ interests to inf luence how children are raised when those adults have deliberately created the children and have done so in order to claim a parental relationship with them. that really does look like using children as a mea ns to one’s ow n ends. rat her t ha n a gestator y relationship helping to establish a right to raise a particular child, as she has elsewhere suggested (gheaus 2012), perhaps an adult’s interests should count less where she has deliberately created the being that now stands in need of rescue-by-authority from his predicament. 235 harry brighouse & adam swift leap 3 (2015) of state directives.) but interesting questions arise about the extent to which, and ways in which, these two features need to go together, and how they might come apart while preserving the essential core of the relationship. in thinking about this, it might be useful to distinguish micro-authority, understood as the day-to-day regulation, disciplining, and control of the chi ld, f rom macro-aut horit y, understood as t he ma k ing of big picture decisions, such as where the child goes to school, whether she eats meat, whether she attends religious services, and so on. we already insist that the weighty familial relationship goods at the heart of our account could be produced in parenting regimes that gave parents much less discretionary authority than they currently enjoy on macro-issues, so we think of ourselves as attempting to limit the authoritative dimension to the minimum necessary. those goods are surely hard to produce when parents are having to deny or conceal too much of themselves, or to raise their children in ways that they regard as deeply misguided. but we are in principle sympathetic to gheaus’ suggestion (2016: 202) that (macro) authority and intimacy might be disentangled in so far as that can be done without undue cost to relationship goods. like gheaus, ferracioli objects to our claim that both adults and children have an interest in the adult simultaneously loving, caring for, and having considerable authority over, the child. the family as we understand it is coercive, t he pa rent exercising power over t he chi ld, a nd we cla im t hat ch i ld ren need at lea st one person who both loves t hem a nd exercises discipline over them. children need one person to love them because being loved is a precondition for their healthy emotional, moral, cognitive, and even physical development. they—especially when they are very young— need someone who disciplines them because they are inexperienced in the world (they do not, for example, know what is dangerous) and lack the kind of self-control necessary f luently to exercise agency. and they need these roles to be played by a single person because that person will then more successfully guide them understand and regulate their emotional reactions to the world and develop the tendency to react appropriately to it. someone who disciplines them w ithout lov ing them or being loved by them may, perhaps, be able to get them to comply with commands through fear, or charisma, but the important developmental aim of disciplining a child is not to secure their compliance in the moment, but to get them, over time, to internalize disciplinary regulation. this is one reason why children can only have a limited number of parents—we don’t know the number, but in the book we suggest that four might be the limit. ferracioli sees this as a drawback, and poses an alternative that would allow for “more dispersed authority among parties who care robustly for a child, and so, in principle, allows for more than four parents”. for her (2016: advantage, authority, autonomy and continuity 236 leap 3 (2015) 218), “this is already taking place with modern family arrangements where children are loved deeply by their parents, stepparents and godparents … it seems odd to artificially limit the size of the family just so that each adult can exercise more authority over her life”. our suggestion that a child cannot have more than four parents is a conjecture, not a stipulation. we just don’t know how many parents (in the sense of lovers who also discipline) a child can have. but too many—and we suspect that five would be too many—carries risks. first the child may not receive sufficiently harmonized information about how to interpret and interact with the world. adults have different parenting styles, conveying different messages; though all five may discipline the child well, for example, her development may be impaired by too many mixed signals. second, she may not be well enough cared for, because the coordination costs escalate as the number of caregivers increases. consider a typical day with a toddler. you look after the toddler for 6 hours, and then a second parent takes over while you go to work for a while. to look after the toddler well the second parent needs a good deal of information—what mood is she in today? how might it affect her behavior? when did she last eat and did she eat well? is a tooth bothering her? did she nap well, or not at all? has anything happened that might produce a delayed reaction? it is easier to convey this information well if the other parent has spent a good deal of time with her recently; pa r t ly because he t hen ha s a good dea l of t he necessa r y backg rou nd information about the child, but also because his skills of caring for her are still in good shape. the more transitions the child makes among adults, the leakier the information bucket, and the rustier the carers’ skills. finally, as the number of parents with authority increases, the potential for disputes about what the interests of the child are and how to meet them escalates, as do the costs of resolving them, while the prospect of resolution diminishes. already, with just two parents, this can be difficult. the reason to limit the number of parents, then, is not so that any individual can exercise more authority over a child’s life, but so that children’s interests can be better realized all that said, our claim that parents rightfully have authority over their children does not imply a vision of a cramped, socially isolated, nuclear family. it is in children’s interests that parents exercise considerable authority over them, and others must be careful not to undermine the parent-child relat ionsh ip. but over t he cou rse of t hei r ch i ld hoods ch i ld ren have a profound interest in having relationships with a variety of suitable adults: it helps them to see alternative ways of being an adult, and alternative ways of dealing with the world, giving them resources to ref lect on who they really are, what they really value, and how to conduct themselves. parents have a duty to facilitate and encourage those relationships (see gheaus 2011). 237 harry brighouse & adam swift leap 3 (2015) 4. accomodating pluralism fer raciol i proposes t wo desiderata for a just i f icat ion of t he fa m i ly : it should account for the value of the family over the life-course (2016: 201212); and it should be pluralistic, in that it should be able to justify the family in “non-liberal cultural contexts” (2016: 212-214). our theor y, she says, satisfies neither. it fails on the first because it focuses on relationship goods produced by the interactions between parent and child during the latter’s childhood; those goods are, for the most part, no longer produced once the child has become an independent adult. it fails on the second because of its emphasis on parents’ obligation to facilitate their child’s autonomy; parents in some non-libera l cu ltura l contex ts a re indif ferent or host i le to t he development of autonomy but st i l l “ma nage to enjoy a g reat deg ree of intimacy, love and af fection w it h t heir children, and … t he lives of a ll parties go much better as a result of partaking in such loving relationships” (2016: 213). let’s start with pluralism. ferracioli (2016: 213) claims that we are “too quick in assuming that parents are typically capable and willing to ensure that their child develop the agential skills needed to make their own life choices…” and “fail to see that the right of children in becoming sufficiently autonomous can instead correlate with a duty on the part of the state to create a neutral system of compulsory public education” (2016: 213-214). but we assume neither that parents will be motivated to facilitate autonomy nor that, even if so motivated, they will be able to do so without a cooperative environment, such as the right kind of schooling and a reasonably f luid and pluralistic culture. w hen the environment is not supportive – when, for example, adequate schooling is unavailable, or, as for some black families in some american cities, access to it puts children in physical danger—parents are raising children in non-ideal circumstances. as we have said, we make no attempt at the complex task of weighing the different considerations that apply to parents in such circumstances. nevertheless, in liberal societies, autonomy is an important achievement, and parents who successfully resist t he development of t heir chi ldren’s autonomy in a libera l societ y a re w ronging those children. more, they are losing something valuable for themselves—the challenge of raising a child to independence, aiming to enable her to separate herself from them, while hoping that, nevertheless, they can remain close. the value of autonomy—and of raising a child to be autonomous—enable us to say something about what is wrong with illiberal societies and societies that, although not illiberal, permit environments in which parents’ concern for their children’s wellbeing rightly inclines them not to facilitate their advantage, authority, autonomy and continuity 238 leap 3 (2015) children’s autonomy. one thing that is wrong is just this: that they make it harder, or dangerous, for children to become autonomous, and make it harder, or wrong, for parents to experience the good of raising a child to become autonomous. it also enables us to say something about what parents do wrong when unduly insistent that their child “uncritically endorse what they take to be deep truths about the world” (ferracioli 2016: 213). does our theor y justif y the family in non-liberal cultural contexts? assume t hat non-libera l contex ts a re cha racteri zed by indif ference or hostility to autonomy: parents do not aim to make their children autonomous and independent, and the social environment does not take up the slack, as it were, so autonomy is neither valued as an aim, nor an achieved as an outcome. in such contexts the family can still be valuable, and can still be justified, and our theory does explain why: parents can still oversee children’s development, and both parties can enjoy intimate, close, loving relationships and enjoy familial relationship goods. but both parties are also missing something of great value—a v ital developmental interest of children is neglected, and parents miss out on the distinctively rewarding challenge of acting as a fiduciary for someone whom one is raising to full independence of thought and word and deed. someone who did not value autonomy, or was even hostile to it, could accept a great deal of our theory, while rejecting the claims we make about t he impor ta nce of autonomy for chi ldren, a nd t he dist inct ive va lue of fostering autonomy as part of the fiduciary obligation toward children. she would offer different content for children’s interests, and hence for the adult interest in acting as a child’s fiduciary, but could nevertheless think we have said enough that is right both to justify the family, and to vindicate, for example, our analysis of legitimate parental partiality. 5. valuing continuity fer r ac iol i’s second desider at u m for a successf u l ju st i f ic at ion of t he parent-child relationship is that it can explain the continuing value of the r el at ion s h ip b et w e en pa r ent a nd c h i ld a f ter t he c h i ld h a s r e ac he d adulthood. while we agree that there is great value to such relationships— and we think our theory explains it—we reject her view if it is understood as proposing an adequacy condition on a justification of the family. we nevertheless found this objection helpful in clarifying what the project of justifying the family is. the task of justifying the family is different from the task of exposing all of the good-making features of the family. ferracioli’s description of the 239 harry brighouse & adam swift leap 3 (2015) value of continuing relationships bet ween parent and child beyond the latter’s childhood does, indeed, seem to us to be a description of something very good in human relationships, that the family (or something very like it) makes possible. in justifying the family, though, we are trying to justify a distinctive arrangement that, given its unusual character and, in particular, its assignment of considerable discretion in the use of coercive power to some human beings over others who are asymmetrically dependent and vulnerable, appears to call for justification. a principle of parsimony seems in order: we should invoke just those good-making features that are needed in order to do the justificatory work, and no more. we do think that the good of continuing relationships in adulthood adds to the value of the family, but invoking it to justify arrangements of this kind is not necessary and, in fact, probably does no work, because the relationship it refers to is among consenting adults. anticipating this response, ferracioli (2016: 212) rejects it as follows: “one reason why this response is unsatisfactory is that the inability of the child to exit a parent-child relationship is not a necessary feature of this sort of relationship and that it is possible for there to be intimate relationships where the child actually enjoys exit options. these are, for instance, relationships where a parent lacks custody rights over the child and decides to give the child a lot of space to choose whether or not, and to what extent, to partake in the relationship. one might think that the enjoyment of exit options on the part of the child dispels the need for justification in such cases, but i take it that the degree of int imacy involved at a l l stages of t he relat ionship, a nd t he mere possibi lit y t hat societ y cou ld be a rra nged dif ferent ly, suf f ice for ma k i ng t he pa rent-ch i ld relat ionsh ip, at its most genera l level, proper subject of philosophical justification. it would therefore be unsatisf y ing if brighouse and sw ift were solely in the business of explaining why it is permissible for there to be relationships between competent parents and children where the latter have no prospect of exiting the relationship”. we are not sure whether we understand the case properly. if the child had exit options from the start of the relationship it seems to us that it just isn’t a parent-child relationship. is the child mature enough that a responsible parent is justified in giving her exit options, as opposed to on the one hand making the choice for her (because he is in the rare situation of having good reasons to believe she will be much better off without him) or, on the other, giving her temporary space to spend less time with him? if so, then it is not clear that he is, any longer, a parent to her because, even before she exits, he is no longer playing the fiduciary role. in any case, we agree with ferracioli advantage, authority, autonomy and continuity 240 leap 3 (2015) that something is going wrong in this relationship, and we agree that our theory does not explain what is going wrong, but we are not unsatisfied with this. that said, we think that our justification of the family does help to explain the value of the continuation of the parent-child relationship into the child’s adulthood. in general, it is good for people to continue intimate relationships with others, and it is easy to see why, for the parent, continued intimacy with an adult whom he has raised from childhood would be especially good. it is similarly easy to see why the loss of that relationship might be devastating. for the child, continuing into adulthood a relationship with someone who has overseen her development, but from whom she is now independent, is distinctively valuable, and in ways that go beyond the disorientation likely to result from the ending of the relationship. concluding comment it is delight f u l to have one’s work read at a l l. to have it read ca ref u l ly, thoughtfully, and engaged with by excellent critics is an honor. we’re grateful to the editors for prompting the critics and to the critics for giving us such rich food for thought. bibliography brighouse, h., and a. swift, 2011: “legitimate partiality: parents and patriots”, in arguing for justice: essays for philippe van parijs, ed. a, gosseries and y. vanderborght, 115-24, louvain-la-neuve: presses universitaires de louvain. — 2014: family values: the ethics of parent-child relationships, princeton nj: princeton university press. clayton, m., 2015: “how much do we owe to children?”, in permissible progeny?, ed. s. hannan et al., 246-64, new york: oxford university press. ferracioli, l., 2016: “why the family?”, law, ethics and philosophy 3: 205-219 gheaus, a., 2011: “arguments for nonparental care for children”, social theory and practice 37:483-509. — 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-55. — 2016: “is there a right to parent?”, law, ethics and philosophy 3:193-204 schapiro, t., 1999: “what is a child?”, ethics 109: 715-38. scheffler, s., 2003: boundaries and allegiances: problems of justice and responsibility in liberal thought, oxford: oxford university press. shields, l., 2016: “how bad can a good enough parent be?”, canadian journal of philosophy: published online, doi 10.1080/00455091.2016.1148306. stroud, s., “egalitarian family values?”, law, ethics and philosophy 3: 180-192 swift, a., 2003: how not to be a hypocrite: school choice for the morally perplexed parent, london: routledge. leap 3 (2015) are unequal incarceration rates unjust to men?1 gi n a schou t e n harvard university abstract the genetic endowment of males makes them likelier than females to be perpetrators of violent crime and thus to end up in prison. philippe van parijs notes this and raises a startling question: is it not an injustice to males that their unchosen genetic endow ment renders them likelier to suffer the harms of incarceration? in this brief response, i canvass some tempting avenues by which we might think we can dispel the puzzle, and argue that each is unsuccessful. this will disappoint those hoping for a refutation of the claim lurking behind van parijs’ question: that even as their criminal behavior is so profoundly harmful to so many innocent victims, male violent offenders are themselves somehow victims of injustice. i hope to show that this indignation-provoking claim is far more difficult to refute than we would have hoped, but also to suggest that it is far less threatening— and less bizarre—than we might have feared. keywords: crime, gender, incarceration, justice, sex, testosterone introduction in his fourth puzzle on gender equality, philippe van parijs notes that the genet ic endow ment of ma les ma kes t hem l i kel ier t ha n fema les to be perpetrators of v iolent crime and thus to end up in prison.2 he raises a startling question: if the unchosen genetic endow ment of males renders them likelier than females to suffer the harms of incarceration, could this be an injustice ( van parijs 2015: 88) plausibly, it adds to the injustice of poverty that those who grow up in poor families are likelier to be incarcerated 1 i am grateful to paula casal, jeff behrends, harry brighouse, and three anonymous reviewers at law, ethics, and philosophy for asking challenging questions and making valuable suggestions on previous drafts of this response. 2 for more on biological contributions to male crime, see thornhill and palmer 2000, casal 2011, and rainer 2013. for data on men’s greater criminality, see greenfeld and snell 2000. 137 gina schouten leap 3 (2015) than their more privileged counterparts.3 why, asks van parijs, do we have the intuition that the elevated risk to those born with these disadvantages is different than the elevated risk to those born with male genetic endowments? those who are concerned about ongoing injustices against women are likely, at first, to find these puzzles irritating. we might lament the opportunity costs of theorizing alleged injustices against men when women continue to be victimized by pervasive structural injustices, and worry that such t heor i z i ng w i l l slow prog ress towa rd women’s equa l it y. i sha re t hese worries. still, hormonal inequalities may generate injustices against men even if this fact is troubling for those concerned to strengthen coalitions for social reform on behalf of women. of course, it is right that men be overrepresented among the prison population given that they commit more violent offenses. we must protect victims and potential victims, and incarceration presently offers the best means of doing so. but is the higher likelihood of incarceration among ma les unjust? the ha rms of inca rcerat ion ca n be severe. they include foregone opportunities for flourishing, alienation from spouses and children, enhanced risk of being oneself a victim of violence, and difficulty finding and keeping employment subsequent to release.4 if men are, through no fault of their ow n, likelier to suffer these harms, then we must at least entertain van parijs’ question—a puzzling question to be sure, since the putative injustice to men would result, most proximally, from their doing violence to their victims: often, women. in this brief response, i canvass some tempting avenues by which we might think we can dispel the puzzle, and argue that each is unsuccessful. no doubt other avenues for response exist, but i consider what i take to be the most plausible. having explored these possible responses and found them unsatisf ying, i tentatively conclude that men’s higher likelihood of 3 no doubt rates of inca rceration wou ld be higher in t hese communities even if crime rates were not, but i assume that part of this correlation is due to elevated crime rates. as van parijs says, elevated crime rates among the poor are “in part no doubt but not only because they tend to be sentenced more severely for the same crimes” (87). 4 see na acp cr i m i na l just ice fact sheet. some of t hese ha r ms a re i nt r i nsic to incarceration, but some are contingent—incarceration need not be as harmful as we make it. i suspect that an elevated likelihood of criminal behavior is bad for offenders even if they are never caught: whether or not they feel remorse for their crime, violent offenders are likely to experience greater difficulty maintaining or developing intimate relationships. even those with a propensity to violence who never offend are likely to struggle to achieve and maintain the kinds of interpersonal relationships that, for so many, are crucial contributors to wellbeing, and they may be worse off for this whether or not they themselves judge it to be a loss. but nothing i say in the rest of this paper relies on the mere propensity to violence being harmful. all i will assume is that, on average, incarceration itself is harmful; i take it that any plausible metric of justice will have the resources to register it as such. are unequal incarceration rates unjust to men? 138 leap 3 (2015) incarceration is a distinct injustice to men. this tentative conclusion is highly counterintuitive, but i suspect that a great deal of our resistance to it owes to worries about the strategies we might pursue to remedy the injustice. so i conclude by briefly sketching what seem to me some promising social policies to address inequalities in incarceration prospects—including unequal prospects based on sex, if it turns out that such inequalities are unjust to men. how might we try to dispel the puzzle concerning men’s incarceration? i first consider some reasons for thinking there is no injustice at all. i then consider a response that grants that there is some injustice but maintains that it is overridden by the many injustices of which men are beneficiaries; this response acknowledges that there is an injustice to men, but maintains that it is of no practical consequence, for men are owed no recompense. 1. natural or social? we might start by questioning van parijs’ causal claims. are the differences between men and women that lead to men’s higher rates of violent crime really genetic, as he suggests? isn’t it plausible that some of these behavioral differences are due in part to social or environmental influences? plausibly, even if genet ic dif ferences a re present, cer ta in socia li zat ion pract ices exacerbate their effects: if young boys are encouraged or indulged more when they display aggression, or if they are indulged more in losses of temper because gender norms make us more tolerant of male anger than female anger, these trends might help explain men’s greater criminality. even if they do, this does not dispel van parijs’ puzzle. if rawls was right that social and natural contingencies are “equally arbitrary” from a moral point of view (1971/1999, p. 64), then social contingencies justify inequalities no more than natural contingencies. if we have reason of justice to mitigate unearned disadvantage, those reasons apply no less to the disadvantage that results from socialization than the disadvantage due to genes. even if social and natural contingencies are equally morally arbitrary in t he sense t hat t he person whom t hey disadva ntage is equa l ly nonresponsible for t hem, however, socia l cont ingencies at least seem to be within society’s control. because society appears responsible for creating it, socially-caused disadvantage might be thought more urgently to call for remediation. i find this implausible. suppose there really is a fact of the matter about the extent to which the causes of any particular disadvantage a re socia l or natura l. st i l l, socia l ly-caused disadva ntage need not, in principle, be more a menable to cha nge by col lect ive act ion, eit her by mitigating the disadvantage or by mitigating the social differences that 139 gina schouten leap 3 (2015) cause it. neither genes nor their justice-relevant effects are immutable. in a paper on educational justice, christopher jencks asks us to consider two deaf children: one child’s deafness is due to an environmentally-caused early childhood disease; the other child’s deafness is due to a genetic defect. according to jencks, “the fact that one child’s deafness was a product of heredity while the other child’s deafness was environmental in origin tells us nothing about the physical character of the problem or the likelihood that it has a medical remedy” (1988: 523).this point about immutabilit y increasingly applies to the source of disadvantage as well, as social sources of disadvantage become increasingly complex and gene therapy becomes increasingly sophisticated. whatever the source of men’s greater aggression, it could be addressed through collective social action—either by efforts to change socialization patterns, by existing gene selection and therapy, or by developing new technologies for genetic modification (casal 2013, 2015, 2016; rainier 2013). but t his is a l l la rgely beside t he point. if men’s g reater li keli hood of criminality is due to social inf luences contrary to what van parijs claims, and if social inequalities do more urgently call for remediation contrary to what i have cla imed, t hen we have on ly st reng t hened t he g rounds for t hin k ing t here is injust ice here. but if va n pa rijs is right to rega rd t he difference as genetic, then we’re back to the puzzle we began with: is it not unjust that genetic make-up renders men likelier than women to engage in violent behavior, thereby rendering them more susceptible to the harms of incarceration? whatever configuration of social and natural causes are at work, they presumably make males likelier to be incarcerated because they make it more difficult for males than for females to avoid the kinds of behaviors that lead to incarceration. if so, then the inf luence of unchosen genetic or social endowment on males’ prospects for incarceration seems to be the sort of starting gate disadvantage that justice condemns. 2. harm to others? violent crime is deeply harmful. it harms v ictims, and its harms extend beyond its immediate victims; for example, it inf licts opportunity costs in the form of public resources spent on prosecution and incarceration rather than other socially valuable projects. can we dispel the puzzle van parijs’ question raises by arguing that the serious and pervasive harms that crime inf licts tel l aga inst men’s g reater li keli hood of inca rcerat ion being a n injustice to them? is it a plausible condition for an ex ante inequality in life prospects to constitute an injustice that those on the losing end not harm others in accruing the deficit they were ex ante likelier to accrue? no. just are unequal incarceration rates unjust to men? 140 leap 3 (2015) as men are disproportionally likely to be incarcerated relative to women, the least advantaged are disproportionally likely to be incarcerated relative to the more advantaged. this elevated likelihood of incarceration is plausibly one dimension of the injustice suffered by those who grow up poor through no fault of their own, and this would be true even if the effects of poverty on incarceration were mediated entirely by actual criminality—that is, even if poverty did not elevate one’s likelihood of incarceration beyond the extent to which it elevates one’s likelihood of committing a crime. similarly, the effects of hormones on men’s high likelihood of incarceration are mediated by their criminality—by their harming others. but to be consistent, we must regard their unequal propensity to criminality as no less unjust on that count. this is true even if, plausibly, men’s criminality and the criminality of those born into disadvantaged circumstances disproportionally victimize those who are already unjustly badly off themselves. 3. free choice? genetic and hormonal differences may render men likelier than women to engage in certain behaviors, but whether or not any of us in fact engages in t hose behav iors is, at t he end of t he day, up to us. va n pa r ijs read i ly acknowledges that “the role played by free will in the causal process is by no means irrelevant” (86), and clarifies that his drawing attention to the role of genetics is meant in no way to exonerate men for their violent crimes. how, then, is men’s greater propensity to violence an injustice, if we acknowledge that choice plays a role in determining whether any particular man acts on this propensit y? if we are right to hold indiv iduals accountable for the choices t hey ma ke, even when factors beyond t heir cont rol a f fect t heir likelihood of making those choices, why should we think that men suffer injustice due to the genetic endowments that make them, on average, likelier to be violent? consider the income inequality between women and men. some of the inequality is due to outright sexism, and some to implicit biases or statistical discrimination that render women less likely to be hired and promoted whether or not they are or will become caregiving specialists, simply because they are statistically more likely to be caregiving specialists. another cause of income inequality is unequal uptake of unpaid caregiving labor between men a nd women. women ta ke more t ime of f for ca reg iv ing a nd more frequently work part-time so that they can perform caregiving. full time working women have more caregiving constraints on their availability for overtime work or travel and are likelier to be on call for caregiving emergencies. they are also likelier to develop career aspirations in light of anticipating 141 gina schouten leap 3 (2015) that they will be the caregiving specialist within their families; they are thus likelier to choose the relatively flexible (and less socially valued) careers that will enable them to prioritize caregiving. some might think that if men’s higher incomes are due to sexist bosses, that’s unjust; but if the inequality is due to women’s occupational or worklife balance choices, it is not unjust. this is a mistake. women do indeed choose how to divide their time and energy, but they do not choose against a background of equality. due to genes or socialization or both, women are likelier than men to subordinate the demands of paid labor to the demands of caregiving. relative to men, women’s options about how to allocate time a nd energ y come w it h dif ferent const ra ints a nd payof fs. to ma ke t he counter-gender-typical choice of prioritizing paid labor, the average woman will have to overcome either ingrained social norms or a natural predisposition to prioritize others’ needs for care, or both; and she will have to pay the costs of violating social norms that cast women as “cold” or “hard” for prioritizing paid labor and as “bitchy” or “domineering” for success in paid labor, which success itself will have to be won in a competition the terms of which largely favor men. so while women do indeed choose which careers to pursue and how to prioritize those careers against other life projects, we nonetheless rightly object to the terms of that choice: women who choose less esteemed and less well–remunerated positions face higher costs than men for choosing more esteemed and better remunerated alternatives. women who choose to shoulder more than their share of the caregiving load do so against a context that makes it costlier for them than for their male partners to resist doing so.5,6 clearly, there are important differences between women’s choices to prioritize the needs of dependents over paid labor and men’s engagement in violent crime. my point is not to claim that they are analogous, but to make one very specific comparison: both involve choice. considerations of justice must be responsibilit y-sensitive, and so the role of choice is not 5 one might think that diagnosing this social context of choice as unjust requires a welfarist metric of justice. i deny this, and in fact think it would be a mistake to invoke such a metric. i offer an account of the injustice of the gendered division of labor—an account that does not rely on a welfarist metric—in schouten (forthcoming). nor does the case for regarding the gendered division of labor as unjust rely on assuming that men and women have different preferences; rather, the arrangement of institutions that makes transgressing gender norms so costly is unjust. 6 one might point out that the unfair terms of choice are due to men’s intransigence. i do not t hin k t his is releva nt for t he point i a m ma k ing here, which is about whet her t he consequences of choice can be unjust to the chooser if the terms of the choice are unfair through no fault of the chooser. i do not think that others’ culpability bears on that question, though it is certainly relevant to others. moreover, i do not think that the unfairness of terms is due primarily to men’s intransigence, as will become clear below. are unequal incarceration rates unjust to men? 142 leap 3 (2015) insignificant. but in both cases, the inequalities in the background against which the relevant choice is made are not chosen; and in both cases, the relevant choice is harmful to the chooser. women are worse off in many doma ins by v ir tue of ma k ing gender-norm-complia nt labor a l locat ion choices (as well as by the norms themselves, whether or not the women comply with them), and these harms have long been a concern of theorists of justice. men are made worse off by virtue of committing violent crimes that result in their disproportionate incarceration. through no fault of t heir ow n, women a re ex ante li kelier to be worse of f in v ir tue of t heir greater likelihood to prioritize the needs of dependents over their careers. through no fault of their ow n, men are ex ante likelier to be worse off in virtue of their greater like lihood to engage in violent behavior. perhaps the unequal propensities in the two cases are due to different configurations of social and natural causes. but if we are committed to neutralizing the inf luence on our life prospects of circumstances beyond our control, then this difference is irrelevant to our deeming it unjust that unchosen contingencies impact on life prospects in these ways. men should not be exculpated merely on the basis of their ex ante elevated likelihood of criminality any more than women’s gender-compliant choices should be disparaged as not genuine choices. for the purpose of theorizing justice, we want to be able to hold agents responsible for the choices they make even when alternative courses are very costly; thus, we must attribute to individuals the capacity to make costly choices. this capacity is the basis on which we hold perpetrators responsible for their crimes and respect women’s gender-compliant choices. but in neither case does the role of choice exempt the backdrop against which choices are made from criticism on the grounds of justice. just as the norms and institutions that make gender egalitarianism so costly may be unjust, so too it might be unjust that social structures permit men’s unchosen genetic endowment so heavily to impact their likelihood of incarceration. we have seen that the effects of natural contingencies are not categorically immutable. if the incarceration effects of male hormones are not immutable—and i shall tentatively suggest in concluding that they are not—then the element of choice in criminal behavior does not exempt society from an obligation to intervene to lessen the likelihood of the harm: in the case of incarceration, by expending social resources to make violent crime less common.7 7 i have not argued positively that society does have such an obligation; rather, i have argued more modestly that the role of choice would not lessen or undermine it if we did. moreover, social resources are scarce, and the question of how to prioritize remediation of the various injustices we confront is complicated. even if we do have the obligation i consider here, it may be that in our non-ideal circumstances other obligations of justice must take priority. 143 gina schouten leap 3 (2015) 4. an injustice overridden? suppose there is some injustice in men’s higher likelihood of incarceration. still, we might think that, given the very many ways in which women are disadvantaged relative to men, that injustice is simply overridden by the many gendered harms to women of which men are beneficiaries. indeed, some of the ver y features that plausibly help explain men’s greater likelihood of incarceration also have disadvantageous consequences for women: men are, on average, physically larger and stronger than women and so likelier to be successful when they undertake to commit a violent crime; this physical strength and stature might be a disservice to the men who are incarcerated for the crimes they successfully carry out, but those traits are much more pervasively a threat to women. of course, even if men are all-things-considered advantaged such that t hey a re owed no recompense i n v i r t ue of t hei r h ig her l i kel i hood of incarceration, that disadvantage might still matter. if the various constituents of good lives are commensurable such that gains in one domain can make up for losses in others, any justice-relevant disadvantage men suffer might simply diminish the compensation owed to women on account of gender injustice favoring men. but it is not obvious that the putative disadvantage to men would be relevant merely for lessening the compensation owed to women. many ca ndidate goods of just ice —work, income, a nd leisure —appea r to be commensurable in this way. but it is not always true that being advantaged in one way can compensate for being disadvantaged in another—that if the quantities and severities match up correctly, there is no injustice all things considered. some goods are not commensurable. certain health def icits t hat involve chronic pa in plausibly ca nnot be out weighed by surpluses of other goods like income and wealth, or even by surpluses of goods that we regard, like health, as intrinsic constituents of wellbeing— intellectual stimulation, for example. similarly, it may be that men’s greater likelihood of committing v iolent crime is a disadvantage that cannot be compensated for by other goods, even goods in such important domains as those in which men appear to be favored, including social status and occupied positions of political power. none of this is meant to deny that the goods of which men enjoy unfairly large shares are ver y good goods; nor is it to deny that their large shares constitute an injustice. it is simply to point out that the impact on one’s life of certain kinds of bads cannot fully be remediated by a larger share of goods. presumably, the harm of suffering physical assault is such a bad. we may regard the harms of incarceration as similarly un-compensable without thereby committing to men’s susceptibility are unequal incarceration rates unjust to men? 144 leap 3 (2015) to suffering them being a disadvantage comparable in severity to women’s vulnerability to assault. here we might be tempted to think that the badness of men’s greater incarceration is not best characterized as unjust. maybe the world is somehow worse in virtue of this inequality, but justice is about the distribution of commensurables. if men’s higher li keli hood of crimina lit y ca nnot be outweighed by the very many advantages they have in virtue of being men, then it is not unjust. justice cannot plausibly be restricted in this way, because such a restriction would also exclude paradigmatic cases of gender injustice. consider t he incommensurable harms of the gendered division of labor which account—at least in part—for our regarding it as unjust. imagine, counterfactually, that traditionally male and traditionally female work were esteemed and remunerated at comparable levels. still, the persistence of social norms and institutions arranged in compliance with those norms could make gender-counter-typical choices very costly for both men and women. the costs of transgressing gender norms within institutions that affirm those norms can constitute justicerelevant harms, even if gender-norm-compliant alternatives resulted in equal distributions of commensurables between women and men. on this basis, i argue elsewhere that the gendered division of labor could remain unjust even if caregiving work were compensated and its status elevated such that esteem and remuneration accrued equally to traditionally male and traditionally female work (2016). but at the very least, it is coherent to cla i m t hat t he gendered d iv ision of labor cou ld be u njust despite a l l commensurable goods being fairly distributed. if so, then the concept of justice must extend beyond commensurables. the injustice of the gendered division of labor also shows that a justicerelevant, incommensurable disadvantage can remain justice-relevant when the disadvantaged group enjoys a surplus of different incommensurable goods. if we are to take seriously the insight that we presently fail to value caregiv ing in proportion to its true worth—both in terms of the public good that caregivers generate and in terms of the personal value of intimacy that caregiving enables—then we must accept that women are not the only parties harmed by the gendered div ision of labor. just as many women would have been better off with more opportunities for stimulation and esteem in the world of paid work, many men would have been better off with more opportunities for the intimacy and fulfillment that caregiving 145 gina schouten leap 3 (2015) enables.8 women are harmed by their sub-optimal share of paid work, and men are harmed by a sub-optimal share of caregiving work. of course, these harms are not of equal magnitude for women and men. but suppose, again, that traditionally female work were remunerated and esteemed equally with traditionally male work. under these circumstances, the harms of a gendered division of labor could be equal in their extent and severity. still, it would remain unjust that men and women are so thoroughly socialized in ways that make it very costly for them to attain what for so many of them is an important good, where the basis of this socialization is nothing more than (faulty) (institutionalized) assumptions about who is best suited to or equipped for different kinds of work. for those who would find fulfillment through non-caregiving work, a deficit in that domain cannot fully be compensated by larger allocations of commensurable goods or even by larger a l locat ions of other non-commensurable goods. for those who would find f u lf i l lment through caregiving, a deficit in that domain is similarly incommensurable. st i l l, none of this makes it incoherent to think of the gendered division of labor as a problem of justice. the gendered division of labor could remain unjust even if (counterfactually) it imposed only incommensurable harms, and even if (counterfactually) the harms accrued in equal magnitudes to men and women. similarly, men’s greater likelihood of incarceration could be unjust despite the harms it inflicts being incommensurable, and it could remain unjust even though women suffer incommensurable harms of even greater magnitude. because these (putative) injustices cannot fully be compensated by surpluses of other goods, to fully restore justice we must remove the ex ante inequality—by changing the gendered socialization patterns and institutional arrangements that sustain the gendered division of labor on the one hand; by removing or overcoming men’s genetic or social propensity for violence on the other. in other words, fully remediating these injustices requires reform of social institutions rather than straightforward redistribution of goods. in one sense, this is nothing new. even straightforward income and wealth inequalities might be best addressed not by giving more to those whose share is unfairly small, but rather by making careful and empirically-informed 8 it is tempting to think that if a dearth of caregiving really made men worse off, they would simply do more of it. but, first, even if their small share of caregiving work is simply due to t heir ow n intra nsigence, t hey might nonet heless be better of f doing more. just as women’s socia lization (or genetic endow ment) a f fects t heir preferences a nd t he choices t hey ma ke, so too might men’s. second, t here is ev idence t hat men increasingly do prefer gender ega l ita r ia n pa r t nersh ips a nd a la rger sha re of ca reg iv i ng work, but wor r y t hat “mounting job demands and a lack of caretaking supports” make egalitarianism not a viable option (gerson 2010: 11). in other words, many of the same factors that make egalitarianism so costly for women—not intransigent partners but intransigent workplaces, for example— also make it costly for men. are unequal incarceration rates unjust to men? 146 leap 3 (2015) institutional changes to schools, zoning policies, or campaign finance regimes.9 the difference is that, when we are dealing with commensurables, redistributing goods can still, in principle, fully restore justice, albeit perhaps less efficiently. when the injustice involves incommensurables, redistributing goods is not only less efficient; it falls short of fully restoring justice. if incarceration inflicts incommensurable harms, then men’s greater likelihood of incarceration might call for redress despite the very many inequalities from which they benefit. 5. unjust but not urgent? men’s many advantages do not render hormonal inequality irrelevant from t he perspect ive of just ice, but perhaps t heir adva ntages render it a less urgent injustice. plausibly, hormonal differences that disadvantage men are less urgent than many of the inequalities that disadvantage women. still, i question how far this can take us in resolving the cognitive dissonance van parijs’ puzzle generates. the fact that men enjoy so many advantages in virtue of their gender may well depress the urgency of remedying the d i sadv a nt ageou s con sequences of hor mona l i nequa l it ies, but ot her considerations should figure into our calculations of urgency as well: how severe is the harm? how per vasive? how difficult is it to avoid? are the advantages which its v ictims enjoy commensurable advantages? judging from these questions, we can see that many injustices against women are exceedingly urgent problems of justice. we routinely fail to make women safe in public spaces from threat of v iolence and assault. the resulting harms are severe, pervasive, and exceedingly difficult for women to avoid. we should try to ease these harms, but their seeming incommensurability would make them impossible fully to remediate, which makes it urgent indeed to do what we can to avoid them in the first place. w here do the harms of men’s greater likelihood of incarceration fall along these metrics of urgency? they are presumably less urgent than the harm women disproportionally suffer in virtue of living under threat of violence, but neither can the inf luence of unchosen genetic endowment on men’s likelihood of imprisonment be dismissed as unimportant. i do not know how difficult it is for those with the genetic endowment in question to avoid criminality. but surely the harms of incarceration are severe and per vasive: the bureau of justice reports that, as of the year 2000, male violent offenders made up “about one violent offender for every nine males age ten or older” (greenfeld and snell 2000). if the harms of incarceration 9 this is not a claim that these issues no longer fall within the purview of distributive justice. the injustices might be distributive even if the ideal remedies are not redistribution. 147 gina schouten leap 3 (2015) are incommensurable, that would heighten the urgency of finding ways to avoid them. even if i am wrong about this assessment of urgency, moreover, relative non-urgency does not exempt us from responsibility to theorize and address injustices. the harms of the present day gendered division of labor are, on any plausible measurement, less urgent than the harms of institutionalized practices of female genital mutilation. but concern over the persistence of the latter has not prevented a great deal of attention to the former, and this is as it should be, assuming we can maintain perspective and allocate scarce resources and attention appropriately. on reflection, the unjust consequences of hormonal inequality seem relatively urgent; but even less urgent injustices merit attention. 6. what to do? men’s genetic or socialized propensity to aggression is a circumstance beyond t h e i r c ont r ol . we s h ou ld b e c om m it t e d , a s a m a t t e r of j u s t ic e , t o minimizing the effects of such circumstances on life prospects. this comes to us as puzzling, because we are accustomed to thinking of women as being victims of gender injustice. no doubt readers will have other ideas for how to d ispel t he pu z z le, or idea s for how more ef fect ively to execute t he resolutions i have considered. i welcome such ideas. diagnosing sex-based unequal prospects for incarceration as unjust is counterintuitive, and i am open to the possibility that creative maneuvers to avoid this diagnosis can be made to work. but it seems to me that we must also ref lect on the status of the intuition being contradicted. at one extreme, we might treat it as a desideratum of a theory of justice that it not diagnose the unequal likelihood of incarceration between the sexes as unjust, or that it not do so when males comprise the disadvantaged group. this would too strongly privilege the intuition that men are not victims of injustice in van parijs’ puzzle. a weaker way to privilege the intuition would be to treat it as a sufficiently reliable piece of data to justif y creative refinement of our theories of justice to accommodate it. at some point, though, the creativity of our maneuvers will come at the cost of the plausibility of the theories. if the intuition is so reliable, that cost might be worth bearing. but at some point, ingenious maneuvers become at best ad hoc and at worst implausible on their own terms. there are certainly options i have not considered, and some of them may impose no plausibility cost to the best theory of justice. but suppose not. what amount of “plausibility points” should we be willing to sacrifice in our theories of justice to preserve the intuition that unequal likelihood of incarceration is not unjust to men? i don’t know. but for two reasons, i think that it would are unequal incarceration rates unjust to men? 148 leap 3 (2015) not be the disaster we might at first have thought it to be if we had to admit that our intuition in this case is misguided. first, we have long known that certain gender inequalities harm men as well as women. men have historically been discouraged from developing the kind of intimacy with their children that makes parenting so rewarding for some. t hey have been encou raged to rega rd pa id employ ment a s fundamentally important to their self-worth and role in society. there is no denying that men have been mal-formed under patriarchy in ways that constitute real harms to them, and acknowledging these harms as dimensions of gender injustice takes nothing away from the urgency of addressing harms suffered by women, who remain the prime victims of gender injustice. nor should acknowledging an injustice in incarceration prospects detract from our commitment to the diverse array of feminist goals that we’ve long recognized as morally urgent. second, if our intuition that there is no injustice here turns out to be misguided, the practical upshots are not the unpalatable measures we may have feared but rather social policy measures that we already have independent reason to undertake. certainly we should work to ameliorate the harms of incarceration by making prisons safer, but this does not mean that we should decriminalize violence, exonerate its perpetrators, or lessen any of our efforts to better protect victims of violence. from the fact that a man’s propensity to violence is beyond his control, it does not follow that he should be exonerated for acting on that propensity. if they can be shown to be safe and effective, we might incorporate technological solutions to lower recidivism, for example offering male offenders drug or gene therapies to lessen aggressiveness.10and while it is a far less exotic proposal, i think we have reasons to be optimistic that education reform could lower men’s likelihood of incarceration.11 high quality early childhood education might better enable boys to manage and process anger. arts and enrichment programming throughout primary and secondary school might help them find healthy outlets for it. lengthening school days and school years could diminish students’ availability for gang activity, drug use, and other behaviors that raise the likelihood of subsequent criminality. this strategy could be especially effective among students, like boys from 10 for more on these possibilities, see persson and savulescu 2012, casal 2011, 2013, and 2015. 11 there are good reasons to worry about educational programs aimed at changing people’s propensities to engage in certa in behav iors. indeed, ma ny such ef forts ca n be inef fective a nd even oppressive (casa l 2016). but ev idence suggests t hat non-oppressive education initiatives can be effective in reducing criminality. for example, studies of early childhood educationa l inter ventions, like perr y pre-school a nd t he abeceda ria n project, show that test scores improved in the short term, but faded out quickly, while other benefits associated w it h t he inter ventions (including lack of involvement in t he crimina l justice system) persisted. see, e.g., heckman et al. (2010). see also machin et al. 2010 and deming 2011. 149 gina schouten leap 3 (2016) poor communities with high levels of unemployment, whose intersectional group membership further elevates their risk. perhaps most importantly, education reform could mitigate the severe deprivation and hopelessness that often lead to criminality. well-educated students have more options for meaningful life pursuits, more developed capital to make those pursuits successful, and higher opportunity costs to criminality. for these reasons and others, we should work to diminish the extreme inequality in our society through education reform and other forms of social support. it might seem as though education reform could only make a difference if the problem had its root in social causes, but this impression is mistaken. just as corrective lenses can improve poor vision whether it has environmental or natural causes, education could offset whatever environmental inf luences raise men’s likelihood of incarceration and lessen the likelihood that they will act on—or raise the likelihood that they w ill resist acting on—any natural predisposition toward criminality they happen to have. in short: whether men’s greater propensity to violent crime is due to genes or socialization or both, social solutions like education reform could help reduce their likelihood of acting on that propensity. perhaps, if all this fails, we will have to accept that the problem, at present, cannot be ameliorated, or that it cannot be ameliorated without making the world more unjust overall than it is if we tolerate this disadvantage to men. if so, some might think that the disadvantage is therefore not unjust. i doubt that injustice is limited in this way, if only because restricting the concept based on what we are presently able to redress risks removing reasons to develop new mechanisms for redress. but even if the concept is rightly limited in that way, we should not accept the conclusion suggested without having made a good faith effort to deploy the kinds of social solutions conjectured here. i have suggested that they hold promise for reducing the inf luence of hormones on men’s criminality, and there is little reason to doubt that, if they can be made to do so, they could do so without imposing decisive costs to other pursuits of justice. it is indeed counterintuitive to think that men are victims of injustice because their genetic or social endowment makes them likelier to end up in prison. it might nonetheless be true. if so, then many of the social policies that could mitigate the injustice are policies about which we should have little reservation. indeed, many of them are long overdue. are unequal incarceration rates unjust to men? 150 leap 3 (2015) bibliography casal, p., 2011: “love not war. on the chemistry of good and evil”, in arguing about justice: essays for philippe van parijs, ed. a. gosseries and y. vanderborght,145157,louvain la neuve: louvain university press. — 2013: “sexual dimorphism and human enhancement,” journal of medical ethics 39: 772-8. — 2015: “on not taking men as they are: reflections on moral bioenhancement,” journal of medical ethics 41: 340-42. — 2015: “distributive justice and female longevity,” law, ethics and philosophy 3: 90-106 — 2016: “distributive justice and human nature,” in oxford handbook of distributive justice, ed. s. olsaretti, oxford: oxford university press. deming, d., 2011: “better schools, less crime?”the quarterly journal of economics 126: 2063–2115. gerson, k., 2010: the unfinished revolution, oxford: oxford university press. greenfeld, l. and snell, t., 2000: u.s. department of justice, bureau of justice statistics special report on women offenders. http://www.bjs.gov/content/pub/pdf/wo.pdf heckman, j., moon, s., pinto, r., savelyev, p.a.,yavitz, a.,2010: “the rate of return to the high/scope perr y preschool program,” journal of public economics 94: 114–128. jencks, c., 1988: “whom must we treat equally for educational opportunity to be equal?” ethics 98: 518–33. machin, s., marie, o., and vuji, s., 2010: “the crime reducing effect of education,” the institute for the study of labor discussion paper series, iza dp no. 5000. na acp cr i m i na l just ice fact sheet, ht t p ://w w w.naacp.org/pages/cr i m i na ljustice-fact-sheet persson, i., and savulescu, j., 2012:unfit for the future: the need for moral enhancement, oxford: oxford university press. rainer, a., 2013: the anatomy of violence: the biological roots of crime, new york: pantheon books. rawls, j., 1971/1999 : a theor y of justice, rev ised ed it ion, ca mbr idge : ha r va rd university press. schouten, g., forthcoming: “citizenship, reciprocity, and the gendered division of labor: a stability argument for gender egalitarian political interventions,” politics, philosophy, and economics. pre-published september 4, 2015, doi: 10.1177/1470594x15600830. — 2016: “is the gendered division of labor a problem of distribution?” in oxford studies in political philosophy, vol. 2., ed. d. sobel, p. vallentyne, and s. wall, oxford: oxford university press. van parijs, p., 2015: “four puzzles on gender equality,” law, ethics and philosophy 3: 79-89. thornhill, r., and palmer, c. t., 2000: a natural history of rape: biological bases of sexual coercion, cambridge, ma and london: mit press). http://www.bjs.gov/content/pub/pdf/wo.pdf http://www.naacp.org/pages/criminal leap 3 (2015) is there a right to parent?1 a nc a gh e aus universitat pompeu fabra abstract this paper examines harry brighouse’s and adam swift’s attempt to justify the family by appeal to the interests of both children and parents. according to their dual-interest account, adults’ interest in parenting plays a role in explaining why less than optimal parents can exercise legitimate authority over children. i analyze this claim and raise doubts about the existence of any fundamental right, which is non-derivative from children’s own interests, to parent understood as a right to control the child. keywords: parents, children, right to parent one of the main questions to which family values offers an answer is how to just if y t he fa mi ly g iven what its aut hors—self-ident if ied libera l ha rr y brighouse and adam swift—call “the liberal challenge”. by “the family”, brighouse and swift mean a childrearing arrangement whereby a small number of particular adults stand in fiduciary, and authoritative, relationships with particular children, but which is not exclusively justified by reference to the child’s interest. this is an anomaly for liberals, who believe that all authoritative relationships between individuals with full moral status ought to be justified by appeal to the interest of the party over whom authority is being exercised. as self-identified liberals, brighouse and swift take this challenge seriously. the family is definitely not like this. consider: first, there exist—or we can imagine—ways to rear children alternative to the family. brighouse and swift list some of them: “[s]tate-regulated quasi-orphanages, in which children are raised by trained and specialised employees; [a]rrangements, such as those associated with kibbutzim, in which child raising is shared between “parents” and designated child-raising specialists’ and [c]ommunes 1 for comments i am grateful to andrew williams and to participants to an open session on academia.edu and in particular to john baker, sally haslanger, r j leland, michele loi and erik magnusson. academia.edu 194 anca gheaus leap 3 (2015) in which a la rge g roup of adu lts col lect ively a nd joint ly ra ises a group of children, with no adult thinking of herself as having any special responsibility for any particular child, and no child thinking of herself as the responsibilit y of any particular adult” (brighouse and swift 2014:70-71). it may be that good families serve children’s interests better than any of the above alternatives – as brighouse and swift go on to argue. they draw on empirica l literature to ex pla in why chi ldren fa re best when ra ised by lov ing a nd suf f icient ly competent adu lts, which a re referred to as ‘adequate parents’. but, as far as i see, this is not in itself enough justification for a child-centred account of the family, that is a defense of the family by exclusive appeal to children’s interests. we do not know how many adequate parents there are around, and have no reason to think that we can identify t hem (especia l ly w it hout serious v iolat ions of persona l autonomy a nd intimacy). it may well be that childrearing arrangements other than the family would, on average, serve children’s interests optimally, even if the best imaginable way to bring up children is to give them adequate parents.2 but if there aren’t enough such parents, and if we cannot help enough people to become adequate parents, rearing children in the family may unjustifiably expose too many children to serious risks. the well-run orphanage, kibbutz, or communal childrearing may be the best feasible arrangements as far as the children’s interests are concerned. if good versions of these arrangements— but not of the good family—are feasible on a sufficiently widespread scale, the family is to be rejected on child-centred grounds. there is a second reason why the institution of the family as is cannot be justified on child-centred grounds. if the family was merely meant to protect children’s interests we ought to give priority of access to parenting to people who would make best parents and who are willing to take over this role. this is clearly not the case, even allowing for the possibility that we cannot—usually—tell in advance who would make the best parent. but some cases are clear-cut: when a new child is born to parents who already have numerous children, and who we have reason to think are particularly bad at parenting, liberal states nevertheless grant custody to biological parents. at the same time people who are likely to make wonderful parents and who 2 veron ique mu noz-da rde a rg ued t hat t he ex istence of t he fa m i ly is especia l ly objectionable if we ought to g ive priorit y to t he worst of f: “whet her or not a g reat ma ny individuals are better off because of the existence of the family is irrelevant in settling whether the family would be one of the institutions of a just societ y. w hat matters is whether the existence of the family ensures that the least advantaged members of society are better off than they would be with its abolition”. her own answer to this question seems to be negative (munoz-darde 1998-9: 42). is there a right to parent? 195 leap 3 (2015) are more than willing to raise children remain childless due to inability to procreate and the difficulties of adoption. more generally, custody rights follow biological connections, absent special circumstances. now, the family defended against the liberal challenge in family values is different, perhaps very different, from the current legal institution of the family. brighouse and swift argue for more limited parental rights than what existing states recognize. nevertheless, they do want to reject, rather than bite the bullet of, the ‘best available parent’ possibility. in their own words: “would there be any thing w rong w ith a system that distributed children to adults in the way that maximized the realization of children’s interests, even if it left out some adults who would be willing, and adequately good, parents?” (brighouse and swift 2014: 86). they think there would be. not because children lack full moral status, which would make it unproblematic to allow parents’ own interest in authoritative relationships with children to determine what is a legitimate way of bringing them up.3 instead, they defend a dual-interest theory of what makes the family legitimate. the reason why— according to brighouse and swift—it is all right to settle for childrearing arrangements that are sub-optimal for children is the way in which childrearing makes a unique and crucial contribution to a fully f lourishing life. in their elaborate account of the value of parenting, brighouse and swift argue that adults have a fundamental moral right to be parents. the reason, in a nutshell, is that intimate and authoritative relationships with children a re uniquely va luable for most adu lts ; such a relat ionship is not “just another intimate relationship, valuable to both sides but substitutable for the adult by an additional relationship with a consenting adult” (brighouse and swift 2014: 88). rather, they have a different moral quality, make a different kind of contribution to the flourishing of adults, and so are not interchangeable with other relationships. because childrearing makes a substantial and unique contribution to adults’ flourishing, adults are said to have an interest-based right to pursue such relationships. the unique value of parenting, according to brighouse and sw ift, resides in the combination of four features which characterize parent-child relationships. first, relationships between parents and children are structurally unequal, given children’s unavoidable, involuntary and asymmetrical dependency on the adults. by contrast, dependency in relationships between adults is less encompassing, often voluntary and more reciprocal. second, parents are in charge of their children’s well-being and development to an extent to which people are not responsible for other individuals, with whom they stand in different types of relationships. to discharge this responsibility 3 “children are individuals distinct from their parents, individuals whose interests it is the state’s job to protect and promote” (brighouse and swift 2014: 5). 196 anca gheaus leap 3 (2015) pa rents need recou rse to coercion a nd ma n ipu lat ion. t h i rd, pa rents u navoidably shape t hei r ch i ld ren’s m i nds —t hat is, t hei r bel iefs a nd i nter e st s. fi n a l l y, c h i ld r en a r e c a pa ble of lov i ng t hei r pa r ent s i n a sponta neous, u ncond it iona l a nd non-ref lect ive way t hat is not to be encountered in other kinds of loving. the first three features of the parentchild relationships generate the distinctive moral burdens of parenthood: responsibi lit y for t he wel l-being a nd development of indiv idua ls who are dependent on you and who cannot exit the relationship with you at will. according to brighouse and sw ift, it is va luable to meet t his cha llenge, as part of a process of self-knowledge and personal development that most people find uniquely fulfilling. the last feature of the parent-child relationship, that of spontaneous and unconditional love, points to the specific value of loving, and being loved by, children and to the source of hedonic value afforded by parenthood. it is thanks to these features that parenting is essential to the f lourishing of (most) adults. this account of parenting allows brighouse and swift to reject the ‘best ava i lable pa rent’ possibi lit y, because adu lts’ f unda menta l interest in parenting limits children’s entitlement to being raised by the best parent who is willing to take over this role: “within certain limits, adults’ interests in being a parent can trump children’s interests in having the best possible parents. no child has a right to be parented by the adult(s) who would do it best, nor do children as a whole have a right to the way of matching up children and parents that would be best for children overall. both scenarios could leave perfectly competent parents missing out on the goods of parenting” (brighouse and swift 2014: 95). if brighouse’s and swift’s defense of a dual-interest account succeeds, then adults have a right to parent that is sui generis—i.e. fundamental, grounded in their ow n interests—rather than derivative from children’s ow n rights to protection and care. this would not change the fact that a right to parent is an anomaly by liberal lights: liberals acknowledge no other entitlement to exercise power over another individual legitimised in part by reference to an interest—no matter how important—of the one exercising power. but how could one go about rejecting this account of a sui generis right to parent? it does not look very promising to question the importance that raising children has for most of us. the evidence is very strong: most people want children, go ahead having them often in spite of serious adversity and in spite of the inevitable difficulties of the job, and many people agonize is there a right to parent? 197 leap 3 (2015) for long periods of time over not being able to become parents. nor does it help to note that not all people believe that parenting makes such a great contribution to their f lourishing. as brighouse and swift themselves note, it is possible that the f lourishing of some, but not of all, people depends on being able to parent well (brighouse and swift 2014: xx). some people may be unable to parent well (even with help) and therefore parenting will not contribute to their flourishing. other people’s lives may be so rich in alternative venues to flourishing, some of which incompatible with childrearing, that they will flourish best without rearing children. but neither of these facts mean that rearing children is not essential to the f lourishing of those of us who can parent well and whose f lourishing is not incompatible with parenting. more promising, one may believe that we do not have a right to pursue fully f lourishing lives—but merely to pursue sufficiently f lourishing lives. this is a plausible thought, in a world of competing claims over limited resources. on this view, would-be adequate and willing parents who miss the opportunity to rear children do not suffer from a rights violation provided they have other, adequate, opportunities to f lourish. an interesting way of answering this challenge would be to argue that, for people who can be adequate parents and who wish to parent, the failure to rear children somehow blocks other avenues to f lourishing. for instance, as in some fairy tales, grief of being childless may cast a thick shadow over every other joy, or take away the drive to engage in other projects, or otherwise undermine the ability to pursue other worthwhile goods. but this is not what family values argues. another way to try to rebut this challenge would be to note that raising children is not merely a permissible—and very valuable—activity, but a morally mandatory one in the sense that each generation has a duty to bring up a minimum number of chi ldren to ensure t he ca re of t hose indiv idua ls in need of assista nce a nd t he cont inuat ion of some sor t or political society.4 in this case, parenting would be a very peculiar activity that not only makes an essential contribution to full f lourishing, but also enables individuals to f lourish by doing what was their duty to do in the first place. perhaps there is a fundamental right to aim at full f lourishing, if thereby you also do your bit to discharge a collective duty. (suppose, by analogy, that there was a duty to defend your country against unjust attack and that fighting wars was essential to most people’s full flourishing. would that be a reason to allow all would-be adequate soldiers to participate in selfdefence, should they find themselves under unjust attack?) i do not know if the last argumentative strategy could succeed, but note that in an overly populated world like ours it is very likely that the number 4 i defend t h is v iew i n gheaus (2015). for ot her a rg u ments why t here may be a (individual) duty to have children see smilansky (1995). 198 anca gheaus leap 3 (2015) of children that we (collectively) have a duty to rear might well be much smaller than the number of would-be adequate parents. if it were not possible for all would-be adequate parents to parent-as-dutiful-behav ior, there cannot be a right to parent partly justified as dutiful behavior. above i have outlined what are, in my experience5, the most usual types of criticism leveled at brighouse and swift’s defense of a right to parent. i do not aim to draw a conclusion yet: on the one hand, in their favor speaks a very powerful widespread intuition that we have a right to rear children if we would parent them adequately. on the other hand, and against their view is the very plausible liberal belief that if you are denied a chance to parent either because alternative childrearing arrangements, or other wouldbe parents, would serve children’s interests even better, you do not suffer from the violation of a fundamental right.6 in the remainder of the paper i explore an intuitive way to adjudicate bet ween these t wo contradictor y beliefs, and in conclusion i suggest a way of reforming childrearing in line w ith the liberal stance, while also v indicating the intuition that adults have a right to involvement in childrearing (a right which nevertheless falls short of a right to parent). much of the argumentative power of brighouse and swift’s defense of a dual-interest account of legitimate childrearing comes from their appeal to the unique value of parenting. in turn, this value derives from the unique combination of features displayed by parenting. since their conclusion— t hat t here is a right to pa rent— coincides w it h a n a lready w idespread belief, it is tempting to think that a right to parent can really be justified by appeal to the combination of the four unique features of the parent-child relationship. and, since there is nothing quite like parenting in the world— that is, no other relationship that displays all of the features identified by brighouse and swift—this connection (between the four features and the right to parent) is difficult to test. but what if other social relationships also displayed the combination of these four features? would we respond with t he sa me intuit ion t hat one’s interest in such a relat ionship ca n pa r t ly justify one’s authority over another? consider the following imaginary situation, meant to show how intuitively extraordinary parents’ rights are over their children (at least in the absence of certain empirical assumptions that do not figure amongst the reasons that brighouse and swift provide in their case for the right to parent). imagine that, as a result of a natural cataclysm, a group of adult refugees reaches your country. they have nowhere else to go. you live under a just and benevolent 5 from numerous conferences and referee reports to work in which i describe (and endorse) their account. 6 for a convincing elaboration of this, see vallentyne (2003). is there a right to parent? 199 leap 3 (2015) government that automatically grants the refugees the right to stay and settle down in the country and, in due course, to become citizens. as it happens, the refugees come from a very remote culture, described by anthropologists as ‘primitive’.7 they speak a language that nobody has heard of before and nobody understands, and they do not seem able to pronounce simple words in your own language. they cannot read or write, and have never been in contact with any technologically advanced civilization. they do not understand how any of the machines work, and understand complicated social rules even less. they appear scared of traffic and large crowds. their bodies are beautiful, fragile, relatively small, and unusually agile. they quickly acquire a wonderful reputation for being uncomplicated, trust y, direct, curious, affectionate and playful.8 for good reason, the belief spreads that having one of these refugees around can bring into your life a kind of joy and fun that nothing else could, and hence that an intimate relationship with one of them would be a special blessing. moreover, these people are in much need of patient introduction into your own ways of living; somebody has to ta ke over t he job of socia li zing t hem. a nd you a re right to t hin k t hat engaging in such an extraordinary task would make a significant and unique contribution to your own personal development. now imagine that, after a few visits to the camp where the refugees get emergency lodging, you become particularly attached to one of them and from all you can tell the affection is reciprocal. your new friend responds to you with spontaneous trust, joy, and unconditional attachment. you would like to spend as much time as possible with this person. would it be a legitimate policy to allow you to lodge your new friend in your home and take upon yourself the entire responsibility, and with it the power, to ensure that her life goes well and that she acquires adequate knowledge of your society’s language, moral sensitivity and expectations, laws and customs such that she can, eventually, become an autonomous citizen? moreover, would it be legitimate for you to have the authority to decide with whom she is allowed to spend time, and under what circumstances—i.e. to have the power to exclude others from having a relationship with her? would it be permissible if the state gave you a right, against all others, that they do not undermine your relationship with this person?9 7 perhaps these anthropologists are objectionably condescending; i apologize on their behalf. 8 so they are, indeed, very close to how 17th and 18th century europeans imagined native inhabitants of america: they are a reincarnation of the bon sauvage. 9 this is a feature of the right to parent as defended by brighouse and swift: “those people given the job of parenting a particular child will have a right to parent that child in the weak sense that others will be under a duty not to undermine the relationship” (brighouse and swift 2014: 87). 200 anca gheaus leap 3 (2015) if you had the right to do these things, your relationship with the refugee wou ld acqu i re t he sa me combi nat ion of feat u res t hat cha r ac ter i z e relationships between parents and children, and which are said to generate a powerful interest in parenting and hence the right to parent. the relationship would be asymmetrical, and very difficult to exit for the refugee; it would involve significant moral responsibility on your part, given the power you would have to protect and shape the person in your care; and it would make possible a kind of spontaneous, unconditional and unref lective love that is not usually possible between adults. if people have a right to enjoy relationships that display the above combination of features, then you should be allowed to take control of the refugee’s life in the way in which parents control their children’s lives. yet, i contend that a policy allowing you to take control of the refugee’s life would be obv iously unjust to the refugee, your powerful interest to pursue intimacy with her notwithstanding, unless—for whatever reason— this kind of policy would best promote the interests of the refugees. the reason that would make it unjust is not its paternalism towards the refugees. indeed, the refugees in this example need paternalistic treatment if they are to survive at all in their new environment and if they are to become autonomous individuals with a chance to lead their own life in your society. the reason that would make it unjust for you to take control of her life is that, if it were possible to promote her current wel l-being a nd f uture autonomy in a different way—for instance by letting her reside in the refugee center, or by letting her move in with someone equally willing and better prepared to serve her interests—it would be unfair towards her to ask her to move in with you. this is a first, liberal response to the imaginary case. a different, related intuitive response is that, if it were possible to promote the refugee’s current well-being and future autonomy without locking her i nto a ny pa r t icu la r relat ionsh ip, t hen g iv i ng you— or a not her pr ivate individual—authority over her would be wrong because it would make her subject to (perhaps benevolent) domination. this is a republican response. you may think that, since you have such a powerful interest in sustaining the relationship with the refugee, you are entitled to the necessary means for protecting the relationship—including the right to prevent others from forming and sustaining a close relationship with her. but a parental-like power to exclude other individuals in this way comes at too high a moral cost to the refugee, especially if is not necessary for optimal protection of her own interests. the fact that you have relational interests at stake here does not seem to make any difference. since the well-being and development into autonomous individuals of the refugees is a matter of public responsibility, social arrangements should is there a right to parent? 201 leap 3 (2015) be sought that can best ensure meeting this responsibility. ‘best’ may be interpreted as either ‘well-being maximization’ or ‘ensuring a certain level of wel l-being in a non-dominat ing ma nner’. possibly, concern for t he refugee’s well-being and respect for their moral status will indicate that they ought to live together with many other people: some fellow refugees and some of your co-citizens whose main occupation will be to provide welfare and integration to the refugees. or, perhaps, it would be best for them to live in the home of private individuals—call them ‘hosts’—but have access to a broad range of intimate and caring relationships with many of your (socially and emotionally competent) co-citizens, without needing their host’s approval. in any case, it seems that it is exclusively the refugee’s interests that determine the ideal way of socializing them: the host’s ow n interest in pursuing a relationship with one of the refugees (even if this relationship was highly, and uniquely, valuable to the host) does not seem to do any work in settling the matter. this story is obviously meant to provide a close analogy to the situation of parents and children. the two cases share the features which, according to brighouse and swift, generate parental rights. if your intuition is that these features cannot justify parental-like authority over the refugees, then probably they are also unable to generate a right to parent as defended in family values. the same hypothetical case triggers a second intuitive reaction—at least, on my side. the fact that your interest in having an intimate and authoritative relationship with the refugee is irrelevant to your having rights over her. this does not mean that you do not have a right to pursue a long-lasting, intimate relationship with the refugee. your interest in this unique relationship is, i assume, powerful enough to generate a right to pursue it. you may spend some time with her every day and provide constant company and guidance to her. you may decide to become one of the people whose main occupation is to work in the refugee home part-time or full-time until she is sufficiently autonomous to take charge of her own life and leave the refugee home. while the state would be wrong to allow would-be competent hosts to assume parental-like authority over one of the refugees, it would also be wrong to set up an institution of socializing refugees that denies citizens a chance to develop close and benefiting relationships with the refugees. if the citizens really have a powerful interest in entering and sustaining close relationships with the refugees, then it would be arbitrary to exclude some from having access to such relationships—assuming the relationships do not set back the refugee’s interests—in order to benefit others. note that the pursuit of an intimate caring relationship with a person does not require a right to exclude other individuals from pursuing such relationships with her—it 202 anca gheaus leap 3 (2015) requires only that nobody else have a right to arbitrarily interrupt your relationship with this person. (this is of course consistent with the possibility that the highest possible degree of intimacy, as well as the most secure kind of intimacy, requires the exclusion of intimacy with others.) perhaps the analog y carries over, again, to the case of childrearing. parental authority—as we have it and as it seems10 to be defended in family values—comprises a right to exclude others from having close relationships with one’s child for reasons other than the protection of the child’s interest. and, as we have seen, a right to parent is justified by brighouse and swift by reference to the unique value of relationships of intimacy and authority with children. yet, it seems to me, intimacy, more than authority, contributes to the value of the adult-child relationship. this is so especially once we acknowledge that being in a sustained intimate relationship with a child involves considerable responsibilit y on the part of an adult even if that adult does not play a full parental role. indeed, the justification of a right to parent starts from the observation that for “most people, intimate relationships with others are essential for their lives to have meaning” (brighouse and swift 2014: 87). and progresses by noting the unique value of parent-child intimacy. similarly, it is appeal to intimacy with a child that most plausibly explains the common intuition that people ought to be free to parent and the possibility that some people’s f lourishing could be irremediably undermined if they had no children in their lives. but the most problematic element of the parental right, in a liberal perspective, is the authoritative, not the intimate, side of the relationship. if it is possible to disentangle intimacy and authority in childrearing—both analytically and practically—the intuitive support for a right to rear children might be salvaged without need of taking exception from liberal beliefs. therefore, i suggest that brighouse and swift’s case for a fundamental right to parent is only partially successful: it fails to show that appeal to adults’ interests does any work in establishing a right to control the child. but it can show how adults’ interest in relationships with children grounds an associative right: adults whose company would not be detrimental to children’s interests have a right to seek and maintain close and caring relationships with children. yet the claim to a right to control a child’s life must be grounded exclusively in the child’s interest, in which case there is 10 “seems” because brighouse and swift defend a child-centred view with respect the content of parental rights. yet, they also say that the right to parent involves that others are “under a dut y not to undermine the relationship” (brighouse and sw ift 2014: 87). but my making close friends with my neighbor’s child can—if the neighbor has no power to interrupt the relationship—undermine the child’s relationship with her parent. is there a right to parent? 203 leap 3 (2015) no sui generis right to parent.11 it is possible that more people will want to reject the pertinence of the analogy between welcoming refugees and engaging in childrearing, than to refute the conclusions i draw about the just treatment of the refugees. to do this, they would likely point to some empirical features that set apart parenting from my imagined example. unless they are adopted, children are never complete strangers to their parents or at least to their gestational mother, in whose body they come into existence and develop for a while. many believe that parents are inevitably more attached to their own offspring t ha n t hey ca n ever be to ot her chi ldren (a lt hough t here is a debate on whether the explanation is to be found in the fact of gestation or in genetic relatedness; if such special attachment exists, i think that it springs from gestation12). this alleged fact contributes to the belief that, in general, (biolog ica l) pa rents ma ke t he best pa rents for pa r t icu la r chi ldren. so, perhaps, you are inclined to think that, should babies come into the world unrelated to a ny pa r t icu la r indiv idua ls—shou ld t hey, for insta nce, be brought by storks—we ought indeed to set up childrearing practices that serve their interests as well as possible, including the possibility of allowing the best available parents to rear them. but, in fact, babies come into the world from the bodies of other people and so you may also think that this fact sett les t he quest ion of what chi ldrea ring pract ices ser ve best t he children’s interests (the family) and who are the best parents (procreators). (for instance, you may be convinced by evolutionary biology.) therefore, the beliefs that the family is legitimate and that procreators have a (non-fundamental) right to rear their own children—that is, support for the status quo—can be compatible with a child-centred account of who has the right to assume authority over children. the compatibility depends on the above-mentioned beliefs that procreators are, on average, able to love their children best and that a child is best off in the custody of the person most able to love her.13 if childrearing within the family really is in the vast majority of children’s best interest, and if the beliefs concerning procreation and love are true, then it may be fine to settle for minor reforms of the family. but, contra brighouse and swift’s account, this would be based entirely on the child’s interest. 11 that is, as far as brighouse and swift’s argument goes. for a different defense of a right to parent as part of a dual interest account of just child-rearing see clayton (2006). 12 i discuss t his in gheaus (2012) where i a na lyze, more genera lly, t he normative import of gestation for a right to rear a particular child. 13 for more on this, see munoz-darde (1998-9: 45-46). for a child-centred account that is compatible with the status quo of raising children in the family, and perhaps with the raising of children in their biological family (as a default) see archard (2003). 204 anca gheaus leap 3 (2015) bibliography archard, d., 2003: children, family and the state, london: ashgate publishing. brighouse, h. and swift, a., 2014: family values. the ethics of parent-child relationships, princeton: princeton university press. clayton, m., 2006: justice and legitimacy in upbringing, oxford: oxford university press. gheaus, a., 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-455 — 2015: “could there ever be a duty to have children?”, in permissible progeny, ed. s. brennan, s. hannan and r. vernon, 87-106, oxford: oxford university press.munoz-darde, v., 1998-9: “is the family to be abolished then?”, proceedings of aristotelian society 99: 37-56. smila nsk y, s., 1995: “is there a mora l obligation to have children? ”, journal of applied philosophy 12: 41–53. vallentyne, p., 2003: “the rights and duties of childrearing”, william and mary bill of rights journal 11: 991-1009. 07brock.indd responsibilities in an unjust world: a reply to carens, kollar, oberman, and rapoport gi l l i a n brock university of auckland abstract in this paper i respond to important concerns about the policies i believe poor developing states may be permitted to use in responding to losses associated with high skill migration, when those losses do indeed exist. i take up joseph carens’s invitation to broaden the debate to consider the moral duties we may have surrounding the brain drain debate, given our unjust world. in response to eszter kollar, i show why the liberal state may sometimes justifiably control how citizens use their talents, especially in insisting that they use them to reduce compatriots’ neediness. i consider kieran oberman’s challenge that proper consideration of the human right to emigrate blocks the state’s ability to use programs such as compulsory service ones. i reply to hillel rapoport’s presentation of empirical evidence suggesting that there are important gains to be secured from high skill migration. i show why the empirical evidence presented is insufficient to make the relevant case. i also show why none of the challenges presented are sufficient to block the normative project of investigating how poor developing states may permissibly respond to losses associated with high skill migration. in particular, i argue that carefully crafted compulsory service and taxation programs may permissibly be used by such states under certain conditions. keywords: brain drain, migration, service, tax, moral duties, right to emigrate. 07brock.indd 161 27/4/17 9:21 162 gillian brock leap 4 (2016) introduction the contributors offer a stimulating collection of essays. i thank them for their ref lective comments on whether and, if so how, high skill migration should matter in attempts to reduce global injustices. in what follows i cannot respond to all the many fine points made, however, i will take up at least one central issue raised by each author. in this paper i address answers to questions raised by joseph carens, eszter kollar, kieran oberman, and hillel rapoport, respectively, namely: what are our moral duties in an unjust world and do they include duties to use our skills in ways that benefit the community? may the liberal state rightfully control citizens’ use of their talents, insisting they address the needs of compatriots? does adequate consideration of the human right to emigrate block all attempts to implement “compulsory service” programs? what is the role of empirical evidence in debates about appropriate policy responses to losses associated with the brain drain and does our current state of knowledge about that evidence suggest there is no need to be concerned about high skill migration? 1. what are our moral duties in an unjust world? a response to carens there is much in joseph carens’s rich discussion worthy of detailed engagement. here i focus mainly on his core invitation to broaden out the discussion to consider the moral duties involved with high skill migration, especially in an unjust world. as carens says: “leave aside for a moment questions about legal restrictions. do skilled medical personnel in poor states have a moral duty to stay at home and put their abilities to use in serving their fellow citizens? do they act unjustly if they move to a rich state, even if they are legally free to do so?” (carens 2017: 141) as carens views the arguments of the book, “we don’t really get the fuller sort of inquiry that would be required to explore questions about the nature and extent of our moral duties to contribute to the political communities in which we live and whether we have any obligations beyond what can be extracted from a formal contractual arrangement. this is an important question for the brain drain because if skilled medical personnel in poor states only stay at home as long as it takes to fulfill the requirements of a reasonable contractual agreement, the existence of such policies will not do much to remedy the problem” (carens 2017: 142, added emphasis). 07brock.indd 162 27/4/17 9:21 responsibilities in an unjust world: a reply to... 163 leap 4 (2016) now, i disagree that the package of proposals i offer concerning service and tax will not do much to address core problems unless citizens remain in countries of origin. these are empirical issues to a large extent, but if jagdish bhagwati’s calculations about taxation are to be relied upon, the revenue received could in fact make significant contributions to remedying deprivation (bhagwati and hansen 2009).1 let me make two other points of clarification before i discuss his central challenge. first, even though i argue for adopting policies that have the effect of managing migration in ways that promote fair outcomes for countries of origin, i do not assume that my policies will in fact restrict emigration. i accept that many people want to leave their countries of origin and i offer policies that try to ensure countries of origin are not always net losers from such arrangements. my primary purpose in the book is to argue for a view about fair terms of departure in efforts to remedy the situation in which terms of exit often heavily favor destination countries and migrants, and disadvantage those left behind in countries of origin. so when skilled citizens leave countries of origin that have subsidized the acquisition of such skills, and they leave in ways that create heav y losses for those countries of origin, what if anything, may such citizens permissibly be asked to do in attempting to address such disadvantage? in preparation for an answer to that question, we have to confront another: how do we improve the situation in countries of origin so that citizens can genuinely choose to remain? how should we address the root causes of why people would like to leave in such high numbers? i have quite a bit to say about that (for instance, brock 2009a). but i note that whatever we do to improve matters, it is likely that significant wage differentials between countries will remain. that is likely to be a near sufficient reason for many to seek to migrate. so the issue of ensuring fair terms of departure for poor, developing countries of origin is still salient, even if we are successful in improving quality of life in countries of origin. so, on to the central invitation. i very much welcome this opportunity to engage in discussion about the moral duties. in fact, it was ref lection on the moral duties that led me towards the political and legal solutions for which i advocate. in order to see why, i need to back track and explain the reasoning that led me in this direction. as i later also illustrate, carens’ own reasoning on these issues suggests a similar progression once we 1 apart from kollar, most of the authors ignore my proposals concerning taxation. this is slightly odd given that these are meant to be equally important to the service proposals and, in many ways, take account of concerns that some might have with service. the two policies might be seen as a good combination package that countries should adopt together: some of the perceived weaknesses with one policy measure can be accommodated by the other. 07brock.indd 163 27/4/17 9:21 164 gillian brock leap 4 (2016) begin the moral analysis. when we consider our moral duties in an unjust world, we need to think about a range of prior and surrounding questions such as these: (md1) what do people need for a decent life? (md2) what can reasonably be expected of others in helping people to secure a decent life? (md3) what is my share of responsibilities in helping people to secure decent lives? in answering the first question, what a decent life minimally requires, i argue why the following are core areas for concern (e.g. brock 2009a; brock and blake 2015: ch. 2): (c1) enabling people to meet their needs (c2) protecting core liberties (c3) securing fair terms of co-operation (c4) supporting social and political arrangements that can underwrite (c1)-(c3). i also argue that just and effective institutions are central vehicles that can deliver on what we need for decent lives. in addition to global institutions, there are many state-level institutions that should be a focus for concern. state-level institutions are an important site of co-operation that ought to aspire to fairness. furthermore, in the world we actually live in, much responsibility for ensuring core ingredients necessary for decent lives is devolved to states. for instance, states ensure the availability of key goods such as healthcare, safe water, sanitation, education, and security. states are also ideally positioned to regulate and develop the economy in pro-poor or otherwise beneficial ways. effective, legitimate, and accountable states can play an important part in reducing injustice in our world today. so what is my share of this duty to assist with (c1)-(c4), in particular, my share of helping to provide strong, just institutions and effective states? it seems to me that discussion towards an answer might start off assuming that we all have equal duties to assist, but further ref lection could plausibly yield a more complicated picture that makes use of other relevant factors such as capacities to assist, contributions to the problematic situation, and patterns of benefits. for instance, because of the important connection between the ability to provide core goods and services (such as healthcare or education) and those capable of assisting with their provision, it may be reasonable to expect those with such skills to play a special role in certain conditions. in working out what special role such people may play, it is 07brock.indd 164 27/4/17 9:21 responsibilities in an unjust world: a reply to... 165 leap 4 (2016) relevant to consider what others may also reasonably be expected to do, both within my country and outside of it. it is plausible to arrive at a view that we share responsibilities for remedying the situation and that our shares may be adjusted depending on how many others are available to shoulder responsibility, and along with a variety of other factors, such as their different capacities, patterns of relevant benefits, and contributions to unjust institutions that persist. would it be fair to expect people to stay when others are doing nothing? should we encourage people to stay under certain situations where this involves grave personal sacrifice? if so, what of their hopes and dreams? i think here the kinds of contributions —levels of sacrifice, if you will —we are asking people to make in remaining is highly relevant. what is at stake for a citizen in asking her to stay will depend on a number of situational features. it is one thing to ask a doctor of xhosan heritage to remain in south africa in a post-apartheid world; it is another to ask her to remain in 1986, when her basic human rights would not have been secure. a doctor who chooses to remain in syria in 2016 is a moral hero, clearly performing supererogatory acts, not someone merely discharging his basic moral duties. ref lection on the kinds of contributions people are being asked to make informs my view about what kind of government must minimally be in place, as an important indicator of the kinds of sacrifices people are being asked to make. a situation in which a government is making good faith efforts to protect basic human rights (and being somewhat successful at doing this) typically requires much less sacrifice from those who remain than a situation in which this is not the case, and constitutes a key reason why asking the syrian doctor to remain now or the xhosan doctor to remain in 1986, calls for heroic acts rather than basic moral duties. so, while there might be a place for social norms that encourage people to stay, we have to be mindful of excessive burdens. people can help in all sorts of ways other than being present in a community and putting their own lives at risk. we should also not ignore the important role that large revenue streams into public budgets can play in securing core ingredients for decent lives, at least under the right circumstances. furthermore, human beings are highly social creatures with a deep sense of fairness and reciprocity that operates within their relevant groups. the behavior of others has a reasonably strong bearing in formulating views about what fairness requires of me, here and now. in short, we have to make room for the reasonable thought “i’m willing to play my part on condition that similarly placed others do theirs”. so an appreciation of others’ duties, how they are discharging them, and how duties will be 07brock.indd 165 27/4/17 9:21 166 gillian brock leap 4 (2016) enforced, is relevant to my sense of what moral duty requires. another highly relevant issue is what to do in a situation where others are not doing their fair share. what, if anything, can be done to enforce compliance with a fair allocation of duties? in these ways, i think ref lection on these aspects of moral duties lends itself to consideration of the reliable authorities that may be able to enforce compliance. and so, inevitably, i believe we get to the political and legal issues from the moral ref lections. here, consideration of all the agents who share responsibilities is relevant as well. agents from the developed world have a huge role to play. to give one example, they undermine states’ abilities to be effective by supporting a variety of global practices and institutions that undermine revenue-raising capacity in all countries. in virtue of their capacities to make reforms, their contributions to the problems, and their patterns of benefit, it is clear their share is large. but what if they refuse to play their part or do too little? what are the moral duties in such cases? of course, agents from the developing world might well press on, arguing that they ought to do more. but when their calls fall on deaf ears, what else may they do? when there is a high level of deprivation, what may developing countries do to solve their own problems themselves, in a context in which aff luent developed states are not complying with the demands of justice? under relevant circumstances, some in developing countries may be asked to do “a bit more” and a lot will depend on what “a bit more” consists in. consider some of the things called “compulsory service programs” in our actual world: (cs1) a one-year module of underserved community service and training is part of the degree requirements (call this a standard residency requirement).2 (cs2) there is a delay (such as one year) between completing the education necessary to be awarded the degree and the awarding of the degree. (cs3) there is a requirement to complete a module of underserved community service (of one year’s duration) as part of the requirements to gain a license to practice in that state. (cs4) there is a requirement to complete a one-year term of under served community service in order to be considered for postgraduate training. (cs5) service in underserved communities is required on completio of the degree for a period of one year. 2 we could offer a perfectly good educational justification for this. we surely want people to be able to apply their skills successfully and this requires a period of practical training. if governments offer these practical training opportunities they may defensibly direct service to underserved areas. 07brock.indd 166 27/4/17 9:21 responsibilities in an unjust world: a reply to... 167 leap 4 (2016) notice that none of (cs1)-(cs4) restricts rights to emigrate in any straightforward way. in the second option, many students may choose to spend the year between completion of their studies and award of the degree within the country. they may wisely judge that they will be more employable in other countries once they receive their formal qualifications. during that year they may be heavily dependent on government employment and governments may be able to steer them towards underserved communities. this may have the same effect as (cs5). so, none of (cs1) through (cs4) presents any relevant problems concerning restrictions on emigration. all these options are entirely liberty respecting and, through careful design, manage to secure service for underserved areas. a country could adopt a so-called compulsory service program such as any of (cs1)-(cs4), and i expect few of the contributors to this symposium would have any problems with this form of so-called compulsory service. so, what about the seemingly different proposal labeled (cs5)? does that present unreasonable burdens? does it remove migrants’ rights to leave? one very important consideration is how any contracts to serve would be enforced. on my preferred account of enforcement, people should be permitted to leave states even if they do not comply with their contractual agreements. compensation for breaches of service contracts should be pursued as we do with other breaches of contract. so, to take one example, consider violations of agreements concerning child support or alimony. host countries have used wage garnishments and denial of licenses to enforce contracts. destination countries have a range of ways to help enforce contracts, and there is some good precedent for co-operation here, if we consider the legal arrangements around child support and bilateral treaties that are aimed at ensuring compliance.3 do programs such as (cs1) —(cs5) present unreasonable burdens? i have suggested that none of (cs1)-(cs4) do present unreasonable burdens; in fact they are rather light on burdening those with great capacities to help others, capacities that have been developed while making use of public resources. (cs5) demands a little more in asking migrants to delay plans for one year, but not so much more that it crosses into being an unreasonable burden under the circumstances. (we see further defense of this claim in the next section.) in my view, a case can be made that each of (cs1)-(cs5) could constitute the “bit more” a citizen of a developing country might reasonably be expected to do. 3 i should also note that i have argued for other mechanisms such as the ability to buy out of service contracts, so there are already other provisions in place that make migration unproblematic, should someone wish to leave. 07brock.indd 167 27/4/17 9:21 168 gillian brock leap 4 (2016) notice again how i have indicated that the core question is this: when there are net losses from high skill migration, what may developing countries do to solve their own problems, in a context in which affluent developed states are not complying with the demands of justice? my arguments are focused on helping developing countries formulate permissible policies that they can implement here and now, without having to wait any longer for non-compliant developed world actors to discharge their duties. in other places i do discuss the duties developed world actors have (e.g., brock 2009a; brock 2014; brock 2009b), but here my focus is firmly on developing states and the actions they may permissibly take. let me emphasize some other core features of my account that are necessary for such normative views to be justified and are useful in rebutting further objections. i argue that a poor, legitimate, developing state may implement carefully crafted compulsory service and taxation schemes at least when five important sets of conditions are met. for instance, states must meet legitimacy conditions, citizens must have relevant responsibilities, and certain background conditions must be met.4 let me emphasize three particularly relevant background conditions here: (bc1) evidence from the particular country indicates that skilled citizens can provide important services for which there are severe shortages. (bc2) governments have invested appropriately in training of skilled workers to provide for their citizens’ needs and to promote beneficial development. (bc3) losses that result from skilled workers’ otherwise uncompensated departure would not adequately be compensated for by benefits that result from citizens who leave. for compulsory service programs such as (cs5) to be permissible in the cases that are my particular focus, governments must have made students aware of the fact that they will be expected to meet needs on completion of their training for a short period (such as one year), and such expectations should be specified in a contract students would sign before embarking on tertiary-level training. in addition, being present in the country must be important to remedying the deprivations, the compulsory service program should not require unreasonable sacrifices, and the costs of staying should not be unreasonable. 4 as proxy measures, states exercise power legitimately when they make sufficiently effective and credible efforts to protect human rights and provide other core goods and services (e.g. brock and blake: 2015: ch. 5). 07brock.indd 168 27/4/17 9:21 responsibilities in an unjust world: a reply to... 169 leap 4 (2016) for taxation programs to be permissible for the cases in view, in addition to the state’s being legitimate, and the relevant background conditions and moral responsibilities applying, it must be the case that taxation of those skilled citizens would assist in remedying deprivation. governments should clarify expectations by specifying such taxation arrangements in an explicit contract which the student is required to sign before accepting the opportunity for tertiary-level training. the taxation program should not require unreasonable sacrifices. though most contributors to the symposium ignore the taxation proposals, it is plausible to see them as part of a permissible package. i take seriously the idea that no matter how desirable a particular developing country may be, in a world characterized by significant disparities in income or wages, this will inevitably draw some citizens away. so the salient question is: what constitutes fair terms of departure? ongoing taxation commitments for a limited period may be part of such fair terms. before i conclude this section, notice that some of carens’s own ref lections on the moral duties nicely mirror the moves i make myself. consider, for instance, these quotes from carens: “what sorts of norms and values is it morally permissible for a political community to seek to transmit with respect to the concerns raised by the brain drain? for example, would it be morally acceptable for a poor state to teach children that those with special gifts and opportunities for advanced training have a particular obligation to use their gifts and training in ways that will benefit the community? would it be morally acceptable to tell students that they should not seek medical training unless they are willing to commit themselves to working within their home state over the long run, at least under normal circumstances, … would it be morally acceptable if this sort of expectation became part of a wider social culture, so that most people in a poor state felt it would normally be wrong for skilled medical personnel to move to a rich country?” (carens 2017: 142). so, how does he believe we should answer such questions? “i must confess that i do not have a clear answer. on the one hand, like brock and, i think, more than blake, i am sympathetic to the idea that a just society can include legitimate expectations and social norms with respect to the ways in which people make use of their talents and skills. … on the other hand, we don’t live in a just world. so, i would also be sympathetic to a doctor or nurse from a poor state who said, ‘why should i be the one to bear the burdens of serving the 07brock.indd 169 27/4/17 9:21 170 gillian brock leap 4 (2016) health needs of this community especially since they are in important respects the byproducts of an unjust social order? why shouldn’t skilled medical personnel from rich states be the ones with a duty to come and address these problems?’ … to be frank, that is just the starting point for some of the intellectual puzzles that emerge when we seek to talk about moral duties in an unjust world” (carens 2017: 145). as carens’s own preliminary ref lections suggest, the moral issues draw us into consideration of everyone else’s duties as well, as i suggested. and once we make that move, other salient considerations quickly line up, such as the ones i’ve emphasized. as i have tried to show, the political and legal solutions can offer important clarity missing when we consider the moral duties in isolation, apart from issues such as duty content, numbers of duty bearers and the conditions under which duties are triggered. i should address very brief ly a matter that both carens and oberman raise, namely that i fail to say much about what rich states ought to do with respect to the brain drain problem. i am not sure that is quite fair, given the arguments i make in debating brain drain, especially chapter 2, and elsewhere (such as in brock 2009a: ch. 8; and brock 2009b). but at any rate, the focus in this book is on what poor developing countries may permissibly do to solve their own problems themselves. so we need to focus on what is under their control. they may wish that developed country agents discharged more of their duties and may regret the existence of immigration restrictions in other countries. but getting developed world agents to change these features is not directly subject to their control. i should also emphasize that i do discuss immigration restrictions in other places (e.g. brock 2009a), and given those extended discussions and the fact that my core question here is a different one, space limitations require focusing on the neglected question of what developing countries may do. 2. does the liberal state have a right to control citizens’ use of talents? a response to kollar as eszter kollar argues, the following important outstanding question remains with my position: “the challenge for brock, then, is whether she can provide an adequate justification of compulsory service consistent with her liberal commitments. does she think that a person’s right to control the use of her talent can sometimes be restricted by liberal states? the conditions under which such a restriction is justified would 07brock.indd 170 27/4/17 9:21 responsibilities in an unjust world: a reply to... 171 leap 4 (2016) need to be spelled out and shown to be consistent with liberalism” (kollar 2017: 114). so, can liberal theorists provide an account of fair terms of co-operation that include a justification for how and why the state may restrict the use of our talents and skills? i think they can and i argue the case using the work of john rawls, arguably the most prominent liberal theorist. in justice as fairness: a restatement, rawls makes explicit some important ways in which we are to understand the principles of justice and the priority to be given to his first principle of justice concerning the weight to be accorded liberty. the first principle states that “each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all” (rawls 2001: 42). rawls adds this important clarification to his principle: “this principle may be preceded by a lexically prior principle requiring that basic needs be met, at least insofar as their being met is a necessary condition for citizens to understand and to be able fruitfully to exercise the basic rights and liberties” (rawls 2001: 44). this seems to be a very sensible clarification to offer given the role basic needs such as security and subsistence play in being able to enjoy any of our civil and political rights, as henry shue and others have urged (shue 1980; peffer 1990). in this important discussion, rawls not only clearly concedes that a principle of basic needs fulfillment may well be lexically prior to the principle of equal basic liberties, but he also adds further important points, such as that while there is a general presumption against imposing restrictions on liberties, there can be sufficient reason to do so (rawls 2001: 44-47). rawls continues the discussion with these important concessions: “no priority is assigned to liberty as such, as if the exercise of something called ‘liberty’ had a preeminent value and were the aim, if not the sole, end of political and social justice. while there is a general presumption against imposing legal and other restrictions on conduct without a sufficient reason, this presumption creates no special priority for any particular liberty. throughout the history of democratic thought the focus has been on achieving certain specific rights and liberties as well as specific constitutional guarantees, as found, for example, in various bills of rights and declarations of the rights of man. justice as fairness follows this traditional view” (rawls 2001: 44-45, added emphasis). rawls goes on to state quite clearly that addressing needs is a constitutional essential, emphasizing that “… a social minimum providing for the basic needs of all citizens is also a constitutional essential” (rawls 07brock.indd 171 27/4/17 9:21 172 gillian brock leap 4 (2016) 2001: 48). furthermore, “the first principle… covers constitutional essentials” (rawls 2001: 48). here rawls is making explicit that needs and liberties have equal standing as important constitutional essentials. so i think we can marshal a general argument concerning the importance of need satisfaction via at least two arguments. one concerns the equal importance of two weighty constitutional essentials. the second stresses the importance of ensuring for all citizens the basic liberties of citizenship: everyone has a claim to the basic liberties of citizenship and the social conditions, including satisfaction of needs, that make this possible or worth having. so everyone has a prior claim to appropriate satisfaction of their needs. rawls does not address the issue of how we might press people into the service of meeting needs, but it seems the question must be confronted given the priority and importance to be accorded the satisfaction of needs. my work in debating brain drain is aimed at answering such questions, in particular for conditions of highly scarce resourcing. my short answer is that certain kinds of reasonable contributions —sacrifices if you will —can be required of citizens under specified conditions. much work is done by the particular conditions and the shape of the particular programs according to which citizens would be making contributions. in the last section i have argued why developing countries may make use of carefully crafted programs that incentivize or require such service, such as all of (cs1)-(cs5) discussed in the previous section. we can marshal an argument that there is sufficient reason in the core cases that characterize “poor, but responsible” (brock and blake 2015: ch. 4) to allow deprivation to have a bearing on liberty. there are, of course, important questions of when and where we may “force” people into serving others in liberal societies. i think the framing of such questions often ignores the ways in which liberal societies standardly require such contributions —coercion, if you will —in order to secure the very goods liberals think of as worth having. consider examples such as compulsory jury duty and income tax, both of which are standard components of the liberal tradition of justice. many liberal states have practices of compulsory jury duty in which all sufficiently competent citizens are required to make themselves available to serve on juries. i believe this can be justified on something like the following argument which, i hope, appeals to kollar, because it considers what all citizens owe one another and government may justifiably enforce, as each plays her part in upholding fair terms of co-operation. it also invokes her preferred view about fair reciprocity. we need a fair way to secure significant interests such as those protected by the right to a fair trial. those who are sufficiently competent to participate appropriately in trials have the relevant capacities to secure 07brock.indd 172 27/4/17 9:21 responsibilities in an unjust world: a reply to... 173 leap 4 (2016) the interests protected by the rights. so it is fair to ask those with such capacities to assist, so long as the sacrifices demanded are reasonable. one important factor in deciding whether or not the sacrifices would be reasonable is the duration of time required for the trial. we seem to accept that quite significant burdens can be placed on individuals on a temporary basis. these burdens might include that for the trial’s duration, the juror is expected to defer her plans, aspirations, and projects —including those related to her work. this kind of coercion is justified because of the importance of what is at stake in ensuring the core interests, rights, and needs of fellow citizens in a well-functioning state. the basic interests being served are ones that are core for all human beings, and ones that states have responsibilities to secure for all citizens. in my view, the argument for compulsory jury service generalizes to securing other core interests essential to enjoying basic liberties, such as enjoying basic healthcare and education. the extension to requiring capable citizens to assist with these other core interests on a temporary basis seems permissible via an exactly parallel argument. of course, it is better if those capable of assisting with core interests (such as health, security, or education) do so voluntarily, and are attracted to positions using normal employment procedures and market incentives. but the question arises about what to do when there is radical under-supply relative to the needs for such services. what may a liberal society do to remedy matters? i have been arguing that carefully designed programs may incentivize or require such conditional service. the details of my approved programs all highlight the low levels of coercion required, along with the many options available for avoiding coercion altogether. citizens being in severe need may have a bearing on what people are at liberty to do with their skills, especially after taxpayers have subsidized the very acquisition of those skills. i do not mean to suggest that all issues have now been resolved through my arguments. what i do hope to have established in this section is that there are tools from within the liberal tradition that (1) show that what i am proposing is perfectly justifiable from within the liberal framework, (2) that, indeed, the liberal tradition already presupposes their use in important respects, and (3) there are ways to increase service provision for the needy that are entirely respectful of liberty and fair reciprocity. i have space to deal brief ly with only one other issue raised by kollar and i address her claim that i view taxation and service as normatively on a par. i believe we have different interpretations of the passages she cites to substantiate her case for this position. to be clear, in my view, imposing taxes is easier to justify than requiring people to serve. in debating brain 07brock.indd 173 27/4/17 9:21 174 gillian brock leap 4 (2016) drain, the order in which i discuss these issues along with some of the discussion attached to those justifications —such as not wanting to let citizens off too lightly by assuming the payment of taxation would be sufficient to discharge duties —attempted to make these points. however, i could have been clearer on these issues, and i thank kollar for raising them. 3. the appeal to the human right to emigrate and phantom conditions: a reply to oberman according to oberman, i argue for emigration restrictions and, because of the importance of the right to emigrate, only emergency situations could justify such restrictions. he believes that proper consideration of the human right to emigrate supports his view. he also outlines an emergency justification for emigration restrictions. in this section i show why the appeal to the human right to emigrate does not support his case against me as clearly as he maintains. a few points are worth underscoring before we get to that core argument. first, i have been at pains to show how carefully crafted proposals need not actually entail restrictions on emigration that are problematic, as (cs1)(cs4) in section 1 illustrate. well-designed policies may have an indirect effect on the timing of migration, so that citizens delay their departure or anyhow their departure is regulated to ensure fair terms of exit. good policies need not prevent people who would like to exit a state from doing so. second, we have seen that the relationship between liberty and need satisfaction is complicated in the liberal tradition, even under the rawlsian assumption that favorable conditions obtain. as we saw in the last section, it is not the case that only emergencies can justify restrictions on important personal liberties. through exploring some of rawls’s work, we see how the liberal tradition must confront this issue in perfectly normal, nonemergency situations. after all, the background assumption in a theory of justice is that reasonably favorable conditions exist, such that there are sufficient resources for everyone’s needs to be met. no emergency situation is encountered in these situations, and yet in such situations rawls maintains that there can be sufficient reason to limit liberty in virtue of neediness. oberman’s main argument starts with recognizing the importance of the human right to emigrate. however, as i show next, his discussion does not settle the debate because it fails to appreciate all except one human right. there are plenty of relevant human rights that are unfulfilled in the 07brock.indd 174 27/4/17 9:21 responsibilities in an unjust world: a reply to... 175 leap 4 (2016) situations that are my core focus. to name just a few of the rights that are relevant, there are rights to health, adequate standards of living, education, and self-determination. the question is what to do in cases where multiple human rights are under threat. so, i do not think the appeal to human rights documents proves to be as decisive as oberman thinks. even from within these human rights documents, the state has much leeway about balancing salient issues, when there are several human rights in play. let us review some details. consider undhr for some salient rights and, in fact, some helpful advice about how to weigh up the rights and duties citizens have. articles 13, 25, 26, 28 and 29 are all important. article 25. (1) everyone has the right to a standard of living adequate for thehealth and well-being of himself and of his family, including foodclothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) motherhood and childhood are entitled to special care and assistance. article 26. (1) everyone has the right to education. education shall be free, at least in the elementary and fundamental stages. elementary education shall be compulsory. technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the united nations for the maintenance of peace. article 28. everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realized. article 29. (1) everyone has duties to the community in which alone the free andfull development of his personality is possible. (2) in the exercise of his rights and freedoms, everyone shall be subject 07brock.indd 175 27/4/17 9:21 176 gillian brock leap 4 (2016) 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. (3) these rights and freedoms may in no case be exercised contrary to the purposes and principles of the united nations (undhr 1948). article 13 does indeed recognize the relevant rights to emigrate: “(1) everyone has the right to freedom of movement and residence within the borders of each state. (2) everyone has the right to leave any country, including his own, and to return to his country” (undhr 1948). however, articles such as 28 and 29 make clear that this is not any kind of absolute right and that it may be limited in attempts to recognize others’ rights and freedoms, “the just requirements of morality, public order and the general welfare in a democratic society” (article 29). if we consider the human rights documents in their entirety, we see ample support for the project of trying to determine what fair contributions people may be asked to make in establishing societies in which everyone has the prospects for a decent life, including adequate protection for their most basic human rights. i have space to deal with only one further issue raised by oberman and here i address his “phantom conditions” argument, since it occupies such a large portion of his article. oberman tries to make the case that some of the conditions for which i argue are not necessary to justify emigration restrictions. the basic problem with the phantom conditions argument is that oberman misconstrues my strategy. my claim is that a certain set of conditions, when all met (such as in the case of “poor, but responsible”), can be sufficient to generate obligations to serve and pay additional taxes. his objections take the form of arguing that the conditions are not necessary. but my claim is not that they are necessary, only that they can be jointly sufficient such that carefully crafted compulsory service and tax proposals may permissibly be used in certain conditions. so, this whole line of argument proves to be a red herring as a criticism of my arguments, though it is interesting to see oberman’s development of a case for emigration restrictions in emergency situations and a welcome contribution to the literature. i address oberman’s claims about the empirical literature in the next section, but in closing i should say that i do not share his assessment of what the empirical literature shows, namely that “among migration 07brock.indd 176 27/4/17 9:21 responsibilities in an unjust world: a reply to... 177 leap 4 (2016) economists there seems to be only one point of agreement: migration, as a general rule, benefits the global poor” (oberman 2017: 107). while i concede there is much economic research that suggests that migration can lead to economic benefits for the global poor, there is also significant research that suggests that there are important losses, both economic and non-economic. 4. what is the role of empirical evidence in debates about policy responses to the brain drain? a response to hillel rapoport we can address several misconceptions that ground hillel rapoport’s concerns by drawing on discussion from previous sections. so far i hope to have shown that: 1) my proposals do not attempt to ban emigration. 2) i do not argue that those who have legitimate fears about persecution should be required to sign contracts to serve. indeed, governments would not satisfy the legitimacy conditions if they were persecuting citizens and could not permissibly use the compulsory service and tax proposals for which i argue. 3) the carefully constructed policies for which i advocate take the rights of would-be migrants very seriously. so many of rapoport’s concerns about the normative views can be addressed. what about the empirical claims? rapoport believes my argument will partly collapse once he presents evidence that there are positive effects from high skill migration. since my argument is a conditional one, and the relevant normative question is only triggered when there are net losses, the fact that there may be net gains in certain cases is irrelevant to the central normative inquiry. in the book i acknowledge that there are some positive effects and document several types, including the one he spends most time on concerning increased human capital formation.5 i do not presuppose that there are always and only negative effects. rapoport discusses brain gain through increased human capital formation in some detail. as indicated, i discuss this consideration myself (brock and blake 2015: ch. 10). some of the critical issues i raise there 5 his overall conclusion is that instead of limiting the “drain effect” through emigration restrictions, institutions should be developed to capture gains that there could be from the positive effects of skilled migration. i agree with that position and have developed such views elsewhere (e.g. brock 2009a: ch. 8). 07brock.indd 177 27/4/17 9:21 178 gillian brock leap 4 (2016) include whether this is always a sufficiently positive effect to outweigh other negative effects, whether the increased human capital formation necessarily benefits source countries sufficiently (rather than individuals who acquire the skills), and benefits source countries in all the areas of human well-being that are relevant.6 i elaborate on some of these points next. as i observe in debating brain drain, chapter 10, one important benefit of high skill migration is increased human capital formation (as rapoport discusses). however, as with all the purported benefits, we need to be cautious about their magnitude, whether particular gains accrue to particular countries, whether they are sufficient to outweigh other losses, and so on. so, consider the gain of human capital formation. the areas in which additional skills are acquired may not be very useful for source countries. enhanced training can be skewed towards usefulness in the targeted destination countries. as gibson and mckenzie note it can lead to overinvestment in some fields (e.g. geriatric medicine) that have large payoffs overseas rather than studying in other fields —such as tropical medicine more urgently needed locally (gibson and mckenzie 2011). there may be little urgent need for geriatrics in situations where life expectancy is around 50, whereas there might be very high urgent need for those skilled in treating diseases common to the tropics. more importantly, when there is a brain gain, it is not always significant or sufficient to outweigh other losses. for instance, alok bhargava, frederic docquier and yasser moullan (2011) note that the magnitude of the positive effect in the medical sector is small and insufficient to generate a net brain gain. furthermore, even when there is brain gain it does not necessarily outweigh reduced health outcomes from medical brain drain. bhargava and docquier (2008) observe that medical brain drain is connected with a 20% increase in adult deaths caused by aids. so, even when there is increased human capital formation, the net gains for those relevantly affected are far from obvious. rapoport maintains that even though “there are losers and winners, the brain drain contributes to an increase in the overall number of highlyskilled people living in the developing world” (rapoport 2017: 127). even if this is true, it is hard to see how service programs such as (cs1)-(cs5) eliminate whatever incentive effects there are. recall that my position is not to discourage people from leaving the country completely. indeed, i assume that many high skill citizens will still want to leave, hence my advocating for the tax for five years (which he does not address). what needs to be shown is that measures such as (cs1)-(cs5) have a clear 6 surprisingly, rapoport and his research associates have made several of these skeptical points too in previous published writings. 07brock.indd 178 27/4/17 9:21 responsibilities in an unjust world: a reply to... 179 leap 4 (2016) dis-incentivizing effect on acquiring additional skills in the first place. no evidence of this kind is presented. in his contribution to this symposium, rapoport claims that “the recent economic literature does not support the … view that brain drain is an impediment to developing countries’ current and future economic performance” (rapoport 2017: 130). i do not believe this conclusion is justified and i give some brief reasons for this below. note also that i do not focus exclusively on economic performance. when looking at the effects for countries of origin i include a variety of effects on other dimensions of human well-being, such as health outcomes and political institutions. here data can be worrying. having studied the recent empirical literature fairly extensively in preparation for this book, my overall assessment of the literature is that the effects of brain drain vary enormously across countries and can even vary a fair bit over time. relevant factors as to whether high levels of skilled migration is overall good or bad for particular countries include population size, geographical features, levels of development, skill levels in the source country, and language in home and host countries. what is the case for particular countries in sub-saharan africa in the health sector may not hold at all for effects on trade or technology transfer for citizens in india. small island states are more affected by brain drain than large developing countries such as china, india, and brazil (e.g. beine, docquier, and rapoport 2008). small countries also often lose much more than large countries gain (e.g. beine, docquier, and rapoport 2008). assessments of the state of play also vary over time. as one indication of this, consider these remarks made by hillel rapoport and research associates, in assessing the state of play at a particular time: “high-skill migration is becoming a dominant pattern of international migration and a major aspect of globalization. the fact that international migration from poor to rich countries is becoming more of the brain drain type is a serious source of concern in developing countries and for the development community. through the brain drain, it would seem, globalization is making human capital scarcer where it is already scarce and more abundant where it is already abundant, thereby contributing to increasing inequalities across countries, including among richer ones” (docquier and rapoport 2008). furthermore, as mentioned, even when brain gain does occur it is not necessarily sufficient to outweigh other bad health effects. bhargava and docquier (2008) find that medical brain drain can be associated with increased adult deaths from aids. while some studies show a positive correlation between the number of skilled migrants a country has in the 07brock.indd 179 27/4/17 9:21 180 gillian brock leap 4 (2016) united states and levels of foreign direct investment from the us economy to countries from which migrants hale (kugler and rapoport 2007; javorcik et al. 2011), others suggest caution about how generalizable these results are, as data sets contain only two small countries (gibson and mckenzie 2011). researchers have recently examined diaspora and network effects on the quality of political and economic institutions in source countries (docquier and rapoport 2012). docquier and rapoport (2012) advise caution as there are only a few papers that explore this topic.7 they note, “the empirical assessment of these effects is still at an early stage” (docquier and rapoport 2012: 711). even among this sample we find a quite mixed result, for instance, docquier and marfouk (2006) find that in the study they undertook, brain drain may have positive effects on political institutions but negative ones on economic institutions (docquier and rapoport 2012: 711). while it is true that high-skill emigration can produce some positive network externalities, those countries that gain typically have large populations and large numbers of skilled citizens living in the diaspora. particular policies of both the host and home countries make a difference as well (docquier and rapoport 2012: 725). there is also still much about which we are ignorant (gibson and mckenzie 2011). we clearly need more research on a range of issues including the actual effects of policies aimed at reducing or capitalizing on high-skilled immigration. finally, it is important to note that there can be a certain fashionable element to empirical research. while early research on brain drain indicated clear losses, this could have itself stimulated other researchers to investigate more closely. in the future, researchers on this topic will raise other questions and collect other data, perhaps in response to perceived convergence. so caution is advisable when we try to make overall assessments on what the consensus opinion on such a vast body of evidence suggests is the new “received wisdom”. the data available to date suggests the only fair generalizations we can make at this point are that there are some positive, along with some negative effects of brain drain, there is much we still do not know, and that the effects vary considerably for particular countries and within particular sectors. given that rapoport himself seems to have changed his mind about some of the evidence and what it shows, it is worth considering the normative question apart from what the current state of play about the empirical evidence suggests, even if we are able to get agreement on what that is. 7 see also kraay et al. (2005), and docquier and marfouk (2006). 07brock.indd 180 27/4/17 9:21 responsibilities in an unjust world: a reply to... 181 leap 4 (2016) bibliography beine, m., docquier, f. and rapoport, h., 2008: “brain drain and human capital formation in developing countries: winners and losers”, the economic journal 118: 631-652. bhagwati, j. and hansen, g., 2009: skilled migration today: prospects, problems and policies, oxford: oxford university press. bhargava, a. and docquier, f., 2008: “hiv pandemic, medical brain drain, and economic development in sub-saharan africa”, world bank economic review 22: 345-66. bhargava, a. docquier, f. and moullan, y, 2011: “modeling the effects of physician emigration on human development”, economics and human biology 9: 172183. brock, g., 2009a: global justice: a cosmopolitan account, oxford: oxford university press. —2009b: “health in developing countries and our global responsibilities” in the philosophy of public health, ed. a. dawson, farnham: ashgate. —2014: “global poverty, decent work and remedial responsibilities: what the developed world owes to the developing world and why”, in poverty, coercion, and human rights, ed. d. meyers, new york: oxford university press. brock, g. and blake, m., 2015: debating brain drain: may governments restrict emigration, oxford: oxford university press. carens, j., 2017: “expanding the brain drain debate”, law, ethics and philosophy 4:132-145 docquier, f. and marfouk, a., 2006: “international migration by education attainment, 1990-2000”, in international migration, remittances and the brain drain, eds. ç. özden and maurice schiff, washington, d.c.: world bank, 2006. docquier, f. and rapoport, h., 2012: “globalization, brain drain, and development”, journal of economic literature 50: 681-730. gibson, j. and mckenzie, d., 2011: “eight questions about brain drain”, journal of economic perspectives 25: 107-128. javorcik, b., özden, c., spatareanu, m. and neagu, c., 2011: “migrant networks and foreign direct investment”, journal of development economics 94: 231-41. kollar, e., 2017: “the distinction between taxation and public service in the debate on emigration”, law, ethics and philosophy 4: 109-118. kraay, a., mastruzzi, m. and kaufmann, d., 2005: “governance matters iv: governance indicators for 1996-2004”, world bank policy research working paper 3630. washington, d.c.: world bank. kugler, m. and rapoport, h., 2007: “international labor and capital flows: complements or substitutes?”, economics letters 94: 155-162. oberman, k., 2017: “emigration in a time of cholera: freedom, brain drain, and human rights”, law, ethics and philosophy 4: 87-108. peffer, r., 1990: marxism, morality, and social justice, princeton: princeton university press. rapoport, h., 2017: “who is afraid of the brain drain? a development economist’s view”, law, ethics and philosophy 4: 119-131 rawls, j., 1971: a theory of justice, cambridge, mass: harvard university press. 07brock.indd 181 27/4/17 9:21 182 gillian brock leap 4 (2016) —2001: justice as fairness: a restatement, cambridge: harvard university press. shue, h., 1980: basic rights: subsistence, affluence and us foreign policy, princeton: princeton university press 07brock.indd 182 27/4/17 9:21 leap 5 (2017) a précis of free time j u l i e l . rose dartmouth college every citizen is entitled, as a matter of justice, to a fair share of free time. this is the core argument of free time. the argument rests on the widely held commitment to ensuring that citizens possess the means to exercise their freedoms, rooted in the recognition that if citizens lack the means to make effective use of their formally guaranteed freedoms, those freedoms are of little worth. a foundational tenet of liberal egalitarian theories of justice is, as such, what i term the effective freedoms principle: citizens have legitimate claims to a fair share of the resources generally required to exercise their formal liberties and opportunities. though the effective freedoms principle is applied most often to citizens’ requirements for material resources, it applies in the same way to the resource of free time: time that is not consumed by meeting the necessities of life, that one can devote to one’s own pursuits and commitments. this argument has been overlooked, yet it is readily apparent on ref lection. consider, for instance, how, in order to exercise one’s right to vote, one must have not only the means to get to the polls, but also the free time to do so. citizens generally require free time to make effective use of the full range of their fundamental liberties, as well as any of their broader legal freedoms and opportunities. as such, i argue, on the basis of the effective freedoms principle, citizens have legitimate claims to the resource of free time. though this argument has been absent from contemporary liberal theories of justice, it can be found in a recognizable form in the arguments of american nineteenth century labor reformers in their fight for time. for citizens to enjoy their rights to “life, liberty, and the pursuit of happiness,” insisted “the working men’s declaration of independence,” they must have the “means” to make use of them.1 “it is true”, they argued, “that churches are erected, school houses are built, mechanics’ institutes are founded and libraries ready to receive us … but alas! we lack the time to use them – time”.2 workers required free time not only to make use of their fundamental political, associational, and religious liberties, but more 1 “the working men’s declaration of independence”, december 1829 in foner (1976: 49) original emphasis. 2 w. sylvis (1968: 199) original emphasis; quoted in roediger and foner (1989: 99). d oi : 10. 310 0 9/l e a p. 2017.v 5.03 34 julie l. rose leap 5 (2017) broadly to pursue any of their own ends, as encapsulated in their demand for “eight hours for work, eight hours for rest, and eight hours for what we will”.3 though ensuring that citizens enjoy the means to make use of their freedoms is a central liberal egalitarian commitment, contemporary liberal theories of justice have given little attention to “hours for what we will”. instead, they have implicitly assumed that free time is not an appropriate or worthy concern of a liberal theory of justice. given this incongruity, it is worth considering why. it owes, i argue, to two mistaken views. the standard liberal egalitarian approach to distributive justice, which i label liberal proceduralism, is to ensure a fair distribution of resources, the all-purpose means that are generally required to pursue any conception of the good, in order to ensure that citizens have fair access to various specific goods, or the particular components of one’s particular conception of the good. this approach – with which my argument has no quarrel – aims to secure the just background conditions within which citizens can pursue their own ideas of the good life. importantly, on this standard approach, for the state to directly target the distribution of specific goods is presumptively inappropriate. absent some exceptional justification, the proper aim is instead to ensure a just distribution of all-purpose means. the first mistake explaining the neglect of free time is that political philosophers have generally conceptualized it in terms that render it a specific good.4 leisure has been variously understood as time engaged in intrinsically valuable activities, or as time in play and recreation, or – most common among theorists of distributive justice – as time not engaged in paid work, and on each understanding, as a specific good. (to keep this distinction clear, i use leisure to refer to the specific good and free time the resource). this limited view is, however, an error, for it overlooks the way, captured in the appeal for “hours for what we will”, that free time is itself an all-purpose means. free time – understood specifically as time not committed to meeting one’s own, or one’s dependents’, basic needs, which are the needs one must generally meet to attain a basic level of functioning in one’s society – is, i argue, properly regarded as a resource. it is a necessary input that is 3 rosenzweig (1983); see also gourevitch (2015: 126–32, 144–45); hunnicutt (2013: 1–94). 4 goodin et al.’s discretionary time is an important and notable exception (goodin et al. 2008). my conception of free time, though it departs from their account, is indebted to their view of discretionary time as time not consumed by the necessities of life. for another account that draws on goodin et al.'s conception, see shippen (2014). a précis of free time 35 leap 5 (2017) generally required to pursue any conception of the good, and it meets the conditions to be an object of a public and feasible theory of justice. the second mistake is the implicit assumption, stemming from the economic view of time and money as fungible goods, of what i call the time-money substitutability claim: that realizing a just distribution of income and wealth is sufficient to ensure a just distribution of free time. if this claim were true, it would not be necessary to give any distinct attention to free time as an object of justice. yet, neither of the assumptions on which the claim depends – the perfect divisibility of labor demand and the perfect substitutability of money and basic needs satisfaction – can be sustained. given both ethical and empirical limitations of economic markets, individuals cannot always unobjectionably purchase the satisfaction of their own, or their dependents’, basic needs, nor can they always freely choose to reduce their hours of paid work to the level they prefer (even for a corresponding reduction in pay, a phenomenon economists term overemployment). with these obstacles cleared, it is then possible to construct the core argument for citizens’ claims to free time. first, free time is itself a resource. second, if a theory of justice endorses the effective freedoms principle, as all liberal egalitarian theories do, then citizens have legitimate claims, as a matter of justice, to fair shares of free time. further, to ensure that citizens have their fair shares, free time must be treated as a distinct object of justice. ensuring that citizens have their fair shares of free time requires, if everyone’s fair share is, say, eight hours per day, ensuring that all citizens are able to meet their basic needs in sixteen hours per day (e.g. with income subsidies or in-kind provisions), as well as protecting citizens’ ability to choose to spend no more than this time meeting their basic needs (e.g. with work hours regulations). moreover, citizens must not only have the requisite amount of free time, they must enjoy it on conditions that allow them to effectively use it to exercise their liberties, which include having access to generally usable periods of free time on predictable schedules. with the central argument in place, i turn then to developing some of its implications in the later chapters. chapter 5 argues that, because citizens’ exercise of their freedom of association, whether civic, religious, or social, generally requires sharing time together, citizens require access to free time shared with a significant portion of those with whom one currently associates and might associate. access to shared free time may be realized by providing citizens with vast amounts of free time, greater work schedule flexibility, or a common period of free time. if the first is not an option, i argue that instituting a common period of free time across society – realized, for instance, with sunday closing laws (in a modified form consistent with economic and 36 julie l. rose leap 5 (2017) religious liberty) – may be the best means of ensuring effective freedom of association in a pluralistic democratic society. chapter 6 turns to the question of whether parents and other caregivers are entitled to workplace accommodations that enable them to combine paid work, caregiving, and free time, such as paid leave and short and flexible hours schedules. i argue that they are, if citizens’ claims to free time are developed such that: citizens have pro tanto claims to free time in their chosen occupations; and basic caregiving for children, like other dependents, is treated as a necessary activity that (to a point) deducts from free time. taking on these terms, i argue that they yield a presumptive claim to be able to engage in paid work, basic caregiving, or the combination, while also having free time. one final point to make is that the core argument – that citizens are entitled to a fair share of free time – holds on any theory that endorses the effective freedoms principle, as all liberal egalitarian theories do. across this broad range of theories, the principle is recognized and developed in different ways. so that the core argument applies broadly, it is constructed to not depend on taking particular positions on a set of contested issues across these theories. the later chapters do take positions on some of these issues (most notably related to individual responsibility) in order to draw out some of the argument’s implications, but one might adopt different positions and develop the core argument in other ways, yielding another set of implications. indeed, once the core claim is recognized, citizens’ claim to the resource of free time ought to be incorporated into theories of justice in a diverse and expansive array of ways. bibliography foner, p.s., ed. 1976: we, the other people. urbana: university of illinois press. goodin, r.e, j.m. rice, a. parpo, and l. eriksson, 2008: discretionary time: a new measure of freedom. cambridge: cambridge university press. gourevitch, a., 2015: from slavery to the cooperative commonwealth: labor and republican liberty in the nineteenth century. cambridge: cambridge university press. hunnicutt, b.k., 2013: free time: the forgotten american dream. philadelphia: temple university press. roediger, d. r., and p.s. foner, 1989: our own time: a history of american labor and the working day. london: verso. rosenzweig, r., 1983: eight hours for what we will: workers and leisure in an industrial city, 1870-1920. cambridge: cambridge university press. shippen, n.m., 2014: decolonizing time: work, leisure, and freedom. new york: palgrave macmillan. sylvis, w., 1968: “address delivered at boston, january 1867.” in the life, speeches, labors and essays of william h. sylvis, edited by j.c. sylvis. 1872. reprint, new york: augustus m. kelley. 177 issn 2341-1465 leap 2 (2015): 177-189 social contract theory in the global context* peter stone trinity college dublin abstract nicole hassoun’s globalization and global justice: shrinking distance, expanding obligations (2012) offers a novel argument for the existence of positive rights for the world’s poor, and explores institutional alternatives suitable for the realization of those rights. hassoun’s argument is contractualist (in the broad sense), and makes the existence of positive rights depend upon the conditions necessary for meaningful consent to the global order. it thus provides an interesting example of social contract theory in the global context. but hassoun’s argument relies crucially upon the ambiguous nature of the concept of consent. drawing broadly upon the social contract theory tradition, hassoun relies upon actual consent theory, democratic theory, and hypothetical consent theory. each theoretical approach makes use of its own conception of consent. rather than select one of these conceptions over the others, she makes use of all three. in doing so, she introduces a crucial ambiguity into the terms that, on her account, a legitimate global order must satisfy. the resolution of this ambiguity will circumscribe any effort, on the part of hassoun or others, to specify the terms of any global social contract. keywords: consent, global justice, globalization, legitimacy, nicole hassoun, positive rights, social contract theory. 1. introduction nicole hassoun’s globalization and global justice: shrinking distance, expanding obligations (2012) brings social contract theory to bear on the problem of global poverty. she attempts to identify some of the terms that must be satisfied by any set of principles suitable for the governance of the * earlier versions of the argument made here were presented at the 2013 manchester workshops in political theory and at the conference “social contract theory: past present, and future”, university of lisbon, may 15-17, 2014. i am grateful for the comments and suggestions received at these events. work on this paper was supported by a grant from the arts and social sciences benefaction fund at trinity college dublin. 178 peter stone leap 2 (2014) global arena —by any global social contract, if you will. among these terms hassoun focuses upon a number of obligations the world order incurs towards the world’s poor. or, putting things the other way around, her focus is upon the rights that a global social contract must guarantee the poor. given the persistence and severity of global poverty, the importance of her project is hard to overstate. in bringing the idea of a social contract to bear in the global arena, hassoun is in very good company. some of the most important work on global justice over the past fifty years has made similar use of social contract theory (e.g., beitz 1999, rawls 1999a). but social contract theory carries with it a large amount of philosophical baggage. this baggage includes persistent philosophical problems that have proven very difficult to solve. in this short paper, i wish to focus upon one of these problems —the problem of consent. the concept of consent is critical to social contract theory; it does little good to speak of a contract if one cannot also speak of people consenting to that contract in some way. but there are various ways of speaking about consent in the social contract tradition. the concept of consent has, within that tradition, given rise to various conceptions of consent. 1 any effort to defend some vision of the social contract must specify a sense in which people can be said to consent to this vision, or else risk introducing a critical ambiguity. such ambiguity, i shall argue, bedevils hassoun’s efforts to defend the terms she wishes to attach to a global social contract. 2. consent in the global context globalization and global justice offers a novel argument for the existence of positive rights for the world’s poor. 2 hassoun dubs this argument the autonomy argument 3, and it proceeds as follows: (1) coercive institutions must be legitimate. (2) for a coercive institution to be legitimate it must ensure that its subjects secure sufficient autonomy to autonomously consent to, or dissent from, its rules (henceforth, sufficient autonomy). (3) everyone, to secure this autonomy, must secure some food and water, and most require some shelter, education, health care, social support, and emotional goods. (4) there are many coercive international institutions. (c) so, these institutions must ensure that their subjects secure food, water, and whatever else they need for sufficient autonomy 1. on the concept/conception distinction, see rawls (1999b, 5). 2. i examine the specifics of hassoun’s argument in more detail in stone (forthcoming-b). 3. hassoun refers to this argument, with minor differences in wording, as the legitimacy argument elsewhere in the book (92). 179 peter stone leap 2 (2014) (hassoun’s emphasis; hassoun 2012: 45; all further references will be to this book unless otherwise indicated). essentially, hassoun’s argument is contractualist in nature. 4 coercive political institutions, whether domestic or global, require consent for legitimacy. but consent requires autonomy, and the subjects of these institutions cannot grant this consent if they lack the autonomy necessary for doing so. coercive institutions must therefore ensure that their subjects have this autonomy, or else stop coercing them. few non-anarchists would suggest dismantling the world’s coercive institutions completely, whether they be national or global, and so those institutions must meet substantive obligations to the world’s poor in order to ensure them the autonomy necessary for consent. those poor, in turn, enjoy corresponding positive rights. in a world where the poorest of the poor suffer from terrible absolute levels of deprivation —malnutrition that may be sufficient to produce cognitive impairment, for example— these rights are likely to be substantial, and impose meaningful burdens upon the global order. hassoun hopes that her argument will prove convincing to many readers who might otherwise be skeptical of the existence of positive rights. she frames her argument to appeal to libertarians in particular, and devotes an entire chapter specifically to them (ch. 3). in this chapter, she usefully develops the tension between the libertarian ideas of consensualism (people can consent to anything) and minimalism (only a minimal, nightwatchman state can be a legitimate state). if an individual can consent to slavery, why can’t an entire society consent to a soviet-style command economy (97)? following a. john simmons (2005), hassoun believes that the tension should be resolved in favor of consensualism. but if consent really belongs at the heart of libertarian political theory, then libertarians have good reason to accept some version of the autonomy argument. hassoun’s autonomy argument, then, moves from legitimacy to consent, from consent to autonomy, and finally from legitimacy to autonomy. legitimacy (on the part of coercive institutions) requires consent. consent requires autonomy; those lacking autonomy cannot consent. and therefore legitimacy requires autonomy —specifically, it requires a coercive institution to ensure autonomy on the part of its subjects. it is the first move of the argument —the move from legitimacy to consent— that is especially critical. if this move is carried out successfully —if it can be established that legitimacy requires consent— then the conditions required for that consent (especially the conditions of autonomy upon which hassoun focuses her 4. i am using the term “contractualist” in the broad sense, and not the narrow sense given to it by thomas scanlon (1998). in this broad sense, the term refers to “the view that morality is based on contract or agreement” (ashford and mulgan 2012). 180 peter stone leap 2 (2014) attention) should follow straightforwardly. this first move, therefore, must be made with particular care. does legitimacy require consent? answering this question requires both a conception of legitimacy and a conception of consent. on the understanding of legitimacy endorsed by hassoun, “a coercive institution is legitimate if, and only if, the institution has the justification-right to use coercive force”. “an institution”, hassoun further explains, “has a justification-right to make coercive rules and give coercive commands if it is morally permissible for it to do so” (47, emphasis in original). this justification-right is a “liberty right”, or what hohfeld would call a privilege (hohfeld 2010: 38-50). it is permissible for a legitimate coercive institution to use coercive force —that is, nobody has a right to demand that it cease doing so— but nobody need have an obligation either to obey the institution or to help it enforce its will. obviously, this is a very limited understanding of legitimacy, one that hassoun distinguishes from justified authority. a coercive institution has the latter if and only if “individuals have a moral duty to comply with its rules” (49). this is probably closer to what many people envision by legitimacy, but hassoun’s weaker definition of the term is all she needs for her project. hassoun’s understanding of legitimacy, while not uncontroversial, is quite clear and consistent. her understanding of consent, however, is quite different. this understanding, i shall argue, is profoundly ambiguous in precisely the ways characteristic of the social contract theory tradition. hassoun addresses her argument to liberals, but only liberals of a contractualist bent. 5 she is not completely consistent here. on the one hand, she admits that her arguments “will not appeal to everyone who is concerned with freedom”. on the other hand, she claims that she is addressing “those who believe everyone should have some basic freedoms” (12, emphasis in original). on the one hand, her argument “is intended to appeal to everyone who takes a particularly liberal commitment to freedom seriously” (43). on the other hand, she explicitly contrasts liberalism with consequentialism, including utilitarianism (8). she seems to regard consequentialism and totalitarianism as equally alien to liberalism. (indeed, totalitarianism and consequentialism are the only rivals to liberalism explicitly mentioned by her). either hassoun denies that john stuart mill took “a particularly liberal commitment to freedom seriously”, or else her argument is really intended to appeal only to a particular form of liberal —essentially, a liberal who emphasizes consent as the foundation for political legitimacy. at times, hassoun acknowledges that the consent-driven approach she considers is not all there is to liberalism. “not all liberals” she admits, “will agree that respect for persons, autonomous or not, requires refraining from 5. i discuss further hassoun’s understanding of liberalism in stone (forthcoming a). 181 peter stone leap 2 (2014) forcing them to do things to which they cannot even object. still, there is one important strand of liberal thought that supports this contention” (68, emphasis in original). but at the same time, she seems very reluctant to acknowledge any theory that does not put consent at its heart as liberal, or even sane. “what would accounts of legitimacy look like that denied that subjects must have basic freedoms under coercive institutions? on such accounts, coercive institutions could be legitimate even though people living under these institutions could not even freely object to them. it is hard to see how such institutions would not be totalitarian” (63, emphasis in original). perhaps the line between consequentialism (à la john stuart mill) and totalitarianism is not (in hassoun’s eyes, at least) all that thick after all. still, the most charitable way to read hassoun’s argument (a few inconsistencies notwithstanding) is as an appeal to the contractualist approach to liberal thought, to the exclusion of non-contractualist approaches. 6 hassoun thus puts social contract theory, with its emphasis upon consent, at the heart of liberal theory (even though not all liberals are contractualists). in doing so, she acknowledges the profoundly ambiguous nature of the concept of consent that lies at the heart of social contract theory. her acknowledgement of this point is worth quoting at some length: at the heart of liberalism is concern for individual freedom. [a] powerful strand in liberal thought... expresses the idea that the actual relationship between the rulers and each person who is ruled must be voluntary in some way. still, those who are concerned about individual freedom disagree about what makes this relationship voluntary. on liberal communitarian theories, for instance, this relationship is voluntary if the rulers allow or support communities of appropriate kinds that need not be explicitly consensual. other liberal theories make consent central to legitimacy. on hypothetical consent theories, for instance, the relationship between rulers and ruled is only voluntary if (reasonable) people would agree to be subject to the rulers’ dictates were they asked. democratic theory requires more. on democratic theory, legitimacy arises through the democratic process where the majority must actually consent to the institutions to which they are subject. perhaps the most demanding theory of this type is actual consent theory. on actual consent theory, coercive institutions are legitimate only if they secure their subjects’ actual consent (57-58, emphasis in original). hassoun seems to believe that many (though not all) liberals want political relationships to be voluntary. some of these liberals are social contract theorists, 6. i am equating here contractualist approaches with consent-based approaches. this is not an uncontroversial move, but space prohibits any defense of it here. 182 peter stone leap 2 (2014) who may be actual consent theorists, democratic theorists, or hypothetical consent theorists. there are liberals, however, who are not social contract theorists and still want voluntariness to be part of political relationships. among these are liberal communitarians. hassoun never explains how this emphasis upon voluntariness works outside of the social contract theory tradition. moreover, she devotes little time to liberal communitarianism (5960), and so i take contract theory to be the focus of her attention. hassoun thus identifies three forms of social contract theory —actual consent theory, democratic theory, and hypothetical consent theory. each holds that political legitimacy depends upon some form of consent. they disagree regarding just what constitutes the appropriate form of consent. rather than select one of these three forms of theory, hassoun intends her argument to apply to them all. but as a result of this, whenever she invokes the idea that legitimacy depends upon consent —an idea upon which her autonomy argument depends— her account becomes ambiguous between three very different conceptions of consent. take actual consent theory, for example. at times, hassoun avails herself of the conception of consent usually employed in settings unrelated to political theory. this is the conception upon which actual consent theory relies. on this conception, to consent means “to permit, approve, or agree; comply or yield”. 7 in the political context, a person consents to an institution when she indicates (through whatever means are appropriate) her agreement to conform to its dictates. the idea is that coercive institutions are only legitimate if their subjects agree to accept them. hassoun appeals to this conception of consent on many occasions. she explicitly acknowledges “an idea implicit in the social contract tradition — focusing upon what social arrangements people could freely accept” (47). for people, according to hassoun, to consent to coercive institutions is for them “to autonomously agree to their rules” (9). people must “agree to be subject to coercive institutions” (10). moreover, hassoun’s understanding of why legitimacy requires consent fits well with this understanding of consent. coercive institutions require consent in order to be legitimate “because their subjects have a natural right to freedom” (18). 8 people have a right to be free, in other words, unless and until they agree otherwise. this agreement can take place at a high level. hassoun writes: 7. http://dictionary.reference.com/browse/consent?s=t, last accessed october 28, 2014. 8. hassoun follows hart (1955) here. technically, she argues that “as long as one does not violate another’s rights, justification is necessary to abridge one’s natural right to freedom” (52; see also 49). as stated, this isn’t a very demanding condition; it just means you need to have a good reason to coerce someone, which presumably even fascists think they have. but hassoun clearly means that because of the natural right to freedom, justification for coercion is owed to the people coerced, and must satisfy them. and this is effectively actual consent theory. 183 peter stone leap 2 (2014) subjects may need to be able to process some information for autonomy, but they do not have to be able to agree to every single coercive rule to which they are subject. subjects may only need to be able to autonomously agree to the general principles underlying their coercive institutions. alternately, consent may require only that individuals autonomously agree to the general structure of coercive rules to which they are subject, not every subsidiary rule (29). the point remains, however, that without explicit consent to coercive institutions (at some level), these institutions cannot legitimately act. this understanding of consent has been present since the beginnings of social contract theory . but its limitations have been understood for almost as long . for anyone adhering to this conception of consent must either admit that no state has ever been legitimate, or else stretch the conception to its breaking point. no state, or coercive institution resembling a state, has ever obtained agreement to be bound by its rules from every one of its subjects, most have obtained such agreement from at best a handful of those subject to its rules (immigrants, perhaps), and many states have never obtained such agreement from any of their subjects. moreover, it is hard to see how the ideal of actual consent could even be approached in the real world; in a society with even the most minimal level of diversity, it is impossible to imagine any political arrangement that all its potential subjects would be willing to authorize. moreover, the costs of seeking actual consent on a wide scale (identifying possible terms, running those terms by citizens, adjusting those terms in light of the number unwilling to consent, etc.) are clearly prohibitive. contract negotiations are difficult enough with two parties, let alone millions. 9 this point poses a problem for actual consent theory, except for philosophical anarchists willing to accept the illegitimacy of all realistic political arrangements (e.g., wolff 1998). this problem pushes consent theory towards counting as “consent” actions or omissions that would not count as consent in other contexts. this approach includes locke’s reliance upon “tacit consent” —consent not overtly expressed, but made plain through one or another forms of cooperation with the government (paying taxes, using public services, etc.). but as locke’s critics have long pointed out, it is very difficult to define “tacit consent” in a way that does not render virtually all governments into “governments by consent”. but there is another way to identify actions as “consensual” without reliance upon tacit consent. one could also count the expression of political opinion —primarily through voting— as an expression of consent. this is the approach taken in what hassoun calls “democratic theory”. 9. on the central role of transaction costs in economics, see north 1990. 184 peter stone leap 2 (2014) hassoun follows the social contract tradition in this regard. she acknowledges that “actual consent theories are implausible. few who have considered consent theory have defended actual consent since john locke” (95). and her response is similar to that offered by those who have tried to save the social contract approach from the damning flaws of actual consent theory. at one point, she flirts with the lockean idea of tacit consent. “it is obviously possible”, she writes, “for an institution to... secure as much (actual or tacit) consent as possible” (57, n. 44). but more typically, she appeals to a different variant of the second conception of consent employed by social contract theorists —one considerably weaker than the one involving explicit authorization. this is the understanding of consent employed within democratic theory. using this second conception, hassoun appeals to “an idea implicit in the social contract tradition, that people must have basic freedoms under coercive rule” (43). this move transforms political consent into something like a right to political speech —or perhaps a right (following the u.s. bill of rights) to “petition” the coercive institution “for a redress of grievances”. people require autonomy so that they can “freely dissent” (56). they need to be able to “consent to, or dissent from, the rule of their coercive institutions” (28; see also 61, 62, 63). people need to be able to “shape the nature of their relationships with the coercive institutions to which they are subject” (28). hassoun’s reframing of consent here seems to turn it into something like a right of political consultation, of the sort rawls requires of all “well-ordered peoples” in the law of peoples (1999a: 63). this right includes “a right to dissent from the rule of coercive institutions by conscientious objection, non-violent protest, passive resistance, and so forth” (58; see also 62). finally, hassoun is not afraid to appeal to the third conception of consent —hypothetical consent— although it receives relatively little of her attention. “on hypothetical consent theory”, she writes, “legitimacy requires that coercive institutions be organized according to those principles that would be chosen in an appropriately specified original position. reasonable people in a liberally construed original position would only agree to be subject to coercive institutions if they are able to abide by, dissent from, or consent to their rule” (61). hassoun here follows rawls (1999b). but any meaningful form of hypothetical consent will appear very similar to this. that is, it will involve imagined consent granted under some suitably-specified set of counterfactual conditions. hassoun does not recognize any problem with appealing to these different conceptions of consent because she believes that the differences between them are unimportant for the purposes of her argument. 185 peter stone leap 2 (2014) whatever brand of contractualist you are, whatever form of consent you believe political legitimacy requires, the conclusions for her argument will be the same. but this conclusion is only tenable if one states the implications of contractualism at a very high level of abstraction. according to hassoun, “democratic, hypothetical, and actual consent theorists have to agree to this much: legitimacy requires that subjects be free to determine their actions and shape the nature of their relationships to coercive institutions” (59). but this claim is true only if one does not look too closely at just what it means for subjects to “shape the nature of their relationships to coercive institutions”. daniel dennett has observed that religious believers can only agree about the existence of god so long as they do not inquire too closely as to what they mean when they use the word “god”. dennett explains: for a thousand years, roughly, we’ve entertained a throng of variously deanthropomorphized, intellectualized concepts of god, all more or less peacefully coexisting in the minds of “believers”. since everybody calls his or her version “god”, there is something “we can all agree about” —we all believe in god; we’re not atheists! but of course it doesn’t work that well. if lucy believes that rock (hudson) is to die for, and desi believes that rock (music) is to die for, they really don’t agree on anything, do they? (dennett 2006: 209) emphasis in original. in a similar fashion, i fear that democratic, hypothetical, and actual consent theorists agree only that they like something called “government by consent”, and not on any meaningful understanding of what “government by consent” involves. a close look at the requirements of consent generated by these three conceptions bears this point out, in a manner that generates serious problems for hassoun’s argument. at one point, for example, she claims that “political liberals almost unanimously agree, for instance, that people have a right to dissent from the rule of coercive institutions by conscientious objection, non-violent protest, passive resistance, and so forth” (58). but contrary to what hassoun believes, it is not at all clear that all three types of consent theorists discussed by her would agree to any such thing. on the one hand, many libertarians are very attracted to the idea that consent authorizes practically anything. if someone wants to consent to slavery, then so be it. 10 at the same time, libertarians are usually lukewarm at best about 10. as noted before, hassoun argues that libertarians should embrace consensualism (people can consent to anything) rather than minimalism (only a minimal, nightwatchman state can be a legitimate state), because the two commitments are incompatible with one another. but hassoun’s argument for consensualism can be used against her here. if consensualism ought to trump minimalism, as hassoun believes it should, then shouldn’t it also trump political rights 186 peter stone leap 2 (2014) democratic rights; being able to “shape the nature of their relationship” with government seems less important to them than being able to avoid the relationship to the greatest extent possible. and why should actual consent theorists require political arrangements to include democratic rights anyway? if people grant consent to an arrangement with such rights, fine, but they could just as easily consent to some other arrangement. (granted, it might not be advisable for anyone to consent to arrangements without such rights, but that is of no concern to the actual consent theorist.) indeed, the entire idea of a “right to dissent” must seem strange to an actual consent theorist. why would one be entitled to a right to object to arrangements to which one has already granted consent? on the other hand, those deeply concerned with rights of democratic participation (like most egalitarian liberals) have little use for actual consent. 11 this is why rawls, while originally attracted by hart’s idea of a “right to liberty”, does not ground the natural duty to promote justice in anything resembling actual consent (rawls 1999b, §19). 12 and this difference should not be surprising at all; the conceptions are so different that they must unsurprisingly play very different roles in any theory of government employing them. finally, the relationship between hypothetical consent and the right to “shape one’s relationship” with one’s political institutions is rather complicated. consider the following claim hassoun makes about hypothetical consent theory: “reasonable people in a liberally construed original position would only agree to be subject to coercive institutions if they are able to abide by, dissent from, or consent to their rule” (61). it may be true that people would only grant hypothetical consent to political arrangements that guaranteed them certain democratic rights, such as a right to dissent. 13 in this regard, the democratic theorist and the hypothetical consent theorist may well reach the same conclusion, and endorse the same political system. but their reasons for reaching this conclusion would be very different. for the democratic theorist, it would be the democratic rights that provide the reason for calling the system consensual; the hypothetical agreement would be irrelevant. but for the hypothetical consent theorist, it would not be the democratic rights that form the critical locus of consent. as well? one could imagine a polity in which every citizen has consented to a democratic form of government, but one could just as easily imagine a polity in which everyone has consented to an authoritarian police state. while one may be (slightly) easier to imagine than the other, both must count as legitimate in the consensualist’s eyes. 11. in albert hirschman’s terms, libertarians tend to focus upon rights of exit, while democrats are centrally concerned with ensuring voice (hirschman 1972), although as hassoun notes libertarian notions of consent involve a bit more than simply a right of exit (98). 12. actual consent does, for rawls, ground obligations (as opposed to duties) which follow from accepting positions of responsibility in a just society (rawls 1999b, §18). 13. this is why most social contract theorists who believe in hypothetical consent, such as rawls, also believe in democratic rights. 187 peter stone leap 2 (2014) it would be the hypothetical consent itself. if people could conceivably consent to arrangements without democratic rights, then this would surely satisfy the hypothetical consent theorist. the democratic theorist and the hypothetical consent theorist thus have very different things in mind when they identify political systems as “consensual”, even if both endorse democratic institutions. when the democratic theorist and the hypothetical consent theorist say that the institutions they recommend enjoy “consent”, they simply do not mean the same thing, even if they happen to be speaking about the same institutions. the differences between these three conceptions of consent are deep and profound, despite hassoun’s tendency to oscillate between them. in principle, they are completely independent of each other. indeed, they will occasionally be directly at odds with each other. this would happen, for example, if an agent explicitly agreed to be subject to a coercive institution that granted no right of dissent to its subjects, or that could not be accepted by people in the correctly-specified hypothetical scenario (e.g., rawls’ original position). this is far from a hypothetical scenario. libertarians, for example, regularly place little emphasis upon democratic rights; their concern lies with preventing democratic majorities from tampling upon property rights. this places actual consent at the centre of their concerns. (at the same time, the contrast hassoun draws between consensualism and minimalism suggests this libertarian position is not completely coherent.) this is in stark contrast to democratic theorists, who wish all citizens to enjoy equal rights of democratic participation, even for those who do not place a premium upon democratic rights (like libertarians). and so not surprisingly, each conception of consent has its own defenders, with the defenders of one often stridently opposed to defenders of the other. all of this renders hassoun’s efforts to appeal to all three conceptions of consent at once deeply problematic. hassoun wants to convince all liberals everywhere that they should demand positive rights for everyone (especially the poor), on the grounds that institutions cannot be grounded upon consent without the provision of such rights. but if consent can mean three different things, then hassoun is making, not one argument, but three, each relying upon a different conception of consent. and there is no reason to assume that a political arrangement satisfying one conception of consent will satisfy the other two. but without this assumption, hassoun will not be able to win the universal liberal assent to positive rights that she seeks. 3. conclusion hassoun never commits to one or another conception of consent in globalization and global justice. this is not a simple oversight on her part. 188 peter stone leap 2 (2014) the goal that hassoun wishes to achieve in the book using the autonomy argument is quite clear. “this book”, she writes, “may help extend the consensus on some important obligations to the poor” (12). hassoun returns repeatedly to this goal throughout the book (e.g., 18). hassoun is deeply concerned about the plight of the world’s poor, particularly the “bottom billion” which lacks many of the most elementary necessities. she describes this plight with a great deal of care and sympathy. and so her concern throughout the book is to win converts to a case for recognizing the people of the world —especially the poor— as possessing certain vitally important positive rights, rights which are currently being neglected and which the global political order must acknowledge. 14 in order to win as many converts as possible, hassoun appeals to as much of the social contract tradition as she can. by starting “from an idea implicit in the social contract tradition, that people must have basic freedoms under coercive rule”, —however these basic freedoms are understood— hassoun hopes to persuade everyone who accepts this idea “that there are positive obligations to ensure that people are capable of avoiding severe poverty” (43). unfortunately, hassoun’s argumentative strategy runs afoul of the real and significant differences between the various conceptions of consent to be found in the social contract tradition. one cannot argue, as hassoun does, that legitimacy depends upon consent without specifying a conception of consent, unless the differences between conceptions are immaterial, which is highly unlikely. there may be good reasons for social contract theorists to accept hassoun’s argument. but before one can judge this claim, one must know which version of social contract theory one has in mind. references ashford, e., and mulgan, t. (ed.): “contractualism.” the stanford encyclopedia of philosophy ed., e. n. zalta, url = http://plato.stanford.edu/archives/fall2012/ entries/contractualism/. beitz, c. r., 1999: political theory and international relations, new ed., princeton, nj: princeton university press. dennett, d. c., 2006: breaking the spell: religion as a natural phenomenon, new york: penguin. hart, h. l. a., 1955: “are there any natural rights?”, philosophical review 64: 175-91. hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, new york: cambridge university press. hirschman, a. o., 1972: exit, voice, and loyalty: responses to decline in firms, organizations, and states, rev. ed., cambridge, ma: harvard university press. 14. i discuss some of the other problems posed by hassoun’s efforts to extend the consensus in (stone, forthcoming a). 189 peter stone leap 2 (2014) hohfeld, w. n., 2010: fundamental legal conceptions as applied in judicial reasoning, clark, nj: the lawbook exchange. north, d. c., 1990: institutions, institutional change and economic performance, new york: cambridge university press. rawls, j., 1999a: the law of peoples, cambridge, ma: harvard university press. — 1999b: a theory of justice, rev. ed., cambridge, ma: belknap press. scanlon, t. m., 1998: what we owe to each other, cambridge, ma: belknap press. simmons, a. j., 2005: “consent theory for libertarians”, social philosophy and policy 22: 330-56. stone, p., forthcoming a: “the pursuit of consensus in global political theory”, public affairs quarterly. — forthcoming b: “review of globalization and global justice: shrinking distance, expanding obligations by nicole hassoun”, ethical theory and moral practice. wolff, r. p., 1998. in defense of anarchism, rev. ed., berkeley: university of california press. 04rapoport.indd who is afraid of the brain drain? a development economist’s view1 h i l l e l r a poport paris school of economics, university paris 1 panthéon-sorbonne; migration policy center, european university institute; iza and cepii abstract in debating brain drain, brock and blake (2015) discuss the pros and cons of high-skill mobility prevention to curb the brain drain from developing countries from a legal and political perspective. i complement this discussion with the insights from recent economic research on brain drain, globalization, and development. two main results are emphasized: the fact that educational investments are higher when high-skill migration is not constrained, and the role of skilled diasporas in promoting the integration of migrants’ home countries into the global economy. both results strengthen the rationale for letting skilled people go. keywords: brain drain, migration, globalization, development 1. introduction gillian brock and michael blake’s (2015) book debating brain drain: may governments restrict emigration? discusses and offers a new perspective on an idea put forth in liberal political theory and international human rights law, namely that emigration is a fundamental human right and shall therefore not be questioned. the book is split into two parts arguing for and against the possibility for developing countries to impose restrictions on emigration to remedy their losses incurred through the “brain drain” (that is, the emigration of highly-skilled workers). brock argues that the governments of developing countries may impose temporary restrictions on emigration when they experience net losses from the loss of their skilled workers whereas blake argues against such restrictions. however, both authors agree that “that despite a huge range of benefits that accrue to 1 this short essay draws largely on joint work with frederic docquier (docquier and rapoport: 2012a, 2012b). see also gibson and mckenzie (2011) for an overview of the brain drain literature. 04rapoport.indd 119 21/4/17 13:27 120 hillel rapoport leap 4 (2016) countries of origin, there are some cases in which net losses may be occurring” (brock and blake 2015: 42). while i will not disagree with the statement that some countries experience losses from high-skilled emigration, i disagree with brock’s policy conclusion of putting restrictive laws into place that discourage the emigration of the highly-skilled. in this article, i will argue from an economic standpoint that we should not take the notion of “brain drain” as the only dimension there is to the emigration of the highly-skilled. once we establish a positive or “brain effect” of high-skill emigration (and we will, with the help of a number of theoretical and empirical economic papers), the normative and economic argument for the restriction of emigration will partly collapse as home countries can actually benefit from the emigration of their most talented representatives. i posit that there are dynamic and long-term effects of high skilled emigration that work through indirect channels to benefit the countries of origin, for instance through international trade and investment, social remittances, and incentive schemes for the ones left behind. even if some countries may suffer net losses from the emigration of highly-skilled individuals, i argue that instead of limiting the “drain effect” through the prohibition of emigration, one should rather foster the “brain effect” by putting institutions into place that reinforce the benefits of emigration. 2. should we tax (or ban) the brain drain? forty years ago, the great international economist jagdish bhagwati proposed to institute a “tax on brains” to curb the brain drain from developing to economically advanced countries. himself a member of the super highly-skilled indian academic diaspora, a graduate from cambridge university and then a professor at mit, and then at columbia university, he was well placed to ref lect on his personal experience to write on the topic. his proposal, now known as the “bhagwati tax” proposal, was at odds at the time with his otherwise very neo-classical views on free trade but well in the spirit of the new international economic order that was gaining momentum in the 1970s in many political, civil society, and academic circles. the very principle of a tax on brains rests on the notion that origin countries should be compensated for the loss of human capital incurred as a result of the brain drain. the compensators should be those who gain from the move, that is, the high-skill emigrant herself and the receiving country that will enjoy the return from that human capital, reaping the benefits from an investment financed by others. it is in line with the more 04rapoport.indd 120 21/4/17 13:27 who is afraid of the brain drain? a development economist's view 121 leap 4 (2016) radical view that brain drain is a form of neo-colonialism whereby the economically advanced countries keep depriving developing countries of their resources, a modern form of spoliation. and human capital may indeed be the scarcest resource of all for developing countries, one whose outmigration may seriously damage the growth and development prospects of the migrants’ home countries. this negative and pessimistic view of the brain drain (the term itself is quite pejorative) is well summarized in the following citation from michael todaro’s popular development economics textbook, a must read for any undergraduate students in economic development studies: “the irony of international migration today is that many of the people who migrate legally from poor to richer lands are the very ones that third world countries can least afford to lose: the highly educated and skilled. since the great majority of these migrants move on a permanent basis, this perverse brain drain not only represents a loss of valuable human resources but could prove to be a serious constraint on the future economic progress of third world nations” (todaro 1996: 119). it is noteworthy that the above citation, taken from the 5th edition of the textbook, was still present in the 10th edition nearly 20 years later. this shows that the dominant view about brain drain and development has not evolved so much in spite of the fact that the last 20 years have seen a boom in economics research on brain drain and development which is much more balanced than the overwhelmingly negative literature of the 1970s and 1980s. before i brief ly review this more recent literature, let me first say that the economic case for or against the brain drain has important policy implications. to the same extent that the presumption of losses for the origin countries served as background justification for policy proposals to curb the brain drain through, say, a bhagwati tax in the 1970s, the same presumption serves as a justification today for limiting the free movement of highly-skilled professionals originating from certain developing countries. these limits range from unilateral sanctions imposed by homecountry governments on those who would fail to return early enough (such as removal of citizenship, imposing military conscription on returnees — or putting them in jail for deserting) to host countries forbidding the recruitment of highly-skilled professionals from certain countries. a famous example is the ban on recruitment of health professionals from africa enacted by the british authorities in the mid-2000s. 04rapoport.indd 121 21/4/17 13:27 122 hillel rapoport leap 4 (2016) 3. freedom of movement for all but the highly-skilled? there are many reasons to oppose restricting the free movement of people in general, and the fact that one is highly-skilled should not create an exception. imposing restrictions on entry is widely accepted even though one’s birthplace explains two-thirds to three-quarters of global inequality (that is, within-country inequality generated by differences in education, experience, gender, race, family background, etc., accounts for only one quarter to one-third of total inequality in the world, the rest being due to differences in income per capita across countries). it is difficult to reconcile the basic fact that international movements are heavily constrained with any notion of global justice. for one thing, if we were to decide on the rules governing international migration under a veil of ignorance, it seems obvious to me that we would opt, if not for open borders, at least for borders which would be much more open than we currently experience. we should also recall that 200 years ago, at the onset of the industrial revolution, the ratio of income per capita between the richest and the poorest country in the world was about 2 or 3. it is now orders of magnitude higher, closer to 100 (in purchasing power parity!). this explosion of inequality between countries has been accompanied by the introduction of passports, visas, and all kinds of restrictions on people’s free movement, exactly at a time when the incentives to migrate became stronger. even if we abstract from considerations of global justice and tolerate that countries impose restrictions on immigration, it does not follow that they can impose restrictions on exit, that is, on emigration. other contributors in this symposium will be able to discuss better than i can the legal and normative foundations for the right to emigrate; and indeed, restrictions on emigration have only been imposed on a large scale in dictatorships and authoritarian regimes such as the former communist countries of europe, or, in the more recent past, in cuba, china, iran, and north korea. it is not morally and legally equivalent to build a wall to prevent people from coming in or to prevent them from going out. and again, justifying such restrictions —or giving them a hand —because the people under consideration have valuable skills does not resist serious examination. states are not residual claimants of one’s human capital. and what do we know about the personal motives and circumstances that lead people to emigrate? should it make a difference if someone wants to emigrate because of wage differentials or out of fear of persecution in her home country? should it make a difference if that person is a medical doctor from ethiopia, an engineer from bolivia, or a nurse from the philippines? 04rapoport.indd 122 21/4/17 13:27 who is afraid of the brain drain? a development economist's view 123 leap 4 (2016) while i believe that the policy debate should take seriously the rights of individual migrants rather than focusing exclusively on the losses to origin countries (that is the debate should also be a principled one), i note that the losses for the origin countries still serve as underlying justification for restrictive policies. in the rest of this article, therefore, i focus on that particular aspect of the debate. the line of argument i want to propose is the following: the brain drain is not necessarily a curse for developing countries but could be an opportunity. the presumption among the general public and among policymakers may still be that the brain drain is bad, but the evidence is that it is not, at least in most cases. let’s see why. 4. there is more than meets the eye: brain drain and human capital formation in developing countries the traditional (and still widely shared) view of the brain drain is that it is depriving home countries of part of their human capital, which is essential for growth. to discuss this idea let me use the metaphor of a cake (the country’s stock of human capital), with the brain drain being equivalent to cutting a piece of the cake (say a quarter) and sending it abroad —hence the loss. in terms of sheer loss this view neglects two things. first, those abroad form a diaspora which can keep interacting with the home country in many economically useful ways. i will discuss diaspora links in the next section. and second, this view fails to ask how the cake was made. the truth, however, is that the size of the initial cake, the one from which the piece is taken, is bigger when there are more emigration options. or, in economists’ jargon, the stock of human capital is endogenous to migration. the brain drain may in fact consist in cutting a piece of the human capital cake, but from a bigger cake than the one that would exist if there were no brain drain. overall, it is not obvious which effect dominates: the incentive effect (increases in size of the cake due to the existence of emigration options —let’s call this the brain effect), or the exit effect (decreases due to emigration —let’s call this the drain effect). under certain conditions that have been well specified theoretically and verified empirically in a wide range of studies, the brain drain could in fact result in a brain gain. the theoretical intuition is best explained through simple numerical examples.2 assume the following data: individuals in a developing country can either be “skilled” (if they invest in a certain education program) or 2 early theoretical contributions include mountford (1997), vidal (1998), stark et al. (1998) and docquier and rapoport (1999). 04rapoport.indd 123 21/4/17 13:27 124 hillel rapoport leap 4 (2016) unskilled (if they don’t). the wage for an unskilled worker is, say, 1,000, and for a skilled worker 5,000. based on the costs of acquiring education (which includes forgone wages during the first period, the direct costs of schooling, etc.), a certain number of people, say 10 percent of the population, make that investment. now assume that for skilled workers only, there is a certain probability, say 20 percent, of emigration to a high-wage destination where skilled workers can obtain a wage of 30,000. the expected wage for a highskill worker is now equal to 80 percent of the domestic wage plus 20 percent of the foreign wage, that is to 10,000. in other words, it is now doubled thanks to the opportunity of emigration. based on this, we can expect that some people who will invest in education would otherwise not have done so without the possibility of enjoying a higher return on their human capital abroad. how big is this incentive effect, and can it be strong enough to dominate the brain drain effect? to continue the numerical example, if the proportion of people who invest in education rises to 15 percent, and if we still assume that 20 percent of them leave, there would be more educated people in the country than had the economy been closed to migration. is this just a theoretical possibility, or a real one? well, the empirical studies that have tried to answer this question tend to support the brain gain (or beneficial brain drain) hypothesis. this holds true both for the studies using cross-country comparisons and for country case studies. the main cross-country study is a paper i have co-authored with michel beine and frederic docquier (2008).3 we proceed in two steps: we first estimate the elasticity of human capital to skilled emigration, measuring how emigration prospects for the highly-skilled affect gross human capital formation in home countries, controlling for past human capital levels and a series of country-characteristics. in this paper, we also account for the fact that there may be a feedback effect from human capital formation back to skilled emigration prospects with an instrumental variable approach.4 we find a point-estimate of around 5 percent, that is, doubling the propensity of emigration for the highly-skilled (people with college education or more) generates an increase in the pre-migration stock of human capital of 5 percent. 3 see beine et al. (2008) and its extension in beine et al. (2010). 4 if there is not only an effect of skilled emigration prospects on human capital formation, but there is also a reverse direction of causality from human capital formation on migration prospects, or if emigration and human capital formation are jointly driven by third, unobserved (omitted) variables, we call this “endogeneity”. in order to disentangle the first effect from the second and address the omitted variable problem, we use an instrumental variable approach. it consists in predicting the variable of interest, emigration, using variables that have no independent effect on the dependent variable, human capital formation; that is, that presumably only affect human capital formation through their impact on skilled emigration prospects. 04rapoport.indd 124 21/4/17 13:27 who is afraid of the brain drain? a development economist's view 125 leap 4 (2016) in a second step we then use that point-estimate to compute the net gains or losses for all the countries of our sample (which consists of 127 developing countries). for this we need to proceed with a counterfactual simulation. again, this is best illustrated through a numerical example. assume a country with a population normalized to 100 people, out of whom 20 are educated and 80 are not. let us further assume that emigration rates are 1/2 for the educated (50 percent) and 1/8 for the uneducated, that is, emigration propensities are higher for the educated by a factor of 4 (in the theoretical example above, the emigration propensity of non-educated workers was implicitly normalized to zero). after emigration, the country is left with 10 educated (as 10 out of 20 have emigrated) and 70 non-educated (as 10 out of 80 have emigrated). has that county lost or gained from the brain drain, given what we know about the incentive effect? let us denote by h a the ex-ante stock of human capital, before migration takes place. this is something we can observe and which in our case equals to 20 percent (then h a = 0.2). the ex-post stock of human capital, after emigration is netted out, is also observed and in our case equals to 10/80 (then h p = 0.125). but what would have been the country’s stock of human capital if there had been no emigration? to answer the question we do the following counterfactual simulation: the counterfactual stock of human capital, h cf , equals the ex-ante stock minus the incentive effect. that is, h cf = h a —a.ln(p s /p u )5, where a is the elasticity of human capital to emigration obtained in step 1 and p s and p u are the respective emigration propensities of skilled and unskilled workers. with our numerical example and pointestimate for the elasticity, this gives: h cf = 0.2 —0.05.ln(4)= 0.13. that is, the counterfactual stock of human capital without emigration in our virtual economy would have been 13 percent. this means that it has lost half a percentage point (or 4 percent) of its human capital because of the brain drain, and not 20 percent, as one would think if we were not factoring in the fact the human capital formation is partly determined by emigration prospects. when turning to real data, we found that there are more losing than winning countries and that the losers tend to lose more, but that in terms of head counts or absolute changes, the gains from the winners out-weight the losses of the losers. for example, surinam may well lose 20 percent of its human capital and china may gain only 1 percent, but 1 percent of the chinese stock of human capital is way bigger than 20 percent of the 5 ln is the logarithm of the relative emigration propensity between skilled and nonskilled immigrants. this is typically used in empirical analyses to get the “elasticity” of a variable, that is a 1% change in the explanatory variable leads to a ß% change in the dependent variable. 04rapoport.indd 125 21/4/17 13:27 126 hillel rapoport leap 4 (2016) surinamese stock of human capital. so while there are loser and winners, the brain drain contributes to an increase in the overall number of highlyskilled people living in the developing world.6 5. country case-studies: two “natural experiments” what about the country case-studies? there are many such studies using micro (household or individual) data, notably on countries with very high levels of brain drain, such as small pacific or caribbean islands. these studies have consistently found an overall positive effect of emigration on human capital formation, suggesting that even in extreme cases of very high brain drain, home countries can still experience a net gain, as if there was a special regime for these countries. i will report here on just two studies which i see as the most convincing for the reason that they rely on so-called “natural experiments” which are based on specific and arguably random events in a country that acted as an exogenous shock to either migration or human capital formation. those shocks will then show their impact on the variables we are interested in and alleviate the usual concerns about feedback effect or other unobservable convoluting factors that cause “endogeneity” (see footnote 4 above). let me start with the study on fiji by chand and clemens (2008). the story is the following (i apologize for the caricature i am making of fijian past and recent political history). fiji is a former british colony initially populated by polynesians (let’s call them native fijians). during colonial times, the british brought many indian workers to work on the sugar and other plantations. around independence and thereafter, the two populations were of similar socio-economic status (income and education levels were quite similar) and about equal demographic size. fijian political history became more turbulent in the late 1980s and early 1990s against the background of ethnic tensions that culminated in a military coup led by native fijian officers. following the coup, a discriminatory policy was introduced, favoring the native fijians and putting in place restrictions on indians’ access to universities, public employment, and more. facing violence and discrimination, many indian fijians started to contemplate emigration. where to go? obviously, the two main destinations are australia and new zealand. however, emigration to those countries is 6 see mountford and rapoport (2011, 2016) for analyses of the brain drain impact on the world distribution of income. 04rapoport.indd 126 21/4/17 13:27 who is afraid of the brain drain? a development economist's view 127 leap 4 (2016) strongly restricted and regulated by a “points-based system” which is distorted to favor the highly educated and skilled. indian fijians, therefore, started to heavily invest in education and in spite of the discrimination they faced at home; they shortly overtook the native fijians in terms of educational attainment. some did migrate, but some did not, and twenty years after the coup, the indian fijians living in fiji enjoy much higher human capital and living standards than their “native” compatriots. as david landes would put it: “don’t beat up the little guys!” this is a perfect illustration, in my view, of the “option value” argument we put forward in katz and rapoport (2005). we argue that the “option value”, that is the economic returns to attaining education, increases when political and macroeconomic instability is high in the source country. why? because attaining education provides you with the opportunity to emigrate. in other words, education allows you to diversify your income risk by simply moving abroad where there is less uncertainty. so if there is an economic or political shock at home, education will allow you to be less affected by that and thus seems more attractive than in an environment that is overall stable. the second micro study is from nepal (shreshta 2016). again, i will caricature the complex history of nepal in order to make the intuitive argument. nepal is populated by ethnic groups that are close to either tibetans or to indians, and some other remote groups such as the gurkas constitute a local minority. such minority groups became enrolled on the side of the colonial power, england, in the course of the 19th century, culminating with the enrolment of gurka men in the british army. for more than a century, young gurka men have been raised and trained to pass the very stringent tests required to join the british army, bringing their families pride and income (the salary of a british soldier is about 100 times higher than rural wages in nepal). still, the gurkas remained one of the most disadvantaged ethnic groups in nepal in terms of education and income. in the early 1990s, the british army introduced literacy and numeracy tests for its new recruits all over the world, and required the completion of middle-schooling. all of a sudden, being physically and mentally fit was not enough. guess what happened? the gurkas started to send their kids not just to physical training but also to school and collectively invested in the hiring of teachers and in schooling infrastructures. even girls started to go to school thanks to economies of scale and peer effects. but only 1 percent of the candidates pass the test, and so the gurkas who don’t go to the army end up applying their human capital in other domains, such as agriculture. today, the gurka group has attained a higher than average level of education in nepal, a catching-up process fully attributable to the change in the recruitment rules of the british army. 04rapoport.indd 127 21/4/17 13:27 128 hillel rapoport leap 4 (2016) i like this story because i see it as fully exemplifying the insights from the beneficial brain drain theory: international migration is characterized by small chances to succeed (in emigrating) and high stakes in case of success (high wage differentials). in this context more people will invest, or some people will invest more in education to increase their chances of emigration and of enjoying the higher wages and better amenities (for the most part) abroad. for those who remain, the investment made may have turned out unprofitable to them, but it is still socially beneficial and can even turn out individually beneficial due to externalities. emigration prospects play the role, here, of an education subsidy (to the extent that educational attainment is not credit constrained), bringing private investment in education closer to its socially optimal level (as social returns to education are higher than private returns). based on the above, it is doubtful that ethiopia or ghana would end up with more doctors and nurses if these were banned from emigrating, or whether the philippines would have some of the best and popular nursing schools, and india some of the best and popular engineering schools of the developing world, if their graduates were banned or discouraged (through taxation or through a mercantilist rhetoric portraying them as traitors) from joyfully selling themselves to western exploiters. 6. skilled diaspora networks the above-described “incentive” effect takes place before migration occurs; once migrants have left, however, they can still affect economic, political, and social outcomes in their home country. by sending money or returning after some time7 or by forming diaspora networks that serve as bridges between host and home countries. along those bridges, many things can circulate: goods, investments, technologies, ideas, and values, to mention a few. this is the last strand of brain drain research i want to emphasize before concluding. indeed, being able to draw on a network of skilled compatriots scattered around the world (especially if they live in the leading countries in terms of technological innovation, financial power, and democratic standards) is crucial to many developing and emerging countries in their search for better integration into the global economy. there is growing evidence and understanding that migrants in general, and skilled migrants in particular, favor the economic, financial, and even political and cultural integration of their home country into the global economy. the recent literature has consistently shown this, starting from 7 on brain drain and remittances, see bollard et al. (2011) and docquier et al. (2012). 04rapoport.indd 128 21/4/17 13:27 who is afraid of the brain drain? a development economist's view 129 leap 4 (2016) the “trade creating” effect of migration (parsons & vezina forthcoming; felbermayr and jung 2009) and ending with the uncovering of “social remittances” (levitt and lamba nieves 2011) in the realms of demography or politics). two forces are at play. first, an “information channel”, whereby migrants reduce transaction costs between their host and home countries, allowing more trade f lows (both imports and exports) and inf lows of foreign direct investments as well as other forms of financial investments (e.g., international bank loans, purchase of home-country bonds, etc.). while for trade, there is no substantial difference between lowand highskill migrants in terms of their ability to convey the relevant transactionfacilitating information, for financial f lows in general, and for fdi in particular, skilled migrants seems to have a significant advantage.8 and second, a “knowledge diffusion channel”, whereby migrants transfer knowledge, including technological knowledge, but also social norms, preferences and values (e.g. preferences for lower fertility or for democracy), from the host to the home economy. it is not clear whether highor low-skill migrants have an advantage in initiating such transfers, except for innovation adoption and diffusion, where, quite obviously, there is a strong advantage for the former.9 7. conclusion as we have seen, the recent economic literature does not support the traditional and still very popular view that the brain drain is an impediment to developing countries’ current and future economic performance. to the contrary, the possibility for people to “sell” their human capital abroad generates incentives to invest more in human capital, and a demand for higher quality, more internationally transferrable education, which ultimately also benefits those who do not emigrate. there are also counteracting forces of course: the depletion effect of emigration, the lack of incentives if people are credit-constrained, and some diversion in terms of fields of study away from the home countries’ needs (e.g., geriatrics 8 on trade, see gould (1994), rauch and trindade (2002) on the role of ethnic chinese networks and, more recently, parsons and vezina (forthcoming), who exploit the natural experiment of the vietnamese boat people of the second half of the 1970s to identif y the effect of migration networks using us states —vietnam trade data. on fdi, see notably kugler and rapoport (2007), and kugler et al. (2013) on financial f lows. 9 on technological knowledge diffusion see kerr (2008), agrawal et al. (2011) and bahar and rapoport (forthcoming). on political remittances, spilimbergo (2009), docquier et al. (2016) and barsbai et al. (2016). on “malthusian” remittances, see fargues (2007), beine et al. (2013), bertoli and marchetta (2015) and daudin et al. (2016). 04rapoport.indd 129 21/4/17 13:27 130 hillel rapoport leap 4 (2016) instead of pediatrics). and the benefits from skilled diasporas, which appear to be considerable and multi-dimensional, should not be overlooked. so even if one adopts a consequentialist view that focuses exclusively on the effects of migration on the source countries, disregarding people’s rights to emigrate and giving little weight to the migrants themselves, the evidence does not support what i would call the now outdated mercantilist view of the brain drain. bibliography agrawal, a., d. kapur, j., mchale, a. oettl, 2011: “brain drain or brain bank? the impact of skilled emigration on poor-country innovation”, journal of urban economics 69: 43–55. bahar, d. and h. rapoport (forthcoming): “migration, knowledge diffusion and the comparative advantage of nations”, the economic journal. barsbai, t., h. rapoport, a. steinmayr and c. trebesch (forthcoming): “the impact of emigration on the diffusion of democracy: evidence from a former soviet republic”, american economic journal: applied economics. beine, m., f. docquier and m. schiff, 2013: “international migration, transfer of norms and home country fertility”, canadian journal of economics 46: 14061430. —f. docquier and h. rapoport, 2008: “brain drain and human capital formation in developing countries: winners and losers”, economic journal 118: 631-652. —f. docquier and h. rapoport, 2010: “on the robustness of brain gain estimates”, annales d’economie et de statistique, 97-98: 143-65. bertoli, s., and f. marchetta, 2015: “bringing it all back home: return migration and fertility choices”, world development 65: 27-40. bollard, a., d. mckenzie, m. morten and h. rapoport, 2011: “remittances and the brain drain revisited: the microdata show that more educated migrants remit more”, world bank economic review 25: 132-56. brock, g. and blake, m., 2015: debating the brain drain: may governments restrict emigration, oxford: oxford university press. chand, s. and m. clemens, 2008: “skill migration and skill creation: evidence from a quasi-experiment in the pacific”, working paper, center for global development. daudin, g., r. franck and h. rapoport 2016: “the cultural diffusion of the fertility transition: evidence from internal migration in 19th century france”, cesifo working paper no 5866, april. docquier, f. and h. rapoport, 1999: “fuite des cerveaux et formation de capital humain”, economie internationale 79: 63-71. —2012a: “globalization, brain drain and development,” journal of economic literature 50: 681-730. —2012b: “quantifying the impact of highly-skilled emigration on developing countries”, in brain drain or brain gain? the international competition to attract high-skill migrants, eds. t. boeri, h. brücker, f. docquier and h. rapoport, oxford: oxford university press. 04rapoport.indd 130 21/4/17 13:27 who is afraid of the brain drain? a development economist's view 131 leap 4 (2016) docquier, f., e. lodigiani, h. rapoport, and m. schiff, 2016. “emigration and democracy”, journal of development economics 120: 209-223. docquier, f. , h. rapoport and s. salomone, 2012: “remittances, migrants’ education and immigration policy: theory and evidence from new bilateral data”, regional science and urban economics 42: 817-28. fargues, p. 2007: “the demographic benefit of international migration: a hypothesis and its application to middle eastern and north african countries”, in international migration, economic development and policy, eds. c. ozden and maurice schiff. washington, dc: world bank. felbermayr, g., and b. jung, 2011: “trade intermediation and the organization of exporters”, review of international economics 19: 634-648. gibson, j. and d. mckenzie, 2011: “eight questions about brain drain”, journal of economic perspectives 25: 107-128. gould, d. m., 1994: “immigrant links to the home country: empirical implications for u.s. bilateral trade flows”, review of economics and statistics 76: 302-316 katz, e. and h. rapoport, 2005: “on human capital formation with exit options”, journal of population economics 18: 267-74. kerr, w.r., 2008: “ethnic scientific communities and international technology diffusion”, review of economics and statistics 90: 518-537. kugler, m. and h. rapoport, 2007: “international labor and capital flows: complements or dubstitutes?”, economics letters 94: 155-62. kugler, m. , o. levintal and h. rapoport, 2013: “migration and cross-border financial flows”, iza discussion paper no 7548, august. peggy l. and d. lamba-nieves, 2011: “social remittances revisited”, journal of ethnic and migration studies 37: 1-22. mountford, a., 1997: “can a brain drain be good for growth in the source economy?”, journal of development economics 53: 287-303. mountford, a. and h. rapoport, 2011: “the brain drain and the world distribution of income”. journal of development economics 95: 4-17. —2016: “migration policy, african population growth and global inequality”, world economy 39: 543-556. parsons, c. and p. vézina (forthcoming): “migrant networks and trade: the vietnamese boat people as a natural experiment, the economic journal. rauch, j. e. and v. trindadem 2002: “ethnic chinese networks in international trade”, review of economics and statistics 84: 116-130. shreshta, s. a., (forthcoming): “no man left behind: effects of emigration prospects on educational and labour outcomes of non-migrants”, economic journal. spilimbergo, a., 2009: “foreign students and democracy”, american economic review 99: 528-543. stark, o., c. helmenstein and a. psrkawetz, 1998: “human capital depletion, human capital formation, and migration: a blessing or a “curse?”, economics letters 60: 363-367. todaro, m., 1996: economic development, cambridge: cambridge university press. vidal, j. 1998: “the effect of emigration on human capital formation”, journal of population economics 11: 589-600. 04rapoport.indd 131 21/4/17 13:27 leap 3 (2015) why the family?1 luar a ferr acioli university of amsterdam abstract a mong t he most pressi ng ph i losoph ic a l quest ion s occ upy i ng t hose interested in the ethics of the family is why should parents, as opposed to charit y workers or state officials, raise children? in their recent family values, brighouse and swift have further articulated and strengthen their own justification of the parent-child relationship by appealing to its crucial role in enabling the child’s proper development and in allowing parents to play a valuable fiduciary role in the lives of children. in this paper, i argue that the set of interests brighouse and swift identif y as necessary for the justification of the family fails to account for the different stages and the d i f ferent c u lt u r a l set t i ngs t hat ma rk t he pa rent-ch i ld relat ion sh ip. in particular, i ague that their justification of the family fails to satisf y the following two desiderata: (i) that the justification for the parent-child relat ion sh ip shou ld idea l ly t r ack t he good-ma k i ng feat u re (s) of t he relationship that extend across its entire history, and (ii) such justification should ideally explain what is valuable about the parent-child relationship in both liberal and non-liberal family contexts. in light of my critique, i sketch an alternative account of family values, one that appeals directly to the special mode of caring we see in the parent-child relationship, a form of caring that is certainly present in non-liberal societies and that typically extends across a lifetime. keywords: family, children, parents, paternalism, autonomy, love, brighouse, swift “ser mãe é padecer no paraíso”2 1 a previous version of this paper was presented in the department of law in pompeu fabra university in barcelona, where i received extremely helpful feedback. i am especially grateful to pablo de lora, serena olsaretti, andrew williams and an anonymous referee for this journal. i also would like to thank ryan cox and eric schliesser for helpful discussions on the topic. 2 popular brazilian expression: “being a mother is like suffering in paradise” (my translation from portuguese). 206 luara ferracioli leap 3 (2015) 1. introduction a mong t he most cha l leng ing phi losophica l quest ions concerning t he ethics of the family is why parents, rather than charity workers, or state officials, say, should raise children. w hat justifies the family as the best arrangement for the rearing of citizens who are not yet in a position to secure their own current and future interests? one a nswer to t his quest ion is t hat t he pa rent-chi ld relat ionship is justified by some fundamental interest that adults have with regard to their biological children, such as the interest in the product of their gestational labor or genetic investment.3 another approach to this question starts from the assumption that children are extremely vulnerable and dependent and that their interests should exhaust any theory attempting to justify what is, at its core, a coercive, and t herefore mora lly suspect, t y pe of intimate relationship.4 this child centred view of family relationships is based on the contention that the parent-child relationship can only be justified on the assumption that no other social arrangement could do a better job at securing the core interests of children. were this empirical assumption to become unsustainable, adults would cease to have a prima facie right to parent. an alternative to both these views is the “dual-interest” account of child rearing.5 those articulating this position have appealed to both the interests of children in being raised by parents and the interests of parents in raising children. the fundamental commitment of the dual-interest view is that the interests on both sides have to be balanced out and that good enough parents retain their right to parent even if it turns out that other social arrangements would do a better job at protecting and promoting the interests of children. harr y brighouse and adam sw ift have recently further articulated and strengthened their own version of the dual interest account by defending the position that the parent-child relationship is justified by its crucial role in securing the child’s proper development and in enabling the flourishing of many adults (brighouse and swift 2014).6 in this essay, i argue that the specific set of interests brighouse and swift identify as grounds for the justification of the parent-child relationship fail to account for the different stages and the different cultural settings that mark the family. in particular, i argue that their account of family values 3 for a genetic account, see hall (1999). for a gestational account, see narayan (1999). 4 the coercive aspect of the relationship here is a result of the fact that due to the lack of a sufficient degree of autonomy, children cannot typically consent to partaking in the relationship. for child-centred views, see blustein (1982); vallentyne (2003). 5 see brighouse and swift (2006); clayton (2006); macleod (2010); gheaus (2012). 6 see also rawls (1999: 265). why the family? 207 leap 3 (2015) fails to satisfy the following two desiderata: (i) that the justification for the parent-child relationship should ideally track the good-making feature(s) of t he relat ionsh ip t hat ex tend across its ent i re h istor y, a nd (i i) such justification should ideally explain what is valuable about the parent-child relationship in both liberal and non-liberal family contexts. in light of my critique, i sketch an alternative account of what is special about the family, one that appeals directly to the special mode of caring we see in the parentchild relationship, a form of caring that is certainly present in non-liberal families and that typically extends across a lifetime. the discussion w i l l be st r uctured as fol lows. in sect ion 2, i brief ly rehearse brighouse and swift’s arguments for their dual-interest account of child rearing. in section 3, i motivate two desiderata for a successful theory of what justifies the parent-child relationship and argue that brighouse and swift’s account, as it stands, cannot meet them. in sections 4 and 5, i sketch an alternative justification for the parent-child relationship that overcomes the challenges raised in the previous section, and briefly discuss some of its implications. 2. brighouse and swift on family values let us start our inquiry by briefly rehearsing brighouse and swift’s argument in favor of taking the family to be the best institutional setting for the rearing of children.7 according to the authors, there are a number of interests on the part of children that ground their right to be raised by at least one parent.8 first, children are highly dependent on adults for their most basic emotional and biological needs. second, children are profoundly vulnerable to the quality of other people’s decisions, and the sort of paternalistic treatment they are subjected to in childhood can significantly impact how well their lives go as a whole. third, children are capable of eventually developing a capacity for autonomy a nd so a re sig nif ica nt ly dif ferent f rom ot her v u lnerable indiv idua ls who w i l l never become capable of attending to t heir ow n interests. brighouse and sw ift believe t hat, when ta ken toget her, t hese interests give children an overarching interest to be ‘manipulated’ and ‘coerced’ into doing what is good for them, or what will prepare them for becoming autonomous later on in their lives (brighouse and swift 2014: 62-70). 7 like brighouse and swift (2014: xi), i will employ the concept of “the family” to refer to the parent-child relationship in the context of this discussion. note that i do not take a stand on whether or not other intimate relationships should also be picked out by this concept. 8 for brighouse and swift (2014: 53-54), a has a right to x, when a’s interest in doing x or having x is weighty enough that it gives rise to a duty on the part of others that they allow a to do x or that they provide a with x. moreover, whether an interest in doing x or having x is weighty enough to give rise to a duty on others will depend on the importance of x and the costs that come with the provision of x. 208 luara ferracioli leap 3 (2015) it is certainly true that children’s lack of autonomy and vulnerability makes it appropriate that others act paternalistically towards them, but there is still a further question as to why such paternalism should come primarily from adults acting within the context of a private and intimate family relationship.9 for brighouse and swift, the answer lies in the fact that such relationships are typically marked by love and that love renders the exercise of paternalism more effective (brighouse and swift 2014: 71). the underly ing empirical assumption here is that a lov ing relationship between a child and a competent parent allows the latter to exercise authority with knowledge of the former’s unique dispositions, and with the sort of spontaneity and care that encourages the child to see the parent as her central disciplinary model (brighouse and swift 2014: 73). for the authors, the quality time which parent and child typically spend together, and the intimacy that develops as a result, are so central to the effective exercise of paternalism, that there cannot be many of these relationships in a child’s life (brighouse and swift 2014: 73).10 if brighouse and swift are correct, we now have the beginning of a story that purports to explain what is so special about the parent-child relationship: i. children need paternalistic treatment to enjoy the goods of childhood and to develop the capacities they need later on in adulthood. ii. such paternalistic treatment will be more effective or successful if exercised in a context of an intimate loving relationship. iii. competent parents can typically exercise paternalism in a context of an intimate loving relationship. conclusion: children have a basic interest in being cared for by at least one, but not too many, competent parents. so far, so good, but this does not yet give us a dual-interest account. in order to explain why it is good for adults to parent children even when children could conceivably fare better under alternative arrangements, we need to say something about the interest parents have in playing their own role in the relationship. for brighouse and swift, adults have a strong interest in playing the fiduciary role that secures the child’s present and future wellbeing. that is, the interest that some adults have in parenting is precisely to be in a loving relationship where they can act paternalistically towards a child, guaranteeing her basic needs and seeing to it that she develops the cognitive, emotional, physical, and moral resources she needs to become an autonomous person later on in her life (brighouse and swift 2014: 86-90). 9 brighouse and swift (2014: 67) write that “paternalism involves manipulating or coercing another person with the purpose of serving her good”. 10 note that brighouse and swift (2014: 70) also recognize that the exercise of paternalism should be constrained by the child’s stage of development. why the family? 209 leap 3 (2015) here then is the final justificatory step taken by brighouse and swift in favor of their dual-interest account of child rearing: i v. some competent adu lts a re not on ly capable of exercisi ng paternalism, but have an interest in playing such a fiduciary role within the context of a loving relationship.11 conclusion: all children have a strong interest in being cared for by at least one, but not many competent parents, and some adults have a strong interest in parenting. these interests are sufficiently weighty, and the costs involved in securing them are sufficiently reasonable, so as to ground the right of children to have at least one parent, and the right of competent adults to parent. the ba la ncing of t hese interests a lso just if ies t he fa mi ly as t he best socioinstitutional arrangement for the rearing of children.12 3. two desiderata: continuity and pluralism in the previous section, we learnt that for brighouse and swift, the need for paterna lism w it hin t he contex t of a lov ing relat ionship u lt imately grounds the right of children to have at least one parent and that the same paterna lism g rounds a (condit iona l, limited) right of adu lts to pa rent children. the aim of this section is to take a step back and think about what we want a theory of family values to deliver, as well as evaluate how brighouse and swift’s dual-interest account fares with regards to such theoretical aims. to begin with, brighouse and swift’s fiduciary account certainly points in the right direction by starting with the recognition that children typically fare better if they can count on at least one competent adult to actively attend to their well being. the account also seems to capture something important about how there can be a weighty interest on the part of adults to be in a relationship with children that cannot be replaced by other kinds of intimate relationships, such as relationship with a pet, or a friend. but do brighouse and swift really get to the heart of the matter when they point to the interest of children in being subjected to this sort of loving paternalism and the interests of parents in exercising loving authority as part of the parental role? that is, do they succeed in identifying the most basic property or set of properties that justify the existence of the family even in a context where other actual and conceivable arrangements could do a better job at securing the interests of children? 11 as brighouse and swift (2014: 86) put it, “[i]t cannot be substituted by other forms of relationship, and it contributes to the parent’s well-being so substantially, and in a manner so congruent with the interests of children, that it grounds (a conditional, limited) right to parent”. 12 for the rights theory endorsed by the authors, see supra-note 8. 210 luara ferracioli leap 3 (2015) in the remainder of this section, i argue that although brighouse and swift’s fiduciary account helps us make much progress on the ethics of the family, it does not, as it stands, meet two important desiderata. first, their account fails to explain what is special about the parent-child relationship once the child is capable of attending to her own present and future wellbeing. it therefore fails to explain what is good or valuable about children having parents and parents having children across a lifetime. let us call this the “continuity desideratum”. second, by arguing that part of what justifies the fiduciary role of the parent is its ability to secure the child’s future autonomy, their account fails to justify the parent-child relationship outside a liberal family context, where parents might lack the disposition in seeing to it that their adult child becomes capable of forming and pursuing her own conception of the good. let us call this the “pluralism desideratum”. i will discuss each desideratum in turn. 3.1. continuity let me begin by motivating the continuity desideratum, which is that, all else being equal, a successful justification for the child-parent relationship should also be able to explain why it is good that parents have children and children have parents not only during the former’s childhood but also across a lifetime. to make sense of this idea, let us imagine a world that is very similar to ours but where society has structured procreation and parenting differently, and where only elderly members of societ y become parents and where children are conceived and gestated in high-tech government laboratories. let us also imagine that the rationale for this arrangement is efficiency since citizens are more productive if they spend their adult lives fully engaged in the workforce and then later in life, once they have retired, they will have more time to invest in their parental role. finally, let us assume that quality of life and life expectancy are such that children typically have at least one sufficiently healthy parent during childhood and adolescence, but typically not during their adulthood. as becomes clear, this society is one in which both parent’s and children’s interests, as identified by brighouse and swift, are fully met but where it seems that something deeply valuable is lost. what is lost, i take it, is the value for both parent and child in enjoying an intimate and loving relationship that typically extends across different phases of their lives, and that provides the child with the on-going benefit of being subjected to an intense and robust mode of caring by the parent (i will defend this claim in more detail in the following section). if i am right that the parent-child relationship retains its value even when there is no more need for the exercise of paternalism on the part of the parent, then we should ideally aim for a justification of the family why the family? 211 leap 3 (2015) that does not depend on features that are only present in childhood, but that can explain what is valuable about the parent-child relationship as it extends across time.13 at this stage, a proponent of brighouse and swift’s fiduciary account might endorse the continuity desideratum, but deny that the authors fail to meet it in their own justification of the family. the response here would be to appeal to the fact that brighouse and swift also give a lot of weight to the role of love in their discussion, and that as a result of love’s continuity, their fiduciary account will hold no matter which developmental stage or life phase parties find themselves in. this would indeed be a charitable reading of their discussion, and later i sketch an account that does appeals to the role of love in explaining what is so special about the parent-child relationship. however, as it stands, it is not clear that this interpretation is available to brighouse and swift because their account of why adults have an interest in parenting appeals to the interest that parents have in exercising loving authority over the lives of children. indeed, for brighouse and swift, love comes in by playing an important, yet supportive role, in the effective exercise of paternalism.14 as they explain: “the fiduciary aspect remains central. grandparents, or parent’s friends, or nannies, can have close relationships with children, and when they go well, those relationships will be conducive to the child’s interests and valuable to the adults too. reading bedtime stories, providing meals, and so on, will be contributing to the well-being of both. still, there’s something distinctively valuable about being the person who not only does those things oneself but has the responsibility to make sure they get done, sometimes by others, and the authority to decide quite how they get done” (brighouse and swift 2014: 93). but even if the above passage was somewhat misleading and it was true t hat brighouse a nd sw if t were prima ri ly interested in love itself, t hey would still need a further argument to justify the interest that adults have in parenting given that adults can enjoy relationships of love and intimacy with people other than their children. the challenge here is that love per se cannot get a dual-interest account off the ground because such an account is aimed at explaining what is special about the parent-child relationship in particular, not loving relationships more generally. 13 to be sure, as t he child goes t hrough dif ferent developmenta l stages, t here a re contingent features of each stage that will provide distinct sources of pleasure to the parent. however, it does not follow from this fact that the identit y of the relationship changes so dramatically that what made it valuable when the child was a toddler is no longer present when she is middle-aged. 14 as brighouse a nd sw if t (2014: 92) put it, “[t]he relationship as a whole, w it h its particular intimate character and the responsibility to play the specific fiduciary role for the person with whom one is intimate in that way, is what adults have an interest in”. 212 luara ferracioli leap 3 (2015) before i move on to the second desideratum, let me dispel one potential concern with the discussion so far. the concern might be that the continuity desideratum does not apply to brighouse and swift’s fiduciary account because theirs is an exercise in political philosophy, not value theory. perhaps what these authors are ultimately interested in doing, so the concern goes, is justif ying a relationship where one party lacks exit options and is wholly dependent on the other party for having her basic interests protected and promoted. what motivates the concern here is that the authors might not be answering the question of what is valuable about the parent-child relationship tout ensemble, but rather explaining why it is permissible for adults to enter and maintain intimate relationships with non-consenting children. one reason why this response is unsatisfactory is that the inability of the child to exit a parent-child relationship is not a necessary feature of this sort of relationship and that it is possible for there to be intimate relationships where the child actually enjoys exit options. these are, for instance, relationships where a parent lacks custody rights over the child and decides to give the child a lot of space to choose whether or not, and to what extend, to partake in the relationship. one might think that the enjoyment of exit options on the part of the child dispels the need for justification in such cases, but i take it that the degree of intimacy involved at all stages of the relationship, and the mere possibility that society could be arranged differently, suffice for making the parent-child relationship, at its most general level, proper subject of philosophical justification. it would therefore be unsatisfying if brighouse and sw ift were solely in the business of explaining why it is permissible for there to be relationships between competent parents and children where the latter have no prospect of exiting the relationship. 3.2. pluralism let me now turn to the second desideratum, which is the claim that a successful justification for the parent-child relationship must also be able to justify such relationships in non-liberal family contexts. as mentioned earlier, brighouse and swift believe that one of the reasons children need parents is that within the context of an intimate loving relationship, parents have an interest to ensure that children acquire the skills they need in order to become autonomous later on in their lives. for them, this priv ileged position on the part of parents goes as far as to give parents “a duty to try and ensure that the child w ill become an autonomous agent, someone capable of judging, and acting on her judgement, about her own interests” (brighouse and swift 2014: 90). before i ex pla in why t his focus on autonomy is problemat ic for t he fiduciary account, let me endorse the more general claim that children have why the family? 213 leap 3 (2015) a weighty interest in becoming self-determining in adulthood. let me also note that such capacity for autonomy can be cashed out in different ways a nd elsewhere i have a rg ued t hat chi ldren have a weight y interest in developing some basic agential skills, such as critical thinking, self-esteem and imagination precisely in order to make life choices that sufficiently track their own values and aspirations, as opposed to the values and aspirations of their parents, community leaders and religious authorities (ferracioli 2015).15 i a m t herefore in deep ag reement w it h brighouse a nd sw if t in thinking that something goes wrong when children fail to acquire the skills they need to live adult lives that are genuinely their own. however, as i see it, brighouse and swift are too quick in linking this particular interest on the part of children with the fiduciary role of parents. that is, they are too quick in assuming that parents are typically capable and willing to ensure that their child develop the agential skills needed to ma ke t heir ow n life choices as opposed to choices t hat blind ly fol low religious tradition or cultural expectations (ferracioli and terlazzo 2014; ferracioli 2015). indeed, it is a well-know n sociological fact that many parents in non-liberal cultural contexts do not value autonomy themselves and actually want their child to uncritically endorse what they take to be deep truths about the world. the result here is that brighouse and swift’s inclusion of the capacity for autonomy in the list of interests that ground a dual-interest account makes it the case that only autonomy-promoting parents have a right to parent, because only they have the disposition to protect the interest that the child has in becoming autonomous, and so to protect one of the interests that, according to the fiduciary account, justify the family in the first place. proponents of the fiduciar y account might respond by resisting the pluralism desideratum, and by arguing that in fact only parents who are committed to the development of autonomy have a right to parent because only they are genuinely in a position to secure the very weighty interest of chi ldren in becoming suf f icient ly self-determining. but t his response wou ld deny t he obv ious a nd mora l ly releva nt fact t hat outside libera l family contexts, parents still manage to enjoy a great degree of intimacy, love and affection with their children, and that the lives of all parties go much better as a result of partaking in such loving relationships.16 moreover, this response also fails to see that the right of children in becoming sufficiently 15 see also meyers (1987). 16 note that this position is compatible with the claim (which i do not make here) that, all else being equal, being raised by liberal parents is superior to being raised by authoritarian ones. these are compatible claims because all we need for justifying the parent-child relationship is that the relationship meets some sufficiency requirement. outside the enterprise of justification, we can certainly rank styles of parenting according to some independent moral criteria. 214 luara ferracioli leap 3 (2015) autonomous can instead correlate with a duty on the part of the state to create a neutral system of compulsory public education where children acquire the agential skills required for the exercise of autonomy later on in their lives (i return to this point later).17 4. parental love and the good life in the prev ious section, i argued that the best candidate for a theor y of what justifies the family should not appeal solely to features of childhood but rather to features of the parent-child relationship that extend across the entirety of the relationship. i have also argued that such an account should explicitly include the interest of adults in entering into intimate and loving relationship with children irrespective of a lack of disposition on their part to see to it that their child becomes sufficiently self-determining. in this section, i sketch an account that can successfully meet these two desiderata. so what is this valuable feature that both parents and children have an interest in? the answer is actually quite simple: a robust form of caring, or what is commonly (but mistakenly) known as “unconditional love”. to begin with, let me make the obvious point that strictly unconditional love is neither feasible nor desirable. it is not feasible because there can be psychological limits on the human capacity to love when love is reciprocated with physical violence, abuse or complete disregard to one’s well being. even a small child might stop loving a parent when the love she gives is reciprocated with extreme forms of violence and abuse. but even if it is possible for some people to love unconditionally, it still not something they have an interest in doing simply because unconditional love is not on the whole desirable. indeed, it is important for person’s self-respect and selfesteem that they place certain minimum conditions on the giving of love, such as the condition that they be treated with some degree of respect and generosity, and that their beloved will, for instance, not offend against the most basic demands of morality. the thought here is that even a devoted parent should try hard to stop loving an adult child who turns out to be an unrepentant mass murderer. so if unconditional love is neither feasible nor desirable, what kind of love do children and parents have an interest in? and what makes this love sufficiently distinct from other kinds of love that allows us to get a dualinterest account off the ground? the love both children and parents have an interest in is parental love, which is of such magnitude and robustness that it typically differs from other kinds of love. 17 for t he role of compu lsor y public education in t he fostering of autonomy, see ferracioli and terlazzo (2014); ferracioli (2015). why the family? 215 leap 3 (2015) let me start with a rough definition of parental love: a type of love whereby the agent cares so much about the good of her beloved, that she is robustly disposed to take on a great deal of personal cost in order to advance the good of her beloved. if i am right that parental love can be so defined, then children have an interest in being cared for by parents as opposed to charity workers or state officials because they have an interest in being at the receiving end of a mode of caring that is of significant magnitude and robustness (ferracioli 2015). that is, children have an interest in an intimate relationship with an adult who cares so much that the child’s life goes well, that she is disposed to take on a great deal of costs to advance the child’s interests over the course of that relationship. moreover, children have an interest that such disposition on the part of the parent remains robust across time and counter-factual worlds.18 a child who enjoys parental love, so this view goes, will continue to enjoy it as she becomes older and even if the sacrifices involved become extraordinary. to illustrate the point, we need only think of the hardships we might encounter in our adult lives, and the people most likely to continue advancing our interests should such hardships arise. if, for instance, we acquired a severe illness that made us incapable of attending to our own basic needs, or if we became so depressed that we could hardly respond to the world around us, the people most likely to continuously advance our interests would be our parents, not friends or lovers. the same is true of childhood. charity and orphanage workers might be able to adequately meet the basic needs of children under their care, but they will not move town or country in order to ensure that a sick child will get a special kind of medical treatment.19 they are also unlikely to spend a l l of t heir discret iona r y t ime invent ing ga mes a nd act iv it ies so as to continuously stimulate a child who suffers from autism spectrum disorder, for instance. and in any case, they will certainly not spend their whole lives trying to find a child that has disappeared. charity and orphanage workers will of course typically do what morality or their job description require— the trouble is that, at times, human beings, being the vulnerable creatures they are, need much more than that.20 if i am right that children have an interest in being the recipient of parental love so that across a lifetime, they will enjoy a caring relationship 18 for the notion of a modally demanding value, see pettit (2008). 19 for a defence of the claim that children can have all their interests secured in an orphanage, see cowden (2012). 20 for a more detailed discussion of this claim, see ferracioli (2014). 216 luara ferracioli leap 3 (2015) robustly, then the next question is: why do parents have an interest in providing such robust mode of caring? that is, what do parents have to ga in by being in a relat ionship where t hey a re disposed to ta ke on so much personal cost for the sake of someone else? as i see it, the interest that parents have in the relationship is precisely to enjoy t he mora l va lue of lov ing someone so deeply t hat one becomes sig nif ica nt ly disposed to adva nce her good in ways compa rable to t he advancement of their own good. indeed, the interest in parenting is nothing above and beyond an interest in being in a relationship where one cares so deeply about how well someone else’s life goes that one is disposed to take on the sort of costs that not even morality can demand from moral agents.21 this sort of disposition for a deep mode of caring within the context of an intimate relationship is a great source of meaning—it enriches the lives of adults significantly, despite the fact (or perhaps even partly because) life often feels like “suffering in heaven”. in the previous section, i noted that a general interest in love would not get us a dual-interest account off the ground because adults can partake in a myriad of loving relationships, such as the relationship one has with a f riend or lover. a nd if i a m right t hen, why t hin k t hat f riendships a nd romantic relationships cannot exhibit the sort of robust care we see with the parent-child relationship? at this stage, it is important to clarify exactly what the shape of the claim is. i have not argued that parents necessarily feel parental love. we know all too well that some parents do not experience robust modes of caring. i have also not argued that other relationships necessarily fail to exhibit the features of parental love so far discussed. it is certainly conceivable that some romantic relationships and friendships might give rise to equally robust modes of caring—it is just that they are significantly less likely to do so. indeed, while it is true that some extraordinary individuals might make all sorts of significant sacrifices to advance the good of a friend, friendships are typically marked by more reasonable forms of cost-taking and by less robust modes of caring. the same is true of romantic relationships. while some people would stick with a romantic partner under almost any circumstances, most romantic relationships are contingent on many facts remaining true, such as shared interests, physical attractiveness, financial stability, loyalty, and so and so forth. the modes of love we see in these other loving relationships are therefore not typically as robust as parental love. for those adults who want to maximize their chance of experiencing robust forms of caring, there 21 and of course, such disposition for caring needs to be expressed in the context of an intimate relationship because the relationship itself provides the necessary conditions for effectively acting on the disposition when the need arises. why the family? 217 leap 3 (2015) will be an interest in parenting. a strong interest in caring about someone else robustly within the context of an intimate relationship then gets us a dual-interest off the ground. 5. dispersed authority and the good of children in the previous section i sketched an account that meets the two desiderata motivated earlier: it captures the vulnerability of childhood but it is not exhausted by it. it also makes sense of parent-child relationships in nonl ibera l fa m i ly contex ts, where pa rents m ig ht lack t he w i l l i ng ness i n seeing to it that their child becomes sufficiently autonomous but still have the disposition to take on a great deal of costs to advance many of her other interests. before concluding, i shall briefly discuss some of the implications of justifying the parent-child relationship by appealing to the robust mode of caring constitutive of parental love. one implication is that a parental love account can leave open how much authority parents can legitimately exercise in a context of the parent-child relationship. so while brighouse and swift vindicated the current model of parental authority by arguing that parents had an interest in exercising authority over children, the account sketched above would be compatible with a world where parents exercised much less authorit y over children, and where governments would exercise much more through the provision of a myriad of compulsory public services. for those who worry about growing levels of child obesity and the ill effects on children of the anti-vaccination movement, for instance, the parental love account comes with the benefit of not giving parental authority any justificatory role, and so being much more congenial to state interference in areas such as children’s diet and immunization, for instance.22 a second, and related, implication is that a parental love account does not make the right to parent conditional on a parents’ ability to foster a capacit y for autonomy. it therefore endorses the claim that the right of children to become autonomous correlate instead with an obligation on the part of the state to create a neutral system of compulsory public education where children can develop the agential skills required for autonomy without being steered towards any particular conception of the good (ferracioli and terlazzo 2014; ferracioli 2015). now, of course, it is true that such an account 22 indeed, whilst brighouse and swift discussion leads to the odd result that adults who do not value autonomy lack the right to parent, a parental love account can recognize that their interest in parenting is on a par with the interest of those who do value autonomy, while still limiting the ability of all parents to deny their children the opportunity to acquire the agential skills required for autonomy. 218 luara ferracioli leap 3 (2015) would still make the right to parent conditional on the parent not actively interfering with the fostering of autonomy by the state, and so there would still be a negative duty on the part of the parent not to deny one’s child access to public education. the important point to recognize here, however, is that there is an important difference between expecting a parent to respect state interference in the family via a system of compulsory public education, and expecting her to foster herself a capacity she finds detrimental to the pursuit of the good life. the latter, but not the former, is simply overly demanding. a third and final implication of appealing to the value of parental love when justif ying the family is that such an account is, in principle, more liberal with regard to the number of parents a child can potentially have. recall how brighouse and sw ift emphasize that their account can only support a small number of parents for each child (at some stage in the discussion, they even stipulate that there should be no more than four parents in a child’s life (brighouse and swift 2014: 71)). as they explain, “intimate but authoritative relationships bet ween children and a small nu mber of pa r t icu la r adu lts, relat ionsh ips i n wh ich t he adu lts have considerable discretion over the details of how the children are raised, is t he best a rra ngement for ra ising chi ldren, ta k ing into account a l l t he interests at stake” (brighouse and swift 2014: xii). a parental love account, on the other hand, allows for more dispersed authority among parties who care robustly for a child, and so, in principle, allows for more than four parents (but as brighouse and swift recognize, the question of which adults should parent each child is a separate and independent question (brighouse and swift 2014: 49)). and in fact, this is already taking place with modern fa mi ly a rra ngements where chi ldren a re loved deeply by t heir pa rents, stepparents, and godparents. insofar as it is feasible and desirable for the child to enjoy a loving relationship with each one of them, it seems odd (if not somewhat disrespectful to the child) to artificially limit the size of the family just so that each adult can exercise more authority over her life. 6. conclusion in this essay i have engaged with the question of “why is it good for children to be raised by parents, and good for parents to raise children” (brighouse and swift 2014: ix). and in particular, i have asked whether brighouse and swift answer to this question delivers a successful justification of the parentchild relationship. w hile i have argued that their account fails on t wo desiderata and that an account in the vicinity might be superior, i believe the fiduciary account still stands out for helping us make significant progress on the foundational question of what is so special about the family. why the family? 219 leap 3 (2015) bibliography blustein, j., 1982: parents and children: the ethics of the family, oxford university press. brighouse, h., and swift, a., 2006: “parents’ rights and the value of the family”, ethics 117: 80-108. — 2014: family values, princeton: princeton university press. clayton, m., 2006: justice and legitimacy in upbringing, oxford: oxford university press. cowden, m., 2012: “what’s love got to do with it? why a child does not have a right to be loved”, critical review of international social and political philosophy 15: 325-345. ferracioli, l., and terlazzo, r., 2014: “educating for autonomy: liberalism and autonomy in the capabilities approach”, ethical theory and moral practice 17: 443-455. ferracioli, l. 2014: “the state’s duty to ensure children are loved”, journal of ethics and social philosophy 8: 1-19. — 2015: “the anarchist’s myth: autonomy, children and state legitimacy”, hypatia 30: 370-385. gheaus, a., 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-455. hall, b., 1999: “the origin of parental rights”, public affairs quarterly 13: 73-82 vallentyne, p., 2003: “the rights and duties of childrearing”, in william and mary bill of rights journal 11: 991-1009. macleod, c., 2010: “parental responsibilities in an unjust world”, in procreation and parenthood, eds. d. archard and d. benatar, 128-150, oxford: oxford university press. meyers, d. t., 1987: “personal autonomy and the paradox of feminine socialization”, journal of philosophy 84: 619-628. narayan, u., 1999: “family ties: rethinking parental claims in the light of surrogacy and custody”, in having and raising children: unconventional families, hard choices, and the social good, eds. u. narayan and j. bartkowiak, 65-86, university park, pa: the pennsylvania state university press. pettit, p., 2008: “freedom and probabilit y: a comment on goodin and jackson”, philosophy & public affairs 36: 206-220. rawls, j., 1999: a theory of justice, rev. ed., cambridge, ma: harvard university press. leap 3 (2015) response to blumenson v ic tor ta dros university of warwick abstract this paper defends some of the central claims in the ends of harm: the moral foundations of criminal law against challenges by eric blumenson. key words: punishment, duties, retributivism, desert, proportionality introduction i am ver y grateful to eric blumenson for his thoughtful, insightful and wide-ranging essay engaging with my book the ends of harm: the moral foundations of criminal law (hereafter, ends). blumenson makes many points which he thinks count against the duty view of punishment (dv) that i defend in ends which need careful thought. i won’t attempt to address all of his concerns. i will focus on those objections which i think he finds more telling, and where i have said less to defend the view outlined in ends.1 before continuing, let me clarif y one feature of the general moral and polit ica l v iew out lined in ends t hat blumenson brief ly engages w it h. blumenson suggests that the account of the means principle in ends is so strict and wide ranging that it implies a form of libertarianism akin to that defended by robert nozick in anarchy, state, and utopia (nozick 1974). i would like to clarify the similarities and differences between my approach and nozick’s. i have some sympathy with nozick’s general methodological approach to political theory. like nozick, i think that the duties and constraints on state action are to be defended in the light of a more basic set of moral principles that govern individual interactions with each other. the state, and the principles that govern it are not, i think, sui generis. nozick’s account is more d i rect ly rel ia nt on a set of r ig ht s t ha n t hat defended i n ends. nevertheless, otherwise there is a broad similarity between us with respect to methodology. 1 i have responded to some points that are similar to those advanced by blumenson in tadros 2012, 2013 and 2015. response to blumenson 57 leap 3 (2015) furthermore, like nozick, i think that there is a constraint on compelling some people to provide for others – the constraint on using some as a means to the good of others. where nozick and i differ, though, is in our understanding of the content of these rights and duties. nozick was much more skeptical than i am about enforceable positive duties, and this feature of his moral theory is central to his defence of libertarianism.2 in contrast, i believe that there are enforceable positive duties. the scope and stringency of these duties may depend on a number of factors, including the extent to which people are mutually engaged in cooperative beneficial activities. i do not provide a full account of the scope and source of positive duties in ends – i leave that as an open question, even though it has implications for criminal justice. nevertheless, my account of the means principle emphasizes the limits of that principle in a way that nozick’s account does not. this prov ides t he possibilit y of broad ranging socia l prov ision and development aid, depending on the scope of domestic and international mora l obligations. my ow n v iew is t hat positive enforceable duties are quite extensive, and hence i believe that we have powerful obligations of these kinds that can be enforced by the state.3 this also helps to address one of blumenson’s concerns – he thinks that relying on the ‘duty of easy rescue’ to secure the permission of the state to punish offenders is inadequate because indiv iduals do not have a ver y powerful dut y to transfer their compensatory rights to the state to ensure that other people are protected from offending. i doubt that this is right. this is so in part because victims of crime are provided with substantial benefits from a system of punishment. requiring them to allow the state to have control over their punitive rights is not typically onerous (on the contrary) and any cost that they bear as a result is more than compensated for by the benefits they are provided with. blumenson also complains that funding health care and occupational safety would, on this view, depend on the existence of duties to provide these things through the state. but it is highly plausible that the provision of these things does depend on such duties – when we fail to provide adequate health care or occupational safety, or for that matter adequate security from crime, we fail to do what justice requires, and hence we fail to satisfy our duties to others. when we provide health care beyond these limits, the appropriate complaint does seem to be that citizens do not owe this level of health care to each other. if the state fails to demonstrate that we owe some level of health care to each other, it has failed to justify that level of health care. 2 nozick 1974, especially 30-3. 3 see, also, tadros 2011b. 58 victor tadros leap 3 (2015) i think, therefore, that the provision of social justice depends on citizens underlying duties to each other. this is not a libertarian view, at least if libertarians are committed (as nozick was) to the non-existence of general enforceable positive duties. 1. methodology blumenson thinks that the fact that there are many duties, with uncertain scope, involved in dv provides some reason to reject that view. this is not a reason to reject dv. if these duties ex ist, we ought to tr y to fulfill them. it may be that we are likely to fulfill them only approximately, but that fact does not free us from these duties. in any individual life, many of us are confronted with a wide range of duties, some of which are in conf lict with others. we have many complex duties as parents, children, professionals, friends, and simply as human beings, and it is often difficult to know whether we have fulfilled these duties. we are likely to do so only approximately at best. this fact hardly frees us of these duties, or makes them irrelevant to the way we live our lives. blumenson also thinks that the fact that dv has many steps should incline us against it. the success of the argument for each step, he suggests, is necessary for the success of dv. even if we have a great deal of confidence in each step in the argument, our confidence in the conclusion should be limited if there are many steps in the argument. unfortunately, blumenson’s argument would rule out being persuaded by any philosophical argument that relies on many steps, even where we have very powerful reasons to endorse every step in the argument. it is difficult to accept this conclusion. furthermore, any particular moral claim relies on the truth of many other controversial claims – for example claims about moral claims. blumenson’s argument would thus lead to more general skepticism about all particular moral claims. finally, blumenson’s argument makes philosophical argumentation too easy. consider the truth or falsity of act utilitarianism. act uilitarianism is false if any non-act-utilitarian claim is true. there are many non-act-utilitarian claims. even if we have very low levels of confidence in any particular claim, blumenson’s view implies that we ought not to endorse act utilitarianism in virtue of the fact that there is some relatively high probability that one of these claims is true. i take it that this argument against act utilitarianism is not valid – to show that we ought not to accept act utilitarianism, we ought to demonstrate that we have confidence in some particular claim that is in conf lict with act utilitarianism. response to blumenson 59 leap 3 (2015) it is also worth noting that some of the steps in the argument provided in ends are not necessary to justif y punishment generally – they justif y punishment of particular people for particular purposes. for example, i defend the v iew that it is sometimes permissible to harm a person as a means to avert threats to people other than their immediate victims, even when they are not responsible for posing these threats. if the argument for this claim fails, punishment may still be justified in many cases. it will be justified in cases where offenders, through their offending, create threats to others. this will sometimes be so, because by offending they may undermine the effectiveness of the criminal law. it will also be justified in cases where punishing the offender helps to protect the victim from future offending. i don’t find these limits on punishment plausible, and i argued for a more expansive view. but the question under consideration is not about whether we should accept dv, but rather about what version of dv we should accept. 2. blumenson’s alternative as punishment is difficult to justif y, we should not be surprised that an argument for punishment has many steps to it. take blumenson’s justification of punishment. one idea amongst many controversial ideas that blumenson relies on, in defending his negative retributivism, is that punishment of the innocent is ruled out by something like the following principle: negative desert: it is permissible to use d as a means to the good iff d deserves to be used, and in virtue of this fact. negative desert is not a very clear principle. we need to know what desert means, and there are many possibilities. we also need to know what it means to deserve something ‘negatively’. i have some doubts that we can make good sense of negative desert in this sense. like many friends of desert, i think that ‘x deserves o’ implies that there is good reason for x to get o irrespective of any further good that will be secured if x gets o. if so, there is no such thing as negative desert in blumenson’s sense. negative desert is not a coherent view, i claim, because it is a fact about desert, as i understand it, that if d deserves o, the value of giving o to d does not depend on any further value that giving o to d will secure instrumentally. negative desert is in conf lict w ith this claim about desert. it makes the reason to give d o depend on something external to d getting o – that o is a means to some further good. hence, it is not a v iew about desert, as i understand it. perhaps blumenson has a different conception of desert in mind in negative desert. without an account of that conception, i continue to find negative desert confused. 60 victor tadros leap 3 (2015) my suspicion that blumenson’s view is confused was strengthened by his response to the incoherence objection. there blumenson swithers between two different views. on the one hand, he seems to accept that desert implies that there is a positive reason to give d o, but a reason that can be outweighed. this view accepts that it is intrinsically valuable to give d what he deserves, but that this value can be out weighed. but this v iew is in conf lict w ith blumenson’s denial that retributivists are committed to the view that it is intrinsically valuable that offenders suffer the burdens of punishment. all sensible retributivists claim that the good of offenders getting what they deserve can be outweighed. so this view is just accepts positive desert, with all of its difficulties. another view is the ‘rights forfeiture’ view. d, this view claims, loses his right against being punished in virtue of having acted wrongly. this view is not best seen as a form of retributivism at all. one reason is that rights forfeiture does not depend on desert.4 a second reason is that it is not clear how desert adds anything to a rights-forfeiture view. rights-forfeiture views of punishment claim that punishment may permissibly be inflicted to serve certain ends on condition that a person has forfeited her right against such treatment. they then argue that a person forfeits her right against such treatment by acting wrongly. it would add nothing to such theories also to claim that wrongdoers deserve to lose these rights. the language of desert adds nothing substantial to rights-forfeiture theory – it is not even clear what it means to deserve to lose a right. dv is a version of a forfeiture view. so if, by negative desert, blumenson simply means ‘rights forfeiture’, we are roughly in the same camp. but traditional rights-forfeiture views of punishment are superficial – the idea that wrongdoers lose rights is, of course, true on any justification of punishment. what needs explaining is why offenders lose their rights against being harmed as a means to the ends of punishment. claiming that they have lost their rights to be used in this way is a conclusion that needs defending. the duty view offers a defence of this claim: it suggests that wrongdoers lose their rights against being used for the ends of punishemnt because they incur duties to serve these ends. i also claim that nothing, or almost nothing, else is sufficient – a person loses her right not to be used to serve an end, i claim, only if she has a duty to serve that end, or would have such a duty were she able to pursue it. blumenson does not show that this view is false. if blumenson wishes to defend a rights forfeiture view of punishment, he ought not to refer to desert. the idea that d has forfeited her right against being treated in a certain way does not depend on desert. if he rejects the 4 see, for example, mcmahan 2009: 8-9. response to blumenson 61 leap 3 (2015) kind of rights forfeiture view defended in ends, he should supply an alternative explanation how wrongdoers lose their rights against being punished. furthermore, any convincing and complete account of rights-forfeiture will be controversial. a rights-forfeiture theorist needs both to provide an account of why people lose rights, and an account of the extent to which they lose rights. one reason why the argument in ends is complex is that it attempts to make substantial progress with both questions. simple rights-forfeiture views seem comparatively simple, but that is only because they avoid making progress with the difficult questions about why people lose rights, and the extent of the rights they lose. let’s suppose that there is such a thing as negative desert. let's suppose that there is such a thing as negative desert. like dv negative desert relies on very controversial premises if it is to play the role in the justification of punishment that blumenson wants it to play. defending some particular account of desert against others will be controversial. this is obviously so as there are many different claims that f riends of deser t ma ke about t he nature of deser t.5 fur t hermore, a ny interpretation of negative desert is extremely controversial. even if there is such a thing as negative desert, it is not uncontroversial that we can deserve to be used. it is not uncontroversial that anything like criminal wrongdoing is the desert basis for being used. and it is not uncontroversial – in fact it is clearly false that it is only permissible to use a person as a means to the good only in virtue of the fact that the person deserves to be used. that this is clearly false is demonstrated by the fact that we can mount relatively uncontroversial arguments for the permissible using of others without relying on desert. negative desert is by no mea ns t he most cont roversia l element of blumenson’s view, though. it relies on another claim: that the state has an obligation to punish wrongdoers even when this will produce no net social benefit ‘when this is obligatory in order to fulfill the state’s social contract obligations to the victim because no less draconian route is sufficient to do so’. this element of blumenson’s view also relies on many controversial claims, and so is vulnerable to blumenson’s own argument. it relies on the success of following argument: the state has social contract obligations to victims. these social contract obligation that the state owes to the victim require the state not to ignore wrongdoing. 5 even within the camp of the intrinsic goodness desert view, there is an enormous range of possibilities, many of which have gone unnoticed. for an exhausting, but perhaps not exhaustive, exploration of many of them, see kagan 2012. 62 victor tadros leap 3 (2015) if serious wrongdoing is not punished, the state ignores wrongdoing. therefore the state must punish serious wrongdoing. this argument is even more controversial than negative desert. first, the socia l cont ract t radit ion is ex t remely cont roversia l. i doubt t hat state obligations are grounded in social contract obligations. more importantly, it is not clear why the state, in failing to punish, necessarily ignores wrongdoing. there are many different non-punitive responses that the state might make to wrongdoing that would demonstrate that the state takes wrongdoing seriously. given that punishing offenders is necessarily burdensome to the offender, but not necessarily burdensome to the state, it is also not clear why punishing offenders is sufficient to demonstrate that the state takes wrongdoing seriously. if i want to show that i take something seriously, it is i that should demonstrate a willingness to bear burdens for the sake of that thing. in punishing offenders, the state only demonstrates that it is willing to burden someone else – the offender. this may simply show that the state does not care much about the offender, not that it takes the wrongdoing seriously. furthermore, it is not clear that by refraining from punishing a person who has committed a serious wrong against the victim the state withdraws the status of citizens as valued members of the political community, as blumenson cla ims. to demonst rate its commit ment to t he v ict im, t he sensible thing to do is to help the victim. punishing the offender may be one way to help the victim. the argument in ends is intended to demonstrate that. but it is not the only way. the victim could be helped by being provided with extra protection by the state, or by being compensated in other ways. and the state could publicly express the importance of the v ictim, and educate its citizens about how terrible it was that the victim suffered in the way that she did. none of this requires punishing the offender. if the state does these things, is it really true that the state devalues the v ictim or denies his civic personhood? so spelling out and defending negative retributivism requires an argument with many steps in it. as we have reason to doubt each of these steps (in my view, decisive reasons to reject some steps), blumenson’s ‘diminishing returns’ argument, if successful, defeats his own view as well as mine. blumenson responds t hat a n a rg ument w it h mu lt iple steps is more credible if its conclusion is independently intuitively attractive. he thinks that negative retributiv ism is intuitively more attractive than the dut y view. i don’t find retributivism intuitively attractive. blumenson’s version seems unclear. negative retributivists can simply assert that those who we response to blumenson 63 leap 3 (2015) intuitively think ought to be punished lack a right against being punished. but then the theory does little more than reporting our considered convictions about punishment rather than explaining them. more standard retributivist views are also unclear, and seem barbaric. few claims need more careful defence than the claim that it is impersonally valuable that wrongdoers suffer. though some people believe this claim, it is not by itself intuitive – it rests on the idea that suffering and harm are sometimes to be sought for their inherent properties, and many recoil at this thought. furthermore, i don’t think that the explanation that dv gives for the permissibilit y of punishment is intuitively unattractive. first, the vast majority of people, when asked why we punish offenders, cite prevention as the aim. dv offers an argument why it is permissible, subject to certain constraints, to harm offenders to secure this aim. but the aim that dv advocates is familiar and attractive. secondly, the idea that offenders may permissibly be used to secure this aim in v irtue of their w rongdoing is attractive. dv then gives an answer to the familiar objection that offenders may not be used merely as a means to secure this aim – that offenders can be expected to serve the end of protection in virtue of having acted wrongly. this is the most original part of dv, but i don’t think that the response to the objection is itself unintuitive. 3. other ways of fulfilling the duty dv relies on t he idea t hat t he permissibi lit y of punishing of fenders is grounded in the (primarily protective) duties that offenders incur as a result of their wrongdoing. blumenson, in challenging step 6 of his summary, argues that it is a weakness of dv that this would allow uneven punishment of offenders in cases where offenders have discharged the protective duties that they owe to their victims in other ways. i think that this implication of dv is one of its strengths. 3.1. who gets to decide one question that blumenson raises, that has also been raised by kim ferzan, is why the state should be in a position to decide how the duty that the offender owes to the victim is satisfied. ferzan raised the following objection to dv. she argued that if the offender owes a duty to the victim, it is for the victim to determine what the offender does for her. if she wants protection, she can secure protection from him. if she wants her car washed, she can secure that end (ferzan 2013). in response, i 64 victor tadros leap 3 (2015) argued that it would be w rong for the v ictim to impose any significant harm on the offender for the sake of her car. the offender can be harmed for the victim’s sake only if any harm imposed on him is proportionate to the end sought (tadros 2013). blumenson does not think that this obviates the problem that ferzan raises. i do not see why. the first thing to note is that offenders obviously do owe very stringent duties to the victims of their wrongdoing. blumenson’s challenge of explaining how these duties can best be fulfilled is thus quite general. if punishment does not vitiate these duties, offenders retain them. if blumenson thinks that offenders retain these duties, how does he think they ought to be fulfilled? does he think, for example, that after the offender is punished, the offender may nevertheless be seriously harmed again for the sake of the victim? nevertheless, we should meet the challenge posed by blumenson. why does blumenson doubt that dv can meet it? it is not completely clear, but perhaps blumenson believes something like this: if d owes a duty to act for the sake of v at some cost n, v may impose n on d for any end whatsoever. this v iew, though, is not credible. it is not generally true of duties. for example, the fact that i have promised to deliver a television to your house implies that i must bear the cost of driv ing to your house. that, though, does not imply that you may impose on me the cost of driv ing to your house for some other end. the most important restriction on the duty imposed on offenders is that any cost that the offender is compelled to bear must be proportionate to the end sought. for example, if d kills one of v’s children, it is plausible that v can kill d as a means to protect another of v’s children if that is the only way to protect the second child. this is so in virtue of the stringent protective duty that d incurs to v, and to v’s child. this does not imply that it would be permissible for v to kill d for fun, or to use d’s skin to make a handbag, for the harm imposed on d would be disproportionate to the good of having fun or getting a handbag. hence, if the victim has a right to decide how the duty that the offender owes to her is satisfied, she has a right to decide only within a certain range of goods that are sufficiently important to justify the harm imposed on the offender. now, there might be some circumstances in which the victim does have a right to decide, and the state would act wrongly in making the decision for her. for example, suppose that both v and x, who is v’s husband, are now threatened with death. d can be used as a means to protect either v or x but not both. it is plausible that v is permitted to determine whether to use d to protect v or to protect x. it follows that it would be wrong for the state to use d to protect v if v would prefer that x be protected. needless to say, response to blumenson 65 leap 3 (2015) though, the fact that it would be wrong, in these circumstances, for the state to decide for the victim does not militate powerfully against dv, for these circumstances very rarely arise. it is also worth noting that the state does sometimes give the v ictim cont rol over how t he of fender’s dut ies a re sat isf ied. for exa mple, it is common in restorat ive just ice prog ra ms to prov ide t he v ict im w it h a n opportunity to decide what the offender should do in response to having offended. within some limited range of options, this will sometimes be appropriate. in determining whether the state or the victim ought to decide how d’s duty is satisfied, we must also bear in mind a number of other factors that count against victims making decisions. first, if victims are entitled to make decisions about how the offender’s duty is satisfied, they will be at risk of coercion from offenders.6 secondly, victims, who will often feel resentment towards offenders, may be inclined to seek retribution by imposing heavier costs on offenders than necessary. thirdly, the victim owes duties to other citizens, including protective duties, and she may be required to select a particular way of satisfying the duty that the offender owes to her because this will best satisfy these protective duties.7 fourthly, if the state punishes the offender, certain other values, such as communicative values, can be advanced, and this provides some reason for the state uniformly to determine how the offender is punished. if the victim does not have a strong reason to prefer that the duty that is owed to her is satisfied in one way rather than another, it is permissible to ensure that the duty owed to her is satisfied in a particular way to advance other values. overall, the idea that the victim should have complete choice over how the offender’s duty is morally abhorrent, unrealistic and impractical. hence, the fact that victims typically have a right to determine how the duties owed to them are satisfied is not a significant challenge to dv. 3.2 duties and the wealthy the second part of blumenson’s challenge concerns wealthy offenders. there are three features of this challenge that should be separated. one question is whether it is plausible that w rongdoers who have taken on burdens for the sake of their victims ought nevertheless to be punished. dv implies that if these burdens are sufficiently large they ought not to be. a second question concerns the relationship between punishment and compensation. 6 see, also, the discussion concerning giv ing the v ictim control over prosecution decisions in tadros 2011a: 296. 7 see tadros 2011a: 297-9. 66 victor tadros leap 3 (2015) does dv deny the victim the right to seek monetary compensation from her offender? a third question is whether dv has plausible implications for the punishment of the wealthy, who may have the means to provide a great deal of protection to others at little cost to themselves. to assess the first question, suppose that v is attacked by a gang, including d, x, y and z. d assaults v. let us suppose that it would have been permissible to harm d as a means to avert this threat, harming him to degree x. if the harm that d does to v is large, x will be even larger. this is for the reason that it is generally permissible to harm a person to avert a threat that they culpably pose, even if the harm that is necessary to avert the threat is greater than the harm that the person would do if the threat they pose were realized. d then realizes that what he did was wrong. v still faces a threat from x, y and z. d, recognizing the duty that he owes to v, now protects v against x, y and z. he is harmed to degree x in the process. blumenson implies that the state nevertheless ought to punish d. this seems wrong. d has borne a great cost in order to protect v against x, y and z. it is wrong to harm d even more for punitive reasons. the idea that we should punish people who have already voluntarily borne great costs for the sake of their victims fails adequately to acknowledge the idea that people can redeem themselves for their wrongdoing through their voluntary actions. in response to blumenson’s second challenge, there is nothing in dv that rules out the provision of monetary compensation to victims where monetary compensation is available, and can help to ameliorate the victim’s loss. in evaluating the comparative merits of a compensation scheme against a punitive scheme, we ought not simply to consider what would be beneficial to indiv idual v ictims where most offenders are punished. we ought to consider the circumstances of victims were no one punished. in a system where compensation was the only available remedy for theft, for example, people would be very insecure in their property. in those circumstances, a compensatory scheme would be wholly inadequate to secure property rights. hence, there would be powerful reasons to criminalize theft. nevertheless, even if theft is criminalized, victims may seek monetary compensation from offenders. to explain why this is so, notice the following feature of dv. obligations to compensate others are subject to two constraints – a constraint on the maximum amount of harm that can be imposed on the wrongdoer (what i have called the maximum harm threshold) and a constraint on the maximum amount of benefit that can be secured from the wrongdoer (the maximum benefit threshold). dv accepts that there is a maximum harm threshold beyond which the offender may not be harmed, though not a maximum benefit threshold. below the former threshold, we must consider how the offender response to blumenson 67 leap 3 (2015) is to be ha rmed, a nd for whose benef it. ha rm may be imposed on t he offender to provide monetary compensation to the victim, to deter, or a combination of the two. this has the attraction that it limits the overall harm that an offender suffers as a result of his wrongdoing. if the offender provides compensation to the victim, and this is very burdensome to him, the amount that he may be punished is reduced. blumenson’s claim that, according to dv, offenders who are punished owe no compensation to their victim is thus false. that depends on how much the offender is punished. it is true that if an offender is punished up to the maximum harm threshold, he may not be harmed further to compensate the victim. but this is an attractive implication of dv. if, though, the offender is punished to some degree less than the maximum harm threshold, compensation may be extracted from him for the victim’s sake. given that the victim will typically have been rendered much worse off than she would have been by the offenders action, there is good reason to ensure that we should aim to improve the victim’s circumstances. the question is how best to do this. the third feature of blumenson’s challenge concerns the way in which we should respond to the greater protective resources available to the wealthy. as i have said a great deal about this elsewhere, i will make my comments brief. in compensatory justice, the maximum benefit threshold is normally set at the level of full compensation. it is contested how full compensation should be understood,8 but in standard cases, if the wrongdoer has rendered the victim as well off as she would have been had the wrongdoer not wrongfully harmed her, he has fully compensated her. the maximum harm threshold implies that there is a limit to how much the w rongdoer may be harmed in order to prov ide the v ictim w ith full compensation. if full compensation to the victim would require us to harm the wrongdoer a great deal, it is impermissible to extract full compensation from the wrongdoer. with respect to serious wrongdoing, whilst there is a maximum harm threshold, there is no maximum benefit threshold. wrongdoers cannot satisfy the duties incurred through wrongdoing simply by providing full compensation to victims. if the provision of full compensation is not onerous, they can be expected to do more to protect the victim, and perhaps to protect others. given this, the fact that the wealthy can provide a great deal of protection to victims at little cost does not imply that they may not be punished to produce further protection if they provide this level of protection.9 8 i discuss this further in tadros 2014a. 9 for further defence of this view, demonstrating how it comes apart from retributivism, see, tadros 2011a: 286-91; 2012: 99-102; 2013: 300-9. 68 victor tadros leap 3 (2015) blumenson, i think, agrees w ith this verdict, but thinks that this is tantamount to a form of negative retributivism. this is false. first, the scope and stringency of the duties that we owe in virtue of wrongdoing are not, in general, best explained by desert. when we act wrongly, we incur duties. we do not incur them because we deserve to incur them. of course, we should explain why we have these duties – for example, because we can redeem ourselves by responding appropriately to our wrongdoing, or because we could have avoided having them, or some other explanation. it is difficult to see how desert claims figure in an explanation of the duties that we incur. of course, we could define retributivism in a way that corresponds to the duties that we incur through wrongdoing. we could simply claim that when a person incurs a stringent duty in virtue of having wrongdoing, that just is her getting what she deserves. but if the retributivist claims this, she just accepts dv, but mangles the terminology. now, blumenson looks for a n ex pla nat ion why serious w rongdoers cannot satisfy their duties simply by providing full compensation to their victims. he complains that my defence of this is vague. i agree that there is more to say about this issue than i said in ends. there i noted the fact that it is implausible that the duties of serious wrongdoers are satisfied when full compensation is provided, and gave an explanation for this by considering complaints that wrongdoers and victims could make to the scope of these duties. i also showed that the view that i endorse is intuitive in protection cases such as three threats. i have since done more to explain this idea, and i will say no more about it here. but whatever the merits of my explanation, blumenson’s reference to desert does nothing to help. it is simply a bad redescription of the idea that wrongdoers incur stringent duties that are not satisfied by providing victims with full compensation. it does nothing at all to explain the source of these duties. the explanation that i provided in ends may have been vague and incomplete. blumenson offers no explanation at all. 4. empirical support dv justifies punishment only if punishment is effective in deterring crime. i am poorly placed to do the empirical work to that is necessary to determine whether it is effective, and in which circumstances. this is partly due to my lack of empirical skills. it is also due to the fact that the empirical work could not realistically be done. w hat would be required would be a study that compares reasonably just large-scale liberal societies w ith and w ithout response to blumenson 69 leap 3 (2015) systems of punishment. but there is no reasonably just large-scale liberal society without a system of punishment. the question is whether dismantling a system of punishment and replacing it w ith some intrinsically better a lternat ive wou ld be det rimenta l to t he crime rate. if it wou ld not be detrimental to the crime rate, our system of punishment is unjustified.10 the fact t hat dv justif ies punishment only contingent ly on it being effective in deterring crime and on it not having disproportionate bad side effects is no objection to it. any sensible theory of punishment is contingent in this way. any system of state punishment is enormously costly. it will harm not only offenders, but innocent people as well. these costs need to be justified. the idea that they can be justified by anything other than crime reduction is implausible. even if it is true, as retributiv ists claim, t hat punishment is impersonally valuable, it is very difficult to believe that any impersonal value that it has is sufficiently great fully to justify the costs of any realistic criminal justice system. if state punishment is ineffective in reducing the crime rate, state punishment ought to be abandoned.11 5. proportionality blumenson thinks that dv cannot explain why some factors that intuitively ought to affect the sentence that we ought to impose on an offender are relevant to punishment. i am not sure why he thinks this. though it is true that i ought to have said more about this issue in ends, it is highly plausible that both a person’s duties to avert the threats that he poses and the strength of the duties he incurs through his wrongdoing depend on the kinds of factors that blumenson outlines as relevant to punishment. furthermore, retributivism seems to me less well placed to explain these factors. blumenson rightly claim that retributiv ists t y pically think that punishment shou ld ref lect t he g rav it y of t he crime a nd t he of fender’s blameworthiness for it. w hat they lack is an explanation why this is so. there is little reason to think that, on the best view of desert, what we deserve is determined by the properties of our actions. it is more plausible to think that what we deser ve depends on our v irtues and v ices.12 but this more plausible view of desert has troubling implications for a theory of punishment. retributivists typically tailor their theory of desert to provide plausible 10 for further discussion, see tadros 2012: 91-3. 11 for a compelling argument for this view, see husak 2010. 12 see, further, tadros 2011a, ch.4.ii. it is not uncommon for friends of desert in moral philosophy to think that virtue and vice over a whole life is the proper desert basis. see, for example, kagan 2012: 6-12. ch.4.ii response to blumenson 70 leap 3 (2015) implications for punishment. but if so, their justification of punishment is unsatisfactory. it is no good to begin from a conventional view about what punishment ought to be imposed for which crimes under which circumstances and justify this conventional view simply on the basis that doing what we do is impersonally valuable. what is needed is an independent argument that shows that desert explains why punishment should fit the gravity of crimes and blameworthiness for them. such arguments are hard to find, and blumenson offers none. blumenson is also wrong to think that the necessity constraint on selfdefence creates problems for the relationship bet ween self-defence and punishment outlined in ends. i w ill restrict myself to an evaluation of blumenson’s first case, as i think this the most interesting: unnecessary defence. a threatens v with a knife. v is able to retreat safely and therefore defensive force is unnecessary; but v fails to retreat, parries a’s thrust unsuccessfully, and dies. as harming a was not necessary to avert the threat he poses, it might be argued that a is not liable to defensive harm. blumenson then concludes that dv implies that he is also not liable to be punished. this argument is much too quick. first, it is not clear that a is not liable to defensive harm. it is a matter of dispute whether harming a wrongs him where harming him is unnecessary.13 i am inclined to the view that v wrongs a if v unnecessarily harms a. but this does not imply that a incurs no duties as a result of wrongfully killing v. the fact that v wrongly chose to attempt to harm a rather than retreating does not vitiate the duties that a incurs for wrongfully harming v. it is also false that a is not liable to defensive harm to avert the threat that he later poses in unnecessary defence.14 to see this, consider a variation on unnecessar y defence where x, a t hird pa r t y, cou ld inter vene a f ter v attempts to parry a’s thrust to avert the threat that a poses to v. if x harms a to avert the threat that he poses, x does not wrong a. although v acts wrongly in attempting unnecessarily to harm a, this does not vitiate a’s liability for threat that he later poses.15 furthermore, whilst it is true that, if v successfully harms a in unnecessary defence, v wrongs a, it is false that it is wrong for v to harm a given that v 13 for some discussion, see, for exa mple, mcma ha n 2009 ; firt h a nd quong 2012; frowe 2014. 14 blumenson also considers the problem of criminal attempts and the significance of intentions to punishment. i say more about these issues in tadros 2013: 313-22, so i leave them aside here. 15 for related discussion, see further tadros 2014b. 71 victor tadros leap 3 (2015) has decided to stand his ground rather than to retreat. suppose that v stands his ground. suppose, also, that by standing his ground he gives up the opportunity that he had to retreat. he must now decide whether to harm a, parrying the blow that a aims at him, or to allow himself to be harmed by a. he may recognize that he was wrong to stand his ground, but this does not vitiate his permission to harm a. he wrongs a in virtue of the fact that he had another option which rendered his defensive force unnecessary. but despite the fact that the existence of this option renders his defensive harm wrongful, given his wrongful act he is permitted to defend himself. it follows that there is no asymmetry between liability in self-defense and liability in punishment of the kind that blumenson’s argument relies on. conclusion obviously, there is a great deal more that would need to be done fully to meet blumenson’s interesting and important objections to the arguments in ends than i have done here. i hope, at least, to have shown that some of blumenson’s objections can either be met by clarifying dv, or by showing that the seemingly counterintuitive implications of dv are more attractive than he thinks. dv is a new theory of punishment. i do not claim to have worked out all of the details of the theory in ends. i continue to think that it has a great deal of promise, despite the powerful objections that have been mounted against it. bibliography ferzan, kk., 2013: "rethinking the ends of harm", law and philosophy 32: 177-198. firth, j. and quong, j., 2012: “necessity, moral liability and defensive harm”, law and philosophy 31: 673-701. frowe, h., 2014: “non-combatant liability in war”, in how we fight: ethics in war, ed. h. frowe and g. lang, oxford: oxford university press. husak, d. n., 2010: “why punish the deserving?”, in the philosophy of criminal law: selected essays, oxford: oxford university press. kagan, s., 2012: the geometry of desert, oxford: oxford university press. mcmahan, j., 2009: killing in war, oxford: oxford university press. nozick, r., 1974: anarchy, state and utopia, oxford: blackwell. tadros, v., 2011a: the ends of harm: the moral foundations of criminal law, oxford: oxford university press. — (2011b) “independence without interests?”, oxford journal of legal studies 31: 193-213 — (2012) “replies”, jerusalem review of legal studies 5: 89-109. — (2013) “responses” law and philosophy 32: 241-325. response to blumenson 72 leap 3 (2015) — (2014a) “what might have been” in philosophical foundations of tort law, ed. j. oberdiek, oxford: oxford university press. — (2014b) “resource wars”, law and philosophy 33: 361-389. — (2015) “answers”, criminal law and philosophy 9: 73-102. 7 issn 2341-1465 leap 2 (2014): 7-31 what do we owe to poor families? richard j. arneson university of california, san diego abstract this essay argues that when there is a moral duty to procreate, nonprocreators owe assistance in the task of providing for children, even if their presence renders nonprocreators worse off. when new children bring benefits to nonprocreators, they have a duty of reciprocity owed to cooperating parents. if there is a moral duty to provide meaningful work opportunities, especially to the worse off, we have special duties to help poor people enjoy opportunities for the meaningful work of raising children. given the benefits of stable families for both their adult and child members, justice requires facilitating the enjoyment of stable faily life by poor people. keywords: procreative duties, reciprocity, meaningful work, marriage promotion, social justice. 1. introduction 1 women in economically advanced societies and in some other locales have gained increased opportunities to participate in the market economy and public life in the past century. 2 these gains are undeniably great advances in social justice. they have been accompanied by strains. it’s unlikely that so far we have anywhere evolved the right mix of institutional adjustments and changes in social norms and practices to facilitate the transition to a world in which men and women contribute on equal terms in the labor market and the entrepreneurial arena. in this essay i try to offer a perspective on what we owe to poor families in the context of recent social changes, especially women’s increasing participation in economic life outside the home. 3 “poor families” refers to adults and children living in a household with low income and wealth, 1. for helpful comments and criticism i thank serena olsaretti and andrew williams. 2. fuchs 1988; also esping-andersen 2009. 3. although my discussion stays at an abstract level above social policy choice, i suspect my thinking tends to focus on u.s. problems and circumstances. on the differences between welfare state policy in the u.s. and in europe, see garfkinkel et al., 2010; also alesina and glaezer 2004. 8 richard j. arneson leap 2 (2014) roughly the bottom quintile. “we” refers to the nonpoor. 4 of course what we owe to people we fundamentally owe to individual persons not groups; focus on families is a heuristic for public policy guidance. offering a perspective is here a distinct and separate enterprise from assessing candidate fundamental moral principles. the aim is to identify appealing mid-level norms that might gain wide allegiance among people who differ in their fundamental moral allegiances. offering a perspective is also distinct and separate from advancing public policy proposals. in order to be in a position to advance and defend a specific public policy proposal, one needs to be able to show that if implemented in our actual circumstances the policy would lead to outcomes that are morally desirable (without violating moral constraints). doing that requires a comprehensive empirical understanding of relevant actual circumstances to which this essay does not aspire. my procedure is to suggest how to think about how to fulfill our obligations to people in disadvantaged families on the assumption that what we owe to others by way of cooperating on fair terms or lending a helping hand depends on what policies would do to help people live genuinely better lives, have richer and more fulfilled lives rather than bleak or squalid ones. john rawls once wrote that his proposed theory of justice, justice as fairness, does not look behind the uses that people make of their resources and opportunities in order to measure, much less maximize, the satisfactions they gain (rawls 1993). provided basic institutions are arranged so that the distribution of resources and opportunities turns out to be fair, what individuals do with their resources and what quality of life they fashion for themselves is their business, not the business of society. so rawls urges. in contrast, i assume that determining what policies would be fair requires us always to be looking past the distribution of liberties and opportunities to see what impact the policies are having on the quality of the lives of the individuals who are affected. (the fact that’s what just and fair depends on what’s good in this way is fully compatible with paying attention to personal responsibility in the all-things-considered determination of morally desirable policy.) i do not attempt to come up with a complete set of norms regulating what we owe to poor families. i urge that when a poor person becomes the parent of a child and is willing to assume childrearing responsibilities for that child, the rest of us acquire strong obligations to help bring it about 4. for the most part i confine my attention to relations between poor and nonpoor in a single political society. this scope restriction sets aside duties that people have to poor people anywhere, and at any time, regardless of who inhabits what society. this is just a simplification for purposes of discussion; i don’t in fact believe people within a single political society owe more to fellow members than to outsiders. what do we owe to poor families? 9 leap 2 (2014) that the child starts adult life well socialized and with good prospects. in one range of cases, the new child expectedly depletes available resources and hence her arrival renders the rest of us worse off. nonetheless, the persons responsible for bringing the child into existence may be acting to fulfill a moral obligation that falls collectively on each generation to “be fruitful, and multiply” and that places duties on each member individually to contribute a fair share to the project of procreation and childrearing and adequate provisioning. the extent of what is owed depends on the amount of burden that childbearing and childrearing place on procreators and in part on the amount of burden that helping more or helping less would place on others. in another range of cases, an additional moral obligation falls on nonprocreators. when the addition of a new child to the world expectedly leads to increase of wealth and culture and tends to make those living in the vicinity of the new child better off, the project of childbearing and childrearing is morally comparable to a beneficial cooperative practice and those who benefit from the operation of the practice are duty bound not to free ride on the cooperative efforts of others but rather to contribute their fair share of the burdens of the practice. an additional consideration that generates a duty on the part of the nonpoor to aid the childrearing efforts of poor parents is that for people whose labor market prospects are poor, the opportunity to raise children is a very significant, perhaps the only feasible opportunity they have to engage in creative and fulfilling work. in this situation, assisting people to undertake and successfully complete a parenting project may be a requirement of distributive justice owed to them. finally, and tentatively, i suggest that people have a defeasible moral right to stable nurturing family arrangements. children have a right to a decent home environment. adults have rights to freedom to date and mate on mutually agreeable terms, and a right to a social environment that facilitates successful steady family arrangements. such a social environment will educate youth to be disposed to seek long-term steady family arrangements and to have the skills and personal traits needed for success in this venture. these family-oriented rights and obligations do not negate the entitlements to fair treatment of those who will avoid family entanglements as adults, but these entitlements properly construed are consistent with society’s implementing policies and promoting norms that nudge individuals toward stable nurturing family arrangements. 2. duties to procreators when a poor person has a child, what, if anything, is owed to the childbearer in virtue of this event? let’s back up. when any person has a child, what, if 10 richard j. arneson leap 2 (2014) anything, is owed to the childbearer in virtue of this event? a robust libertarianism holds that the new child has a right to decent prospects in life, but that the duty to supply these decent prospects falls only on the individuals responsible for bringing this child into existence and on no one else. a variant of this view holds that the duty to care for a child falls in the first instance only on these responsible individuals, and duties fall on others only as a second-best back-up responsibility that comes into play only if the responsible procreators fail to do what they ought. this is a possible view, but here i set it aside without comment (steiner and vallentyne 2009). suppose instead that we all have a duty to do our fair share to help provide each new child with decent life prospects. that means that nonprocreators have a duty to contribute to fair shares for children under conditions of full compliance (when procreators are contributing what they ought to give). but we might wonder what is a fair division of this burden across the procreators of the child and everyone else. after all, in the standard case, those who bring a child into existence either engage in sex with the aim of producing a child or engage in sex with the understanding that a possible outcome of what they are doing is that a new child might be brought into existence. so maybe the procreators bear some special responsibility in this regard. this issue is insightfully analyzed in a resource egalitarian framework by paula casal and andrew williams (casal and williams 2004). other philosophers inspired by the resource egalitarianism of ronald dworkin adopt similar views. 5 they contrast two possible cases. in one case, bringing a child into existence makes others better off, by increasing the supply of resources available for humans to use. in another possible case, bringing a child into existence makes others worse off, by decreasing the supply of resources available for humans to use. one can discern an asymmetry between the cases. when people voluntarily choose to have children, to the point that there is no undersupply, with resulting benefits to others, we who benefit from the parents’ childbearing and childrearing efforts do not owe compensation to the parents for this benefit. this is a positive externality and those who benefit from it do not thereby incur any obligation towards those who produce it to reward them for doing so. in contrast, when people voluntarily choose to have children, and thereby make others worse off, there is a moral case for requiring the responsible procreators to pay the costs their childbearing generates and not seek to impose these costs on nonprocreators. to illustrate, suppose society begins with a group of adults forming a society with a supply of unowned resources available for fair distribution among them. no one has prior claims on the resources. the resources should then be divided fairly among the individuals. following the resource 5. see, for example, rakowski 1993; also clayton 2006. what do we owe to poor families? 11 leap 2 (2014) egalitarian views of ronald dworkin, casal and williams suppose a fair distribution is the one that mimics the outcome of an equal auction in which all resources are put up for bid and the individuals are given equal bidding power (equal money for use in the auction) and there is trade to equilibrium, with the added proviso that there are also simultaneously in play hypothetical insurance markets for handicaps and native marketable talents. 6 individuals as they bid for resources are also able to purchase insurance against suffering handicaps, with the overall incidence of handicaps known but not the particular risk that one has one or several, and able to purchase insurance against having low marketable talent. in this hypothetical market one knows one’s native talents but not what prices they are likely to fetch when the auction ends and economic life commences. the insurance pays out if one has the covered condition and one pays into the fund that makes these payments if one lacks the condition against which one has insured. to simplify, assume the outcome of the hypothetical auction and insurance markets is that all of the individuals receive an equal share of available material resources. now suppose some people voluntarily act so that a new child is brought into the world, and suppose the existence of this child will lessen not increase the available stock of resources. suppose that as each new child enters the world, each is owed an equal resource share as defined by the hypothetical auction and insurance market procedures, and just suppose the outcome continues to be that each new person should get an equal share of available resources. the existing adults must together then be worse off, must accept fewer resources, to satisfy the just claim of the new child. who should bear this cost? casal and williams point out in effect that if we start from a fair initial distribution and there is a fair framework for interaction after that (roughly, a standard private ownership free market economy with the requirement that one not harm others without their consent), then those and only those who have voluntarily brought about the child should pay for the costs the child’s entry into the world imposes on others. from the perspective of the nonprocreators, the cost of the new child created by others is bad brute luck, luck that falls on them beyond their power to control. 7 this luck merits full compensation. in contrast, the cost of the new child in its relation to the child’s voluntary creators is option luck, costs brought about that they should have foreseen and might have avoided. there is a case then for requiring the procreators to absorb the costs of the new child, including the costs of giving the child resources to enable her to have fair initial prospects should fall on the procreators and no one else. in 6. dworkin 2000, chapters 1 and 2; also dworkin 2011, chapter 16. see also steiner 1995. 7. the claim in the text here is advanced by rakowski, not by casal and williams. on the distinction between brute luck and option luck, see dworkin 2000. see also vallentyne 2002. 12 richard j. arneson leap 2 (2014) this respect having children is like building a fire on your property for your own purposes that emits pollution that fouls the air that others must absorb. these costs imposed by your voluntary conduct should be borne by you and no one else, so you owe full compensation to those your behavior would otherwise be harming, in the absence of this full compensation. as in the pollution case, we suppose that it is morally permissible for agents to act with their resources for their own purposes in ways that have spillover negative effects on others (unless there are special circumstances such as that the negative effects are noncompensable) if and only if they fully compensate others for any damages incurred. it bears emphasis that casal and williams are assuming background conditions of fair distribution of resources. their analysis and assessment would not straightforwardly apply to a world like ours in which the distribution of resources over time fails to conform to the resource egalitarian justice principles. so their analysis and assessment does not straightforwardly yield any implications for what we might owe voluntary procreators who bring costly children into existence and what they might owe us when social relations are already marred by distributive injustice. there is some plausibility to the account that casal and williams provide. however, the view they offer is incomplete and thus defective. let us look at the two cases they consider. 2.1. case one: procreation imposes costs on nonprocreators to see the difficulty, imagine a world with very low population. this might be the situation in a world shortly after the events of the adam and eve story as told in the judeo-christian bible have unfolded. or we might imagine a world with very reduced population in the wake of some natural or man-made disaster such as a war that wipes out almost the entire human population and sets us the task of starting human society afresh. suppose there are four individuals and resources are initially divided fairly in line with the hypothetical equal auction and insurance markets. again, to simplify, just suppose the fair distribution is an equal distribution. each individual gets one-quarter of the earth’s material resources. the four individuals then proceed to save and consume and build with the resources they own. they trade with each other on mutually agreed terms. all is well, as assessed from the resource egalitarian perspective. now imagine that two of the individuals pair up and have two children. this addition of new people might over time reduce or increase the resources available for human use; let us suppose there is a reduction. in these circumstances, the new individuals have a right to a fair initial share of resources; let us suppose this is a share of resources equal to what each of the four initial persons received. here the resource egalitarian position what do we owe to poor families? 13 leap 2 (2014) yields the clear result that the two procreators and they alone should bear the cost of introducing the new people into the world and providing them fair initial shares. this result seems clearly mistaken. or at least, an issue needs to be faced, to settle who owes whom what in this setting. in effect rakowski’s assessment of the situation assumes that the resource endowments that the four people initially get are lifetime entitlements come what may. the four are in effect lords and ladies of the earth, entitled to all of it, fairly divided. there would be no moral impropriety if the four all lived out their lives as nonprocreators and the total population of the earth after the start of our account turns out to be four. each might say, “one-fourth of the earth is mine, to use as i choose”. but someone might protest that each person’s initial endowment of resources only provisionally belongs to him. each is a partial steward of the earth, with a responsibility to pass it on intact, or perhaps to pass along some combination of material resources plus technology so that future generations of people get fair shares and decent life prospects. moreover, there is a responsibility of some sort bearing on each of us to bring it about the future generations exist. there is a moral duty falling on the four initial owners to bring about future people. i would add, there is a duty not simply to maintain current population but, as the biblical injunction says, to “be fruitful, and multiply”. 8 exactly what the correct secular version of the biblical injunction requires would involve elaborating a full population ethics, which i am not able to do. but even without having in hand a full population ethics, we can see some of its contours, and can say with assurance that when the earth can sustain increasing population with good lives for people, it is not morally permissible for existing people to decline to reproduce and let the human race die out. nor for that matter would it be morally permissible merely to sustain a very low population, as in our toy example. here i am appealing to a vague but controversial premise, which those who oppose the claim that nonparents owe help to those who voluntarily create costly children may reject. however, rejection comes at a cost. if the resources of the earth are abundant, or can predictably support a very large population for the indefinite future given predictable improvements in technology that render natural resources increasingly useful, many will agree with me that it is wrong for us to fail to produce the population increase that can bring huge gains in lives worth living. 9 of course there are some ways in which the addition of new people to the world might worsen the prospects of already existing people that would 8. the book of genesis 1: 28. 9. for a view contrary to what is asserted in the text, see narveson 1967. 14 richard j. arneson leap 2 (2014) plausibly be regarded as trampling on their genuine rights. suppose the story of how adding new people worsens the existing people’s life prospects is that we procreators culpably mismanage the education and socialization of our children and they grow up to be antisocial, disposed to engage in acts that wrongfully harm others. if this is the way that the already existing people’s life prospects are made worse off by the addition of new people, the already existing nonprocreators may have a plausible case that the procreators have done them wrong. (i say “may have a case”, putting the claim tentatively, because we have yet to see what responsibilities nonprocreators might have regarding the education and socialization of new people.) but simply being made worse off by the arrival of new people on earth because one has to share the earth with them, given that their arrival was beyond one’s power to control, and brought about by the actions of others, does not introduce a justice claim of nonprocreators against responsible procreators. to see whether any such entitlement of nonprocreators is violated, we need to look at the duties and obligations that we all have with respect to childbearing. i have suggested that there is a collective duty to be fruitful and multiply, a duty that falls on all of us together to bring about sufficient population growth or maintenance (or reduction, in unfortunate circumstances). this collective duty generates individual duties, but in a conditional and indirect way. consider by way of analogy the duty that falls on an enormous crowd of people lying around at the beach, to carry out a rescue when someone falls in peril of drowning. there is a duty initially that falls on each of us to carry out a rescue if no one else does so, a duty that disappears when someone able to carry out the rescue commences it. the collective duty then is transmuted into a duty to provide help to the rescue team if that is needed, and to compensate for the costs they incur and the services they render, and to participate in follow-up efforts to help the imperiled person recover from the near-drowning incident either by contributing labor directly or by contributing to a fund of resources used for these amelioration efforts. we need not enter into the abstract question, what theory of morality best explains and justifies the particular shape that the duty to rescue that binds us has. suffice it to say that according to any moral theory that stands a chance of being right, morality contains a significant beneficence requirement—a requirement to make the world better by one’s efforts. the beneficence requirement may be multifaceted, but it is plausible to insist that it includes a requirement to contribute to making the world better by bringing the number of people who enjoy good life prospects closer to what it should ideally be. in the context of the initial situation of four people living on earth, a resource egalitarian view might initially assign each of us provisional ownership of one-quarter of the earth’s material resources. but this is not a what do we owe to poor families? 15 leap 2 (2014) permanent bequeathable property right over the entirety of those resources. nor is it a full property right that disappears only with one’s death, as the example we are considering illustrates. the initial distribution of resources takes place against a moral background in which population growth is mandatory and there is an obligation to share resources with new people whether or not the addition of the new people worsens one’s situation compared to what it would have been had no new people arrived on the scene. that is not a morally relevant baseline of comparison because one never has any right to enjoy throughout one’s life an undisturbed ownership of the equal share of resources that is implemented at an earlier time on the ground that it is fair to then existing individual persons. so in my example the procreators are fulfilling a collective duty binding on all existing people, and nonprocreators are obligated to contribute to this mission to some degree, even if population increase takes away from their initial endowment of resources, where the initial allocation of these resources is assumed to be (provisionally) fair. at a minimum the nonprocreators are obligated to accept this reduction in their resources that we are supposing accompanies the morally mandatory population increase. notice that the resource reduction accompanying population increase that according to casal and williams triggers a duty on the part of procreators to make good this loss to nonprocreators (or prevent it from ever occurring by absorbing themselves the costs of giving their children fair initial shares) need not even involve any worsening of the lives of the nonprocreators all things considered. the presence of the new humans might be pleasurable for everyone to contemplate. watching children frolic is fun. hence the population increase might leave no one sad that this event has occurred, without this fact counting against the casal-williams claim of the nonprocreators to full compensation for resource losses. this feature of their view is generated by its being resource-oriented, not welfare-oriented. the position i am sketching regarding procreation obligations need not deny that special responsibilities fall on the particular persons who voluntarily act to produce childbirth. these persons have brought about the existence of particular needy and helpless human infants at a particular time, and surely doing so triggers a special duty of care for the welfare of the dependent beings one has created. seeing this is compatible with placing voluntary childbearing in a broader context in which we all have duties to contribute to population increase. what holds true in a four-person world can also hold true in a world already populated with billions of people. again, i don’t presume to be in possession of a satisfactory population ethics principle or suite of 16 richard j. arneson leap 2 (2014) principles. 10 any of a range of principles will yield the plausible implication that the population of the earth, given present circumstances, ought to increase. also, suppose that the right population ethics calls for population stabilization not increase in our circumstances. carrying out this mandate might still lead to the circumstance that triggers the duty of procreators to absorb costs of procreation and pass none of them along to nonprocreators according to casal and williams. again, those who bring about births necessary for stabilization are still fulfilling a collective duty, and their acts trigger duties falling on nonprocreators, on the view this essay proposes. 11 the claim then is that the voluntary procreator whose childbearing and childrearing incurs costs we all must share is relevantly unlike the polluter who acts for his own purposes in ways that impose spillover harms on others. he is more like the voluntary rescuer when a person in peril is threatened with drowning and many persons might come to the rescue. his act helps to fulfill a duty we all owe and we all have duties to help carry through the fulfillment. 12 either the rescue effort itself, or the cost of reimbursing those who bear special risk or expense, might impose costs on nonrescuers, but these are costs that nonrescuers are morally obligated to bear, up to some point. same goes for nonprocreators. 2.2. case two: procreation brings gains to nonprocreators turn now to case two. suppose some people voluntarily chose to have children —again we are supposing this occurs against the backdrop of an initially fair distribution of resources— and nonprocreators gain spillover benefits. in resource egalitarian terms, which we are here not challenging, the addition of new people to the world brings it about that there are more resources for everybody. in another terminology, bringing children into the world, in some circumstances, generates positive externalities that fall on others, including nonprocreators. in this scenario, do nonprocreators have some duty to assist with costs of childbearing and childraising that is 10. for a useful introduction to population ethics issues, see broome 2004. 11. i do not deny that in some circumstances adding people to the world will be morally wrong according to a reasonable population ethics. in this case procreators might be wronging nonprocreators by imposing unfair costs on them. but whether this is so depends on the shape of the collective duty we all share, in some circumstances, to bring about population decrease. it might turn out that nonprocreators have not done all that they ought to do, to facilitate population decrease, so the mere fact that alf has been directly responsible for adding a child to the world, when this outcome is morally undesirable, does not by itself establish that alf has wronged nonprocreating bystanders. 12. i assume that casal and williams would agree that if there is a duty to procreate that falls in one way or another on all of us, that duty might generate obligations on the part of nonprocreators to assist in the childrearing and resource provision for children that voluntary procreators are morally required to give their children. they will disagree that there is any such duty. what do we owe to poor families? 17 leap 2 (2014) triggered by their receipt of these external benefits, on the assumption that they neither asked for nor consented to the imposition of these benefits? this question calls to mind the hart-rawls principle of fairness, which holds that “when a number of persons engage in a mutually advantageous cooperative venture according to rules, and thus restrict their liberty in ways necessary to yield advantages to all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission”. 13 the idea is that when procreation and childrearing are correctly regarded as a cooperative practice that fits this characterization, the cooperating behavior of the participants generates duties of reciprocity and fair play that fall on those who are recipients of benefits. as rawls remarks, “we are not to gain from the cooperative labors of others without doing our fair share” (rawls 1999: 96). casal and williams do not deny that obligations can arise from the hartrawls principle of fairness. but they interpret the principle in a way that restricts its applicability. in this connection we might consider doubts about how obligations might arise under hart-rawls raised in separate discussions by robert nozick and a. john simmons. 14 roughly, the idea is that those who incur obligations to cooperators under the hart-rawls principle must either voluntarily accept the benefits of the scheme or at least be willing to accept benefits voluntarily if voluntary acceptance were possible. mere receipt of benefits does not suffice to obligate. also, those to whom duties are owed under hart-rawls must be intending to benefit others by their cooperative actions undertaken under a fair scheme of rules. merely acting in ways that happen to benefit others does not suffice to generate obligations of reciprocity to repay. along a similar line, casal and williams say “the principle concerns nonexcludable goods that are produced by cooperative activity in which individuals bear some cost, which they would not otherwise bear, in order to produce the good”. (casal and williams 2004: 159). casal and williams anyway hold that in our world, procreation and childrearing as actually practiced do not meet the conditions of the hartrawls principle of fairness suitably interpreted. hence, procreative activities do not give rise to obligations on the part of nonprocreators to bear a share of the costs of childrearing and fair provisioning of children with resources as they become responsible adult citizens. in response, the first point to note is that if there is a collective duty to expand or sustain population and individual duties flow from that collective duty, then in the case in which the childbearing and childrearing activities 13. cited from nozick 1974: 90. 14. see nozick 1974, 90-95; also simmons 1979, chapter 5; also simmons’s contribution to simmons and wellman 2005. for defense of the principle of fairness, see arneson 1992; arneson 2013. 18 richard j. arneson leap 2 (2014) of procreators confer external benefits on others, the requirement falling on recipients of these benefits to do more to assist in the child production enterprise in virtue of this receipt of benefits holds whether or not the conditions of the hart-rawls principle of fairness apply. returning to the analogy with rescue cases, suppose some people undertake a rescue in circumstances in which all of us, including me, bear some responsibility for undertaking rescue and sharing its costs. suppose the rescue effort happens to shower benefits on some bystanders, who are themselves obligated to share the costs of the rescue. the receipt of benefits alters what qualifies as the fair cost sharing arrangement. if some in the group of those who are snared in the web of collective obligation to bring about rescue happen to gain side effect benefits and others similarly obligated do not, those who benefit should pay a greater share of the overall cost of the rescue operation and those who do not so benefit should pay less. nonetheless, i hold that the childbearing and childrearing enterprise in many communities does qualify as a cooperative practice satisfying the conditions of the hart-rawls principle and so triggering obligations of reciprocity to contribute one’s fair share. first point: if other conditions are met, mere receipt of benefits can sometimes suffice to trigger obligations. some goods provided via cooperative schemes are nonoptional with respect to a group of people: if anyone in the group consumes any benefits, everyone must consume some benefits. 15 when nonoptional benefits are delivered by cooperation, one need not voluntarily accept benefits in order to become obligated to pay one’s fair share. nor need one’s will be disposed to voluntary acceptance if that were possible. casal and williams cite ronald dworkin as criticizing versions of the principle of fair play that assume that “people can incur obligations simply by receiving what they do not seek and would reject if they had the chance”. dworkin comments, “this seems unreasonable”. 16 casal and williams do not definitely embrace whatever amendment of the principle dworkin’s claim seems to suggest. i would definitely deny that we 15. there are further distinctions that need to be drawn here. sometimes if any members of a group consume any of a good, all must consume the same amount of it. here the good just falls on people and there is no choice whether or not to consume it. sometimes all must consume some if any group members consume some, but a different amount of the good might fall on different group members—again, all of this happening in the absence of anyone’s voluntary choice as to how much to consume. in still other cases even though a good is nonoptional for members of a group, how much of the good each individual consumes is up to that individual. in this last case, the extent of one’s obligation to help pay for the good may depend on how much one chooses to consume (“may depend”, because consumption may be nonrival, and one’s choice to consume may be just a decision to avoid waste, in the context of a scheme that is not worth its costs and should cease to exist). these complications do not affect any claim i urge in this essay. 16. dworkin 1986:194 (cited after casal and williams 2004: 168). what do we owe to poor families? 19 leap 2 (2014) should endorse the dworkin criticism as stated in the first instance. suppose a cooperative practice is operating that provides national defense for the community you inhabit. suppose you have false empirical beliefs, and do not see that the national defense practice really does provide you genuine benefits, worth their cost, in a scheme whose costs are fairly apportioned. your subjective disbelief that you benefit does not obviate your obligation to contribute under the scheme. the same holds, i would say, if your error is moral rather than factual. suppose you have misguided pacifist views and believe benefiting by threat of violence under any circumstance is wrong. nonetheless, the threat of violence that maintenance of national defense involves is in fact morally right and you do in fact benefit, and benefit from a morally acceptable practice that is fair. i say, in these circumstances, you have an obligation to contribute, indeed an enforceable obligation, which your subjective opinion to the contrary does not obviate. suppose that the production-of-children practice does in fact confer benefits on me, and the benefits are worth the cost, and the costs are fairly apportioned by the rules of the practice. suppose also that at least some of the benefits provided are nonoptional. just by living in the society, i cannot avoid receipt of benefits. these circumstances do not yet suffice to establish that obligations arise under hart-rawls. the enterprise must be a cooperative venture, fairly organized, and the cooperators must be intending by their activity to be conferring the benefits of the scheme on others. also, the cooperators must be incurring costs under the arrangements. the objection then insists that these further conditions are not satisfied. there is an interesting question raised here, which this essay will not seek to answer. the question is what obligations if any arise in situations in which some but not all of the hart-rawls conditions are met. for example, suppose that the conditions of the hart-rawls principle of fairness are satisfied, except that the “cooperators” don’t think of themselves as acting to benefit others, but if the fact that their efforts do spread benefits widely through the community were brought to their attention, they would find this welcome news, and acquire an intention so to benefit the others. we might call these people latent cooperators. do their latently cooperative activities generate obligations in those who benefit from their efforts to pay a share of their costs? i suspect the answer is “yes” but will not pursue the issue here. i simply contend that the plain unvarnished conditions of the hart-rawls principle, rightly understood, are standardly satisfied by participants in child production practices, so given that these practices shower benefits on others in the neighborhood, the obligations of reciprocity that the fair play principle generates here are triggered. one issue is whether participants in the practice are acting to benefit others. i grant that people who either have sex with the aim of having children or who have sex and then make a decision to bring the fetus to 20 richard j. arneson leap 2 (2014) term when it is discovered that a pregnancy has started normally act in the expectation that raising children will enrich their lives and make the decision for this reason. but there is normally another element in play. people decide to have children for self-fulfillment, but this is a moralized notion of self-fulfillment. procreators think that their childrearing activities will significantly enhance the community in which they live, and they are also aware, perhaps in a somewhat inchoate or vague way, that there is a duty to be fruitful and multiply that falls on their community and is one that their procreative choices help to fulfill. people’s motives are mixed, but that does not preclude their having the motivations that are conditions for hart-rawls to apply. after all, many who volunteer to contribute to national defense, the paradigm of a cooperative scheme to which hart-rawls applies, have mixed motives and aim in part at their own self-fulfillment, through meaningful work or glory seeking or the like. here is a relevant comparison. take the standard example of a public goods provision scheme that generates duties under the principle of fairness. bandits periodically menace peaceful farmers living near each other in a narrow valley. some farmers initiate a protection system. valley dwellers are to take turns standing sentry duty each night, which will reduce the losses of all to predatory bandits. suppose some people really hate standing sentry duty, some don’t mind, some fancy the activity even though it is risky. so a fair and tolerably efficient scheme for distributing the burdens of the protection scheme might involve asking for volunteers, and then if the number of individuals who volunteer is adequate, requiring other valley inhabitants to pay into a fund that compensates the volunteer sentries for their noble activity and provides special health care benefits to sentries injured on duty, etc. the sheer fact that people volunteer to supply the needed public good (partly for altruistic, partly for self-interested motives) does not negate the moral appeal of the claim that others who benefit from their activities on behalf of the community owe them compensation. someone might object that if people voluntarily act in ways that benefit themselves and spill benefits also on others, without any offer of compensation, no compensation to them is owed—and this is the situation of procreators vis-à-vis benefiting others. in reply: under the hart-rawls principle of fairness reasonably interpreted, obligations can arise on the part of those who benefit from cooperative schemes that shower nonoptional benefits on a group of people (or for that matter on those who voluntarily seek and get optional benefits from such a public goods delivery system), even if the cooperators are net beneficiaries from the scheme in the absence of contributions from nonparticipant beneficiaries. the cooperators who gain on balance in this way can still be unfairly treated by the free riders, and the scheme can be made more fair in its distribution of benefits and burdens if nonparticipant beneficiaries are required to pay a fair share. what do we owe to poor families? 21 leap 2 (2014) (what constitutes “fair shares” is a topic not addressed in this essay.) i grant that procreators normally expect their lives to be improved, in prudential terms, by having and raising children. nonetheless, procreators also expect to bear some costs they would prefer to avoid, or lessen, if they could, despite their expectation of overall gain. and procreators recognize that in deciding to have children they are inevitably making a risky choice, that if things go badly might result in large-scale disruption or degradation of their lives. when children turn out badly, even through no fault or oversight of the parents, the parents’ lives can be blighted, pretty much destroyed. i submit that these generally applicable characterizations of the decision to have and raise children suffice to satisfy the condition of sacrifice incurred by cooperators that is required for the hart-rawls principle to apply. readers may wonder what benefits unavoidably fall on nonprocreators arising from the childrearing efforts of parents in their society. these vary. some are highly local. only those living nearby get the benefit of seeing your children gamboling along the street. some are widely diffused. all people benefit, as they age, from reinvigoration of the culture as a result of the creativity of youth, and of stimulus to the economy from the energy and ambition of the young. 17 one might raise another worry. the hart-rawls principle of fairness stipulates that obligations arise, given certain conditions, when people participate together in a mutually cooperative venture according to rules and others receive benefits from the scheme. is the production-of-children practice sensibly regarded as carried out according to rules? yes. in a just society, laws and social norms stipulate what those who contribute to and benefit from childbearing and childrearing owe to one another. there are recognized expectations. in a state of nature, the rules are more inchoate, and essentially consist of the recognized duty to procreate according to population ethics along with the principle of fairness and a sensible range of interpretations of the duties and obligations thereby generated. the preceding scrappy remarks have tried to support the idea that nonprocreators have obligations to procreators in a wide range of circumstances. your bringing about the birth of a child generates obligations 17. in an interesting essay, serena olsaretti raises doubts as to whether obligations to share the costs of having children arise under hart-rawls along the lines i have urged. my discussion in the text answers these doubts. she makes a further suggestion: that as modern societies are actually organized, significant benefits of parenting are coercively channeled to nonparents, as when children are taxed to pay for old age assistance programs and other elements of the modern welfare state. this sounds plausible. however, i worry that critics might respond that in an ideally just society, these arrangements would be made on a pay as you go basis, and there would not be forcible takings of the sort she highlights. for example, each generation could save for its own future, and use the proceeds to purchase goods needed in old age. see olsaretti 2013. 22 richard j. arneson leap 2 (2014) in bystanders to help in the upbringing of the child. whatever we owe to procreators and children generally, we owe more to procreators who are poor and to children born into poverty. 18 to return again to the rescue analogy: if there is a drowning threat on a beach filled with people, a few people undertake the necessary rescue of those who are in peril, and the rescuers then turn out to be especially vulnerable and incur large costs in the course of the rescue, or turn out to need extra help in order to complete the rescue effort successfully, the bystanders have an extra obligation to compensate the rescuers who have sustained great loss and especially to assist these would-be rescuers in bring their rescue efforts to success. a wide variety of approaches to social justice will converge on the judgment that we owe more to worse off (as compared to better off ) members of society who are engaged in childbearing and childrearing. under a wide range of circumstances, utilitarian, egalitarian, sufficientarian, and prioritarian views will affirm this judgment. i want to focus on the subset of poor children and poor adult family members who are also low in the ensemble of personal traits that constitute native ability. 19 some poor children and their guardians are below average in bank account wealth and income but blessed with high levels of talent. some are cursed with low talent endowments. (ability is multifaceted and multidimensional, but i suppose some are poorly endowed all things considered; for simplicity let’s just speak of those with low talent.) with luck and pluck the impoverished people with low ability may end up leading great lives, but they are surely likely to be clustered among the people who end up badly off in overall lifetime well-being. a further point is perhaps worth noting. our duties to poor people likely include a duty to provide them a fair opportunity to become parents and successfully raise children. this duty applies with special force to the subset of poor individuals with low marketable skills. parenting is meaningful and creative work. (of course, it is also drudgery and frustration; that does not undermine the claim just stated.) the parent has the duty to form the child’s character, to shape the lumpish infant into a particular person. this is in some respects a creative, artistic task, like painting a picture or making a sculpture, with the special twist that from the very beginning the material on which one is doing the creating is a conscious human with agency interests of its own, which gradually come to include interests in self-making and self-determination. it is as though you 18. see bou-habib 2012. 19. for an interesting defense of the view that in determining people’s fundamental political status and political entitlements a duty of opacity respect is owed all agents above a threshold of rational agency capacity, and that opacity respect requires us to refrain from assessing or measuring individuals’ agency capacities, see carter 2012. what do we owe to poor families? 23 leap 2 (2014) were trying to paint a work of art on a canvas that had arms and hands of its own that were clasping paint brushes, and the canvas arms were making their own strokes and painting over your brush strokes —not to mention that there are many other forces besides your artistic efforts that are shaping the outcome of the process, including some deliberate painting by other people’s hands. moreover, the canvas arms gradually become more adept and eventually take over the process, if you are successful. for many poor people, and especially for those who suffer the double burden of being born into below-average wealth and being born with a weak endowment of native talent potential, raising a child will be their best option for meaningful and creative work. this will be brutally true under circumstances of injustice, but we should entertain the possibility that a potentially tolerably just society might generate a distribution of income and wealth and a distribution of labor market opportunities that give some individuals meager prospects. if such a society is to qualify as tolerably just, the opportunities of those with below-average prospects must be good enough, and surely must include opportunities for meaningful and creative tasks. there will then be a special obligation to encourage people to undertake childrearing by making sure they have reasonable prospects of being successful parents if they do choose this life path. this line of thought is strengthened by the further consideration that parenting requires a different set of capacities than most kinds of creative and challenging work that positions in the market economy provide, especially those that are available to those with low marketable skills a the bottom of the economic heap. a caring, loving disposition, attentiveness and persistence, and some common sense will go a long way toward making one a good parent, especially in the crucial early years of a child’s life. (agencies other than parents can help foster autonomy and sophisticated skills in older children.) parenting tends to be an accessible form of meaningful work. so a just society that provides adequate opportunities for meaningful work for all its members will be careful to provide, within the mix of meaningful work options made available to poor individuals, good opportunities to be successful parents. 20 much that should be done to help poor (that is, nonaffluent) parents to be successful as parents involves familiar welfare-state measures. we should channel public funds for public education to ensure high quality primary and secondary education along with avenues to higher education for children of poor parents. we should provide high-quality day-care that is available to children of the working poor, to help parents combine paid employment 20. i don’t deny that a just society in some circumstances might restrict rights to have children and provide fair opportunities for meaningful work to its members in other ways. for example, consider scenarios of severe overpopulation and a drastic need to reduce the birth rate. 24 richard j. arneson leap 2 (2014) and parenting. we should regulate labor markets to bring about decent employment prospects for individuals with small income and wealth and weak marketable skills, if necessary setting up the state as decent employer of last resort (see arneson 1990). we should set income tax policy so that individuals with below-average marketable skills are rewarded for seeking and sustaining paid employment and paying self-employment. we should facilitate adult education that develops improved parenting skills. i suggest that in addition the state should be encouraging people to form marriage (or other long-term stable relationships) that make parenting easier by sharing its burdens and for that matter encouraging people, especially men, to regard sustained commitment to parenting as a valuable life option. 3. marriage promotion, state neutrality, and marriage abolitionism one might first of all object that the state simply has no business interfering in the decisions of sane adults regarding living alone, cohabitating, marrying, or divorcing. the proper functions of the state do not include regulation of people’s friendships and romantic lives. the state has a proper interest in securing an adequate upbringing for all children, but this job can and should be done without wrongly interfering in people’s private lives. in a diverse society marked by reasonable pluralism of belief, people will differ in their views on sex, romance, marriage, living alone versus living cohabiting versus living communally with several adults, and so on. 21 so the state should be strictly neutral on this broad issue, neither promoting marriage nor discouraging it. 22 this is in some ways an appealing stance, but notice that if you adopt it, you would seem to be committed to opposing the contemporary movement in some contemporary societies (for example, the u.s.) to establish the legal right for same-sex couples to marry and have the legal privileges of marriage that are restricted to opposite-sex couples in many jurisdictions. (you could still accept as a demand of non-ideal justice that if there is legal establishment of marriage, the status ought to be equally open to couples of both orientations, without being committed to legal establishment of marriage.) the normatively compelling position would be to abolish the legal status of marriage as a stateprotected legal status for anyone, of whatever sexual orientation. the counterargument against marriage abolitionism is that a long-term committed romantic relationship, combining friendship, sex, and the building of a life together, is a valuable achievement, and the official recognition of this 21. the invocation of reasonable pluralism of belief is claimed to support state neutrality on the good. see rawls 1996; also quong 2010. 22. this view is vigorously advanced in brake 2012. what do we owe to poor families? 25 leap 2 (2014) type of commitment by the state is a reasonable, noncoercive encouragement to people to attempt this achievement. the goods to be had thereby can equally well be obtained in same-sex and opposite-sex relationships, and the achievement toward which the marital status aspires is equally valuable no matter what the sexual orientation of those attaining it. hence there should be no discrimination between same-sex and opposite-sex relationships in the state’s policy of marriage recognition and endorsement, and this recognition and endorsement are preferable to a hands-off neutral policy, if the state’s policy of putting a thumb on the scale in favor of marriage is likely to bring it about that people are better off and the gains of the gainers are not brought about unfairly at the expense of any losers. the point here is that to defend same-sex marriage rights rather than abolition of state recognition of marriage, one needs to argue that long-term relationships are instrumentally and noninstrumentally good for people and that society should foster what is good for people. in a slogan, one needs to oppose state neutrality on the good. i suggest we ought not be marriage abolitionists. (although the discussion above refers to same-sex and opposite sex couples, nothing hangs on the fact that the group of adults seeking recognition of their pledge to long-term commitment consists of exactly two people. larger groups might well form similar bonds and seek the same type of recognition.) the condition that the state should recognize and endorse marriage on the ground that people gain overall only if gains and losses are not unfairly divided is nontrivial. some people will do better living alone, or living with their parents or other close relatives, or cohabiting in shifting groups. is favoring marriage disfavoring them? in many countries in recent years, your chances of getting married and staying married vary with your income. the poor do it less and stick with it less than the nonpoor. heaping subsidies on marriage might be unfair to the poor. here a comparison might be made to recreational drug prohibitions. suppose the state bans the recreational consumption of methamphetamine, cocaine, and heroin on paternalistic grounds. such a policy must confront the fact that some citizens are no doubt hurt not helped by the legal ban. ideally there should be different legal policies for people who would benefit from having these drugs available and for those who would be harmed, but such a legal regime may be unfeasible. if gainers gain enough and losers lose little enough, the ban may be roughly fair, and understanding this, all should abide by it. much the same might be true of state policies encouraging romantic involvement and in particular long-term committed romantic involvement. the policies might be roughly fair on balance despite the fact that they produce winners and losers. a significant residual difficulty is that hard drug prohibitions might well impose especially hard burdens on the poor who violate the prohibitions 26 richard j. arneson leap 2 (2014) and are then more likely to be exposed to onerous legal penalties than nonpoor violators. in the same way, marriage promotion policies will benefit some and hurt others, but among those who end up disfavored, those who are poor will be more likely than nonpoor to be grievously afflicted. if those disfavored in these ways will tend to be the worse off among the worse off, difficult tradeoff issues arise. a policy that helps the worse off may be bad for the worse off segment of the worse off. depending on the costs and benefits and the numbers of people involved, a morally sensitive cost and benefit calculation might sometimes yield the judgment that an instance of this sort of hard tradeoff is acceptable all things considered. but surely in our public policy choices we should seek ways of avoiding kicking those who are already down. in considering the desirability from a social justice standpoint of pronatalist and pro-marriage public policies, we need to be considering not simply what is desirable from the standpoint of an adult person who is poor, but also what is good for poor children. this section has suggested that promoting stable romantic commitment might be fair on balance in its effects on adults even if the policies produce some winners and some losers. the consideration of children’s interests complicates the picture. 4. marriage promotion and childrearing assistance in several contemporary societies, single-parent households are increasing, especially among the poor. there is evidence that children are likely to fare better in stable two-parent (or two-guardian) households, and that poverty exacerbates whatever problems for children growing up in a single-parent household involves. there is also some evidence that growing up in a singleparent household, with a female as lone parent, creates more difficulties for boys than for girls (autor and wasserman 2013). so perhaps the state ought to be discouraging childbearing and childrearing among people, mostly women, who are likely to end up in single-parent households? i suggest the answer is no, but the issues are tricky, even murky. when two individuals not involved in a stable relationship produce a child, it is not axiomatic that marrying the man who got you pregnant is a good idea, for you or the child. when a marriage is conflictual, it is not obvious that staying together and fighting is better for the children in the household than separating and divorcing. working class single-parent mothers in the u.s. are more likely than their european counterparts to marry, but they are also more likely to divorce and cohabit again and perhaps remarry again. as a sociologist studying u.s. marital patterns has put it, we have in the u.s. a “marriage-goround”. (cherlin 2010) moreover, working class women in the u.s. are more likely than their european counterparts to form nonlasting cohabitation arrangements—the partner-go-round. for children, the evidence is that what do we owe to poor families? 27 leap 2 (2014) unstable household arrangements during early childhood years are stressful for children and interfere with healthy development. how should public policy tilt? providing financial incentives to marry might exacerbate the marriage-go-round. providing financial incentives that encourage stable marriage might pressure women to stay in abusive relationships. one might be tempted by the thought that policies that discourage poor women from having children when they cannot reasonably foresee a stable household arrangement with two or more dedicated adults playing parental roles for their children, if they were successful, would reduce the incidence of single-parent households, a desirable outcome for children. 23 if poor women are less prone than their wealthier counterparts to form stable companionate partnerships, and policies enacted to discourage single-parenting would deter some from having children, that outcome should strike us as harsh. for a very large number of prime-age adults, being successful at childrearing is a great part of their good. for many adults, the job of childrearing is the most interesting, rewarding, challenging, and creative work they have the opportunity to perform. as discussed in section two of this essay, this is more likely to be the case for poor adults, whose labor market options are meager. there are better alternatives to discouraging childrearing on the part of an adult who would be living alone. we should be trying to help poor individuals who want to be parents to succeed in this role rather than to discourage them from undertaking it. 24 this is compatible with encouraging stable cohabitation. also, since men can benefit from successful parenting as well as women, we should be seeking sensible policies that encourage poor men to want to take on childrearing roles and help them succeed in these tasks. there is an element of “the hat makes the man “ here. if i take on a responsible role, i am more likely to become committed to it and personally identified with it, and more likely to function as a responsible role-player. we need to seek policies that will induce the man to put on the hat. the weakening of marriage among working-class people in current times is not mysterious. compared to earlier times, in our time the benefits of marriage for working-class adults are less and the costs of not getting 23. this is a theme of political conservatives in the u.s. see for example the collected works of charles murray (1984; 2012). 24. there is a tradeoff here. individuals vary in their capacities for good parenting, and vary in how propitious their circumstances are for this social role, and some individuals (rich and poor!) should be discouraged from assuming a childrearing role, even under ideally supportive social conditions. this is consistent with maintaining that generally speaking, people, especially the poor, should be encouraged both to take on the parental role and to form stable family-type relationships, for their sakes and for the sake of the children they will raise, and that those among the poor who have weak parental skills should be helped and supported so that their parenting ventures are successful. 28 richard j. arneson leap 2 (2014) married are less. for starters, men are less marriageable. they offer less in economic security terms, and women now have other options for securing their economic well-being. a familiar feature of contemporary economic life is that economies are hollowing out, with fewer good jobs for the uneducated and increasing rewards to those with higher education credentials at the level of college degrees and beyond. in the u.s., “by 1996, the average thirty-year old husband with a high school degree earned 20 percent less than a comparable man in 1979” (cherlin 2010: 163). increasing assortative mating in marriage patterns increases the strains on poor and near-poor people seeking mates. “the winners in the new economy are marrying each other and consolidating their gains” (cherlin 2010: 179; see also esping-anderson 2009: 59-70). we should assume that these trends will continue for the foreseeable future. in that case, what strategies make sense for poor adults starting out in life? what preparation and —to the extent this might be effective— guidance might society provide them to cope with the world they will face, and what forms of help will facilitate their succeeding in their life aims? men with a high school education or less will not offer particularly attractive economic prospects to prospective mates. if these men are predominantly oriented to seeking short-term gratification with male buddies, they won’t appear, or be, good candidates for the role of loving partner in intimate relationships. a feminization of their socialization would render them more companionable, more cohabitable, and more marriageable. even if my job prospects are bleak, if i have serious nonwork interests that i care about and that make me interesting, if i want long-term friendship on egalitarian terms with someone with whom i will also build an intimate stable romantic relationship, and if my life plans are open to the possibility of committing time and energy into childrearing, i look more credible in the eyes of someone seeking a stable romantic partner. labor force attachment helps as well. if it is just not in the cards that i will be a good traditional breadwinner, at least i can be a stable, rather than erratically intermittent, crumb-winner. in interviews, high school educated u.s. women report that they have the same life goals as their more educated and wealthy sisters. in a potential mate they seek economic security, intimate friendship, and cooperative faithfulness. perhaps the “realistic utopian” aspiration for high school educated women would be to find the latter two of the three, and be happy with that. of course, economic insecurity tends to erode one’s capacities for intimacy and loyalty. (i assume that in a just society the distribution of income and wealth can be unequal, but the human cost of economic insecurity that falls on the poor surely affects the degree to which justice requires distributive arrangements that eliminate or cushion that insecurity.) i have been speaking of people seeking heterosexual partnerships, but there are other sorts. if women’s sexuality is more labile than men’s, women what do we owe to poor families? 29 leap 2 (2014) potentially have the option of choosing to orient sexually toward women and seek female long-term romantic mates and childrearing partners. or at least, they have the option to the degree that their culture does not wrongfully rule out this option as socially taboo. (i assume men are more likely to be stuck with whatever sexual orientation is planted in their genes.) if more stable partnership arrangements would be good for people, the simplest way in which social arrangements can facilitate successful partnerships among the poor is by providing generous financial assistance to people who are making serious efforts to fashion a good life for themselves. that probably would involve income supplements conditional on labor force attachment. such income assistance would ease the ever-present grinding strain of hovering on the edge of poverty or being engulfed in it that wears down people’s attempts to make lasting loving relationships. society could also be generous, rather than stingy, in the educational opportunities provided to children of less educated and economically marginal parents. better teachers, a longer school day, high quality preschool instruction for very young children, a longer school year, flexible after-school child care, all targeted at poor children, would help the recipients and also help their parents fulfill their important life goal of being successful parents (waldfogel 2006). and completing the circle, education of all children, not only the children of the poor, should include a didactic character-forming component. think of life skills classes that essentially amount to cognitive behavioral therapy —here are the circumstances you can expect to encounter in your future life, here are the difficulties and challenges you will face, what goals do you have and anticipate having and what personal skills and traits will you need to achieve them? this is what i have in mind under the heading of the feminization of socialization, insofar as we are considering the schooling of men. regarding state support to the parenting efforts of poor parents, a delicate dance is needed. on the one hand, society should help parents succeed at parenting, for their sake and for the sake of their children. on the other hand, some nonwealthy parents (some wealthy parents too, but that points to other issues) are ineffective parents, and channeling aid to children entirely through their incompetent parents is not an effective strategy for helping children at risk. 25 yet helping poor children in ways that bypass their parents can undermine these parents’ authority and self-confidence and decrease their ability to steer their children’s lives for the better. to some extent one wants to structure aid to children so that from a very early age they are exposed to authority figures (other than parents) who are visibly working for their benefit and worthy of their trust and emulation. in pre-school and 25. this is one lesson that might be drawn from mayer 1997. 30 richard j. arneson leap 2 (2014) school and day-care centers, though children’s peers will probably make a larger imprint on their socialization than their teachers, good teachers can be part-time substitute parents and significant role models. same goes for the nurse or social worker who makes regular state-sponsored visits to troubled family homes. there is no contradiction in pursuing goals that, in actual circumstances, partially conflict. one seeks to advance the ensemble of the worthy pertinent policy goals appropriately weighted so that one can discern which to pursue more vigorously and to what degree in cases of conflict. 5. conclusion in this essay i argue that given population ethics obligations that fall on all of us collectively, we owe assistance to procreators in providing a fair start in life to their children, even on the assumption of an initially fair distribution of resources. we also owe people a fair opportunity to be successful parents. i suggest a perspective for determining what shape and form of public policies these obligations press us to endorse. the perspective assumes that what we one another depends on what is intrinsically good, what constitutes a better as opposed to a worse quality of life for the individual living it. i support the perspective largely by illustrating how it would structure deliberation of public policy. bibliography alesina, a., and glaezer, e. l., 2004: fighting poverty in the u.s. and europe: a world of difference, oxford: oxford university press. arneson, r., 1982: “the principle of fairness and free-rider problems”. ethics 92: 616-633. — 1990: “is work special? justice and the distribution of employment”, american political science review 84: 1127-1147. — 2013: “paternalism and the principle of fairness”, in paternalism: theory and practice, ed. c. coons and m. weber,134-156, cambridge: cambridge university press. autor, d., and wasserman, m., 2013: wayward sons: the emerging gender gap in labor markets and education, washington, d.c.: third way. the book of genesis. bou-habib, p., 2012: “parental subsidies: the argument from insurance”, politics, philosophy, and economics 12: 197-216. brake, e., 2012: minimizing marriage: marriage, morality, and the law, oxford: oxford university press. broome, j., 2004: weighing lives, oxford: oxford university press. carter, i., 2012: “respect and the basis of equality”, ethics 121: 538-571. casal, p., and williams, a., 2004: “equality of resources and procreative justice”, what do we owe to poor families? 31 leap 2 (2014) in dworkin and his critics, ed. j. burley, 150-169, oxford: blackwell. cherlin, a. j., 2010: the marriage-go-round: the state of marriage and the family in contemporary america, new york: vintage books. clayton, m., 2006: justice and legitimacy in upbringing, oxford: oxford university press. dworkin, r., 1986: law’s empire, cambridge: harvard university press. — 2000: sovereign virtue: the theory and practice of equality, cambridge: harvard university press. — 2011: justice for hedgehogs, cambridge: harvard university press. esping-andersen, g., 2009: the incomplete revolution: adapting to women’s new roles, cambridge: polity press. fuchs, v. r., 1988: women’s quest for economic equality, cambridge: harvard university press. garfinkel, i.; rainwater, l., and smeeding, t., 2010: wealth and welfare states: is america a laggard or a leader, oxford: oxford university press. mayer, s. e., 1997: what money can’t buy: family income and children’s life changes, cambridge: harvard university press. murray, c., 1984: losing ground: american social policy 1950-1980, new york: basic books. — 2012: coming apart: the state of white america 1960-2010, new york: crown forum. narveson, j., 1967: “utilitarianism and new generations”, mind 76: 62-72. nozick, r., 1974: anarchy, state, and utopia, new york: basic books. olsaretti, s., 2013: “children as public goods?”, philosophy and public affairs 41: 226-258. quong, j., 2010: liberalism without perfection, oxford: oxford university press. rakowski, r., 1993: equal justice, oxford: oxford university press. rawls, j., 1993: political liberalism, new york: columbia university press. — 1999: a theory of justice (revised edition), cambridge: harvard university press. simmons, a. j., 1979: moral principles and political obligation, princeton: princeton university press. simmons, a. j., and wellman, c. 2005: is there a duty to obey the law, cambridge: cambridge university press. steiner, h., 1995: an essay on rights, oxford: blackwell. steiner, h., and vallentyne, p. 2009: “libertarian theories of intergenerational justice”, in intergenerational justice, ed. a. gosseries and l. meyer, 50-76, oxford: oxford university press. vallentyne, p., 2002: “equality, brute luck, and initial opportunities”, ethics 112: 529-557. waldfogel, j., 2006: what children need, cambridge: harvard university press. leap, 1 (2013) poverty and violence* thomas pogge yale university abstract citizens of affluent countries bear a far greater responsibility for world poverty than they typically realise. this is so because poverty is more severe, more widespread and more avoidable than officially acknowledged and also because it is substantially aggravated by supranational institutional arrangements that are designed and imposed by the governments and elites of the more powerful states. it may seem that this analysis of world poverty implies that citizens of affluent countries have forfeited their right not to be killed in the course of a redistributive war and that such a war would be both just and permissible. in fact, however, it has none of these three implications. this finding should be welcomed insofar as violence and macho talk of violence are in our world highly counterproductive responses to the injustice of poverty. keywords: forfeiture of rights, human rights, inequality, infringement of rights, injustice, just war theory, liability to violence, lippert-rasmussen, negative responsibility, redistributive war, remote hypotheticals. 1. introduction violence and poverty are the two cardinal evils of human history. they stand out because they are human-made: evils humanity inflicts upon itself or, more accurately, evils human beings inflict on one another. they stand out also because each of them destroys vastly more human potential than natural calamities, such as diseases and natural catastrophes, whose effects they hugely magnify in any case. violence and poverty are the greatest challenges in our struggle to maintain faith in humanity; many have lost this faith forever in the face of the holocaust, the devastation of vietnam, the rwandan genocide, or the ongoing massive deprivations imposed upon the world’s poor: from starvation to human trafficking. freedom from violence and * many thanks to lynn tong and andrew williams for their very helpful comments and suggestions. 88 thomas pogge leap, 1 (2013) poverty are central to our otherwise diverse dreams of a redeeming human future, in which no child’s physical and mental development is stunted by malnutrition or forced labour, in which no woman is subservient from fear of want or beatings, in which —forever safe from violence and poverty— all human beings can freely develop and express their thoughts, cultivate and contribute their talents. given these sentiments, it is troubling to be told by kasper lippert-rasmussen that my analysis of world poverty should make me more accepting of (what he calls) redistributive wars. unconvinced by his claim, i will here lay out my reasons for a far-reaching though not unconditional commitment to pursue justice by non-violent means. i will begin with a thumbnail sketch of my analysis of world poverty and then address the reasons lippertrasmussen presents for believing that this analysis commits me to an endorsement of redistributive violence. 2. poverty as an institutional human rights violation the latest figures from the world bank put the global median income at just under $3 per person per day in 2005 international dollars.1 this means that, at the median, people could consume about as much each day as could have been bought in 2005 with usd 3 in the united states or with gbp 1.98 in the united kingdom)2 —or as much as can today (2013) be bought with usd 3.57 in the united states or with gbp 2.50 in the united kingdom.3 it is safe to say that people living at this level are very poor indeed. this judgment is reinforced by two important facts. first, because foodstuffs are tradable commodities, their prices in poor countries are uniformly higher than the world bank’s purchasing power parities suggest— fully 50 percent higher on average (pogge 2010: n. 127). this means that a person at the global median could in 2008 buy only as much food as could be bought in 2005 with usd 2 in the united states or with gbp 1.32 in the united kingdom. this is 1. see http://iresearch.worldbank.org/povcalnet/index.htm?1 and input there a monthly poverty line of $91.20 to find a 2008 poverty headcount of 3,400 million. the world bank estimates the human population in 2008 at 6,692 million —see world bank (2010: 379)—. the expression “international dollars” indicates that the 2005 incomes of poor people have been converted into us dollars at 2005 purchasing power parities for individual household consumption expenditure. using this conversion, the world bank would convert a 2005 income of 47 indian rupees per day into $3 international dollars even while this same 47 rupees could have bought only usd 1 on the currency exchange market. 2. in terms of individual consumption expenditure by households, usd 1 in 2005 was worth as much as gbp 0.66 in the same year. see world bank (2008: 35). 3. see www.bls.gov/data/inflation_calculator.htm (14 january, 2013) for consumer price inflation in the united states and www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/july-2012/ index.html for consumer price inflation in the united kingdom. poverty and violence 8�8� leap, significant because poorer people spend a much larger proportion of their income on food than the general population does. second, the poorer half of humankind is living not at the median income but on average 48 percent below this level.4 in fact, the world bank calculates that in 2008 fully 1,740 million human beings lived on less than $1.50 per person per day in 2005 international dollars,5 deemed equivalent to what could have been bought in 2005 with usd 1.50 in the united states or with gbp 0.99 in the united kingdom. it is obvious that such minuscule incomes are associated with severe deprivations and vulnerabilities. according to the official statistics, about 868 million human beings are chronically hungry and undernourished (fao 2012: 46),6 884 million lack access to improved drinking water (unicef 2010), 2.5 billion lack access to improved sanitation (unicef n.d.), and almost 2 billion lack regular access to essential medicines ( who, 2004: 3). over 1 billion lack adequate shelter (un-habitat 2003: xxv), 1.6 billion lack electricity (un-habitat n.d.), 775 million adults are illiterate (unesco 2012), and 215 million children are child labourers (ilo n.d.). even more shocking is the number of people who die from poverty-related causes. according to the world health organization, roughly one third of all human deaths, 18 million every year, are from causes such as diarrhea, tuberculosis, maternal conditions, and respiratory infections —all easily preventable through access to safe drinking water, improved sanitation, more adequate nutrition, rehydration packs, and vaccines and other medicines ( who 2008: 54-59). these conditions are all but non-existent among the affluent. and again, they account for roughly one third of all human deaths. to put that in perspective, in the last twenty-two years since the end of the cold war some 400 million people died from poverty-related causes. this is about twice as many as died from government violence —wars, concentration camps, gulags, genocides— in the entire twentieth century. we can glean a superficial explanation of these massive deprivations, and an indication of their avoidability, by looking at how the global distribution of household income, assessed at prevailing market exchange rates, has evolved. 4. return to http://iresearch.worldbank.org/povcalnet/index.htm?1 and divide the poverty gap by the headcount. 5. revisit http://iresearch.worldbank.org/povcalnet/index.htm?1 and input there a monthly poverty line of $45.60 to find a 2008 poverty headcount of 1,740 million. 6. other estimates contend that some 900 million people are undernourished in india alone, see www.bloomberg.com/news/2012-06-13/early-death-assured-in-india-where-900-million-go-hungry.html. �0 thomas pogge leap, 1 (2013) table 1 the distribution of global household income, 1988 and 2005, converted at market exchange rates7 segment of world population share of global household income 1988 share of global household income 2005 absolute change in income share relative change in income share richest 5 percent 42.87 46.36 +3.49 +8.1% next 20 percent 46.63 43.98 –2.65 –5.7% second quarter 6.97 6.74 –0.23 –3.3% third quarter 2.37 2.14 –0.23 –9.7% poorest quarter 1.16 0.78 –0.38 –32.8% it is worth highlighting four salient facts from this table: 1. in just 17 years, the richest five percent of human beings have gained more (3.49%) than the poorer half had left at the end of this period (2.92%). 2. the ratio of average incomes of the richest five percent and the poorest quarter rose from 185:1 to 297:1 in this 1988-2005 period. 3. had the poorer half held steady, its 2005 share of global household income would have been 21% higher (3.53% instead of 2.92%). had the poorest quarter held steady, its 2005 share of global household income would have been 49% higher (1.16% instead of 0.78%). 4. had it been allowed to gain the 3.49% of global household income that was in fact gained by the richest five percent, the poorer half would have more than doubled its share to 7.02% in 2005. this would have sufficed to bring all human beings above the 2008 actual median income of $3 (2005 international dollars). and it would still have left 93% of global household income for the richer half of humankind. these are purely mathematical points about the rapid polarization, in the 1988-2005 period, of the global household income distribution —they do not begin to explain why this polarization has taken place. in my judgment, an important driver of this polarization was the rapid development 7. these data were kindly supplied by branko milanovic, principal economist in the world bank’s development research group, in a personal e-mail communication of 25 april 2010. see also milanovic (2012). milanovic’s latest figures are for 2008 and show a decline in inequality after the global financial crisis (personal e-mail communication of 7 december 2012). poverty and violence ���� leap, 1 (2013) of an increasingly dense and influential global network of rules along with a proliferating set of new international, supranational, and multinational actors. these transnational rules and actors shape and regulate not only the ever-growing share of interactions that traverse national borders, but increasingly also reach deep into the domestic life of (especially the poorer) national societies by pre-empting, constraining and shaping national legislation. this dramatic shift, since the late 1980s, of law and regulation from the national to supranational levels drives global economic polarization because supranational rules are not formulated through the kind of transparent, democratic procedures that characterize national law-making in the countries that have reached some basic level of domestic justice. rather, supranational rules emerge through intergovernmental negotiations from which the general public and even the majority of weaker governments are excluded. the public does not know in real time what proposals are being debated and learns the content of the new rules only after they have been adopted. even then there is no accountability because no information is released on how the final text emerged from the initial negotiating positions through pressures exerted and compromises proposed by the various participating states. this shrouded rule-making environment is ideal for cost-effective lobbying by a few powerful organizations and individuals, including large multinational corporations, banks, industry associations and billionaires, which have the resources and incentives, and can acquire the requisite expertise, successfully to lobby the governments that dominate supranational rulemaking. undisturbed by competing inputs from the rest of humankind, this tiny elite can divide the new regulatory terrain amongst themselves, with each powerful player making concessions in areas where it has relatively less at stake in exchange for other such players making reciprocal concessions in other areas where it has relatively more at stake. without any malice toward the excluded, such accommodations must be expected to result in supranational arrangements that further strengthen and enrich those who are already the strongest and most affluent —at the expense of all the rest. the massive persistence of severe deprivation is then an unintended but foreseeable effect of vigorous lobbying by the most powerful economic agents who have been successful in promoting the upward shift of rule-making to supranational levels where it is easy game for their competitive efforts to shape the rules and the application of these rules in their own favour. if this explanation has merit, one would expect the greatest beneficiaries to be the richest firms and individuals in the most influential countries — especially in the united states because this country is still the dominant player in supranational negotiations and because us politicians and officials are �2 thomas pogge leap, 1 (2013) substantially softer targets for lobbying than those of nearly all other powerful countries.8 this expectation is indeed borne out: table 2 evolution of the top shares of us national household income9 segment of u.s. population share of u.s. household income 1928 share of u.s. household income 1978 share of u.s. household income 2007 absolute change in income share 19782007 relative change in income share richest 0.01 percent 5.02 0.86 6.04 +5.18 +602% next 0.09 percent 6.52 1.79 6.24 +4.45 +249% next 0.4 percent 7.86 3.51 7.04 +3.53 +101% next 0.5 percent 4.54 2.79 4.19 +1.40 +50% next 4 percent 14.62 13.09 15.17 +2.08 +16% next 5 percent 10.73 11.45 11.07 –0.38 –3% remaining 90 percent 50.71 66.51 50.25 –16.26 –24% the table shows how very concentrated the gains have been at the very top of the us income pyramid, where the share of the richest 1/100th of one percent of the us population has increased by a factor of 7 over merely 29 years. with annual incomes in the tens of millions or more, these super-rich —some 14,400 tax returns representing about 30,000 people— collectively controlled in 2007 about half as much income as the bottom half of the us population (some 150 million people) and more income than the poorest 40 percent of humanity (about 2,650 million people). dramatically defying the kuznets curve,10 these data support my hypothesis that the increasing 8. in the us, candidates for political office need vast sums of money to win because private individuals, corporations and other interested parties can spend unlimited amounts in support of political campaigns (cf. note 12 below). 9. data from alvaredo et al., n.d. . subsequent data show that top income shares declined in 2008 and 2009, then began rising again in 2010. 10. named after simon kuznets, this curve graphically represents the hypothesis that an initial rise in income inequality, associated with the early stages of a country’s economic development, is harmless because income inequality will go back down in later phases. this did indeed happen in us history —a dramatic increase in economic inequality preceding the great depression followed by a substantial decrease in the half-century thereafter. this decrease was, however, completely reversed by a rapid build-up of economic inequality in the subsequent three decades (1978-2007). poverty and violence ���� leap, 1 (2013) marginalization of the poor is the flipside of a massive trend of regulatory capture that drives a powerful inequality spiral. tiny elites in the most powerful countries influence their governments (i) to shift rule-making upward to supranational levels where it can be exempted from democratic accountability and then (ii) to shape these rules and their application for the benefit of themselves. insofar as these efforts are successful, the elites in question gain economic and political power, which renders them ever more capable of influencing in their own favour the governments that matter in the international arena. the us economic polarization and consequent economic and political marginalization of the poorer 90 percent of the us population illustrate that the increase in global economic inequality is now mainly due to rising intranational inequality which, while certainly influenced by domestic factors and resistible by domestic political processes, is favoured and facilitated by the wto globalization of the last two decades. the process involves not merely a marginalization of the global poor but also a rapid erosion of democracy in many states, such as the us, which were substantially more democratic 30 or 40 years ago. the erosion of democracy in the united states is not in the interest of the poorer 90 percent of the us population who certainly have the political power to democratize their political system 11 by constraining the enormous influence money exerts on domestic legislation and on the design of us foreign policy (esp. in regard to international rules and treaties relating to trade and investment). the poorer 90 percent need to achieve such a democratization in order to protect their own interests and to fulfill their moral responsibility to oversee their government. but the political mobilization toward achieving such democratization is increasingly difficult to accomplish when the rich control the commercial media and, thanks to inordinate election spending,12 the political parties as well. magnifying inequality and aggravating poverty, the following are among the more important injustices of existing supranational institutional arrangements which the citizens of the more influential countries have a responsibility to compel their governments to overcome: 1. the new global trading regime epitomized by the world trade organization (wto) treaty was supposed to release large collective gains 11. even against the determined resistance of the us supreme court which, most recently in its judgment in citizens united v. federal election commission (558 u.s. 50, 2010), insisted that the first amendment to the us constitution (“congress shall make no law [...] abridging the freedom of speech, or of the press”) entitles corporations to spend unlimited amounts on “electioneering communications”. 12. about $6 billion have been spent on influencing the outcome of the 2012 us elections; see www.businessweek.com/news/2012-10-31/election-costs-to-exceed-6-billion-in-2012research-group-says. �4 thomas pogge leap, 1 (2013) through free and open markets. but the regime is rigged, permitting rich states to continue to protect their markets through tariffs and anti-dumping duties and to gain larger world market shares through export credits and subsidies (including some $252 billion annually in agriculture alone) that poor countries cannot afford to match (oecd 2012: 15).13 since production is much more labour-intensive in poor than in affluent countries, such protectionist measures destroy many more jobs than they preserve. 2. the trips (trade-related aspects of intellectual property rights) agreement, imposed on developing countries as a condition of wto membership, secures technologically advanced countries large streams of revenues for use of their intellectual property while effectively excluding poor people from important innovations in pharmacology and agriculture (see pogge 2009). 3. under the existing trade rules, affluent countries and their firms buy huge quantities of natural resources from the rulers of developing countries without regard for how such leaders came to power and how they exercise power. in many cases, this amounts to collaboration in the theft of these resources from their owners, the country’s people. it also enriches their oppressors, thereby entrenching the oppression: tyrants sell us the natural resources of their victims and then use the proceeds to buy the weapons they need to keep themselves in power (see pogge 2008: ch. 6; wenar 2008). 4. under existing lending rules, affluent countries and their banks are encouraged to lend money to such illegitimate rulers and compel the country’s people to repay it even after the ruler is gone. many poor populations are still severely burdened by the debts that, much against their will, kept their erstwhile oppressors in power: people such as suharto in indonesia, mobutu in the democratic republic of the congo, and abacha in nigeria. 5. the international banking system is structured to facilitate the embezzlement of funds by public officials in less developed countries by allowing foreign banks to accept such funds. this complicity could easily be avoided: banks are already under strict reporting requirements with regard to funds suspected of being related to terrorism or drug trafficking. yet western banks still eagerly accept and manage embezzled funds, with governments ensuring that their financial institutions remain attractive for such illicit deposits. global financial 13. also stating that in 2011 government subsidies accounted for 19 percent of gross farm receipts in oecd countries. poverty and violence ���� leap, 1 (2013) integrity (gfi) estimates that less developed countries have in this way lost at least $342 billion annually during the 2000-2008 period (kar and curcio 2011).14 6. global accounting rules enable multinational corporations to avoid paying tax in the less developed countries. since they are not required to do country-by-country reporting, such corporations can easily manipulate transfer prices among their subsidiaries to concentrate their profits where these are taxed the least. as a result, they may report no profit in the countries in which they do most of their extraction, manufacture or selling of goods or services, having their worldwide profits taxed instead in some tax haven where they only have a paper presence. gfi estimates that, during the 2002-2006 period, trade mispricing deprived less developed countries of $98.4 billion per annum in tax revenues (hollingshead 2012: 15 table 2). 7. under existing rules, the more affluent countries can pollute at will without compensating for the harms they thereby impose, such as serious health hazards, extreme weather events, rising sea levels and climate change, to all of which poor populations are especially vulnerable. a report by the global humanitarian forum estimated that climate change is already seriously affecting 325 million people and is annually causing $125 billion in economic losses as well as 300,000 deaths of which 99% are in less developed countries (global humanitarian forum 2009: 1, 78). by upholding supranational institutional arrangements that are badly slanted in favour of the world’s richest individuals and corporations, the leading national governments are massively violating the human rights of the poorer half of humanity whom these same supranational institutional arrangements foreseeably and avoidably keep in life-threatening poverty. the responsibility for this largest human rights violation of all time is shared by citizens of the more influential states who —even when they do not benefit from the injustice— are implicated in the wrongs and injustices their governments contribute to. 3. the main claims under discussion lippert-rasmussen states the central thrust of his argument as follows: “if pogge’s analysis of global poverty is correct, poor countries could start just 14. this outflow is over four times larger than all official development assistance, which, during the same period, averaged $83.7 billion annually, of which only $8.1 billion was allocated to “basic social services” (un n.d.). �6 thomas pogge leap, 1 (2013) and, even possibly, morally permissible redistributive wars against us provided various conditions are met. [...] indeed, given the stakes at hand they could do so without wronging us, even if these wars would involve a very large number of civilian casualties in rich countries” (lippert-rasmussen 2013: 67). the scenario here contemplated is that a coalition of poor countries —lippert-rasmussen imagines it to consist of african countries and india— forms around the goal of achieving a less unjust structuring of suof achieving a less unjust structuring of su-of achieving a less unjust structuring of supranational institutional arrangements and that this coalition goes to war against the dominant alliance of capitalist democracies, killing large numbers of civilians in the latter. there is no prospect of the ruling elites of africa and india agreeing, for the sake of ending world poverty, to form a military coalition strong enough to kill large numbers of civilians in the us or europe. so we are entering here the philosopher’s playground of far-fetched hypotheticals, exploring whether one of them might reveal embarrassing implications of my analysis on global poverty. lippert-rasmussen points to three such potentially embarrassing implications. he asserts that, were my analysis of global poverty correct, then a redistributive war waged by poor countries and expected to kill a very large number of civilians (and, i preand expected to kill a very large number of civilians (and, i pre-kill a very large number of civilians (and, i presume, soldiers) in the rich countries (1) would not wrong these casualties, (2) would be a just war and (3) might be a morally permissible war. it makes sense to put the three claims in this order to display their relations. claim 1 is the simplest. it says that, if my analysis of global poverty is correct, then the civilians of the affluent countries have forfeited their right not to be killed by poor countries’ military forces which are attacking for the sake of achieving a less unjust global economic order. if this claim is true, it helps support claim 2. to judge that a resort to war is just (in the jus ad bellum sense), one must find inter alia that the harm it can be expected to inflict upon the attacked is not disproportionate to the cause for which this war is fought. such a finding requires that one balance the moral cost of the harm the attack can be expected to inflict against the moral good the attack is meant to achieve if successful. if claim 1 were true, then the moral cost of the harm the attack can be expected to inflict would be much smaller than usual because it would not involve any infringement of the rights of those whom the attack will kill or harm in the affluent countries. if claim 1 were true, then the only morally weighty harm to be considered would be whatever collateral damage the attack can be expected to inflict upon innocent civilians who are residing in but are not citizens of the target countries 15 or upon populations of poor countries that would be affected by radioactive 15. the attacks on the world trade center of 9-11-2001 killed and harmed a large number of resident aliens doing various low-level jobs in or around the site. the same would be true of lippert-rasmussen’s redistributive war, involving large-scale military attacks that “would involve a very large number of civilian casualties in rich countries”. poverty and violence ���� leap, 1 (2013) fall-out, for example, or by the loss of trade with the rich countries under attack. claim 3 is the most complex one. when pondering the moral permissibility of going to war, one must take into account all considerations relevant to assessing whether the war is just or not —the fact that a resort to war is unjust certainly counts against its moral permissibility. but one must take more into account as shown by the fact that a resort to war can be just and nonetheless morally impermissible. this might be so on account of the harms the defending side can be expected to inflict, notably on the attacking countries and their populations. even when there are good prospects of winning, it may not be morally permissible to take one’s country to war if the anticipated victory would exact an exorbitant sacrifice from one’s own people or from third parties. with these preliminary clarifications of the three claims, we can now discuss them in order. 4. liability to being killed by redistributive attacks claim 1 asserts that, were my analysis of global poverty correct, then poor countries could wage a redistributive war against the affluent countries responsible for imposing the present global institutional order and in this war kill a very large number of civilians in the rich countries without wronging these civilians. referring to civilians in the affluent countries, lippert-rasmussen uses the phrase “without wronging us” rather than “without doing anything wrong”. this choice of phrase is deliberate and significant, as he goes on to explain: “in relation to jus in bello it is common to distinguish between liability to being attacked and its being permissible to attack one. a person who is liable to attack is not wronged when he is attacked. he has no right not to be attacked that is either infringed or violated when he is attacked. it might nevertheless be the case that it is impermissible to attack him, say, because attacking him will lead to very bad consequences” (lippert-rasmussen 2013: 80-81).16 at issue here is then not the common judgment that it is sometimes not wrong, at least in a just war, to do things that one knows will kill enemy civilians. this common judgment does not imply that enemy civilians have no right not to be killed. rather, this common judgment holds that the right to life of enemy civilians is sometimes outweighed by the importance of achieving some military objective, for example the destruction of an enemy mu16. lippert-rasmussen adds in a footnote that his special notion of liability is borrowed from mcmahan (2009: 10). �8 thomas pogge leap, 1 (2013) nitions factory. in such cases, the rights of enemy civilians are permissibly infringed and therefore not violated.17 what claim 1 identifies as an implication of my analysis of global poverty is not the common judgment just rehearsed but a far more radical view: namely, that the citizens of the affluent countries, in virtue of their shared responsibility for imposing the present global institutional order, have forfeited a substantial component of their right not to be killed. as a consequence of this forfeiture, what would otherwise be an impermissible infringement (violation) or a permissible infringement of their rights ceases to be so; the citizens of affluent countries no longer possess the rights that would be infringed by killing them in a redistributive war.18 radical as this idea of forfeiture is, it is limited in two dimensions. according to what lippert-rasmussen presents as a consequence of my analysis of global poverty, citizens of the relevant affluent countries have not fully forfeited their right not to be killed against any and all potential attackers acting for any possible ends. rather, they have forfeited merely a component of this right, limited in both dimensions: they have forfeited their right not to be killed specifically against attackers who are fighting a redistributive war and acting to advance the redistributive cause for which that war is fought.19 claim 1 is then that, if my analysis of global poverty is correct, then the citithen the citi-citizens of the affluent countries responsible for imposing the present global institutional order have forfeited their right not to be killed in the pursuit of a war waged by poor countries for the sake of enforcing appropriate supranational institutional reforms. the consequent of claim 1 —the view that entire national populations have, on account of their government’s conduct, forfeited a substantial component of their right not to be killed— is extremely heterodox, and of course meant to be so. it flies in the face of the widely professed idea that basic human rights are inalienable: can never be waived, forfeited or rescinded. according to this idea, even the most heinous murderer and the 17. this distinction was first drawn in these terms, i believe, by judith jarvis thomson. see e. g. thomson (1990: 122). note that she defines violations of rights as impermissible infringements of rights; rights violations are thus a subset of rights infringements, not their complement. 18. in the words of mcmahan: “to attack someone who is liable to be attacked is neither to violate nor to infringe that person’s right, for the person’s being liable to attack just is his having forfeited his right not to be attacked, in the circumstances” (2009: 10). 19. again, mcmahan: “the form of forfeiture that corresponds to liability to attack in war is highly specific. for a person to cease to be innocent in war, all that is necessary is the forfeiture of the right not to be attacked for certain reasons, by certain persons, in certain conditions. there is no loss of rights in general, nor even any loss of the right against attack, understood as a right that holds against all agents at all times. the right against attack is instead forfeited only in relation to certain persons acting for certain reasons in a particular context” (2009: 10). poverty and violence ���� leap, 1 (2013) most dangerous attacker have a right not to be killed, so that the former may be executed only if we have no other reasonable way of preventing him from murdering again and the latter may be killed in self-defence only if there is no other reasonable way of stopping her attack. to be sure, there are some people who believe in rights forfeiture, who believe, for example, that one may stop an attack by a dangerous criminal with a shot through the heart even when a shot to the leg would work as effectively. but even among these dissidents nearly everyone would find utterly absurd the idea that, as a result of their governments’ contributions to imposing poverty-aggravating supranational institutional arrangements, entire national populations —presumably including some 510 million people in the european union, some 350 million people in north america and some 130 million people in japan— can forfeit a substantial component of their right to life. one reaone reason for finding this idea absurd is the fact that these national populations contain very large numbers of children and adolescents, many more or less active opponents of current government policies toward the world’s poor, and also many people who, poor or poorly educated, are themselves victims of economic injustice.20 lippert-rasmussen does not assert that i have ever expressed the extremely heterodox view or that i hold it. he merely asserts that it follows from my analysis of global poverty and that i am in this sense committed to it. how does he justify this stunning conclusion? he does so by analogy: “if pogge’s analysis of the causes of global poverty is correct, our relation to poor countries is morally equivalent to one in which we each year killed 18 million of them by military means” (lippert-rasmussen 2013: 68) or to one in which “we —people living in rich countries— killed 18 million people in india and africa each year by sending them poisoned food to save ourselves from some rather insignificant costs” (lippert-rasmussen 2013: 66). lippert-rasmussen appeals to these analogies in support of all three of his claims, but for now our focus is exclusively on claim 1 concerning rights forfeiture. 20. lipper-rasmussen deals with the last of these groups by simply assuming it away: “my defence of these claims is based on a number of simplifying assumptions. one is that the world divides into two groups of states: poor states populated with poor people only and rich states populated with rich people only. hence, in my hypothetical world when a poor state attacks a rich country, it is in effect poor people waging war against rich people” (lippert-rasmussen 2013: 67). in reference to the second group of government opponents, he writes: “i ignore the is-). in reference to the second group of government opponents, he writes: “i ignore the issue of responsibility in relation to rich people who oppose their government’s policies on global justice issues and try to resist them in vain” (lippert-rasmussen 2013: 67). his thoughts on the first, largest group of children and adolescents remain unknown; but of course the options of ignoring them or assuming them away are equally available in their case. presumably then the discussion is about what implications my analysis of global poverty has in a hypothetical world in which the eu, the us and japan are inhabited exclusively by rich people over the age of 18 who are fully supportive of their governments’ policies toward the world’s poor. �00 thomas pogge leap, 1 (2013) a justification by analogy can be defeated in two ways: by showing either (i) that the supposed analogy does not hold or (ii) that the relevant claim fails even in the supposedly analogous scenario. i choose strategy (ii), granting for present purposes that the cases are indeed analogous. suppose then that the affluent countries, which are in fact imposing unjust supranational institutional arrangements, were instead using their armed forces to continuously kill 18 million citizens of poor countries each year. it is apparently obvious to lippert-rasmussen that, in this parallel scenario, the citizens of these lethal affluent countries forfeit their right not to be killed in a self-defensive counter strike by the poor countries. this is not obvious to me; in fact, i find this parallel forfeiture claim obviously false. i believe that basic human rights are inalienable and thus retained even by the most heinous criminals and most dangerous attackers as well as by citizens who condone extremely deadly and unjust military campaigns their countries are conducting abroad and also, of course, by the remaining citizens of these countries including children, dissenters and marginalized groups. i do not deny that it may well be permissible to kill such citizens in self-defence. i merely add that, when this is permissible, it is so not because they have forfeited a component of their right to life, but because the moral importance of defensive action outweighs their right to life and thus renders its infringement permissible.21 lippertrasmussen’s analogy does not in any way move me toward accepting the extremely heterodox view he seeks to foist upon me. there is an interesting historical episode during which many protagonists seem to have believed in the kind of collective rights forfeiture that lippertrasmussen’s invoked analogy suggests. this episode is world war ii, which was triggered by the highly unjust and expansionist military aggressions of japan and germany which were killing millions of foreigners each year. did all german and japanese citizens forfeit their right not to be killed by those who sought to stop their countries’ aggression? the aerial attacks conducted by the allies toward the end of the war certainly suggest the belief in an affirmative answer. even after the outcome of the war was no longer in doubt, the allies firebombed german cities of minuscule strategic value (dresden), and the us did the same in japan while also dropping two nuclear bombs on hiroshima and nagasaki. millions of civilians were burned alive for trivial military advantage as if they had indeed forfeited their right not to be killed in this way. with elizabeth anscombe (1981: 62-71), i believe that these terror bombings were deeply wrong. of course, i recognize that they still have their de21. in such cases, it would be colloquially entirely correct to say that such citizens are liable to being killed in self-defence. but this is not the special sense of the word that lippertrasmussen has chosen to work with. according to his definition, quoted at the beginning of this section, someone is liable to being killed only if s/he has no right not to be killed. poverty and violence �0��0� leap, 1 (2013) fenders. but consider how these defences are formulated. all the more recent defences i have seen argue that the bombings were (or at least seemed at the time) the best feasible way to bring the war to a speedy conclusion. i do not know of anyone who has argued, well after the war, that the citizens of germany and japan had forfeited their rights and were therefore available to be killed by the millions for trifling military advantages. i conclude then that, if lippert-rasmussen’s analogy holds, then it works in my favour. it is highly implausible to hold that the citizens of a country that is responsible for extremely harmful and unjust military campaigns forfeit their right not to be killed by those whom their country is attacking. by analogy, it should then also be considered highly implausible to hold that the citizens of a country that is reto hold that the citizens of a country that is re-to hold that the citizens of a country that is responsible for extremely harmful and unjust economic policies abroad forfeit their right not to be killed by those who are harmed by these policies. lippert-rasmussen’s essay clearly fails to establish claim 1. even if the analogy he invokes holds, it shows no more than that my analysis of global poverty commits me to the following disjunction. i must either embrace the extremely heterodox view: that the citizens of many affluent countries have forfeited a substantial component of their right to life. or i must embrace the view that citizens do not forfeit a substantial component of their right to life when their countries engage in highly unjust and lethal aggression abroad. since i do in fact embrace the second disjunct, there is no reason to saddle me with the first.22 5. just redistributive wars lippert-rasmussen’s claim 2 is that “poor countries waging redistributive wars against us [the affluent countries and their citizens] are acting justly given pogge’s analysis of the causes of global poverty” (lippert-rasmussen 2013: 68). the claim is difficult to assess because of three significant unclarities. first, it is unclear whether we are meant to focus on the actual world, the focus of my own work, or on some or all of lippert-rasmussen’s thinly sketched but very different hypothetical worlds. second, it is unclear which just-war theory we are using to make the assessment, as lippert-rasmussen is criticizing and revising central features of the traditional theory as he goes along. third, it is unclear by reference to what moral standard lippert-rasmussen is criticizing and revising traditional just-war theory. there are at least two 22. lippert-rasmussen writes: “if ever there is a situation in which, say, the shop assistant at macy’s is liable to attack in a defensive war waged against her country’s unjust aggression, the same applies to a situation in which her country takes part in imposing an unjust global structure” (lippert-rasmussen 2013: 67-68). i do not deny the conditional, but i do deny both its antecedent and its consequent. �02 thomas pogge leap, 1 (2013) importantly different ways of describing the task of just-war theory. according to a transcendent account, just-war theory aims to provide the true criteria for deciding —from a god’s eye point of view, as it were— which resorts to war, and which actions in war, are right or wrong. according to a realistic account, just-war theory aims to provide —for the use of real human beings in the thick of history— a set of rules that can work well as a moral standard in the world as we know it to reduce the suffering of war. there are various reasons for why the rules of a realistic account will differ from the true criteria of a transcendent account. one is that human beings cannot anticipate all possible scenarios and, in any case, rules we are to apply to actual situations cannot be effective if their complexity overtaxes human capacities of interpretation and application. another reason is that human beings, often highly interested in justifying some particular military action, are likely to misapply complex rules in their own favour. it is then morally preferable that the rules human beings actually work with should formulate more clear-cut (“brightline”) and somewhat more restrictive constraints on military action than those furnished by the true criteria of a transcendent account. on a realistic account, we judge any proposed candidate set of rules not by the mili tary actions that, correctly interpreted, it permits and forbids, but by the military actions it is actually likely to engender and discourage. depending on which account of the task of just-war theory one embraces, one will be drawn to rather different theories. for example, a transcendentally conceived just-war theory might easily approve of humanitarian interventions intended to end gross human rights abuses, while a realistically grounded just-war theory might easily withhold such an authorization to intervene if more harm is expected from its abuse than benefit from its justified exercise.23 while i believe that we should think of just-war theory in realistic terms —as seeking to formulate rules that can endure and effectively reduce violence and suffering in the world as we know it— lippertrasmussen seems to think of just-war theory in transcendent terms: as aiming to formulate rules that deliver plausible judgments across a wide range of possible worlds. as a consequence of this difference, lippert-rasmussen arrives at rules that are more permissive of violence than those i would endorse. the reason is that, given his transcendent account, he worries only about the violence his account might really justify, while i worry also about 23. consider a rule that permits military action to replace a government that is a gross violator of human rights with a new government that is respectful of human rights. such a rule could be sensible on a transcendent account of just-war theory, where we consider only what this rule, correctly interpreted, permits. but the same rule would be disastrous on a realistic account, where we consider not merely the justified interventions the rule would engender but also the possibly much larger number of self-interested military interventions by strong states who are falsely claiming that they are carrying out the kind of government replacement permitted by the rule. poverty and violence �0��0� leap, 1 (2013) any violence that incompetent, self-deceived, self-righteous or (most common) blatantly dishonest agents might claim to be justified by his account. i will try to cope with these unclarities by discussing various interpretations of claim 2, beginning with one that takes claim 2 to invoke traditional just-war theory applied to the world as it is. here i rely on simon caney’s account (caney 2005: 191-92),24 as quoted by lippert-rasmussen (lippertrasmussen 2013: 73), of the seven conditions a resort to war must meet in order to be justified: (1) the attackers have a cause that is just; (2) their resort to war is authorized by legitimate authority; (3) the attackers have just intentions, are motivated by their cause; (4) the costs the attackers can reasonably expect to inflict are not disproportionately great relative to the wrong that provides the cause for their attack; (5) going to war is the attackers’ last resort; (6) the war has a reasonable chance of achieving the cause for which it is waged; and, (7) the attackers aim for a fair peace. in the world as we know it, could the governments of india and the states of africa start a just war against the west with the aim of achieving supranational institutional reforms designed to eradicate extreme poverty? the answer is clearly no. such an attack would fail two important jus-ad-bellum conditions. for one thing, it would not have a reasonable chance of success (condition 6). our world is very far from one in which “poor countries can win a swift military victory and impose a just global structure” (lippert-rasmussen 2013: 73). india and africa have very limited offensive capabilities, certainly relative to the distances they would need to overcome to cause serious damage in europe, japan, or north america.25 by contrast, the us alone has sufficient offensive capabilities not merely quickly to disable india’s and africa’s offensive weapons (including india’s still very limited capacity for long-range nuclear strikes) but also to destroy their defensive systems and communications capabilities. this would allow deployment of nato’s formidable air power to strike at will any target within the territory of the attacking coalition, enabling the western powers to suppress the attack easily and with conven24. i have slightly reworded caney’s account for clarity. 25. india’s annual military spending is less than 3 percent of the world total, africa’s less than 2 percent. by contrast, the us accounts for about 41 percent of the global total and its allies for another 30+ percent. �04 thomas pogge leap, 1 (2013) tional weapons alone, that is, without even bothering to use any of their three nuclear back-up options involving the delivery of nuclear warheads launched from submarines, from planes or via intercontinental ballistic missiles. moreover, such an attack by india and africa would also not be a last resort (condition 5). as discussed in section 2, an important element of my critique of existing supranational institutional arrangements is that they encourage and protect corrupt and oppressive rule in the less developed countries. as examples of this, i have singled out the international arms trade, the international resource and borrowing privileges as well as international banking and accounting rules (points 3-6 at the end of section 2). these supranational institutional factors bring it about that most (and especially resourcerich) developing countries are ruled by corrupt and oppressive regimes that care little about the poverty of their compatriots and would not wager their wealth and privileges on a war against the west. lippert-rasmussen is asking us to suppose that things change so that india and the states of africa come to be ruled by enlightened and progressive politicians who care about the severe poverty of so many of their compatriots and are willing to accept the personal risks and sacrifices that a confrontation with nato would involve. now, if this really were to happen, then the contemplated attack on the west would lose its urgency because enlightened and progressive political leaders could eradicate severe poverty in the developing world through domestic reforms and through collaborative efforts to effectively represent the interests of the global poor in international negotiations and organizations. on my analysis of global poverty, the problem is not that the less developed countries are so short of human or natural resources that they cannot overcome widespread poverty on their own. rather, much, if not all, of the severe poverty now blighting the lives of so many of their inhabitants could be avoided if the ruling elites of these countries were less corrupt and their governance arrangements less unjust.26 this belief is widely shared. the controversial element added by my analysis is that avoidance of poverty through better governance in the less developed countries is highly unlikely under the existing supranational institutional arrangements which the affluent countries impose in collaboration with the elites of the poorer states (see e. g. pogge 2008: 28-30, 117-118, 147-148, 168, 234-235). now for lippert-rasmussen’s war to end poverty to be possible, we must suppose the emergence of enlightened 26. this is a point i have stressed often, for example: “it is true —as the defenders of the rich countries and of their globalization project point out— that most severe poverty would be avoided, despite the current unfair global order, if the national governments and elites of the poor countries were genuinely committed to ‘good governance’ and poverty eradication. it is also true —as the defenders of governments and elites in the poor countries insist— that most severe poverty would be avoided, despite the corrupt and oppressive regimes holding sway in so many poor countries, if the global institutional order were designed to achieve this purpose”. see pogge (2007: 46). poverty and violence �0��0� leap, 1 (2013) political leaders throughout the developing world. but this unrealistic supposition, needed to make the war possible, would also render it unnecessary, for two reasons. the emergence of enlightened political leaders throughout the developing world would show that our existing global order is much less supportive of oppression and corruption and therefore much less unjust and less in need of reform than i have claimed (weakening condition 1, just cause). and it would also open an easy non-violent path of poverty eradication as such enlightened leaders of poorer countries could implement domestic reforms and begin to represent the interests of their populations effectively on the international stage (undermining condition 5, last resort). i conclude, then, that in the world as we know it claim 2 is false: given my analysis of global poverty, a redistributive war waged in our world by the poor countries against the rich countries would not be a just war. less focused on the actual world than i am, lippert-rasmussen is eager to try out his redistributive war idea in various hypothetical worlds as well: “if the present line of argument encounters resistance i ask the reader to make some counterfactual assumptions. suppose that redistributive wars would not be futile. perhaps most members of rich countries are too old for military service, their electorates are extremely concerned about security and willing to sacrifice much of their wealth to restore (a less unjust) peace once the war proves not to be a walk-over, and poor countries have also acquired weapons of mass destruction and can draw on vast pools of young men eager to join their armies” (lippert-rasmussen 2013: 81-82). i would think that the west’s overwhelming technological advantage in drones, bombs, rockets, aircraft carriers, fighter planes, submarines, nuclear weapons, surveillance and communications can easily neutralize any disadvantage they might have in young and eager men; but lippert-rasmussen can, of course, make further counterfactual assumptions to reverse this imbalance. he can also make additional counterfactual assumptions that would block what i have called the easy non-violent path of poverty eradication. for example, he can suppose that the affluent nations’ release of pollution into the atmosphere is sufficient to perpetuate poverty in the less developed countries and that enlightened rulers of the latter therefore cannot end the poverty of their compatriots except by war. but such suppositions move us farther and farther away from my analysis of global poverty which is focused on the world as it really is and whose implications were supposed to be the subject of discussion. still, there is one relevant point such hypotheticals can bring out. central to my analysis is the claim that much of the responsibility of the affluent countries and their populations for global poverty is a negative responsibility. we are not merely failing to do enough to help relieve poverty, but we are also, and more significantly, doing far too much to aggravate poverty abroad. �06 thomas pogge leap, 1 (2013) other things being equal, this fact has some bearing on conditions 1 and 4. the affluent countries are committing a great wrong by imposing, in collaboration with the political elites in the poor countries, a supranational order on the world that will, foreseeably and avoidably, make severe poverty persist on a massive scale. we would be committing a much smaller wrong if, as so many of us believe, we merely failed to provide assistance that we could easily spare toward relieving great suffering in the less developed countries. in contrast to the great wrong we are actually committing, this smaller wrong might not count as a just cause at all (condition 1) or might count as a much less weighty just cause which could justify only correspondingly less damaging military attacks (condition 4). i have not published on the just cause condition or on how much violence might be justifiable against countries that kill millions of human beings annually and against countries that let an equal number die when they could save them at low cost. but i do find credible lippert-rasmussen’s conjecture that the difference between killing and letting die can make the difference he suggests —for example, that a more violent response can be justified against a state that is actively causing widespread starvation in our country by blockading our ports than against a state that is letting identical starvation happen by refusing to send food aid to our country. one can then say that, on my analysis of global poverty, a redistributive war by poor against affluent countries fails more narrowly to meet just ad bellum criteria. the justification of such a war is helped by my analysis to meet conditions 1 and 4 but still fails to meet conditions 5 and 6: it has no realistic prospect of success and, if it were possible, it would be unnecessary. 6. the permissibility of redistributive wars at first blush it may seem that the conditions making a resort to war just are identical to, or coextensive with, those that make it permissible, and thus that resorting to war is permissible if and only if war is also just in the jus-ad-bellum sense. lippert-rasmussen holds otherwise, writing: “for reasons to be explained, it is much more unlikely that such redistributive war will be morally permissible than that they will be just” (lippertrasmussen 2013: 67). i find no explanation of these reasons, though there is in a footnote a sketchy remark that may suggest what he has in mind: “a war may be just and yet morally impermissible, if the country that war is waged against is liable to attack, but the consequences of attacking it are very bad” (lippert-rasmussen 2013: 73, n. 12). but how can a war that is impermissible on account of its bad consequences also be just, given that justice takes account of bad consequences in its condition 4 of macroconditionality? i think there is a straightforward answer to this puzzle: on lippert-rasmussen’s interpretation, just-war theory takes account of poverty and violence �0��0� leap, 1 (2013) some but not of all bad consequences: it takes account of the harm that the party resorting to war can reasonably expect to inflict but not of the harm that the other party might then inflict in response. let me illustrate with an example. nearby country q has suddenly occupied one of our islands with a few dozen marines who are now stationed there. the island lies in our territorial waters and has always been internationally recognized as ours; its few inhabitants are citizens of our country and wish to remain so. the occupation is clearly wrongful, furnishing us with a just cause for war. all sorts of diplomatic means to get q to withdraw its troops voluntarily have been tried and have failed. counting on our aerial superiority, we can send a squadron of helicopters with a few hundred elite assault troops and quickly take the island back. we anticipate little resistance against our superior forces and expect that our planned nighttime strike can, with the benefit of surprise, keep enemy casualties to a handful and our own to zero. we are sure that q’s marines will quickly surrender when they find themselves surrounded by superior forces with formidable air power. under these circumstances, our planned military strike seems proportional: the harm we can be expected to inflict on q’s marines is small relative to the importance of reclaiming our island and vindicating the principle of nonaggression. the scenario looks then like a textbook case of how a resort to war can be just by the traditional criteria. but how will q’s government respond to its marines’ ejection from our island? it may accept defeat and go back to business as usual. but it may also respond with further aggressive action so as to divert attention from the foolishness of its occupation of our island. thus it may harass ethnic or religious minorities that have some affiliation with people in our country, it may launch a few rockets toward our cities or it may undertake a military attack against another, weaker neighboring country. are such harms, which q might inflict on us or third parties, to be counted in the proportionality calculation suggested in condition 4? as i understand lippert-rasmussen, his answer is no. the harm q may inflict elsewhere, though triggered by our eviction of its marines, is q’s responsibility, not ours. and including it in proportionality calculations under condition 4 would provide perverse incentives to q: by disposing itself to react very violently to an ejection of its marines from our island, q could ensure that we cannot justly undertake such an ejection.27 on lippert-rasmussen’s account, then, q remains, regardless of its dispositions, liable to an attack on its marines —q is liable to having its marines attacked and evicted— q has 27. these thoughts are suggested in lippert-rasmussen 2013: 81, though the passage is lippert-rasmussen 2013: 81, though the passage is , though the passage is not clear enough to be sure. �08 thomas pogge leap, 1 (2013) no right to be spared a just attack on our part.28 and yet, our attack may still be impermissible if its expectable consequences are excessively bad.29 the previous section has shown that, given my analysis of global poverty, the poor countries could not initiate a just redistributive war against the rich countries. we can now add that the permissibility of such a war is, as lippert-rasmussen himself suggests, even more remote. this is so because, in addition to the harm that military action by the poor countries would do, reasoning about permissibility also takes account of the harm the rich countries would do in response to the poor countries’ going to war. and this harm might well be monumental. the us-led military alliance has at its disposal a vast arsenal of highly effective weapons of mass destruction; and it is predictable from the historical record (nagasaki, vietnam, etc.) that this arsenal would be liberally used to cause massive military and civilian casualties in the much weaker coalition countries and would also cripple their economies and infrastructure, with long-lasting devastating effects upon their poorer population segments in particular.30 coming on top of the fact that (as argued in the preceding section) the attack would not meet jus-adbellum criteria, these massive expectable harms further strengthen the case against the attack’s permissibility. 28. note that the rights of q as a country are distinct from the individual rights of its occupying marines. the soldiers who were ordered by q’s government to occupy our island have not forfeited any component of their right to life. their rights are counted in the proportionality calculation as reasons against our liberation strike. if our strike nonetheless meets jus-adbellum standards, then unavoidable infringements of rights of such marines are permissible infringements. by contrast, our strike does not permissibly infringe any rights of q because q has no right to any military presence on our island. 29. this statement raises, of course, once more the problem of perverse incentives. if q disposes itself to do terrible things in response to our eviction of its marines from our island, then our evicting action, instead of being just and permissible, becomes just and impermissible. insofar as we respect this impermissibility, q’s aggressive dispositions enable q to retain our island. the statement also raises the question whether expectable good consequences should count for purposes of deciding permissibility. suppose we predict that, in response to its eviction from our island, q will brutally attack a smaller neighbor, but that many other countries will then quickly come to the defence of that small country with the result that q will get into a militarily hopeless position and its aggressive government will finally be replaced by a more civil one, ridding the world of a long-standing and dangerous bully. this scenario invites us to consider whether there might be resorts to arms that are unjust and yet permissible on account of the very good consequences serendipitously associated with them. 30. lippert-rasmussen seems to agree by leaving undisputed the following anticipations about his redistributive war: “we could expect the costs in lives to be tremendous. given the military hardware possessed by rich countries, redistributive wars will probably result in numbers of casualties well in excess of the two previous world wars. they will also involve damage to economies on such a scale that poor people, their supposed beneficiaries, will suffer massive harms greater even than (or: in addition to) those involved in global poverty” (lippertrasmussen 2013: 80). poverty and violence �0��0� leap, 1 (2013) 7. concluding thoughts it is clear that lippert-rasmussen has not established any of his three claims about the implications of my analysis of global poverty in our actual world. still, there is a kernel of truth in his commentary: the fact that (as i have argued) world poverty is worse than commonly believed and our responsibility for it greater than commonly believed can be helpful in establishing that the goal of eradicating world poverty is a just cause of war (condition 1) whose pursuit can meet condition 4 of macro-proportionality. this is not an intellectual embarrassment. but it is also not an implication that i am eager to acknowledge and to advertise. the reason is that i take violence to be a great obstacle to the emancipation of the poor and a welcome smokescreen for the defenders of the status quo. in the world as we know it, violence is a manifestly unpromising means toward solving the global poverty problem (and pretty much any other real moral problem, for that matter) and talking about violence as a response to global poverty is patently counterproductive. let me briefly sketch the reason why. political power derives from three main sources: military might, the capacity to hurt and kill and thus to coerce other people; economic wealth, the capacity to buy others and their services; and moral strength, the capacity to convince others. each of these sources of political power are unequally distributed but, because military and economic strength can to some extent be converted into one another, their distributions tend to be correlated (in the case of states, economic wealth and military might tend to go together). now, how much each of the three components contributes to political power depends on the context. military strength will be the dominant contributor to political power in periods of tension and hostility, while moral wisdom and reasoning can gain much influence in a context of peace and harmony. different political-power-maximizing actors may therefore have opposing interests with regard to the context. a militarily dominant state can benefit from a global climate of tension and hostility in which its military strength commands deference from others, in which it can maintain special privileges that would be indefensible in any serious moral discussion among equals. this benefit is especially large for the head of such a state’s executive branch, because a climate of tension and hostility will enhance not merely his state’s power relative to other states but also his own power domestically relative to the other branches of government and any politically significant popular movements. anyone interested in justice and moral progress, by contrast, should have the opposite preference: for a world in which organized violence is rare and eventually comes to be regarded as a barbarous and antiquated way of settling disagreements. ��0 thomas pogge leap, 1 (2013) to achieve such a world, we must anticipate it in our conduct. but we must also realize that, unfortunately, tension, hostility and violence are much easier to create and to provoke than to stop, avert and avoid. those with disproportionately superior military might are forever searching for opportunities through crises and emergencies to remind the world of the significance of their arsenals and forever trying to divert attention away from well-founded demands for justice by seeking to paint them as associated with “security threats” of one kind or another. lippert-rasmussen’s macho talk of producing “a very large number of civilian casualties in rich countries” plays right into the hands of these people and marginalizes the one forum in which the world’s poor have an unbeatable advantage: the forum of clear-headed moral debate and justification. bibliography alvaredo, f.; atkinson, t.; piketty, t., and saez, e., n.d.: the world top incomes database, url = http://g-mond.parisschoolofeconomics.eu/topincomes/ (4 september 2012). anscombe, g. e. m., 1981: “mr. truman’s degree”, ethics, religion and politics: the collected philosophical papers of g. e. m. anscombe, vol. iii, oxford: blackwell. caney, s., 2005: justice beyond borders, oxford: oxford university press. global humanitarian forum, 2009: the anatomy of a silent crisis, geneva: global humanitarian forum. hollingshead, a., 2010: the implied tax revenue loss from trade mispricing, washington, d. c.: global financial integrity. international labour organization (ilo), n.d.: topics: child labour, url = www.ilo. org/global/topics/child-labour/lang--en/index.htm (14 january 2013). kar, d., and curcio, k., 2011: global financial integrity, illicit financial flows from developing countries: 2000-2009, washington, d.c.: global financial integrity. lippert-rasmussen, k., 2013: “global injustice and redistributive wars”, leap 1: 65-86. mcmahan, j., 2009: killing in war, oxford: oxford university press. milanovic, b., 2012: “global inequality recalculated and updated: the effect of new ppp estimates on global inequality and 2005 estimates”, journal of economic inequality 10: 1-18, url = http://link.springer.com/article/10.1007/s10888-010-9155-y#. organisation for economic co-operation and development (oecd), 2012: agricultural policy monitoring and evaluation 2012: oecd countries and emerging economies, paris: oecd. pogge, t., 2007: “severe poverty as a human rights violation”, freedom from poverty as a human right: who owes what to the very poor?, ed. t. pogge, oxford: oxford university press and paris, unesco. — 2008: world poverty and human rights: cosmopolitan responsibilities and reforms (second edition), cambridge: polity press. — 2009: “the health impact fund and its justification by appeal to human rights”, journal of social philosophy 40: 542-569. poverty and violence ������ leap, 1 (2013) — 2010: politics as usual: what lies behind the pro-poor rhetoric, cambridge: polity press. thomson, j. j., 1990: the realm of rights, cambridge: harvard university press. united nations (un), n.d.: mdg indicators, url = unstats.un.org/unsd/mdg/search. aspx?q=bss%20oda (14 january 2013). united nations children’s fund (unicef), 2010: new unicef study shows mdgs for children can be reached faster with focus on most disadvantaged (september 7th), url = www.unicef.org/media/media_55913.html (14 january 2013). — n.d.: what we do: water, sanitation and hygiene, www.unicef.org/wash/ (14 january 2013). united nations educational, scientific and cultural organization (unesco) institute for statistics, 2012: adult and youth literacy fact sheet 20, url = www.uis. unesco.org/factsheets/documents/fs20-literacy-day-2012-en-v3.pdf (14 january 2013). united nations food and agriculture organization (fao), 2012: the state of food insecurity in the world 2012, rome: fao, url = www.fao.org/docrep/016/i3027e/ i3027e00.htm. united nations human settlements programme (un-habitat), 2003: “the challenge of slums: global report on human settlements 2003”, u.n. doc hs/686/03e, url = www.unhabitat.org/pmss/listitemdetails.aspx?publicationid=1156. — human settlements programme, n.d.: our work: urban energy, url = www.unhabitat.org/content.asp?cid=2884&catid=356&typeid=24&submenuid=0 (14 january 2013). wenar, l., 2008: “property rights and the resource curse”, philosophy and public affairs 36: 2-31. world bank, 2008: global purchasing power parities and real expenditures: 2005 international comparison program, washington: world bank, url = http://siteresources.worldbank.org/icpint/resources/icp-final.pdf. — 2010. world development report 2010, washington, world bank. world health organization (who), 2004: “who medicines strategy: countries at the core, 2004-2007”, who doc. who/edm/2004.5, url = http://apps.who.int/medicinedocs/pdf/s5416e/s5416e.pdf. — 2008: the global burden of disease: 2004 update, geneva: who publications, url = www.who.int/healthinfo/global_burden_disease/gbd_report_2004update_ annexa.pdf. leap, 1 (2013) a defense of animal citizens and sovereigns* sue donaldson and will kymlick a queen’s university abstract in their commentaries on zoopolis, alasdair cochrane and oscar horta raise several challenges to our argument for a “political theory of animal rights”, and to the specific models of animal citizenship and animal sovereignty we offer. in this reply, we focus on three key issues: 1) the need for a groupdifferentiated theory of animal rights that takes seriously ideas of membership in bounded communities, as against more “cosmopolitan” or “cosmo-“cosmopolitan” or “cosmo-cosmopolitan” or “cosmo-” or “cosmoor “cosmo-“cosmo-cosmozoopolis” alternatives that minimize the moral significance of boundaries and membership; 2) the challenge of defining the nature and scope of wild animal sovereignty; and 3) the problem of policing nature and humanitarian intervention to reduce suffering in the wild. keywords: animal rights, animal welfare, sovereignty, citizenship, cosmopolitanism, domesticated animals, political theory. alasdair cochrane and oscar horta raise a number of important and challenging issues in their commentaries, but limited space requires us to pick our battles. our reply will focus on three key issues: 1) the underlying moral basis for a group-differentiated theory of animal rights; 2) the challenge of defining the nature and scope of wild animal sovereignty, and 3) the problem of policing nature. 1. zoopolis v. cosmozoopolis in zoopolis we present a group-differentiated theory of citizenship for animals, one which recognizes that animals —like humans— have not only cer* we wish to thank paula casal and marisa iglesias for organizing a conference on zoopolis at universitat pompeu fabra in barcelona in march 2012 which formed the basis for this exchange. we are grateful to alasdair cochrane and oscar horta for their spirited and challenging replies to our work, and to the editors of leap for deciding to publish this exchange in the inaugural edition of their journal. 144 sue donaldson and will kymlicka leap, 1 (2013) tain basic universal rights in virtue of their intrinsic moral status, but also certain kinds of membership rights that flow from the way they belong to, or relate to, different types of communities. in particular, we argue that domesticated animals should be seen as members of mixed human-animal societies, and hence as having co-citizenship in such societies; wild animals should be seen as members of their own animal communities living on their own territory, and hence as having sovereignty rights over themselves and their territory; and what we call “liminal animals” have a foot in both worlds, living amongst us as co-residents of human settlements but lying outside our shared schemes of social cooperation. as such, they are owed a form of “denizenship” that combines elements of both wild animal sovereignty and domesticated animal citizenship. all animals have the inviolable right not to be harmed or killed for our benefit, but beyond this universal entitlement, we have distinct obligations to different groups of animals depending on the kinds of membership they have in different human or animal communities. as cochrane rightly notes, this conception of group-differentiated animal rights is modeled upon accounts of group-differentiated citizenship for humans, which distinguish the rights we owe co-citizens from the rights we owe to resident non-citizens or the rights we owe to foreign states. and both for humans and for animals, there is a cosmopolitan alternative to such group-differentiated theories. in effect, cosmopolitans insist that there are no such things as membership rights, at least not at any principled level, and that what we owe others is determined by their intrinsic capacities (cochrane 129). this is a very important debate, both in the human and animal case, and we welcome cochrane’s effort to articulate a cosmopolitan theory of animal rights. indeed, one of our aims is to inspire people to develop such alternative political theories of animal rights. we need to get a broader range of theories on the table, to test their relative strengths and weaknesses. however, in order to properly evaluate these alternative approaches, we need to correctly identify the actual points of disagreement. and here we think cochrane has missed the mark. as just noted, the crux of a group-differentiated approach is to distinguish the universal rights owed to all beings from the citizenship rights owed to members of bounded communities. but rather than directly addressing this claim, cochrane instead incorrectly attributes to us two further claims: — first, that a group-differentiated model limits the scope of justice to members, and recognizes only humanitarian duties to alleviate the suffering of non-members. — second, that a group-differentiated approach only considers the interests of members when making political decisions. a defense of animal citizens and sovereigns 14�14� leap, 1 (2013) these two claims are not entailed by a group-differentiated approach, and we explicitly reject both of them. indeed, we devote a whole chapter of zoopolis to a discussion of duties of justice to wild animals (including not just the duty to respect sovereign borders, but also to engage in fair terms of cooperation and risk sharing, to avoid imposing spillover costs on wild animal communities, to compensate for direct and indirect harms, to remedy historical injustices, etc.). we explicitly describe these as duties of justice that extend across borders, and never endorse the idea that justice only applies to members of bounded communities.1 and having acknowledged that these are duties of justice, we also discuss the need for institutional mechanisms to politically represent the legitimate claims of wild and liminal animals when they are affected by our decisions (donaldson and kymlicka 2011: 209). since these are claims of justice, they must be legally and politically enforceable. in short, zoopolis simply does not match cochrane’s spectre of a theory in which duties of justice arise only within schemes of cooperation. we have duties of justice across borders, and need to consider the impact of our decisions on the interests of non-members. what then is the real issue between group-differentiated and cosmopolitan approaches? as noted earlier, the crux of a group-differentiated approach is to distinguish the universal rights owed to all beings in virtue of their intrinsic moral status from the citizenship rights that derive from membership in bounded communities. on our view, both universal rights and citizenship rights play essential roles in determining our obligations to other humans and to animals. cochrane does not explicitly deny that such a distinction is possible, but the general tendency of his cosmozoopolis is to expand the sphere of universal rights owed to all beings while minimizing the sphere of citizenship rights owed only to members. he worries that when we accord rights based on membership, we too often do so in ways that neglect more basic universal rights, or ignore the just entitlements of non-members. we will focus on two examples of this dynamic: — first, cochrane argues that membership-based collective claims to territory violate basic individual rights to unlimited mobility: the universal right to individual mobility should dramatically restrict collective claims to territory. — second, cochrane argues that rights to health care should not be seen as a citizenship right for those domesticated animals who happen 1. some critics of cosmopolitanism claim that justice only applies within nation-states (e. g., blake, nagel), but this is not our view, either in the human or animal case. 146 sue donaldson and will kymlicka leap, 1 (2013) to be members of mixed human-animal societies, but as a universal right owed to all sentient animals. 1.1. mobility v. territory cochrane starts from the idea that there are very strong individual rights to mobility, and only very weak collective rights to territory. on his view, everyone (human and animal) has the right to move freely across the globe, in part because no one has the right to exclude them: no individual or group can claim exclusive possession of territory. avery kolers calls this “terrestrial cosmopolitanism”, and distinguishes it from views (like ours) that rest instead on a “right to place”. the latter idea, on kolers’ helpful definition, is not “an equal right to the whole world, but an equal right, individual or collective, to possess a particular place —possibly, but not necessarily, the place where you happen to find yourself” (kolers 2012a: 3). as kolers notes, this contrast between terrestrial cosmopolitans and rightto-place theorists is one of the fundamental dividing lines in contemporary political philosophy, and it is central to the debate between cochrane and us. but it’s important to emphasize that the division is not about whether we have obligations of justice to consider the interests of non-members outside our territory. the debate, rather, is about what those interests are. on the one hand, we have interests as individuals in unhindered mobility, including the right to move out of our existing community and move into the territory of another community —an interest that can only be satisfied if we prevent communities from restricting in-migration. on the other hand, we have interests as members of bounded communities in being able to effectively govern ourselves and pursue our shared way of life on our territory —an interest that can only be satisfied if bounded communities are able to regulate entry into their territory. for cochrane, the interest in individual mobility trumps the interest in collective autonomy, such that universal rights to individual mobility trump collective claims to territory. we disagree. we cannot hope to resolve such a fundamental debate in this short article, but let us just state that we find terrestrial cosmopolitanism dubious in the human case, and totally implausible in the animal case. in the human case, we have elsewhere discussed why humans have legitimate interests in forming bounded political communities with recognized sovereignty rights over themselves and their territories, including rights to regulate mobility into the territory (kymlicka 2001). some of the gravest injustices historically have been tied up with denial of these rights to sovereignty and rights to place —consider european invasion and colonization of the americas. it’s important to remember that these actions were often justified precisely by appeal to terrestrial cosmopolitanism (kolers 2012a: 5). the interests that a defense of animal citizens and sovereigns 14�14� leap, 1 (2013) europeans had in gaining access to indigenous peoples’ territory were granted weight by theories of terrestrial cosmopolitanism, exacerbated by prejudice about the value of the indigenous ways of life that were radically disrupted by european settlement. terrestrial cosmopolitanism does of course give weight also to the interests of the original inhabitants, but without recognition of an antecedent right to place, these interests are alltoo-easily trumped by the interests of larger or stronger groups seeking new territories for their pleasure or profit. it is precisely to avoid complicity with this sort of imperialism that many cosmopolitans today disavow terrestrial cosmopolitanism in favour of newer ideas of “rooted cosmopolitanism”. according to theories of rooted cosmopolitanism, while the interests of all people matter morally no matter where they live, we must include amongst these interests the importance of membership in bounded communities which exercise control over themselves and their territories. moral cosmopolitanism, in other words, does not require terrestrial cosmopolitanism, but is consistent with —and indeed best served by— recognizing rights to territory and to autonomy.2 there is much more to be said about this choice between terrestrial and rooted cosmopolitanism in the human case, but in our view the argument is even clearer in the case of animals. if terrestrial cosmopolitanism has been an accomplice of injustice in the human case, it is an absolute catastrophe for most animals. indeed, cochrane’s own commentary provides an excellent illustration of the dangers. under cochrane’s cosmozoopolis, wild animals gain individual rights to universal mobility (including into areas of human settlement) but lose collective rights to keep others out of their own territories (including human settlers). this is a very bad trade-off for most wild animals. giving humans a prima facie right to move into the habitat of wild animals and to benefit from its resources is a disaster for wild animals who flee human encroachment and try to live independently of humans and human settlement insofar as they are able.3 of course, cochrane emphasizes that human interests in developing wild animal land do not automatically trump the interests of wild animals. animals interests, he tells us, would “count morally for something” (cochrane 130), providing that respecting these interests wasn’t “particularly 2. for a detailed discussion of this shift toward rooted cosmopolitanism —also called “vernacular”, “embedded” or “situated” cosmopolitanism— see kymlicka and walker 2012. we view our approach in zoopolis as fully consistent with these new ideas of rooted cosmopolitanism, and indeed as a natural extension of them, applying them not only across territorial borders, but also across species borders. 3. we recognize that there is little or no “pristine” wilderness, but as simon hailwood notes, relative degrees of wilderness matter. there are still many spaces on earth where wild animals can live independently with limited impacts from humans (hailwood 2012). 148 sue donaldson and will kymlicka leap, 1 (2013) onerous” for humans (cochrane 134). anyone who cares about the ceaseless human colonization of wild animal habitat will find this a woefully inadequate safeguard. cochrane does not deny that his theory offers less secure territorial rights to wild animals, but he implies that this is offset by the increased individual mobility they gain. but for a spanish hogfish living on the belize barrier reef, or a swift fox adapted to the ecological niche of saskatchewan’s short grass prairie, a right to universal mobility and a universal commons is meaningless: their lives and well-being are intimately tied up with very specific ecological niches. what they need is a right to place that pre-empts human encroachment. it is not enough to say that animals have an interest in residing in a territory —an interest which is then weighed by humans who “ought to include them in their policy deliberations” against the interests of human outsiders with an insatiable appetite to exploit, develop or pollute animal habitat. if wild animals are to have any hope of justice, they need rights that trump this kind of imperialist expansion. in zoopolis we defend just such a collective right to territory for wild animal communities. we argue that this right imposes immediate and drastic curbs on human expansion —no further extension of human development, road building and resource extraction into wild animal territory; an end to human pollution and other cross-border impacts (including effects of climate change) on wild animal territories; no further growth of human population except insofar as this can be sustainably managed within existing dimensions of human development. humans do not have a right to expand over the entire globe —unlimited mobility is not a basic universal right. rather we must respect the sovereignty of those who already occupy the wilderness, and learn to live smarter and better on the sites we already occupy. this is a vastly more robust account of wild animals’ “just entitlements” than cochrane’s concession that wild animals’ interests “count morally for something” against the vast steamroller of human imperialism. the reality is that terrestrial cosmopolitanism is not an animal-friendly approach. it is a suspiciously convenient theory for the human species, given our powerful interest in spreading out to all corners of the earth and exploiting the resources there (just as it was a suspiciously convenient theory for industrializing and sea-faring europeans of an earlier age). 1.2. health care cochrane’s second major point of disagreement is that we treat certain universal rights as if they were citizenship rights. his example is the right to healthcare. in zoopolis, we argue that because domesticated animals have been brought into our society, they are co-members of society and are owed a defense of animal citizens and sovereigns 14�14� leap, 1 (2013) the rights of membership, including coverage in society’s scheme of public health insurance. according to cochrane, a right to healthcare is not a membership right, but is a universal right of all animals regardless of where they live or to which communities they belong. he goes even further to suggest that because domesticated animals are usually owned by individuals who have a moral responsibility to care for them, “there is a powerful argument to suggest that many domesticated animals in fact have a weaker claim to a share of health spending from the public purse than do wild animals” (cochrane 135). this argument is multiply flawed. first of all, it is speciesist. after all, human children have parents who have a moral responsibility to care for them. yet cochrane does not suggest that we should redirect public health care from human children to wild animals. second, we need to distinguish an individual’s right to healthcare from the institutional question of how responsibility is allocated to fulfill that right. in our view, health care is a fundamental right of membership. every human born or adopted into a community has membership rights in that community, including rights to socialization, education, healthcare, protection of the law, and so on. it’s true that parents who bring children into their lives are expected to take up some of the responsibility (practical and financial) for their care, food, shelter and other basic needs. but a child’s citizenship rights are not dependent on the existence of an adult guardian who has assumed this responsibility for her. she has these rights regardless of who has responsibility for her, and who is paying the bills. different states will organize the private/public balance of responsibilities differently. but the child’s citizenship status means the state has a responsibility to ensure that these rights are fully respected, and to step in if her caregivers abandon her or fail to provide. this is all clear enough in the human case. and if healthcare is a fundamental right of membership for human members of society, why should domesticated animals be abandoned to the vagaries of individual guardians? why should humans have access to the cooperative scheme of public health care, while their domesticated animals are left out? but this issue of individual guardians is arguably a digression. the real issue for cochrane, presumably, is the more basic question of why domesticated animals are included while wild animals are not. after all, if they suffer from the same injuries and illnesses, don’t they have the same interest (and claim) to be treated by a cooperative scheme of public health care? our answer is no. domesticated animals can be incorporated into a public medicare plan precisely because they are domesticated, and hence able to flourish within a mixed human-animal society. like the human members of this society, they are socialized to comply with social norms —norms which operate both to minimize the risks they impose on others and which protect 1�0 sue donaldson and will kymlicka leap, 1 (2013) them from risks. we could only include wild animals in this scheme if we trapped and caged and trained them not to engage in risky behaviours, regulated their food and movement, and forced them to undergo the appropriate check-ups and inoculations. all of these norms are a precondition for a viable scheme of health insurance for humans, and these preconditions are also in place to extend it to domesticated animals. but we could only include wild animals into such a scheme through radical abridgement of their individual freedom and collective sovereignty rights. this is not to say that we have no health-care related responsibilities to wild animals. in zoopolis we discuss many instances in which humans do have such duties. these include obligations to establish wildlife refuges to rescue and care for the horrific numbers of animals injured by human activity and infrastructure, and duties of humanitarian aid in cases of natural disasters or plagues where humans can provide assistance without undermining the sovereignty of wild animal communities. to summarize this section, cochrane thinks our group-differentiated approach underestimates our obligations to outsiders (wild animals) and overestimates our obligations to insiders (domesticated animals). this may indeed be a recurring risk of group-differentiated approaches. but we are not persuaded by the examples he gives. we believe that what wild animals most need is what our theory accords them —rights to sovereignty over their territory— whereas his cosmozoopolis approach sacrifices these territorial rights for largely irrelevant promises of greater individual mobility. and we can see no argument for denying that domesticated animals have the same full right to public health care as human members of society. the net result is indeed a very different set of rights for domesticated and wild animals, but the differences do not reflect any pernicious moral hierarchy or neglect of outsiders. rather, our theory aims to provide what each type of animal needs to flourish, given their intrinsic capacities, way of life and relationship to human communities. by contrast, cochrane’s cosmozoopolis mischaracterizes, and underestimates, our responsibilities to both groups. it provides inadequate rights to wild animals to curb human encroachment, and inadequate rights to domesticated animals to ensure they justly benefit from their membership in a mixed human-animal society. any conception of animal rights that minimizes these group differences ends up doing justice to neither. 2. defining boundaries and defining community now we turn to the concern shared by both cochrane and horta regarding our conception of the sovereignty of wild animal communities. there are two inter-related concerns here: a defense of animal citizens and sovereigns 1�11�1 leap, 1 (2013) — how are the boundaries and membership of these communities identified? — in what sense can these communities be viewed as self-governing or sovereign? as both commentators note, we cannot attribute sovereignty over territory to any one wild animal species, since many different species co-exist on the same territory. and while we might be able to say that these species share a common ecosystem or bioregion, it is not clear that they thereby form a single “community”, particularly given that these species may be involved in predator-prey relations. in what sense do lions and gazelles form a single self-governing “community” or jointly exercise a common “sovereignty”? attributing sovereignty to an ecosystem may make sense within a holistic ecological theory that attaches intrinsic moral significance to the flourishing of habitats and species, but does not seem to make sense within a moral theory grounded on the interests of individual animals (cochrane 137; horta 120). given these difficulties, they argue, it is not clear who constitutes the “communities” that are the bearers of sovereignty. these are important questions, but we would argue that cochrane and horta have put the cart before the horse. their approach is to first ask what sorts of “communities” exist in nature, and then ask whether these communities would benefit from (or are entitled to) sovereignty. we approach the question the other way around. we first ask, what is the moral purpose of sovereignty: what is the goal of attributing sovereignty? and having clarified this moral purpose, we then ask what allocation of sovereignty rights would help achieve that moral purpose. this allocation of sovereignty rights need not track any pre-existing natural communities, but may rather involve constructing new conceptions of community in order to achieve the underlying moral purpose. this should not be surprising, since the same process applies to sovereignty in the human case. in many cases, we do not accord sovereignty to pre-existing states; rather, we construct states in order to exercise sovereignty. in both the human and animal case, we construct the entities that are the bearers of sovereignty, in the hope and belief that this helps us to achieve certain important moral purposes. the first question, then, is to figure out what are the moral purposes of sovereignty. our claim is that sovereignty rights —like indeed all rights— should be understood as protecting certain important interests against certain standard threats. in this case, sovereignty protects interests in maintaining valued forms of social organization tied to a particular territory against the threat of conquest, colonization, displacement and alien rule. this moral purpose, we argue, is equally applicable to humans and to wild animals. indeed, animals arguably have even stronger interests in maintaining these 1�2 sue donaldson and will kymlicka leap, 1 (2013) territorially-specific modes of organization, since they are often more dependent on specific ecological niches. if this is the moral purpose of sovereignty, then the next question becomes what way of allocating sovereignty achieves that moral purpose? we argue that allocating sovereignty to multi-species habitats or eco-regions is the best way to achieve this purpose. this is not because habitats form natural “communities” (whatever that would mean), even less because habitats as such have intrinsic moral rights or moral status (whatever that would mean), but rather because ecological regions are the locus of the interests we are trying to protect. ecology can help determine the relevant territory of sovereign animal communities (e. g. watersheds; mountain ranges; coral reefs; island habitats; temperature, altitude and precipitation zones, keystone or umbrella species regions, etc.), because animals within the boundaries of these territorial regions have a common interest in protecting this habitat from external threats. while the direct relations between different wild animals in a particular habitat may be antagonistic (e. g. between predator and prey), they are all dependent on the same habitat, and so share an interest in having sovereignty rights accorded in a way that would protect these territorially-specific modes of self-organization from outside invasion, colonization, or cross-border impacts. we argue that according sovereignty rights to multi-species habitats would indeed serve this moral purpose. cochrane and horta dispute our account, but it’s not entirely clear what aspect they reject. one possible disagreement concerns our claim that wild animals have territorially-specific interests in this way. cochrane seems to reject this when he says that “wild animals have no knowledge of or respect for defined borders, and will continually cross over them” (cochrane 136). but we would suggest that this is more a reflection of his own ideological commitment to terrestrial cosmopolitanism than of the reality of wild animals’ lives. animals move around, but their movement is quite predictable. large predators stake out a defined territory sufficient to support their food needs. wildebeasts travel along the same migratory paths in the cycle of wet and dry seasons. flying squirrels need to nest communally in sufficiently large numbers to keep warm —thus their survival depends on a habitat large enough to feed a group meeting this threshold size. a bioregion encompasses many such groups, and groups of groups, and we can identify these patterns. as john hadley points out, we already have extensive evidence that the movement of wild animals is predictable and patterned, not random, and indeed governments already rely extensively on this evidence in determining conservation policies (hadley, 2005: 308). of course there is movement and pressure along boundary lines (as in the case of human borders), and sovereignty theory can be quite flexible in terms of re-drawing territorial a defense of animal citizens and sovereigns 1��1�� leap, 1 (2013) borders, or drawing them in creative ways to capture the complexities of politically bounded communities.4 a second possible disagreement is that the multi-species regions to which we accord sovereignty do not correspond with real “communities”, and hence do not qualify for sovereignty. cochrane and horta both suggest this line of argument when they say that sovereignty should only be accorded to an entity if all its members are “social beings” (horta 119; cochrane 136), with “feelings of affiliation” (cochrane 136) or “common aims” (horta 120) and without “conflicting interests” (cochrane 136). this requirement of thick affiliation and cooperation is clearly not met in relations between predator/ prey, or parasite/host, or many of the other sorts of relationships that different wild animals have to each other within a particular habitat. but as noted earlier, this gets the moral story backward. sovereignty is not a prize that is given to pre-existing communities who achieve some level of affiliation or cooperation or institutional coordination. it is not a reward for some sort of communal achievement. rather, to repeat, sovereignty is a tool we use to protect fundamental interests against certain standard threats. and so far as we can tell, horta and cochrane provide no grounds for denying either (a) that wild animals have profound interests in maintaining their territorially-specific ways of life; or (b) that according sovereignty helps to protect those interests against standard external threats of invasion, colonization, environmental degradation, and so on.5 it is in any event a mistake to exaggerate the level of “feelings of affiliation” and “common aims” that are found in more familiar human cases of sovereignty. we can be solitary and still belong to a political community. we don’t need to have direct interactions with our fellow citizens. we don’t need to share affiliation or values, and we may frequently be in direct conflict (over business, sexual partners, status, etc.). not all sovereign states are home to a single highly solidaristic and cooperative national community: they may instead be home to a number of ethnic or religious groups that have only relatively minimal relations of co-existence and toleration. yet their ways of 4. in zoopolis we discuss many examples of complex sovereignty such as multination states, international corridors, or protectorates and dependencies. see also kolers (2012b) regarding the possibility of “interstitial” states. 5. horta might argue that members of r-selected species have no interest in being protected from external invasion and destruction because their short brutal lives simply aren’t worth living in the first place. indeed, some authors argue that concern for animal suffering should lead us to reduce rather than save wild habitat (dawrst, 2012). but we must distinguish arguments about “better never to have been” (benatar, 2006) from arguments about “better off being killed”. even if we agree that some animals would have been better off never having been born, this does not mean that once here, they are better off being killed. death by bulldozer or chemical spill is a harm for r-selected animals which sovereignty can protect against, even if sovereignty cannot protect them from other harms (such as predation or exposure). 1�4 sue donaldson and will kymlicka leap, 1 (2013) life may all be dependent on the same territory, and this shared dependency may create a vital interest in securing that territory from certain standard threats. similarly, animals sharing a habitat are typically bound together by mutual dependencies, regardless of the competition or even violence that exists on the individual level. vultures and hyenas clear away corpses that would pose a disease hazard for everyone in the region. elephants and crocodiles clear vegetation thereby creating mobility and food conditions for countless others. many animals play vital roles in pollination, seed dispersal, and water filtration that all animals depend on. they have evolved capacities for navigating their unique conditions, as well as knowledge, skills and competence for survival which are embedded in their intraspecies, interspecies and ecological relations. because this interest can only be collectively realized, it supports a political right to sovereignty to protect habitats from destruction, colonization, or exploitation.6 3. human management/humanitarian intervention so far, we have emphasized the moral purpose of sovereignty as protecting wild animal communities from harmful forms of human aggression and destruction. but as horta and cochrane rightly note, there are potentially positive forms of human intervention, intended not to harm wild animals or to seize their territory, but to assist and protect them against various dangers, such as predation or food shortages. should such “humanitarian intervention” be prohibited on the grounds that it violates the sovereignty of wild animals? or should we instead say that insofar as sovereign wild animal communities fail to protect their members from starving to death, they should be viewed as “failed states” calling for foreign intervention? in zoopolis, we argued that the presence of predation and food cycles is not, by itself, grounds for viewing wild animal communities as failed states. wild animals are competent to address the challenges they face, including the challenges of predation and food cycles, and have evolved ways of life and ways of flourishing that are intimately tied up with meeting these challenges. we should therefore avoid forms of intervention that would radically disrupt their ways of life, including radical changes to the circumstances that those ways of life are adapted to. intervention should be limited to 6. beyond this protective function, many animals also have an interest in autonomy or self-determination —the right to be authors of their own lives, to take risks, and to make choices as they see fit rather than having their lives paternalistically managed by humans. we agree with horta that this self-determination dimension of the interest in sovereignty is more plausibly attributed to members of social k-selected species, as we acknowledge in zoopolis. a defense of animal citizens and sovereigns 1��1�� leap, 1 (2013) cases where our intervention either leaves untouched those underlying circumstances (as with micro-level individual acts of compassion) or helps to restore those circumstances in the face of challenges that overwhelm wild animals (as with efforts to stop a rogue bacteria or plague that threatens to wipe out an entire ecosystem or efforts to redress human-caused environmental degradation). as horta and cochrane both note, our position on wild animals is significantly different from our position on domesticated animals. we defend strong rights to safety and health care for domesticated animals, including a duty to feed them and to protect them from predators, while leaving wild animals to fend for themselves in the face of mortal threats. horta and cochrane view this as inconsistent. but we insist there is a vital difference between the two cases that justifies this differential treatment: protecting wild animals from predation and food cycles can only be achieved by radically disrupting their ways of life, and indeed by imposing radical restrictions on their freedom and autonomy. to eliminate predation and food cycles, we argue, would require turning nature into a zoo, in which each species would have its own safe habitat and secure food supply at the price of having its mobility, reproduction and socialization tightly policed by human managers. horta believes we engage in rhetorical excess in suggesting that intervention to end predation or food cycles in nature could only be achieved by putting wild animals in zoos. instead, we “could have claimed that massive intervention would mean caring positively for animals, as in sanctuaries rather than zoos” (horta 117). he acknowledges that intervention might make wild animals more dependent on ongoing human management, but if “dependent agency” is good for domesticated animals, why isn’t it good for wild animals? horta is right that, unlike some animal rights theorists, we do not view the state of being dependent as inherently demeaning or unnatural. we all are dependent at different times in our lives, to different degrees. however, we argue that it is wrong (i) to treat individuals as dependent in areas where they are capable of exercising meaningful autonomy (unjustified paternalism), and (ii) to induce dependency (as has been done through the history of domestication and selective breeding). when we support the establishing of sanctuaries for domesticated animals, the context is one of providing options for greater liberty and autonomous agency for domesticated animals —providing a relatively safe environment in which they can (if they choose) explore what it means to live less intensively with humans; to exercise increased agency over vital issues of how to live or who to live with; and develop skills for reducing their dependency on humans for food provision, predator protection, and so on. in the parlance of the disability movement, this is called moving towards a “less restrictive environment”. 1�6 sue donaldson and will kymlicka leap, 1 (2013) massive intervention to put wild animals in sanctuaries, on the other hand, is an instance of moving towards a more restrictive environment, and one which, over time, will induce dependency. it is not rhetorical to describe such intervention as putting wild animals in zoos. sanctuaries won’t do the job. we can create a marine sanctuary that encloses the belize barrier reef as a sovereign wild animal zone, and thereby effectively protect it from human exploitation and pollution. it might even be possible to assist animals on the reef in ways that don’t fundamentally undermine their autonomous mode of life. but to prevent predation or food cycles on the reef would require separating animals into individual compartments in manufactured environments. similarly, we can create sanctuaries to protect the great bird migration routes and primary habitats, but to prevent falcons from devouring songbirds would require confinement and segregation —in short, zoos. this sort of confinement and segregation is radically inconsistent with the agency and subjectivity of wild animals.7 unlike domesticated animals who are capable of physically proximate and trusting relationships with humans (and hence can flourish in companionship with humans), or liminal animals who have found countless ways to adapt to human development, wild animals have many characteristics that are incompatible with human management of their lives. they often actively avoid human contact and settlement; they resist captivity; they possess physical capacities or behavioral traits which are incompatible with human proximity; and they rely on highly specific ecological niches which cannot be manufactured under captive circumstances. models of dependent agency that work in the case of domesticated animals are simply not applicable here. horta discounts the fact that wild animals seem to reject and resist human intervention, giving the example of a stray dog or trapped animal whom we should rescue even if they resist our help (horta 118). but this is a misleading example. it’s true that paternalistic intervention to save someone who doesn’t understand the danger they are in (or is fearful of their rescuer) is often justifiable. we restrain a drunk person from walking too close to a cliff even if they try to fight us off. we override a child’s fear of having an inoculation. but paternalism of this sort is justified because it is temporary and preserves the possibility for the individual to enjoy liberty, and to develop and flourish as an autonomous being. there may be analogous instances in 7. we accept horta’s point that for many wild animals, particularly many members of rselected species, there is little possibility of a meaningfully autonomous and flourishing life in nature. and we appreciate his insistence on the extent and moral significance of the raw deal that life offers so many of these animals. but “saving” them would indeed amount to turning the world into a zoo, and in the process undermining the autonomy of the countless animals for whom an autonomous and flourishing life in the wild is possible. for a helpful discussion of animals’ interest in liberty see jamieson (2002). a defense of animal citizens and sovereigns 1��1�� leap, 1 (2013) the wild where we can intervene in this temporary way —e. g. to prevent a specific act of predation, perhaps by distracting a predator that is about to strike. but this momentary intervention is completely different from placing all animals in segregated captivity in order to eliminate the risk of predation (hadley 2006). we misunderstand the depth and grounds of wild animals’ resistance to human intervention and management if we think only of cases of instinctive fear by injured or abandoned animals who distrust a human stranger. the reality is that wild animals often show consistent and deliberate resistance even after long periods of human management. as historian jason hribal has documented, captive wild animals in zoos, circuses, aquariums, and labs engage in ongoing and complex forms of resistance to human exploitation, captivity or management, including escape attempts, attacks on humans, property damage, and work stoppages (hribal 2010). and countless wild animal researchers have cautioned us that appreciation of animal agency and animal subjectivity can only be achieved in circumstances of “respectful distance” not paternalistic management (smuts 2001; holmgren 1990; hutto 1995; candea 2010). over time, trusting relationships with some wild animals can develop, but this trust is based on respecting animals’ right to tell us to “get lost” (smuts 2001: 295), and on responding to requests for aid when they initiate them, in ways which are mutually negotiated, not on imposing our own conception of what they need in ways which ignore their ongoing resistance. horta might respond that even if human management compromises the subjectivity and agency of wild animals, this is still a small price to pay for overcoming the “catastrophe” of life in the wild. according to horta, animals in the wild “are in a permanent state of humanitarian catastrophe”, living in what are essentially “failed states”, and this general state of affairs calls for systemic intervention (horta 119). cochrane makes similar claims about the apparent incompetence of wild animals to protect their members. but horta and cochrane rely upon biased accounts of competence. they focus on the ways in which animals seem to function less competently than humans (e. g., in protecting members of society from violence or starvation), but ignore the ways in which wild animal communities are more competent than human societies. contemporary human societies are based on an unsustainable model of economic growth, depleting resources and harming the environment, the costs of which are borne both by wild animals and by future generations. wild animal communities do a much better job of living within their ecological means, and leaving as good and enough for others. according to rawls, a fundamental principle of international justice is that no society should be permitted to recklessly use up its own resources and 1�8 sue donaldson and will kymlicka leap, 1 (2013) then lay a claim on the territory or resources of a neighbouring society. intervention is permitted, even required, to prevent this sort of injustice. yet this is precisely what most human societies are doing all the time: recklessly depleting our own means, and then colonizing wild animal territory to acquire new resources. the reality is that all societies, human or animal, are likely to fail some tests of competence. for example, rates of murder and other violent crimes differ enormously from country to country: they are almost 100 times higher in some latin american and african countries than in some east asian countries. yet we would not permit japan to declare honduras to be a failed state and establish a protectorate that provides better individual safety and security.8 the international community sets a high bar on intervention, limiting it to cases such as genocide, ethnic cleansing and other massive abuses.9 why not intervene in all cases of failure to protect human rights? one pragmatic reason is that we would be opening the door to massive abuse: powerful states that are in fact motivated by greed or prejudice could justify their interventions in the name of safety and security. but there is also a principled objection: individual safety and security are not the only interests at stake. hondurans also have interests in leading their own ways of life, both individually and collectively, even if these ways of life are not as safe as japanese practices. even the best-intentioned interventions come at a sig8. see cooke (2012) for a similar point regarding limitations on international interven-see cooke (2012) for a similar point regarding limitations on international intervention. 9. decisions about intervention are complicated by a number of factors, both principled and pragmatic. one factor which seems germane to the case of predation is whether we are talking about a state-organized assault on its citizens or a failure to protect, and in the latter case, whether gross negligence is involved, and whether assistance is likely to be spurned or welcomed. wild animal communities are neither deliberately violent nor grossly negligent, and wild animals resist efforts to place them in protective captivity. another key factor is whether the rights violations are isolatable or endemic to a particular society, and hence whether an intervention would amount to “lancing the boil” as it were, or a total system chemotherapy likely to kill the patient along with the disease. for example, the u.n. estimates that there are 200 million women missing from the world today, primarily in india and china, due to a range of practices including infanticide, exposure, abandonment, denial of nutrition, trafficking, dowry murder, and sex-selective abortion (collectively identified as forms of “gendercide”). this is a large-scale and systematic denial of basic human rights. it is also unnecessary (in contrast to the situation of wild animals), since the circumstances of justice exist in these societies, and the cultural and economic systems that favour male offspring can be changed. nevertheless, no one is calling for an invasion of china or india in order to end gendercide, given the way that the practices are embedded in daily life making it incredibly difficult to change them from outside rather than through internal reform. so, on various dimensions —whether violations are deliberate or avoidable, whether outside assistance is welcome or resisted, and whether violations are isolated or endemic— predation and other violations in nature do not meet the standard tests for triggering humanitarian intervention. a defense of animal citizens and sovereigns 1��1�� leap, 1 (2013) nificant cost to societies with an interest in self-determination, including the freedom to make mistakes, and to find their own path. there is more to life than minimizing the risk of harm or suffering. a well-ordered police state with imposed curfews and restrictions on mobility might minimize murder and violent crimes, but it is not the best society for people to flourish. so there are both pragmatic and principled reasons not to view preventable deaths as evidence of a failed state. so too we would argue in the case of wild animals. even if we agree that a widespread and preventable violation of basic rights is occurring, this is not an automatic justification for coercive intervention. we would also ask whether suffering in nature really should be placed in the category of “preventable”. horta acknowledges that we don’t currently possess the scientific understanding to prevent this suffering, but argues that if we devoted time and resources we might figure out how to end it, and that we have a strong moral reason to do so. but as simon hailwood notes, it’s not clear that we should view “all actual death as an obstacle that ought in principle to be eliminated” (hailwood 2012: 312). in the human context, we try to prevent early deaths and wrongful deaths, but most people accept the fact of death, though tragic, as a fixed parameter of human life. in principle, society could commit endless resources on interventions to “solve” the problem of death, and there are speculations by “post-humanists” about the possibility of massively prolonging human lifespans through human enhancement, or even of immortality by downloading our consciousness to computers. yet most people think it would be wrong to commit resources in this way, rather than focusing on the countless forms of preventable tragedy and injustice. this is not just because the scientific task of solving the problem of death seems enormous, but also because theories of justice must operate within certain defined parameters, including the acceptance that we are embodied, mortal beings. we need to start with an acceptance of human nature as it is (or might plausibly become), not a conception which is no longer recognizably human. if in the future we become “post-human”, then we will need a new theory of justice to deal with the new beings we have become. but for now, we need a theory of justice for us as we are. similarly, we need a theory of justice for wild animals as they are. viewed this way, predation amongst wild animals, who are outside the circumstances of justice with respect to one another’s flourishing, should be seen, not as the kind of tragedy we should seek to overcome, but as the kind of tragedy we should accept as a parameter of their lives for the foreseeable future (hailwood 2012: 312). any approach that seeks to take wild animals outside of relations of predation and food cycles is not a theory of justice for wild animals as they are or might plausibly become. 160 sue donaldson and will kymlicka leap, 1 (2013) bibliography benatar, d., 2006: better never to have been: the harm of coming into existence, oxford: oxford university press. candea, m., 2010: ““i fell in love with carlos the meerkat”: engagement and detachment in human-animal relations”, american ethnologist 37: 241-258. cooke, s., 2012: “humanitarian intervention: humane not human”. paper presented to the society for applied philosophy. url: http://www.appliedphil.org/details/ event/2217251/society_for_applied_philosophy_annual_conference_2012_conference_marking_the_30t.html. cripps, e., 2010: “saving the polar bear, saving the world: can the capabilities approach do justice to humans, animals and ecosystems?”, res publica 16: 1-22. dawrst, a. 2012: “the importance of wild-animal suffering”. url: http://www.utilitarian-essays.com/suffering-nature.html (accessed 13 november 2012). donaldson, s., and kymlicka, w., 2011: zoopolis: a political theory of animal rights, oxford: oxford university press. fuentes, a. 2010: “naturalcultural encounters in bali: monkeys, temples, tourists, and ethnoprimatology”, cultural anthropology 25: 600-624. hadley, j. 2005: “nonhuman animal property: reconciling environmentalism and animal rights”, journal of social philosophy 36: 305-315. — 2006: “the duty to aid nonhuman animals in dire need”, journal of applied philosophy 23: 445-451. hailwood, s., 2012: “bewildering nussbaum: capability justice and predation”, journal of political philosophy 20: 293-313. holmgren, v. c., 1990: raccoons: in history, folklore & today’s backyards, santa barbara: captra press. hribal, j., 2010: fear of the animal planet: the hidden history of animal resistance, oakland, ca: counter punch press and ak press. hutto, j., 1995: illumination in the flatwoods: a season with the wild turkey, guilford connecticut: lyons press. jamieson, d., 2002: “zoos revisited” in morality’s progress: essays on humans, other animals, and the rest of nature, oxford: clarendon press. kolers, a., 2012a: “borders and territories: terrestrial cosmopolitanism vs. a right to place”. paper presented to the yale conference on borders and walls. http://www. academia.edu/1600410/borders_and_territories_terrestrial_cosmopolitanism_ vs._a_right_to_place. — 2012b: “floating provisos and sinking islands”, journal of applied philosophy 29: 333-343. kymlicka, w., 2001: politics in the vernacular: nationalism, multiculturalism and citizenship, oxford: oxford university press. kymlicka, w., and walker, k., 2012: rooted cosmopolitanism: canada and the world, vancouver: ubc press. nussbaum, m., 2006: frontiers of justice: disability, nationality, species membership, cambridge: harvard university press. schinkel, a., 2008: “martha nussbaum on animal rights”, ethics and the environment 13: 41-69. smuts, b. 2001: “encounters with animal minds”, journal of consciousness studies 8: 293-309. 3 blake.indd migration, legitimacy, and international society: a reply to thomas christiano1 m ich a e l bl a k e university of washington abstract thomas christiano’s vision of international migration asserts that democratic states are morally required to work together with other democratic states to create transnational institutions that can develop appropriate principles to govern such migration. i argue that christiano’s analysis faces two key difficulties: first, it ascribes legitimate contentindependent authority to transnational bodies, and we have no reason to think that such bodies actually possess such authority; and, second, it asserts that such bodies would be likely to arrive at justifiable principles to govern migration, and we have no reason to think that these bodies will actually do so. keywords: migration, justice, christiano, legitimacy, authority, international law. introduction i sometimes think that philosophy, not nationalism, is the real home of the narcissism of small differences. thomas christiano’s analysis of migration has all the virtues i most prize: it is philosophically rigorous, informed by empirical reality without being unduly deferential to current circumstance, and most of all it seems largely right. it starts from where we are – in a world carved up into separate states – and asks where we ought to go from here; the answers it gives us seem, to me, almost perfect. so, naturally, i am going to spend my time discussing that almost. i want, in this commentary, to make it clear why someone who accepts so much of christiano’s view can disagree with one central bit of that view. christiano’s analysis places the authority for migration decision-making in the collective institutional 1 this is a commentary on thomas christiano’s “democracy, migration and international institutions” (christiano 2017). i am grateful to josé martí, as well as two anonymous reviewers for this journal, for helpful suggestions and criticisms. 3 blake.indd 213 21/4/17 13:30 214 michael blake leap 4 (2016) dialogue of democratic states speaking with (and building treaties with) one another, rather than within the individual decision-making of a single state. on his view, a state is not morally permitted to go it alone, working out the migration policy it thinks best reflects justice. the legitimate agent to be charged with migration policy is collective, not individual, and a state does wrong when it fails to recognize the content-independent authority of a transnational community of like-minded states to work out together those specific treaties that might fulfill the cosmopolitan duties of each individual state. i think this isn’t right – or, rather, that it isn’t quite right; treaties and collective decision-making can be useful tools, and perhaps correctives to the blindness of individual states, but they are no more than that. why, though, does christiano think that this international society has legitimate authority to determine the contours of a global migration regime? the argument begins with the simple thought that there are some global goals that any individual state is morally bound to promote. christiano’s example is migration – he imagines a situation in which one state has great labor-force needs, while another has an ample supply of laborers who suffer from relatively impoverished economic circumstances. these circumstances, he argues, do not look like an opportunity for beneficence or charity; they look like a global problem, one whose solution places moral demands on both state parties. these state parties are, in other words, morally required to work together to solve this global problem – a fact that is not limited to this particular sort of one-off problem. instead, there are a great many moral obligations whose best solution involves some form of collective reasoning about how to work together at the global level. this fact, for christiano, demands that states regard the process of working together as a moral imperative. this means, though, that the proper agent setting the terms of cooperation cannot be an individual state; it must, instead, be the global community itself. there is, then, no right for an individual state to break away, and rely upon its own sense of how to respond to the challenge of global justice; the right to determine final responses to global problems is held by the collective of like-minded states, rather than by any individual global agent. this description, of course, f lattens a great deal in christiano’s complex and subtle reasoning, but i do not think it is a wholly unjust description. christiano is, in particular, emphatic that states do not have the right to “go it alone” in international politics; they are obliged to enter into agreements with other states, and to live up to the demands placed on them by the bodies created by those treaties – even when they think those demands are wrong-headed or inefficient. it is with this last part, though, that i want to begin my disagreement. i want to make two particular claims 3 blake.indd 214 21/4/17 13:30 migration, legitimacy, and international society... 215 leap 4 (2016) against christiano’s view: the first is that we have comparatively less reason than he thinks to ascribe content-independent authority to international bodies. the second is that we have less reason than he believes to think that the decision-making of such bodies is likely to lead to good results. i will discuss these claims in order. we can start with this central question, then: why should we regard some other agent than ourselves as having the right to determine our moral duties? what makes some other agent, in other words, rightly understood to legitimate authority over us? i can think of three possibilities: (1) elucidation. the dialogue produced by some discursive body might enable us to better understand our own pre-existing moral obligations. (2) efficiency. the dialogue produced by some discursive body might enable us to more effectively pursue our own pre-existing moral obligations. (3) establishment. the dialogue produced by some discursive body might, in itself, produce novel moral obligations (whose normative force may, of course, be dependent upon some pre-existing form of moral obligation). i think that elucidation and efficiency should strike us as radically different sorts of things than establishment. for an example of elucidation and efficiency, we might look to the sierra club. i accept that we have some moral duty to protect the natural spaces of the planet, although i have some difficulty in explaining how that duty is to be defended. that duty, though, is best pursued with other agents; it’s comparatively difficult to preserve wetlands as a single agent, after all, and the sierra club acts as a sort of force multiplier to my own meager efforts. that seems, to me, to say that there is some moral force in the efficiency of pursuing my pre-existing obligation to preserve wetlands by means of a membership in the sierra club. the sierra club, too, has people who have thought more about wetlands than i have, and they focus the attention of the sierra club on those places and policies where it would do the most good. that, of course, is elucidation. i don’t know much about wetlands, apart from the fact that they should be wet and that there should be more of them. the sierra club allows me to fulfill my pre-existing duty in an efficient, informed way. my duty to pay taxes, in contrast, seems somewhat different. i think the creation of the political society of the united states gave rise to novel obligations – including, notably, the obligation to pay my taxes to the federal government of the united states. it is not as if i had a pre-existing duty to pay taxes, and the good people of the internal revenue service 3 blake.indd 215 21/4/17 13:30 216 michael blake leap 4 (2016) sprang up to help me live a more dutiful life. they are, instead, insisting upon their authority to determine the appropriate level of taxation – a duty that would not exist, but for the creation of the institutions of government that demand resources. if we want to translate this into discursive terms, i think the dialogue of the united states congress when it determines the marginal tax rate is simply a different animal than the dialogue between the sierra club and the various stakeholders working together to preserve wetlands. i am obligated, i think, to regard the dialogue of the united states congress as imposing moral duties on me. (if i insist upon the moral right to determine the proper level of income tax, i am wrong at both the moral and legal levels.) these duties might have, lurking in the background, something like the kantian duty to leave the state of nature and join political society; nevertheless, they are genuinely novel duties, established simply because the united states congress has created (and the president signed) a constitutionally-valid law. the sierra club, in contrast, simply offers me a home within which i can best pursue duties that were not created by the sierra club. it offers efficiency and elucidation; it does not, in itself establish any particular duty. this is important, i think, because it shows that the “legitimacy” of the sierra club is rather unlike the legitimacy of the united states. the sierra club might be a good thing to belong to – but i do not think i do anything particularly wrong if i cease to become a member of that society, and focus my attention on the plight of the homeless, or nuclear disarmament, or some other worthy cause. i might, indeed, decide that the sierra club has lost its way, and withdraw for reasons of policy. i have, in short, no contentindependent reasons to think that i have to listen to the sierra club, even if it does help me do the things i believe are morally valuable for me to do. it is useful; it is not legitimate, in the manner of a legitimate government. which of these, though, should we take as the best analogue to international society? christiano wants international society to have content-independent authority; states have some limited freedom to withdraw, but in most cases states are bound to listen to the determinations and conclusions of multilateral decision-making, even when they think those bodies have made moral mistakes. international society, on this analysis, should be able to create new duties for us, simply because international society decides that we ought to do (or refrain from doing) a particular thing. i do not think, though, that we have any reason to think that international society does anything like that at all. at most, international society as a discursive site provides a given state with the ability to elucidate its pre-existing moral duties, and an efficient means of pursuing these duties. it does not, however, create new duties itself. 3 blake.indd 216 21/4/17 13:30 migration, legitimacy, and international society... 217 leap 4 (2016) one way of seeing this is to imagine what would happen were the institutions in question to disappear. if the sierra club were to go out of business, i take it my moral duties would be unchanged; i would have the same reason to value wetlands i always did. if the united states government were to go out of business, though, i do not think i would have any reason to pay my taxes. the united states government does not simply offer us a means through which pre-existing duties might be fulfilled; it generates new duties, and the government has legitimate authority to insist that those duties ought to be fulfilled. international society, to my eyes, looks more like the sierra club than anything state-like. if the rest of the world, except for one lonely democracy, were to tip over into fascism or terror, the duty of that democracy to promote a just world through its migration policy would not disappear.2 it did not begin with the world’s institutions, and the end of those institutions would not be the end of the duty. if anything, the duty would be felt more keenly in that benighted world. there is, of course, a good response to this, which i think christiano finds plausible: we might simply say that there is a duty to pursue one’s mandatory aims in the best way possible. where something offers an effective and intelligible means to a mandatory end, perhaps that means is itself mandatory. this idea, though, should be resisted. in the first place, it is not clear that we are required – as people or as polities – to maximize efficiency in our pursuit of mandatory goals. i take it as being true, for instance, that we are obligated to give up some of our treasure and some of our time to ensure the survival of needy people living abroad. i do not believe, though, that this goal demands that we choose that form of life most effective at the maximal pursuit of this goal. some do, of course; peter singer’s “effective altruism” begins precisely with the thought that one ought to develop that course of life that is best positioned to save as many human lives as possible. most of us, though, recoil from this conclusion; those of us with a kantian disposition might argue that we are entitled to build lives for ourselves that we find meaningful, even if the lives of others might be made vastly less horrifying were we to become 2 an anonymous referee for this journal has suggested to me that, if we interpret the united states as simply interpreting pre-existing moral duties, then the distinction between global and domestic political institutions is exaggerated. i agree with this; i do not, though, think that any domestic political agency is best understood only as offering interpretations of pre-existing moral duties. to take one simple example: the united states has rules, as does every society, about how to run a fair election – how, for instance, to balance fairness and formal freedom in the rules of electoral communication. it is perhaps possible to interpret these rules as specif ying pre-existing moral duties, but i think it is best to understand the authority of these rules as emerging from the content-independent authority of the political community itself. 3 blake.indd 217 21/4/17 13:30 218 michael blake leap 4 (2016) altruistically-minded financiers. the duty of beneficence, we might say, does not demand that we live on the pareto frontier. if this is true for individuals, though, then why should it not be similarly true for societies? christiano presents a series of considerations, in which the ability of a state to promote the interests of its members is weighed against the needs of prospective migrants. many of us, though, think that this is a bit premature; why, exactly, must a state regard itself as obligated to take only that pathway which would be most justifiable at the global level? is there no national equivalent to the agent-centered prerogative? this is made more complex, i think, from the fact that the world has no shortage of morally obligatory goals – many of which, it seems, live in tension with the others. take, for example, the goals of economic development, the preservation of cultural heritage, and global environmental protection. that these do not all point in the same direction should be obvious; a society that focuses on economic development will likely cause some damage to the environment along the way, and will likely undermine some parts of its cultural heritage; we can see both of these, for instance, in the process of south korea’s industrialization in the 1980s. a society that focuses on cultural heritage, though, will have to forego some forms of economic development, and might find itself unable to accept some innovations that might reduce the overall environmental footprint of its form of life. (a traditionalist society that bans wind energy and solar farms is likely going to end up stuck with some carbon-intensive forms of transportation infrastructure.) i raise these points not just to be depressing, but because i think we might accept that there is something like value pluralism at the collective level as well as the individual one. there are some things, christiano and i agree, that a society cannot do. within these bounds, though, i think i am more worried than he is that there is a plurality of valuable goals, each of which might justify some forms of state action – and which cannot be pursued simultaneously. this means, though, that there is something lost in the sacrifice of national sovereignty to a transnational body. a state that wants to do something “idiosyncratic”, i think, might not always be simply selfish; it might simply disagree with its fellow members of international society about which good ought to be foremost, here and now, for it.3 3 an anonymous reviewer for this journal has suggested that there is no space for states to be “idiosyncratic” in this way, since agent-centered prerogatives apply (if at all) to individuals, not to states. for my part, i am not sure that something like such prerogatives could not apply to collections of persons, as much as to individual persons; there is nothing in liberalism, i believe, that prevents a state from identif ying some particular good as having particular importance in the history and self-understanding of a particular society. 3 blake.indd 218 21/4/17 13:30 migration, legitimacy, and international society... 219 leap 4 (2016) of course, sometimes the state might not be doing anything so noble; it might just be selfish. christiano suggests that the need to justify state action to international society might undermine this sort of selfishness, as democratic societies get in the practice of justifying themselves to fellow democracies. i think, though, that even the best transnational body will probably not do anything this beneficial; instead, for structural reasons, i think christiano’s international society will probably be considerably less benevolent than he imagines. the problem, in brief, is that the elites of each society gain their power by appealing to the citizens of their own societies, who – we can imagine – are ordinary humans of limited benevolence and compassion. this means, though, that the success of democratic peace offers us no reason to think that the collective decisionmaking of international society will be anything other than selfish and xenophobic. democratic peace is comprehensible; states in which the elites gain power from the consent of (some of ) the voters are less able to throw those voters into an unwanted war. why, though, should we think that the discussions of democratic states will tend towards benevolence towards non-citizens? this is one of the striking facts about democracy as a procedure: it offers no voice at all to those outside the ambit of the domestic law. it offers the alien, at best, some procedural safeguards in the application of law against his person; it offers him, though, no voice in the creation of that law. that means, in other words, that the elites of any given society have no reason at all, apart from virtue, to care about the interests of the destitute who are non-members; these impoverished people are not voters, and existing voters can be counted on to be frequently hostile to the interests of these impoverished newcomers. the result, though, is that a dialogue between the elites of a set of democratic states will often end up defending justice for current citizens, whose voting power gives them enough power to make things awkward for elites – and an iron bar placed against the outsider, who has no voice or power with which to contest. having a group of democratic states in negotiation with one another, in short, is likely to produce some morally defensible treaties between these democracies, but it is also likely to be vicious and cruel towards out-group members. the schengen accords, for instance, made travel within the schengen area easier – but also mandated crackdowns on asylum and refugee law for those coming from outside that area. democracies, in short, are not necessarily inclined to be friendly towards those who cannot already vote, and having those democracies in conversation with one another may not produce any more defensible results than those that would have emerged from individual state agency. the recent history of the european union in face of african migration, finally, offers us a sobering reminder that even the most internally just democracies are not 3 blake.indd 219 21/4/17 13:30 220 michael blake leap 4 (2016) inclined to be gentle to outsiders; as i write this, over three thousand would-be migrants to the european union have perished in the mediterranean. these deaths are not a result of natural facts; they result from the choices of the european union, in the 2000s, to institute carrier sanctions on air carriers, which pushed undocumented migrants towards boats, rather than aircraft. when democracies come together to build treaties, they are as likely to reinforce vice as virtue. it is, of course, also true that christiano intends his argument as an ideal theory, building on but not reducible to current global reality. this makes it difficult for us to conclude that any of what i have just said would necessarily be true of a world run on christiano’s principles. nevertheless, i am skeptical. virtue, as kant said very long ago, is an unstable basis for political right. to the extent that christiano’s view demands that democracies spontaneously exhibit virtue, it might be true that the view is unstable in the long run. if what i have said is true, then, we might have occasion to rethink how we ought to evaluate the legitimacy of migration policy. on my view, we need not think that multilateral institutions are the rightful home for legitimate policy; individual states have more freedom, to define and pursue their goals, than that. the world, i think, is messier than christiano would allow. i have argued that christiano’s multilateralism might not give us the results we desire; i have not, of course, said anything at all about what sort of institutions could do the job. i cannot, of course, hope to remedy this lack here. i would end, instead, by reiterating that all this disagreement must be placed against a backdrop of deep admiration and agreement; if i depart from christiano, it is only with a due recognition that these few small differences pale before the wider spaces within which i believe his view to be elegant, defensible, and right. bibliography christiano, th. 2017: “democracy, migration and international institutions”, in immigration, emigration and migration: nomos lvii, ed. jack knight, 239-276, new york: new york university press. 3 blake.indd 220 21/4/17 13:30 leap, 1 (2013) cosmozoopolis: the case against group-differentiated animal rights* al asdair cochrane university of sheffield abstract this paper claims that relational position and group-based distinctions are less important in determining the rights of animals than zoopolis concludes. in particular, it argues that the theory of animal rights developed in zoopolis is vulnerable to some of the critiques that are made against theories which differentiate the rights of humans on the basis of group-based distinctions. for example, in the human context, group-differentiated theories of rights have been criticised on a number of important grounds: for failing to extend to non-associates rights that ought to be so extended; for granting too much weight to the rights of associates over non-associates; for wrongly treating groups as homogenous entities; and for also assuming that these groups necessarily have value as they exist presently. this paper outlines how modified versions of these critiques can be levelled at the theory of animal rights defended in zoopolis. keywords: animals, animal rights, universal rights, group-differentiated rights, relational position, cosmopolitanism, capacities, interests. 1. introduction in their fascinating and thought-provoking new book, zoopolis, sue donaldson and will kymlicka aim to construct a distinctively political theory of animal rights. zoopolis seeks to employ familiar concepts from political theory and practice in order to “supplement” and “extend” so-called “traditional theories” of animal rights (donaldson and kymlicka 2011: 50). it argues that * for writing such a thoughtful, imaginative and progressive book on behalf of animals, special thanks to sue donaldson and will kymlicka. i would also like to thank all of the editors and reviewers at leap for their extensive and helpful feedback —with particular thanks owed to paula casal. finally, thanks to all of the following people who helped me shape the paper after extensive discussion of zoopolis: garrett brown, steve cooke, robert garner, john hadley, oscar horta, siobhan o’sullivan and krithika srinavasan. 128 alasdair cochrane leap, 1 (2013) while traditional theories have provided a plausible basis for attributing universal moral rights to sentient animals based on their intrinsic characteristics, they have failed to capture the variety of duties we have to animals stemming from the very different types of relationships we have with them (6). the book aims to remedy this fault through employing a theory of groupdifferentiated animal rights that takes animals’ relational position seriously. zoopolis employs three concepts from political theory and practice to help determine what is owed to different groups of animals. “citizenship” should be granted to all domesticated animals on the basis that they are full members of mixed human-animal communities, participating in the cooperative project of political life. “sovereignty”, by contrast, should be granted to those wild animals who live apart from humans, on the basis that they are competent to run their own affairs, and seem not to desire intervention. finally, “denizenship” should be granted to those “liminal” animals who are wild but live in the midst of human settlements (such as crows or mice), on the basis that they reside within our societies, but lack the reciprocal capacities necessary to be regarded as joint co-operators (ch. 1). developing a theory of animal rights that is subtle, nuanced and attuned to the differences between animals is certainly commendable. moreover, a theory which is alive to the political importance of animal rights is an extremely welcome contribution to animal ethics. it is important, however, not to overstate the novelty of a “political approach” to the question of what is owed to animals. previous discussions of animal rights have also been political: they have employed political concepts and have offered prescriptions that the state ought to enforce coercively. the novelty of zoopolis resides not so much in connecting animal ethics to political theory, but connecting it to a particular position in political theory: a position which grants considerable weight to group membership and relational position when determining an individual’s proper entitlements. traditional theories of animal rights as espoused by such thinkers as tom regan and peter singer, on the other hand, have very much been cosmopolitan in character: sceptical about the moral relevance of group-based distinctions, and instead focused on the equal universal entitlements derived from the interests and capacities of individuals (singer 1995; regan 2004). when evaluating the theory of zoopolis, then, the question is not whether a political theory of animal rights makes sense. rather, the appropriate question is whether a political theory which gives such important weight to the relational and group-based distinctions of animals makes sense. this paper claims that relational position and group-based distinctions are less important in determining the rights of animals than donaldson and kymlicka conclude. in particular, it claims that their theory is vulnerable to some of the critiques that are made against theories which differentiate the cosmozoopolis: the case against group-differentiated animal... 12�12� leap, rights of humans on the basis of group-based distinctions. for example, in the human context, group-differentiated theories of rights —such as that proposed by kymlicka himself— have been criticised on a number of important grounds: for failing to extend to non-associates rights that ought to be so extended; for granting too much weight to the rights of associates over non-associates; and for both wrongly treating groups as homogenous entities, and for also assuming that these groups necessarily have value as they exist presently.1 the following three sections of this paper outline how modified versions of these critiques can be levelled at the theory of animal rights defended in zoopolis. in each of them, the paper argues that while the relational position and group membership of animals can be of relevance in determining their rights, it is not of primary importance. instead, and in keeping with more cosmopolitan traditions of political thought, the paper argues that it is the capacities of individual animals, and the interests that flow from those capacities, that is the most crucial factor in delineating their rights. the paper concludes by briefly exploring how a traditional theory of animal rights grounded in cosmopolitan political thought can still be attuned to the different types of duties we have towards animals. 2. denying wild animals their just entitlements zoopolis recognises that all sentient animals possess certain universal moral rights, but argues that animals have further group-based rights on the basis of their different relational positions. such a theory follows a familiar line of thinking in political theory. for example, david miller famously proposes a theory of global justice which endorses the protection of minimal universal human rights for all, with further and more extensive rights and duties granted to individuals via their association within a nation-state (miller 2007). one potential problem faced by such theories, however, is that they can favour denying “outsider” groups —like foreigners— their just entitlements by being too minimalist about the universal rights that are recognised (see e. g. wenar 2008). crucially, i believe that the theory of animal rights defended in zoopolis faces this problem. in particular, i am not convinced that the citizenship rights that donaldson and kymlicka grant to domesticated animals should not also be extended to all wild animals. donaldson and kymlicka argue that citizenship contains three core elements, each of which entails a general right of citizenship that ought to ap1. for kymlicka’s own theory of group-differentiated rights for humans, see kymlicka (1995). for examples of critiques of theories of group-differentiated rights, see wenar (2008: 401-411), kukathas (1992: 105-139), waldron (1995: 93-119), barry (2001), and brown (2009: ch. 4). 130 alasdair cochrane leap, 1 (2013) ply to domesticated animals, but not to wild animals: the right to political concern, the right to political agency, and the right to residency (101). in their discussion of the practical implications of their theory, they also discuss further rights that are exclusive to domesticated animals, such as the right to be protected from predation (133-134). i want to claim that each of these rights can and ought to be granted to all sentient animals, including those in the wild. let us start then with the first general right of citizenship that donaldson and kymlicka identify: the right to political concern. this right means that domesticated animals —like other citizens— are entitled to have their interests included in the public good (101). in other words, it means that lawmakers must consider the well-being of these creatures when formulating and implementing policies. however, it is unclear why this right is something that ought to be exclusive to domesticated animals. for one, donaldson and kymlicka themselves acknowledge that the interests of wild animals count for something —this, after all, is the basis on which they assign universal rights to them (ch. 2). moreover, it is also evident that the actions of human political communities affect those interests in profound ways. for example, some policies affect animals directly and explicitly, such as decisions to develop areas of wilderness, “manage” wild populations, harvest fish from the ocean, and so on. other policies affect wild animals more indirectly, such as decisions to burn fossil fuels, or to employ intensive agricultural methods.2 since the interests of wild animals are affected in extensive ways by the actions of political communities, and since those interests count morally for something, then it seems only right that political communities ought to include them in their policy deliberations. of course it might be objected that while political communities have an obligation to consider the interests of wild animals, that obligation is akin to the obligation we have to foreigners. that is to say, our obligations to respect basic human rights and offer aid in times of crisis are moral as opposed to political, grounded in a simple humanitarian duty to alleviate suffering, rather than in duties of justice which apply only within schemes of cooperation.3 however, i do not believe that this is the proper way to conceive of our obligations in respect of human rights and so i am extremely wary of extrapolating this model to the case of wild animals. by recognising that foreigners and wild animals have rights, we thereby recognise the existence of correlative duties that can coercively be enforced by the state (steiner 2005: 2. for a useful discussion of the ways in which our actions necessarily affect wild animals see nussbaum (2006: 374). 3. for discussion of the difference between humanitarian duties and duties of justice see, campbell (1974: 1-16), caney (2005: 110-114), and nagel (2005: 113-147). cosmozoopolis: the case against group-differentiated animal... 131131 leap, 1 (2013) 459-479, 460). in other words, the establishment of rights for those individuals immediately makes their interests of political concern. furthermore, acknowledging that foreigners and wild animals have rights which impose duties on our own communities necessarily involves recognising that their basic interests are of political concern to us. another right of citizenship that donaldson and kymlicka identify is the right to political agency: the right to have some say over shaping the policies and rules of the political community (101-103). once again, it is hard to see why this right should be denied to wild animals. donaldson and kymlicka recognise that given the limited moral and rational capacities of animals, there are difficulties in conceiving of any animal enjoying the right to political agency. however, they point out —quite rightly in my view— that these difficulties are not insurmountable. after all, their interests can be represented by proxies or “collaborators” in much the same way as the interests of children and the severely mentally disabled are included in the policy-making process (104). but it is unclear why representatives of wild and liminal animals should not also feed into the political process in this way. for once we recognise that the interests of wild animals count both morally and politically, it seems only reasonable to let wild animals have some say —through their representatives— over the shaping of our political goals and policies. in fact, one of the reasons donaldson and kymlicka believe political agency to be so important for domesticated animals, is because of the dangers of invisibility: if absent from the policy making process, it is all too easy for these animals not to be shown the concern they are due (113). but of course these dangers of invisibility are even more acute for wild animals since they live apart from us. as such, awarding rights of political agency to wild animals seems absolutely necessary on donaldson and kymlicka’s own reasoning. it again might be objected that letting wild animals have this kind of voice is a step too far. sticking with the overall analogy employed previously, wouldn’t this be akin to a state letting foreigners have the vote in its elections? no, it would not. as donaldson and kymlicka themselves point out, political agency can come in different forms, and it is not all about having a vote (153). such agency can and does also come in the form of representation —representation of basic interests and rights— which is a model that is perfectly adaptable to wild animals. given that they possess basic rights, and given that these rights are of political concern, it is only proper to grant wild animals the right to political agency. the final general citizenship right donaldson and kymlicka identify is the right of residency. at first sight this right might well seem to mark off an important distinction between what is owed to domesticated animals and what is owed to all other animals. for donaldson and kymlicka seem to be implying that the right to residency grants domesticated animals a right to live 132 alasdair cochrane leap, 1 (2013) amongst human beings within human societies. moreover, under their theory, this is not a right shared by other animals: wild animals have no right to live amongst us, and human societies can justifiably limit the population of incoming liminal animals (227). however, i am not convinced that the right to residency really is exclusive to domesticated animals. after all, the right of domesticated animals to live within human society must surely derive from their interest in a safe and secure environment conducive to their well-being. pet dogs and backyard chickens have an interest in living with humans, for example, because they fare better living amongst humans than they would fare if thrust out into the wild. but since all animals have a basic interest in a safe and secure environment, there is at least a prima facie case for recognising that they all have a right to the type of residency that protects that interest. indeed, one of the main reasons donaldson and kymlicka think that it is useful to assign sovereignty to wild animals is to protect them in their habitats (190). that is, they believe that sovereignty protects what wild animals need for a safe and secure environment conducive to their well-being; sovereignty protects their right to safe and secure residency. the universality of the right to safe and secure residency is further supported by donaldson and kymlicka’s claim that if liminal animals end up living within human societies —having evaded our attempts to exclude them, say— then they should be allowed to stay (228). no doubt they gain this right because they too end up being safer and more secure from living amongst human beings. but surely the lesson to be drawn from this is that all sentient animals share this same fundamental right to safe and secure residency, irrespective of whether they are domesticated, liminal or wild. of course, precisely what provides safe and secure residency differs amongst animals, depending on their capacities and interests. for some animals, the right will amount to a right to live in our homes, for others it will amount to a right to live in protected forests, for still others it will be tracts of wilderness, and so on. the crucial point is that the basic right is universal, and the implications of that right are delineated by the particular interests of the animal in question. as stated above, donaldson and kymlicka do not only provide an account of the general citizenship rights of animals, but also usefully discuss some practical implications of their citizenship theory. these implications amount to an account of more specific rights possessed by domesticated animals. one such right is the right to protection from predation (132). this right seems to provide a compelling example of a right that it is not appropriate to assign to wild animals on the basis that it would seem to entail the bizarre obligation to segregate predators from prey animals, disrupt natural food cycles, and in effect “police” nature. however, the right to protection from predation is effectively a derivative of the right to life, one of the universal animal rights recognised by donaldson and kymlicka themselves. given that they recognise cosmozoopolis: the case against group-differentiated animal... 133133 leap, 1 (2013) that wild prey animals possess the right to life, does this then mean that they must also be committed to protecting wild prey animals from predation? not necessarily. for it is plausible to think of the right to life as both abstract and prima facie. it is abstract in the sense that it requires further specification before we can know what it amounts to for any individual; and it is prima facie in the sense that it is defeasible and might not be grounded in all situations for all individuals.4 on this understanding, what the right to life amounts to and whether it translates into a concrete right in any particular situation is dependent on context and requires an assessment of all relevant factors. so perhaps donaldson and kymlicka might acknowledge the right to life of wild prey animals, but conclude that it does not amount to a concrete right to protection from predation, all things considered, precisely because of their lack of close relations with us. i, however, believe that this is the wrong conclusion. for when all relevant interests and factors are properly considered, it is evident that the right to life of non-domesticated animals does sometimes entail the concrete right to protection from predation. even if the idea that wild animals have a right to protection from predation might seem absurd at first sight, we do in fact already recognise such rights for many wild animals. for example, we protect wild animals from predation when we impose restrictions and bans on the human hunting of wild animals, such as the ban on whaling: human predation is a form of predation after all. furthermore, many believe that the liminal animals such as birds, mice and rabbits which are frequently targeted by our pet cats and dogs, merit rights to protection. since we know that our pets do not need to conduct these kills to survive, and since we can take quite simple measures such as fitting collars, storing food securely and so on to prevent such kills, there are certainly weighty reasons for pet-owners to prevent such predatory harms (sapontzis 1987: 232). finally, there are also scenarios where many believe it obligatory to intervene to prevent “overabundant” predators from killing rare wild prey —as illustrated by the trapping of mink in the uk for the sake of water voles (morelle 2011).5 the point here is not to claim that all of the examples of current practice outlined above are justifiable. no, the point is simply that sometimes, when all relevant factors are considered, the prima facie right to life of wild animals can and does amount to a concrete right to protection from predation. of course, in most situations this concrete right to protection for wild animals 4. on abstract rights, see dworkin (1977: 98). on prima facie rights, see vlastos (1962: 3172), and cochrane (forthcoming 2013). 5. of course, it has to be noted that in this example the mink are killed. however, relo-however, relocating them to a sanctuary would obviously be a more just way of preventing these predatory harms. 134 alasdair cochrane leap, 1 (2013) will not be established. for one, the burdens of the corresponding duties will often be too demanding: we are not in a situation where we can intervene effectively for the sake of wild prey animals at little cost to ourselves. moreover, consideration of the interests of the predator animals themselves, as well as other animals such as scavengers, who depend on such kills, will often count against the establishment of the right. nevertheless, these conclusions are properly made through a consideration of all the relevant factors and interests at stake, and not simply by appeal to whether the animal belongs to a group that lives “here” or “out there”. 3. privileging the rights of domesticated animals the previous section argued that group-based theories of rights, which differentiate rights according to relational position, are vulnerable to the problem of failing to extend to outsider groups their just entitlements. of course, one way in which outsiders may be denied their just entitlements is through privileging the rights of “insider” groups. granting too much weight to the rights of those close to us, after all, leaves fewer resources to secure the rights of those further away.6 once again, i think that this problem is evident in the theory of animal rights presented in zoopolis. this section considers donaldson and kymlicka’s discussion of the right to healthcare in order to illustrate this claim. donaldson and kymlicka argue that the right to healthcare is a basic right of citizenship in most contemporary societies, and is a right that should be extended to domesticated animals. crucially, they also believe that it is a right that should not be attributed to wild animals (142-143). i am not so sure about this conclusion. first, it is unclear why the right to healthcare is inappropriate for non-domesticated animals. after all, given the powerful interest that all sentient animals have in being healthy, it is certainly plausible that the right to health is at least a prima facie right enjoyed by them all. however, what that right amounts to in any particular situation will depend on an evaluation of all the morally relevant factors at stake. crucially, at least in some situations, wild animals can and ought to be granted a concrete right to healthcare. for one thing, sometimes identifying and reducing the health problems of wild and liminal animals will not be particularly onerous. for example, it could just involve dropping a chemical in their waterhole to save them from a slow and painful death. given that their basic interests count for something, as donaldson and kymlicka accept, then if all else is 6. this is a version of what samuel scheffler has called the “distributive objection” to special responsibilities (scheffler 1997: 189-209). cosmozoopolis: the case against group-differentiated animal... 13�13� leap, 1 (2013) equal and no harmful side-effects will result, it is surely incumbent upon us to take such action. but even if it is accepted that all sentient animals do possess this universal right to healthcare, it could still be maintained that the right of domesticated animals generates weightier duties for some agents than that of wild animals. their close relations with us, donaldson and kymlicka would presumably argue, establish special and more stringent obligations on our part. however, there is a powerful argument to suggest that many domesticated animals in fact have a weaker claim to a share of health spending from the public purse than do wild animals.7 for example, companion animals have particular human individuals —their owners— who are responsible for both their existence and their well-being. as such, it is perfectly legitimate to argue that when all relevant interests are considered, these responsible individuals should take the burden of their health costs, rather than the public at large. furthermore, since wild animals do not have particular humans with responsibilities for their existence and well-being, they arguably have a stronger claim on public funds. to avoid misunderstandings, my claim is not that all wild animals necessarily have a greater claim to public health spending than do domesticated animals. my point is rather to show that donaldson and kymlicka’s privileging of the rights of the group “domesticated animals” is illegitimate. when all things are considered, including a full evaluation of all the relevant interests at stake, not only can wild animals sometimes be assigned the right to healthcare, but sometimes it will be a right that is stronger than that possessed by some domesticated animals. 4. identifying and valuing wild animal communities the previous sections claimed that the theory of animal rights presented in zoopolis is vulnerable to two related charges that have been levelled at group-differentiated theories of rights: that they can deny outsiders their just entitlements, and can unfairly privilege the rights of insiders. this section discusses two further objections that both relate to the nature of the groups that should form the basis of these differential attributions of rights. an initial “identification objection” concerns the problem of locating meaningful groups to which rights can be attached (brown 2009: 130). a further “valuation objection” concerns the assumption that these groups are discrete, homogenous entities that ought to be valued and preserved as they exist presently (waldron 1995: 109). this section presses both objections to 7. thanks to paula casal for making this point to me. 136 alasdair cochrane leap, 1 (2013) zoopolis by exploring the problems faced with attributing sovereign rights to “wild animal communities”. donaldson and kymlicka argue that we ought to think about our interactions with animals living in the wild as akin to a relationship between distinct self-governing communities (168). so while we have duties to respect the universal moral rights of wild animals, we also have duties to respect their sovereign rights of self-determination. while this does not mean that we can never interfere in the lives of wild animals —certain natural catastrophes and the like can justify limited policies of assistance— it does mean that any such interventions must only be undertaken in order to restore the autonomous functioning of those communities (180-183). in the first place, it is necessary to ask whether we can meaningfully identify those wild animal communities to whom donaldson and kymlicka believe sovereignty ought to be applied. perhaps the first thing that comes to mind when we imagine a “wild animal community” to whom sovereignty might be attributed is a social group of a single species of animals residing on a fixed piece of territory. unfortunately, and as donaldson and kymlicka themselves acknowledge, this picture of a wild animal community will not work. for one, any piece of territory is likely to involve a great number of different species of animals, all of whom cannot claim the same rights of self-determination over it. moreover, wild animals have no knowledge of or respect for defined borders, and will continually cross over them. as such, and as donaldson and kymlicka agree, if a community of wild animals is to be identifiable, it will have to refer to a mixed species group whose territorial boundaries are fluid (191). however, even if such discrete groups of wild animals can be identified, it is unclear that they constitute a “political community”. political communities are clearly not natural entities, but have instead been constructed by humans to facilitate shared social enterprises and to represent and maintain certain feelings of affiliation.8 but when we consider any mixed species group of wild animals, it is hard to see how they fit into this understanding of a community. after all, there is not much evidence of shared enterprise or feelings of affiliation within groups of wild animals. indeed, many animals are in perpetual violent conflict with one another, as illustrated by the relations between predator and prey animals. furthermore, since many wild animals are solitary, and do not live in social groups, it is very hard to see how these animals can meaningfully fit into a conception of a cooperative group bonded by feelings of attachment. 8. for a classic account of human communities as ideological constructions, see anderson (2006). cosmozoopolis: the case against group-differentiated animal... 13�13� leap, 1 (2013) attempting to avoid this type of objection, donaldson and kymlicka employ a much looser understanding of what comprises a political community, which jettisons, for example, any assumption that there is much cooperation or even interaction among members, or that there is any sort of sentimental attachment to the community. instead, their claim is that these wild animals must merely be “competent”: “what matters for sovereignty is the ability to respond to the challenges that a community faces, and to provide a social context in which its individual members can grow and flourish” (175). it is extremely unclear, however, whether any group of wild animals can actually be considered competent in the sense just stated.9 after all, different animals require quite different things to successfully respond to challenges, or to grow and flourish. moreover, the competency of some individuals in a group will necessarily be to the detriment of others in the group —and may even involve the killing and consumption of others! if, for example, we consider the wild animals existing on the african savannah, it is hard to know what the shared collective competency of the group considered as a whole could be. the competencies of the cheetah, of the hyenas, of the gazelles, of the vulture, of locusts, and so on, are all very different, and the competency of one will often be to the detriment of another. in order to claim that a group must be left to autonomously run its own affairs, the group needs to have its “own affairs”, and yet it is hard to see what this may be in the case of groups of wild animals. of course, it might be responded that wild animal groups do have a shared sense of competency, in spite of their conflicting interests. for example, some environmentalists might claim that wild animal groups have a collective interest in something like the maintenance of ecosystem flourishing.10 the problem with this, however, is that it moves us well beyond the type of competency that donaldson and kymlicka see as important for the attribution of sovereignty. for recall that they are concerned with competency that allows individuals to grow and flourish (175). and ecosystem flourishing cannot plausibly be claimed to allow all individual animals to grow and flourish: for in many instances, a flourishing ecosystem depends on and entails the suffering and death of certain individual animals. even if we assume that this problem can be overcome and that we can identify discrete groups of wild animals who constitute communities, we 9. for a fuller and extremely valuable discussion of this point, see oscar horta’s contribution to this volume. 10. this idea is not explicitly endorsed in zoopolis itself, although the authors do get close to endorsing this idea in their discussion of predation and starvation in relation to “failed states” (176). they also claim that “ecological viability” is part of their understanding of sovereignty (191). 138 alasdair cochrane leap, 1 (2013) still face the so-called “valuational objection”. part of the grounds that donaldson and kymlicka give for granting sovereignty to wild animals is to protect these communities’ interests in autonomy and non-interference (173). zoopolis claims that wild animal communities possess such interests because they are competent in managing their own affairs and have an evident antipathy to human intervention (177). however, there are good reasons to question whether animal communities really do have an interest in noninterference to preserve their current form. indeed, it seems highly unlikely that significant portions of these groups such as prey animals, those riddled with disease, or those suffering terribly from starvation, would possess such an interest. it is much more likely, in fact, that wild animals such as these actually possess an interest in their community changing in ways to their benefit, even with human intervention. to be sure, this is not to say that they are consciously interested in and desire such changes. this is highly unlikely, and is illustrated by the fact that nearly all wild animals will resist any form of interference from human beings. nonetheless, few accounts of interests simply equate them with subjective desires, because it is clear that individuals of all species can be mistaken about what is in their own interests.11 as such, it is perfectly possible that wild animals have an interest in certain goods that they actively resist, and it is also possible that a good many have an interest in their communities changing via the actions of human beings.12 at the very least, it is extremely hard to make sense of the idea that those wild animals who suffer terribly and face death directly as a result of the current conditions of their community also have an interest in the preservation of that community in its current form. it is also worth pointing out that preserving these wild animal communities as they exist presently will not be secured simply by following general policies of non-intervention. donaldson and kymlicka are well aware that the autonomous functioning of sovereign animal communities can be threatened not just by humans, but also by natural disasters such as earthquakes and the like, and thus allow for limited interventions to restore autonomy in such cases (181). however, another important type of natural disaster that wild animal communities face derives from other wild animal communities, such as their predators or territorial rivals. one compelling example of this, of course, is genocidal chimpanzee wars (mitani, watts and amsler 2010: 507). a more mundane example is the simple process whereby population density and other factors continually drive species from one territory to another in the normal process of biological dispersal. both such cases inevita11. for a useful discussion of the objective and subjective elements of “interests” see swanton (1980: 83-101). 12. of course, this does not mean that humans are always obliged to act on that interest. cosmozoopolis: the case against group-differentiated animal... 13�13� leap, 1 (2013) bly involve the transgression of one sovereign animal community by members of another. from the perspective of zoopolis, such transgressions could be described as wars of invasion and self-defence. what seems clear, then, is that preserving wild animal communities as they exist presently through granting them sovereignty will demand far more from human beings than donaldson and kymlicka admit. effectively, it will mean that we will be required to police the relations between wild animal communities, which may require a just war theory for animals, at least concerning the just assistance of the invaded group. 5. conclusion: from zoopolis to cosmozoopolis this paper has argued that the theory of animal rights presented in zoopolis is vulnerable to certain critiques that are levelled at all group-differentiated theories of rights. in the first place, such theories can deny outsider groups their just entitlements. i have argued that donaldson and kymlicka mistakenly fail to extend to wild animals rights they grant to domesticated animals, such as the rights to political concern, political agency, residency and protection from predation. secondly and relatedly, such theories can also unfairly privilege the rights of insider groups. i have argued that donaldson and kymlicka grant too much weight to the rights of domesticated animals, for example to healthcare, neglecting the fact that many companion animals have owners who are responsible for their lives and well-being. finally, such theories also have problems in identifying the relevant groups that form the basis for differentiated rights, and in explaining why they are valuable. i have argued that the theory of zoopolis fails to offer a plausible account of who wild animal communities are, and why they ought to be preserved as they exist presently. as i hope to have shown, we cannot neatly group animals into discrete categories —domesticated, wild and liminal— each with their own distinctive entitlements. the rights of any particular animal are better determined via a cosmopolitan perspective that attaches rights to individuals primarily according to their capacities and interests, as opposed to their membership in different groups. donaldson and kymlicka might respond that group membership is not intended to replace interests and capacities as a basis for rights, but to complement an interest-based theory of either human or animal rights which will otherwise be underdetermined, and insensitive to the very different types of obligations we have to different individuals. my view is that a theory grounded primarily in the capacities and interests of individual rights-bearers can be attuned to the different obligations we often have to animals. the universal rights of individuals are only abstract and prima facie. they need to be further specified into concrete rights by making an all things consid140 alasdair cochrane leap, 1 (2013) ered judgement of all the relevant factors and interests at stake. importantly, such a process will inevitably recognise that different individuals are often owed quite different things. in my view, this perspective provides the best way to understand human rights, and it is the best basis for a theory of rights for all sentient creatures.13 bibliography anderson, b., 2006: imagined communities: reflections on the origin and spread of nationalism, london: verso. barry, b., 2001: culture and equality: an egalitarian critique of multiculturalism, cambridge: polity press. brown, g. w., 2009: grounding cosmopolitanism: from kant to the idea of a cosmopolitan constitution, edinburgh: edinburgh university press. campbell, t., 1974: “humanity before justice”, british journal of political science 4: 1-16. caney, s., 2005: justice beyond borders: a global political theory, oxford: oxford university press. cochrane, a., forthcoming, 2013: “from human rights to sentient rights”, critical review of international social and political philosophy. donaldson, s., and kymlicka, w., 2011: zoopolis: a political theory of animal rights, oxford: oxford university press. dworkin, r., 1977: taking rights seriously, london: duckworth. kukathas, c., 1992: “are there any cultural rights?”, political theory 20: 105-139. kymlicka, w., 1995: multicultural citizenship: a liberal theory of minority rights, oxford: oxford university press. miller, d., 2007: national responsibility and global justice, oxford: oxford university press. mitani, j.; watts, d., and amsler, s., 2010: “lethal intergroup aggression leads to territorial expansion in wild chimpanzees”, current biology 20: 507. morelle, r., 2011: “alien invaders: american mink removed from scotland”, bbc news online, 11th february. url: http://www.bbc.co.uk/news/science-environment-12323300. nagel, t., 2005: “the problem of global justice”, philosophy and public affairs 33: 113-147. nussbaum, m. c., 2006: frontiers of justice: disability, nationality, species membership, london: the belknap press of harvard university press. regan, t., 2004: the case for animal rights, berkeley, ca: university of california press. sapontzis, s. f., 1987: morals, reason, and animals, philadelphia: temple university press. scheffler, s., 1997: “relationships and responsibilities”, philosophy and public affairs, 26: 189-209. singer, p., 1995: animal liberation, london: pimlico. 13. for more on this model, see cochrane (forthcoming 2013). cosmozoopolis: the case against group-differentiated animal... 141141 leap, 1 (2013) steiner, h., 2005: “moral rights”, in d. copp (ed.), the oxford handbook of ethical theory, oxford: oxford university press. swanton, c.: “the concept of interests”, political theory 8 (1980): 83-101. vlastos, g., 1962: “justice and equality”, in r. brandt (ed.), social justice, englewood cliffs, nj: prentice hall. waldron, j., 1995: “minority cultures and the cosmopolitan alternative”, in w. kymlicka (ed.), the rights of minority cultures, oxford: oxford university press. wenar, l., 2008: “human rights and equality in the work of david miller”, critical review of international social and political philosophy 11: 401-411. 1 alvarez.indd democratic legitimacy, international institutions and cosmopolitan disaggregation dav i d á lva r e z fct-university of minho/university of vigo abstract the paper explores thomas christiano’s conception of international legitimacy. it argues that his account fails to fully appreciate the instrumental constraints that international legitimacy imposes on national democracies. his model of fair voluntary association articulates the transmission of political legitimacy through a double aggregation of political consent. first, it “pools” its authority from the foundational cosmopolitan claims of individuals involved in a deeply interdependent social world; it then translates this source of legitimacy to international organizations through state consent. however, this model fails to enforce compliance with the cosmopolitan standards and commitments regarding vulnerable populations. the paper argues (i) that the global standards of legitimacy operate as objective criteria of instrumental legitimacy for the ref lective evaluation of democratic states, (ii) that the demand of consistent compliance with these cosmopolitan goals imposes external constraints on the institutions of domestic democratic deliberation; and finally, (iii) that if democratic states fail to implement reforms in this direction, then their citizens have the legitimate prerogative to disaggregate their cosmopolitan contribution and direct it to the global institutions that officially realize these goals. keywords: international legitimacy, global justice, cosmopolitanism, democracy, equality, christiano. 1 alvarez.indd 187 21/4/17 13:29 188 david álvarez leap 4 (2016) 1. global legitimacy and state consent what is the most legitimate form of global authority we can reasonably hope for? thomas christiano (2010) presents an insightful exploration of this challenging question. his essay contrasts the aspiration to democratize international institutions directly and a defense of a fair democratic association (fda) among states as the best feasible option. he thinks an empirical evaluation of the required preconditions for the development of a legitimate democratic regime favor the latter. such conditions presuppose equality of stakes among all those bound by the political system. here, to have roughly equal stakes means that the same political system shapes and affects one’s main interests with an overall intensity equivalent to that affecting other fellow members. this shared subjection and participation varies across different issues and topics but the overall balance of tradeoffs must be equivalent. therefore, all members subjected to this political decision-making authority have strong reasons to identify their wellbeing and prosperity with the goods and services regulated by the public authority. this is what christiano calls “a common world”. therefore, the condition of equality of stakes requires the existence of deep interdependency among co-members. once this condition of equality of stakes is met, christiano then defends his conception of legitimacy for the decision-making structure that regulates the deep interdependency of a group that shares a strong interest in enjoying a common world. the question then is: by what right should any of these individuals accept the decisions imposed on them? christiano’s conception of public equality defends that the strongest reasons to accept the political authority under these circumstances are those that ref lect that the political decision-making advances the interests of all members in an equal way. christiano’s conception expresses the intrinsic value of collective self-government by minimizing the chances of over-inclusion and under-inclusion. therefore, the distribution of political inf luence has to prevent that those not relevantly affected by a problem could impose the solution on those affected. among members, this risk is neutralized in the overall tradeoffs of the political game within a common world. when distinctive minorities have stable preferences that only contingently and tangentially align themselves with the hegemonic view, then there is a risk of consistent subordination to majoritarian interests. the existence of permanent minorities undermines public equality because it publically manifests a breach in the mechanisms of inclusion, access, interaction, and deliberation “in a common world”. 1 alvarez.indd 188 21/4/17 13:29 democratic legitimacy, international institutions and cosmopolitan... 189 leap 4 (2016) this is, however, as christiano states, a cosmopolitan moral principle, insofar as all individuals’ interests affected by the political system are given equal consideration (2010: 121). to put it in different terms, the conception of public equality holds that all equal stakeholders under a political order should be equal shareholders in decision-making. however, for christiano, the proper political realization of a cosmopolitan principle of equal consideration is not a global democracy. the implementation of a democratic system for a global order beyond the nation-state would not track asymmetries in stakes and would create permanent minorities. according to christiano, the state community seems to be the most realistic scope for the realization of public equality. consequently, the most legitimate form of global authority that we could reasonably hope for is a fair democratic association (fda) of highly representative states, legitimized through the consent of its sovereign members. therefore, specific matters and particular interests that transcend the limits of the common world are better dealt with through specific negotiations and agreements that represent the expected contributions and compensations among the affected parties. we could reconstruct the normative structure of christiano’s proposal for a fda as the articulation of three main elements: voluntary agreement: in its ideal form, a free democratic association determines its own terms of cooperation through international negotiation, adjusting their complementary skills, needs, and contributions. if the exercise of bargaining power differentials produces unacceptable conditions, the weaker party can always exit the organization. in a similar way to civil society associations, the legitimacy of these international associations rests on the voluntary acceptance of the terms of cooperation (“volenti non fit injuria”). proto-constitutional constraints: in addition to these freely consented terms, christiano admits a set of external constraints as principles of international society that are also justified through its formal value for the constitution and coexistence of decent and representative societies, like security and war conventions, the principle of honoring pacts and treaties (“pacta sunt servanda”), and the basic protections of ius cogens and human rights. this family of “traditionally observed principles” (customary international law) constitutes the basic scaffolding of the international society (christiano 2010: 122-123). 1 alvarez.indd 189 21/4/17 13:29 190 david álvarez leap 4 (2016) standards of reinforced cooperation: a subsequent and thinner level in this international architecture is constituted by the network of institutions that articulate the cooperation around the goals of trade, poverty eradication, and climate change (christiano 2012a: 385-390). these three dimensions represent an important degree of interdependence that is also crucial for the success of the different national societies. these areas are of crucial, vital interests. we can conceive this set of subjects as a hybrid structure that combines a voluntary bargaining process with proto-constitutional constrains. treaty negotiations among states are still marked by the asymmetries of power, but they incorporate some degree of receptivity to the needs of developing countries, vulnerable populations or the environment as benchmarks (imf), socio-environmental safeguards (world bank), conventions, exemptions, etc. the degree of interdependence may justify a preferential treatment for developing countries but it is not thick enough to justify its regulation through a global democratic system. according to christiano then, moral cosmopolitanism would be realized through membership in a democratic state that is a member of a fda. i will argue in the following sections that this articulation of memberships is deeply problematic. in fact, the claim that the fda would reproduce some of the intrinsic obstacles to supranational coordination that characterize our international order of sovereign states can be defended. the normative structure of the fda is based on voluntary stateagreements, but the representative institutions of modern democracies are designed in ways that favor domestic interests over foreign duties. therefore, there is an institutional design problem that prevents the realization of moral cosmopolitanism through double membership. 2. public equality and moral cosmopolitanism christiano’s conception of public equality cannot overcome the problem of articulation between national citizenship and cosmopolitan responsibility. in order to show this difficulty, i will compare three alternative understandings of the condition of public equality as a realization of moral cosmopolitanism: a) as an existential condition; b) as a criterion for legitimacy; and c) as a prescriptive duty of justice. the existential reading states that stakes-equality is a (sufficient) condition for the implementation of public equality. as a criterion of legitimacy, the principle demands that democratic membership be coextensive with the 1 alvarez.indd 190 21/4/17 13:29 democratic legitimacy, international institutions and cosmopolitan... 191 leap 4 (2016) scope of stakes-equality. finally, the prescriptive interpretation just affirms a moral duty to establish a maximally inclusive institutional order in which all individuals could see their interests affected and taken into account in an equal way. these alternative readings imply concomitant qualifications on the scope of public equality. as an existential condition, it identifies the scope of the doctrine following the factual conditions of the world. the pre-existing institutional scope limits the set of individual claims to equal political inf luence. the validity of these claims is intrinsic to a practice that regulates the sphere of political membership, it is constitutive of its network of interactions, it is embedded in its relational structure of interdependence, and it is incorporated in the expectation of iterated, reciprocal cooperation. this social world constitutes the type of relevant interests shared by all relevantly affected, and they differ in kind and intensity from those of outsiders. consequently, the validity of their claims to participation in the decision making differs also in kind and intensity. even if affected, outsiders cannot be equally affected in the same way as constitutive members; therefore, equality demands that their claims are subject to specific qualifications. this interpretation of the intrinsic value of democracy assumes the existence of a common world and derives the legitimacy of the democratic system from the “pooled rights of all persons to have a say in the common world they live in” (christiano 2010: 122). this is a cosmopolitan value insofar it rests on the moral personality of all individuals that are “pooled” together as demos. however, the criteria for inclusion and exclusion are not cosmopolitan in the sense that it cannot be claimed that they are independent from the social, cultural, and national characteristics of individuals. if we consider that it is the identification of the precondition of equal stakes, which determines the scope of the demos, then these structural and institutional factors have a determining role in the configuration of the common world. if the common world ref lects these particularities, and the projects and interests of the members are intertwined with its reproduction, then the constituency is shaped by the common world, and the kind, type, and nature of the interests affected is distinctively and idiosyncratically determined by the internal conditions of this community. every deeply interdependent political system expresses a common world which should be regulated in a way that ref lects public equality. but the reproduction of this common world becomes a constitutive feature of the conceptions of the good of the citizenry. this general interest becomes the national interest. additionally, under this reading, the realization of the values of freedom and equality could be conceived as the allegiance to the 1 alvarez.indd 191 21/4/17 13:29 192 david álvarez leap 4 (2016) institutions that produce a particular vivere libero. therefore, the existential condition of equality of stakes may model the latent cosmopolitan value of democracy in a republican-communitarian way. this means that the factual dependence on the existing structures of interdependence imprints a domestic and status quo bias in democratic deliberation. the second interpretation is related to the question of global pluralism. it defends the view that wherever the equality of stakes condition obtains, the only legitimate form of political authority is one that expresses public equality. the emphasis here lies in the range of acceptable political regimes. christiano argues elsewhere for a pro tanto human right to democratic self-determination, but not for its external and forceful imposition through military intervention (christiano 2011). the justification offered for this range of permissible toleration is congruent with the conception of public equality: occupied peoples have no resources to check that the “liberating” forces treat their interests equally in a public and justifiable way. for that, interventionist forces would need to be subjected to a common supranational authority, which as discussed in the essay commented on here, would also lack the conditions for direct democratic governance. this observation, which aims to protect weaker parties from foreign domination, can be extrapolated to other dimensions of necessary cooperation to achieve effective self-government. depending on the mercy of strangers to realize democratic self-determination may easily lead to being at the mercy of strangers. the argument in favor of a right to self-determination implicitly admits that without explicit thresholds and impartial supervision, cosmopolitan duties remain unaccountable. if the commitment with the protection and promotion of self-determination is real, then the system of cooperation cannot be entirely voluntary. the third reading of the equal stakes condition is the more problematic one. in contrast to the previous two, it defends a prescriptive cosmopolitanism. this normative claim demands an inclusive extension of the basic structures of relational interdependence to a global scale. cosmopolitanism then becomes an imperative duty of justice. a strong version of this prescriptive interpretation would hold that our deeply exclusionary global order is the product of a permanent minority that keeps a vast majority of the global population in conditions of segregation. global inequality of stakes just tracks the disproportionate vested interests of these privileged populations in the distribution of goods and services. therefore, the institutional political order should offer conditions for deeper global integration and substantive reparations. the conditions for self-determination must be justified against this ideal background of global equalization of stakes. 1 alvarez.indd 192 21/4/17 13:29 democratic legitimacy, international institutions and cosmopolitan... 193 leap 4 (2016) these three critical renderings of christiano’s condition of public equality show some of the difficulties in the articulation of an intrinsic conception of democratic legitimacy with cosmopolitan commitments. the existential premise produces a domestic bias; the legitimacy condition tends to tolerate scenarios of under-realization; and the prescriptive interpretation demands a strong justification for any permissible departure from an ideal standard of global democracy. although it is easy to share christiano’s reasonable concerns regarding global democracy, it is also easy to underestimate the external limitations of state consent for the realization of cosmopolitan goals. our status quo bias contributes to the naturalization of the global cost of practical unaccountability and under-fulfillment of external duties. legitimation through explicit state consent contributes to the tacit legitimation of the consequences of its intrinsic limitations. christiano is aware of the weak spots of an intrinsic conception of democratic authority and is open to the implementation of corrective mechanisms if they have sufficient instrumental justification. these internal limits can be compensated with outcome standards (minimum preference satisfaction), a bill of rights, and judicial review (christiano 2008: 260-300). the case of the external limits however, presents specific challenges to the conception of legitimate authority in sovereign democracies. the tacit legitimation of the under-fulfillment of the duties to non-citizens cannot be countered through the usual corrective factors like political competition, electoral sanctions, public exposure, or reputational challenge (christiano 2012b). unlike domestic limits where those affected have a say, in the case of foreign responsibilities, neglect is overlooked or tacitly rewarded. addressing the challenge of the external limits of democratic authority implies that christiano’s remarkable conception would need to take a substantive instrumental turn and subject domestic deliberation to de-centering mechanisms. this paper defends that external limits to democratic authority (duties to non-citizens) also justify corrective institutional reforms. in particular, it defends that the external standards embedded in the fda should be incorporated for the instrumental assessment and cosmopolitan legitimation of domestic democracies. state consent as a criterion for international legitimation must be qualified not only regarding the internal representativeness of the states, but also according to their cosmopolitan performance. the case of climate change will help us explore the cosmopolitan deficits in democratic deliberation and state consent. 1 alvarez.indd 193 21/4/17 13:29 194 david álvarez leap 4 (2016) 3. international compliance and instrumental agency we all have important stakes in the stabilization of climate, though some countries may behave irresponsibly regarding their level of emissions. christiano (2015) acknowledges that the model of universal state consent may produce inefficient results when it has to accommodate these noncooperative states. in this case, christiano admits that it may be legitimate to sacrifice the requirement of universal state adhesion in favor of a coalition of the willing with the capacity to coerce the irresponsible states into compliance. however, this alternative club model would be legitimatized by the moral value of the goal itself, not by their limited club consent. this would be a case of instrumental legitimacy applied to international organizations. this case of legitimate interference also shows that the states affected by the sanctions system have their international legitimacy undermined due to their inobservance of some global goals that weren’t actually validated and specified through binding treatises (the universal method). therefore, the objectivity of this goal derives from a hypothetical reconstruction of a counterfactual fair democratic agreement among reasonable states. their legitimacy is related to the implementation of a hypothetical agreement that no party could reasonably reject. here the club would act as a legitimate state agency or court, trusted with instrumental authority to impose duties on less reasonable parties. part of the normative appeal in climate change negotiations consists in that national emission rights are calculated according to the population on a per capita basis. therefore, there is a cosmopolitan dimension implicit in state consent. on the other hand, state consent is an unsatisfactory design for the introduction of considerations of historical compensations and reparations. states represents national interests through their executive branches in international fora, but these agreements usually need domestic ratification. this process of accountability is designed to prevent that a president could favor foreign over national interest. this risk is kept in check by parliamentary representatives that also have an intrinsic interest in maximizing the interests of their local constituencies. consequently, there is an institutional limit to what even the most enlightened democratic leader can concede. the terms of treaty-making, be they universal or club-based, are constrained by the epistemic and deliberative conditions of domestic constituencies. even self-determining democracies may fall short of recognizing these global duties due to the representative and cognitive limitations of the 1 alvarez.indd 194 21/4/17 13:29 democratic legitimacy, international institutions and cosmopolitan... 195 leap 4 (2016) national public sphere. these limitations are particularly salient in the case of climate change, where the effects occur on long term scales and where individual contributions are embedded in habitual life-styles of the domestic common world. national representative systems are hijacked by an electoral short-termism and biased against foreigners and future generations. the problem of climate change negotiations is a good case to defend the introduction of a level of parliamentarian representation in international institutions beyond the national identification of the citizenry. this additional chamber of cosmopolitan deliberation may complement state negotiations and help reframe the terms of consent. although democratic governance in international institutions may be an ideal goal, there is room for mixed regimes that may reinforce the cosmopolitan legitimacy of state consent, like population weights, consultative chambers, and further parliamentarization. the forceful imposition of an emissions-reduction regime through the club model implies that, if representative states have their sovereign legitimacy undermined for failing to realize global goals, the counterpart is also true, i.e. that representative states become more legitimate according to their instrumental contribution to global goals. therefore, democratic systems should incorporate instrumental constraints in their intrinsic legitimacy. this means that the legitimacy of its consent depends on a public deliberative system that incorporates de-biasing mechanisms that take into account global duties. 4. global legitimacy and cosmopolitan disaggregation climate change presents a hard case due to the difficulty of establishing a fair distribution of burdens. despite the uncertainty surrounding climate change, most of its unwelcome consequences are worsened by the existing rates of global poverty and human vulnerability. these global disasters are the recurrent subject of official declarations, specific agendas, and global programs. let’s take for example the case of an established normative consensus, like the international agreement to contribute 0.7% of gni to development aid. let’s suppose that this global goal is a fixed reference point legitimized through state consent. this agreement is invested with the intrinsic legitimacy of the consenting parties, but once established, it also becomes an objective standard for the evaluation of the parties’ performance. year after year, every state deliberates about its budget allocations and the weight given to the fulfillment of its global duties. with some exceptions, the trend is consistently disappointing. democratic 1 alvarez.indd 195 21/4/17 13:29 196 david álvarez leap 4 (2016) regimes systematically neglect their aid duties because, as they are not given an equal stake in the deliberation, or sufficient representation in electoral campaigns, public opinion, or the media, their interests are easily overshadow by the electorate’s more parochial concerns. but if we agree that global duties constitute external standards of legitimacy, then representative systems that are intrinsically biased against the fulfillment of these obligations cannot be fully legitimate. global duties related to subsidiary responsibilities regarding basic human rights and development belong to the proto-constitutional architecture of global legitimacy. they can be justified as contributions to the consolidation of representative communities in which the affected individuals can see their interests realized as members of their common world. additionally, aided states would become members of the international community and would contribute as bona fide members to a global architecture of cooperation. when states systematically neglect the duties of global contribution they also undermine the very concept of state consent as an intrinsic source of international legitimacy. consequently, we can no longer sustain that a plurality of representative states is the best incarnation of the democratic value of moral cosmopolitanism. the systematic infra-realization of the global duties of their citizens undermines the egalitarian moral standing that is the foundational value of the democratic conception of public equality. christiano concedes that some of the most decisive international organizations publicly show unequal concern for the interests of the developing countries and that this consistent feature would support some preferential treatment for them in their institutional design (christiano 2012a: 385). this diagnosis assumes that there are limits to voluntary agreement (hard bargain). if there are independent moral red-lines that frame the deliberations of the basic international organizations, then they should be embedded in the global institutional structure. consistently, these red-lines should constrain and ref lexively reconstitute the internal architecture of the bona fide members of the global community. global duties of development aid are constitutive imperatives of a global community which their ultimate constitutive members are individuals with an equal moral status. therefore, common worlds and institutional political designs that are intrinsically biased against the realization of these global duties cannot be compatible with the global framework of legitimization. if we hold with christiano that an international system of democracies is the best incarnation of moral cosmopolitanism, then we will need to revisit the idealized independence of the multiple common-worlds and 1 alvarez.indd 196 21/4/17 13:29 democratic legitimacy, international institutions and cosmopolitan... 197 leap 4 (2016) their intrinsic conceptions of legitimacy. the ideal of democratic selfdetermination must be conceived within the institutional constrains of global justice. therefore, it is necessary to evaluate the legitimacy of a political system also in accordance with its capacity to progressively implement more demanding standards of justice and, at least, not to block the reform efforts. these minimal conditions of gradual perfectibility, generally applied to the precarious legitimacy of international institutions, should also be ref lexively incorporated into their state members. otherwise, the conception of public equality isolated from this external evaluation would be more appropriately defended as a republican-communitarian expression of thick social equality, and not as a cosmopolitan value. it justifies allegiance to the institutions that create conditions of public equality and freedom, but it does not face its intrinsic limitations to make these conditions available for all. if the democratic system embraces the normative ideal of moral cosmopolitanism as the foundational conception for the “pooling of individual rights and interests”, but its representative system repeatedly neglects the counterpart global duties linked to this conception, then individual members are being accomplices in the systematic neglect of the duties owned to their foreign equals. individual citizens are therefore participants in a system of political authority that publically contributes to the global subordination of the legitimate interests of outsiders. even those citizens aware of the depth of this institutional violation of the equal moral status of outsiders know that the articulation of the domestic space of public opinion and political deliberation is designed in a way that normalizes the disregard of global duties and over-represents the domestic electoral interests. claims for internal reform of the system in line with an effective accountability for global duties also face similar hurdles. therefore, the condition of progressive perfectibility is not realized for domestic representative systems and their claims to full political legitimacy must be qualified. why should a citizen then comply with a political order that undermines the claims of moral equality? from the previous account we could derive that it is prima facie justified to question the legitimacy of the national taxation authority. taxation is, after all, one of the main aggregative systems that fail to pool and represent the cosmopolitan dimension of national membership. under these current conditions of undermined international legitimacy, citizens may be justified in transferring their share of tax contributions to those international institutions that embed and realize the commonly agreed global goals. otherwise, full compliance with democratic authority constitutes a violation of the moral cosmopolitan 1 alvarez.indd 197 21/4/17 13:29 198 david álvarez leap 4 (2016) status of insiders and outsiders alike. because, “being at home in an unjust world cannot be a contribution to one’s wellbeing” (cf. christiano 2008: 63). 5. conclusion the fair voluntary association model articulates the transmission of political legitimacy through a double aggregation of political consent. first, it “pools” its authority from the foundational cosmopolitan claims of the individuals co-implicated in a deeply interdependent social world; then it translates this initial legitimacy to the collective membership in an international organization through state consent. however, as we have seen, this model fails to meet global standards of legitimation. it has an original sin related to the historical conditions of development of the modern territorial system of nation states and to its idealization as isolated common worlds. christiano’s strategy is to compare two extensions of the value of moral cosmopolitanism that underpins democratic legitimacy, from the modern state to international organizations. one attempt is the direct translation of individual representation to democratic governance of the global institutions; the alternative is treaty-building through state consent. but the distinction is not exhaustive. none of the alternatives are perfect but there are intermediate and perfectible models that perform better when translating legitimacy and global justice: dual chambers with a popular parliament and a state senate, or a system of population-weighted double majority. the point is that a democratic state’s consent is no guaranty of international legitimacy, especially when dealing with claims from outsiders in contexts of low enforceability. global standards of legitimacy operate as criteria of instrumental legitimacy for the ref lective evaluation of democratic states. the demand of consistent compliance with these cosmopolitan goals imposes external constraints on the institutions of domestic democratic deliberation. if reforms in this direction are not implemented, then democratic citizens have the legitimate prerogative of disaggregating their participation in the national “pool” and discharging heir cosmopolitan fair share through the global institutions that officially realize these goals. bibliography christiano, th., 2008: the constitution of equality: democratic authority and its limits, oxford: oxford university press. 1 alvarez.indd 198 21/4/17 13:29 democratic legitimacy, international institutions and cosmopolitan... 199 leap 4 (2016) —2010: “democratic legitimacy and international institutions”, in the philosophy of international law, ed. s. besson and j. tasioulas, 119-137, oxford: oxford university press. —2011: “an instrumental argument for a human right to democracy”, philosophy & public affairs 39: 142-176. —2012a: “the legitimacy of international institutions”, in routledge companion to philosophy of law, ed. a. marmor, 380-393, new york: routledge. —2012b: “rational deliberation between experts and citizens”, in deliberative systems, ed. j. parkinson and j. mansbridge, 27-51, cambridge: cambridge university press. —2015: “climate change and state consent”, in climate change and justice, ed. j. moss, 19-38, cambridge: cambridge university press. 1 alvarez.indd 199 21/4/17 13:29 139 issn 2341-1465 leap 2 (2014): 139-152 reply to persson: intransitivity and the internal aspects view l arry temkin rutgers university abstract this article responds to ingmar persson’s article “internal or external grounds for the nontransitivity of ‘better/worse than’”. in his article, persson argues in favor of an account of supervenience that would be compatible with both an internal aspects view, and the nontransitivity of the “better or worse than” relations. this article points out that the internal aspects view that persson favors would fail to capture many features of practical reasoning that most advocates of an internal aspects view favor, and that the version of the internal aspects view that i discuss in rethinking the good does capture. i note, however, that persson’s view would not only be compatible with my book’s main claims and arguments, it would substantially buttress my results. accordingly, i would welcome it if persson could successfully develop and defend his view. unfortunately, however, my article raises a number of worries about persson’s view. i consider various different ways of understanding persson’s position, and argue that none of them ultimately succeed in establishing a plausible version of a genuinely internal aspects view that would be compatible with the nontransitivity of the “better or worse than” relations. i acknowledge that if persson can ultimately make good on his claims, he will have made a substantial contribution to our understanding of the good and the nature of ideals. however, as matters now stand, i am not moved by his arguments to revise the claims i made in rethinking the good, correlating the nontransitivity of the “better or worse than” relations with the essentially comparative view, rather than the internal aspects view. keywords: transitivity, nontransitivity, internal aspects view, essentially comparative view, practical reasoning, better than, supervenience. i’d like to thank ingmar persson for his response to rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012). i have long admired persson, and i have learned much from him over the years. 140 larry temkin leap 2 (2014) persson’s work typically displays a rare combination of insight, good sense, and importance. not only do i usually find his claims interesting and plausible, i usually find myself in agreement with them. i confess, however, that while i find his central claims in “internal or external grounds for the nontransitivity of ‘better/worse than’” (persson 2014) interesting and important, i don’t find them plausible. indeed, i’m not really sure how to make sense of them. in this article, i’ll mainly try to show why i find his claims puzzling and unconvincing. perhaps persson will be able to adequately answer my concerns in a way that will give his claims the clarity, plausibility, and defensibility typical of his work. if so, i believe he will have made a significant contribution to our understanding of the good and the nature of ideals. but as matters now stand, i am not moved by his remarks to revise the claims i made in rethinking the good. 1. before presenting persson’s central claims, and my response to them, it will be useful to start with a brief recapitulation of some of rethinking the good’s key claims. i do this both as useful background for persson’s position and, as importantly, to illustrate that i could, in principle, accept everything persson contends without significant revision of my own views. indeed, if correct, persson will have provided a new and important argument which not only fits comfortably with my larger views, but which, in fact, provides independent support and further vindication of those views. in my book, i noted that many people make certain standard assumptions about practical reasoning. for example, most people assume various axioms of transitivity, believing, for instance, that the “all-things-considered better than”, the “all-things-considered equally as good as”, and the “all-thingsconsidered at least as good as” relations are all transitive. most people also assume an independence of irrelevant alternatives principle, believing that if one wants to know how any two outcomes o1 and o2 compare, it is sufficient to compare them directly. on such a view, how o1 and o2 compare to each other all things considered, won’t depend in any way on how either or both compare to some third outcome o3, or some alternative set of outcomes, ok to on. similarly, most people assume a principle of like comparability for equivalents, believing that if two outcomes, o1 and o2, are equally good, then however o1 compares to any third outcome o3, that is precisely how o2 will compare to o3. i showed that there is one way of thinking about ideals, which i called the internal aspects view, which had great intuitive plausibility and which, if true, would explain why each of the above principles held. more specifically, reply to persson 141 leap 2 (2014) i gave a particular characterization of the internal aspects view which would account for such principles, one according to which the goodness of each outcome would depend solely on in the internal features of that outcome, and where an outcome’s goodness could be accurately represented by a number or range of numbers on the real number line (temkin 2012: sec. 11.3). however, in my book i also pointed out that there is an alternative way of thinking about ideals, which i called the essentially comparative view, that also has great intuitive plausibility. on this view, the factors that are relevant and significant for assessing an outcome’s goodness may vary depending on the alternative outcome(s) with which it is compared. i argued that many of the ideals people care most about, including a narrow person-affecting view, the pareto principle, and particularly plausible versions of maximin and utility, are best captured by an essentially comparative view of ideals rather than an internal aspects view (temkin 2012: ch. 12). i then argued that given the nature and structure of essentially comparative ideals, many of the common assumptions about the nature of practical reasoning may fail to hold or apply across different sets of outcomes, including the various axioms of transitivity, the independence of irrelevant alternatives principle, and the principle of like comparability for equivalents. in my book, i also pointed out that many important principles are limited in scope, in the sense that they are thought to be relevant and significant for comparing certain outcomes but not others. i noted that this is true of the pareto principle as it is commonly interpreted (temkin 2012: sec. 12.5), it is true of john broome’s principle of personal good, as he presents it in weighing goods (broome 1991: sec. 8.1), and it is true of john rawls’s two principles of justice as he presents them in a theory of justice (rawls 1971: 63). i then showed that whenever it is true for such a principle that there can be three outcomes, o1, o2, and o3, such that the principle would apply when comparing o1 and o2, but would not apply when comparing o1 and o3, then such “limited scope” principles are essentially comparative in the sense i am employing that notion, and this opens up the possibility that the common assumptions about practical reasoning discussed above, including the axioms of transitivity, may fail to hold or apply across different sets of outcomes. i suggested that one important set of cases where principles that were limited in scope came into play was in my spectrum arguments; where one such argument involved a spectrum of outcomes where the first outcome involved a very long life with 15 mosquito bites per month and two years of excruciating pain, the second outcome involved a very long life with 15 mosquito bites per month and four years of pain almost as bad as that obtaining in the first outcome, the third outcome involved a very long life with 15 mosquito bites per month and eight years of pain almost as bad as that obtaining in the second outcome, and so on, where the last outcome of the spectrum merely involved a very long life with 16 mosquito bites per 142 larry temkin leap 2 (2014) month but no torture. i claimed that (1) in accordance with a position i called the first standard view, which reflected an additive-aggregationist approach to comparing outcomes, most people would judge that for each adjacent pair of outcomes along the spectrum, n and n + 1, the earlier outcome, n, would be better than the later outcome, n + 1, all things considered, that (2) in accordance with a position i called the second standard view, which reflected an anti-additive-aggregationist approach to comparing outcomes, most people would judge that the spectrum’s first member was worse than its last member, all things considered, and (3) that together, these plausible and widely-held judgments are incompatible with the axiom of transitivity for the “all-things-considered better than” relation (temkin 2012: ch. 5; and temkin 2014: sec. 1). a key part of my analysis of what is going on in my spectrum arguments was to emphasize that the first and second standard view are both limited in scope, so that we regard the first standard view as relevant and significant for comparing adjacent outcomes along my spectrum, but not for comparing outcomes at opposite ends of the spectrum, and vice versa with respect to the second standard view. this implies that most people are implicitly relying on an essentially comparative view of ideals in making the judgments they do regarding my spectrum’s outcomes, rather than an internal aspects view, and i claimed that this accounts for why the axiom of transitivity for the “betterness” relation fails, or fails to apply, across the different outcomes in my spectrum cases. having distinguished between the internal aspects view and the essentially comparative view in the way that i did, i acknowledged in a note that there may be alternatives ways of thinking about an internal aspects view that might allow for the non-transitivity of the “all-things-considered better than” relation (temkin 2012: ch. 11, note 32). however, i don’t pursue this as, in fact, i believe that the best explanation of the various cases where the axioms of transitivity seem questionable lies in our implicitly accepting an essentially comparative view in thinking about those cases. similarly, my motivation for focusing on the version of the internal aspects view that i did is that i think such a view is intuitively plausible, widely assumed in many contexts, and would account for many standard assumptions about practical reasoning, including the various axioms of transitivity, the independence of irrelevant alternatives principle, and the principle of like comparability for equivalents. now persson accepts that certain ideals people attach great weight to in assessing outcomes are essentially comparative. he also accepts that many ideals people value may be limited in scope, in a way that supports an essentially comparative view of ideals. so, he is prepared to grant that in a range of cases, people may be committed to a set of judgments that are incompatible with the axioms of transitivity because of essentially comparative considerations. furthermore, he doesn’t deny the intuitive appeal of an internal aspects view reply to persson 143 leap 2 (2014) of the sort i characterized, nor does he deny that, if true, my version of the internal aspects view would support, and explain, many of the standard assumptions about practical rationality that i discuss. however, persson is keen to defend the possibility that i broached in a note. more specifically, he believes that in the case of my spectrum arguments, we can explain the non-transitivity of the goodness of the spectrum’s outcomes solely on internal aspects grounds. that is, persson believes the non-transitivity of most people’s judgments about the goodness of the different outcomes in my spectrum cases can be explained in a way that is wholly consistent with the view that, all-things-considered, an outcome’s goodness depends solely its internal features. moreover, importantly, persson believes that unlike some of the other cases of non-transitive goodness that i discuss, the best explanation of the non-transitivity of outcome goodness in my spectrum cases will rest on internal aspects grounds rather than essentially comparative grounds. naturally, in developing his position, persson is committed to an alternative version of the internal aspects view than the one i offered in my book, since my version entails the various axioms of transitivity. this is partly what makes persson’s suggestion so intriguing and important. if the best way of understanding the internal aspects view differs from the one i offered, in that it also supports the non-transitive “all-things-considered better than” judgments that most people make about my spectrum arguments, this will make it even harder to deny my book’s central conclusion that we need to significantly revise our understanding of the good, moral ideals, and the nature of practical reasoning. 2. in light of the foregoing, it should be clear that i would welcome the success of persson’s project. indeed, i would regard it as a friendly amendment that is clearly within the spirit of my own views, and one which would add significant weight to my book’s main claims. but despite that, i am not persuaded that persson has provided a better account of people’s judgments in my spectrum arguments than my own. indeed, to be completely honest, i don’t even understand persson’s view, finding his claims about the internal aspects view and how it is supposed to support the rejection of the various axioms of transitivity deeply puzzling. in what follows, i will present my main worries about his position. persson’s account of how best to understand what is going on in spectrum arguments rests on his views about supervenience. he assumes that any given supervenient property, v, could supervene on two distinct bases. thus, it could be the case that a given base, b1, gave rise to a given supervenient property, v1, and that a slightly, or even wholly, different base, b2, could give 144 larry temkin leap 2 (2014) rise to a perfectly similar supervenient property (persson 2014: 126). i accept this view, which might be expressed in several ways. one might say that b1, gives rise to v1, and that b2 gives rise to v2, where v1 and v2 are qualitatively indistinguishable even if they are numerically distinct. in this case, v1 and v2 might be thought of as two tokens of the same type, perhaps type v. if the supervenient properties are values, which is the class persson is concerned with, then we can express this by saying that v1 and v2 have exactly the same value, which would then mean that b1 and b2 were exactly equally as good as each other. another way of expressing the same idea is simply to say that two partially or wholly distinct bases, b1 and b2 can give rise to the very same supervenient value, v1. as the latter way of putting the point is simpler for purposes of exposition, that is how i’ll often put it in what follows. if this is right, then persson contends that we should accept his principle simp: if s is a property of objects that supervenes upon their having b, then, for all objects x, y, and z, even if both x and y, and y and z, are perfectly similar or the same with respect to s, it’s logically possible that there are differences with respect to b between both x and y, and y and z (persson 2014: 126). as stated, there is every reason to accept principle simp. but this is because if, as seems plausible, two distinct base objects could give rise to the very same supervenient property (or “perfectly similar” supervenient properties), then presumably three distinct base objects could also give rise to the very same supervenient property (or “perfectly similar” supervenient properties). so, where the supervenient property is a value, v1, simp will be true as long as there could be three distinct base objects, b1, b2, and b3, each of which gave rise to v1, and there is good reason to accept that possibility. however, persson claims something much stronger, and more controversial, than what i readily grant regarding principle simp. he contends that the differences between the bases of objects x and y, and the bases of objects y and z, could be such that we should accept his principle add: even if there are differences in respect of b between x and y, and between y and z, neither of which are sufficient for differences in respect of s between x and y, or between y and z, but x is perfectly similar to y, and y to z, with respect to s, it’s logically possible that there are differences in respect of b between x and z that are sufficient for a difference with respect to s between x and z (persson 2014: 127). now i can see how principle add could be true on an essentially comparative view of ideals. after all, on such a view it could be the case that the factors that are relevant and significant for comparing outcomes x reply to persson 145 leap 2 (2014) and z, might be different from the factors that are relevant and significant for comparing outcomes x and y, or outcomes y and z. (here, and in what follows, i have put persson’s views in terms of “outcomes” rather than “objects”. this does not affect the substance of his views or my claims.) hence, as principle add contends, on the essentially comparative view, it could well be the case that the supervenient values of x and y might be the same when they are compared, and the supervenient values of y and z might be the same when they are compared, and yet the supervenient values of x and z might not be the same when they are compared. but i fail to see how principle add can be made coherent on an internal aspects view, where the goodness of a given outcome depends solely in the internal features of that outcome. regarding the kind of situation principle add is supposed to be addressing, persson seems to believe that the two bases corresponding to outcomes x and z, call them bx and bz, differ sufficiently that they would give rise to supervenient properties that were not perfectly similar or the same. since we are interested in the case where the supervenient properties are values, let’s say that the base properties of outcome x, bx give rise to, or account for, the value of outcome x. i shall represent this as “bx → vx”. further, suppose that, however the notion of value is ultimately understood, the letter k represents the value of outcome x. i will represent this as “vx = k”. we can then use the notation “bx → k”, to represent the fact that the bases of value in outcome x that determine x’s value are such, or make it the case, that outcome x’s value is k. we can then similarly write that “bz → vz”, “vz = m” (where the letter m represents the value of outcome z), and hence “bz → m”. by hypothesis, in the cases covered by principle add, k ≠ m, since, by hypothesis, the base objects of outcomes x and z differ sufficiently that the values for outcomes x and z differ. now, as noted previously, on an internal aspects view, the value of an outcome depends solely on the internal features of that outcome. so, the value of outcome y will supervene solely on the relevant internal features of y that constitute the base, by, for y’s value. assume, in accordance with principle add, that while by is distinct from bx, they both give rise to perfectly similar, or the same, values. i have already granted, in accepting principle simp, that this might be the case. this means that vx = vy, and thus, by → k. but since, by hypothesis, k ≠ m, it follows that it is not the case that by → m, and so, contrary to principle add, outcome y’s value will not be the same as outcome z’s value. alternatively, suppose that although the bases of value for outcomes y and z differ, they give rise to the same values for the two outcomes (as might be the case, in accordance with simp). since, by hypothesis, bz → m, it follows that it will also be the case that by → m. but in that case it could not also be the case that by → k, since, by hypothesis, k ≠ m. 146 larry temkin leap 2 (2014) putting the preceding together, since, on the internal aspects view, an outcome’s goodness depends solely on the internal features of that outcome, it seems clear that on that view the object bases for y’s value should give rise to, or account for, exactly the same value for y whatever alternative it is compared with. accordingly, given that x’s value, k, is different from z’s value, m, it seems clear that, on the internal aspects view, y’s value could be equal to x’s, or it could be equal to z’s, but it could not be equal to both! more specifically, if, in fact, y’s internal features are such that by → k, then, indeed, x and y will have the same value, but y and z will not; while if, on the other hand, y’s internal features are such that by → m, then, indeed, y and z will have the same value, but x and y will not. it seems, then, that if we adopt an internal aspects view, we should reject persson’s principle add. why does persson think otherwise? it isn’t clear. perhaps persson has something like the following picture in mind. the value bases for outcome x, bx, determine x’s value, k, the value bases for outcome y, by, determine y’s value, l, and the value bases for outcome z, bz, determine z’s value, m. so, on the notation used above, bx → k, by → l, and bz → m. now it might be that k and l are so “close”, that we can’t distinguish them intuitively or phenomenologically. in that case, we might well regard them as “perfectly similar” or “the same”. likewise, it might be that l and m are so “close”, that we can’t distinguish them intuitively or phenomenologically. in that case, too, we might well regard them as “perfectly similar” or “the same”. but it is perfectly consistent with those two facts that k and m are sufficiently far apart that we can distinguish them, and so rightly recognize them as different. such a picture might account for any intuitive appeal that principle add might have, even on an internal aspects view. unfortunately, however, it would not justify or vindicate add. i have three related worries about the picture in question. my first worry is that such reasoning is reminiscent of familiar arguments for the intransitivity of the indifference relation concerning alternatives involving vagueness or imperceptibly small differences. it is well known that presented with three alternatives a, b, and c, two at a time, many people might be indifferent between a and b because the differences between them are imperceptibly small, and they might similarly be indifferent between b and c because the differences between them are imperceptibly small, and yet they may not be indifferent between a and c. this is because together the imperceptibly small differences between a and b, and between b and c, might add up to a difference between a and c that is large enough to be perceptible and is one about which they would be concerned. but cases of this sort are like the notorious sorites paradoxes, such as those purporting to show that a heap of sand is the same as a single grain, or that hairiness is the same as baldness. now there is much to be said about standard sorites paradoxes, but here i shall simply note that in my book i argued that my spectrum arguments reply to persson 147 leap 2 (2014) are not related to the standard sorites paradoxes (temkin 2012: sec. 9.2), and persson agrees with me about that. my spectrum arguments do not rely on vagueness, nor do they trade on a series of imperceptible differences which together add up to a perceptible difference. rather, my spectrum arguments rely on differences of quality and number which are clearly perceptible, and which seemingly combine in one way for making certain comparisons, but in a different way for making other comparisons. specifically, as noted previously, most people follow (something like) the additive-aggregationist approach of the first standard view for comparing the outcomes of my spectrum that are adjacent to each other. this generates a clear ranking between such outcomes where the “earlier” outcome is better than the “later” outcome, so that most would clearly prefer the former to the latter and would not be indifferent between them. likewise, most people follow (something like) the anti-additive-aggregationist approach of the second standard view for comparing those outcomes that are at the opposite ends of my spectrum. this also generates a clear ranking between such outcomes, so that most would clearly judge the last outcome as better than the first, and so would not be indifferent between them. but then, i submit that the proper explanation of what is going on with my spectrum arguments, and the root of their challenge to the transitivity of the “betterness” relation, has everything to do with the essentially comparative view of ideals, and nothing to do with the vagueness or accumulation of imperceptible differences which underlies the standard sorites paradoxes and which accounts for the intransitivity of the “indifference” relation in such contexts. thus, if, as persson claims, he is hoping to offer a better explanation of the spectrum arguments than the one i offered —one that is compatible with both the internal aspects view and the rejection of the transitivity of the “betterness” relation— it won’t do for him to rely on the sort of picture sketched above. as indicated, that picture mirrors the standard sorities paradoxes, but it does not mirror what is going on in the spectrum arguments. second, even if one claims that the values of outcomes x and y are so close as to be indistinguishable, and likewise that the values of outcomes y and z are so close as to be indistinguishable, there is good reason to believe that there are circumstances in which we’d be able to distinguish between at least one of the two sets of values, k and l, or l and m. more particularly, even if it were true that were we confronted only with outcomes x and y, we might discern no difference in value between them, and were we confronted only with outcomes y and z, we might discern no difference in value between them, it seems likely that if we were confronted with all three alternatives at once we would discern a difference between at least two of the supposedly “indistinguishable” values. suppose, for example, that we were presented with all three outcomes, x, y, and z, at the same time. suppose, as before, that on the internal aspect 148 larry temkin leap 2 (2014) view, bx → k, and bz → m, where the difference in value between k and m was sufficiently great that we clearly recognized x’s value to be different than z’s. in that context, as we were considering all three outcomes at once, how would we assess y’s value? it seems there are only three possibilities here that we need to consider. it might be that in that context, y’s internal features were such that by → k. if that were so, then x and y would have the same value, but y and z would not, and so principle add would not apply. alternatively, it might be that in that context, y’s internal features were such that by → m. if that were so, then y and z would have the same value, but x and y would not, and so once again principle add would not apply. or, it might be that in that context y’s internal features were such that by → l, where l was an intermediate value between k and m. in that case, y’s value, l, will either be clearly distinguishable from one or both of k and m, or it will not. if it is clearly distinguishable from one or both of k and m, then once again principle add would not apply. but similarly, if it is not clearly distinguishable from both k and m, then in that context we will have good reason to be confident that y’s value is not perfectly similar to, or the same as, x or z’s values, since, by hypothesis, those values, k and m, are clearly distinguishable from each other. hence, again, principle add won’t apply. in sum, for any three outcomes to which we might have thought principle add would be applicable, if we considered those outcomes two at a time, we can see that principle add would not apply to those three outcomes if we considered all three of them at once. insofar as the latter result seems firmly grounded, and i believe it is, this suggests one of two appropriate responses to the initial judgment. first, we might decide that the initial judgment that principle add applied to the three outcomes when they were considered two at a time was mistaken. in essence, we might conclude that the judgment in question was akin to a perceptual illusion, which is only revealed as such when we consider all three outcomes at once. this might be like the predicament of someone confronting the famous muller-lyer illusion, who was convinced when looking at two side-by-side line segments, alone, that the one with the “outward” pointing arrows ( ) was longer than the one with the “inward” pointing arrows ( ), until a ruler was placed between them revealing that, in fact, the two line segments were the exact same length. alternatively, we might retain our conviction in our initial judgment, that x and y really do have the same value, k, when they are compared with each other, and that y and z really do have the same value, m, when they are compared with each other, but that x and z have different values, k and m, when they are compared with each other, even as one grants that y can have one or neither of the values, k and m —but not both— when all three outcomes are considered at once. but in that case, it is clear that y’s value depends not solely on its internal features, and the particular value bases corresponding to those internal features, by, but in part on the alternatives with which it is compared. thus, either the intransitivity of the “equally as good as relation” suggested by add reply to persson 149 leap 2 (2014) is an illusion, or it is based on an essentially comparative view of ideals, and not on an alternative version of the internal aspects view as persson suggests. next, let me discuss a related way of thinking about the kinds of cases that persson may have in mind. to do this, it will help to consider diagram one. diagram one diagram one represents the values of our three standard outcomes, x, y, and z. in accordance with the internal aspects view, the value of outcome x is determined by the relevant bases for value that obtain in x, and these bases are a function solely of x’s internal features. however, diagram one represents a situation where the value of x, which we again represent by the letter k, does not correspond to a single number, rather it has a number of varying elements reflecting the ways in which and extent to which x is good. for simplicity, we have assumed that the different aspects of x’s value can be accurately represented by the two connected rectangles of different color and pattern in the top left portion of the diagram. similarly claims might be made regarding outcomes y and z and their values, where the different aspects of y’s value are represented by the two connected rectangles of different color and pattern in the bottom portion of the diagram, and the different aspects of z’s value are represented by the two connected rectangles of different color and pattern in the top right portion of the diagram. as represented, there is considerable overlap in the nature and extent of value between outcomes x and y, represented by the fact that x’s right rectangle, and y’s left rectangle have the exact same color and pattern. similarly, there is considerable overlap in the nature and extent of value between outcomes y and z, represented by the fact that y’s right rectangle, and z’s left rectangle have the exact same color and pattern. but there is no overlap in the nature and extent of value between outcomes x and z, represented by the fact that x’s two rectangles, and z’s two rectangles have completely different colors and patterns. the following might then be phenomenologically accurate. if someone were asked to compare the outcomes x and y, he might naturally focus on the significant respects in which their values were the same, and thus “perceive” or judge that they had the same value. likewise, if someone were asked to compare the outcomes y and z, he might naturally focus on the significant x, bx = k y, by = l z, bz = m 150 larry temkin leap 2 (2014) respects in which their values were the same, and thus “perceive” or judge that they had the same value. but if someone were asked to compare the outcomes x and z, he might naturally focus on the fact that their values were not the same at all, and hence “perceive” or judge that they had different values. thus, considering the outcomes two at a time, one might naturally be drawn to judge that x and y were equally good, and y and z were equally good, but that, contrary to the purported transitivity of the “equally as good as relation”, x and z were not equally as good. here, we might have three outcomes where the judgments people might actually make regarding their value would seem in accordance with principle add. moreover, importantly, the values we would be responding to in making our judgments about the different outcomes would be determined solely by the internal features of those outcomes, so it might seem that we can give an account of a violation of the transitivity of the “equally as good as” relation consistent with an internal aspects view of ideals. so should we accept persson’s view, after all? i don’t think so; at least not on the basis of the foregoing. my reaction to this kind of case is similar to my reaction to the previous one. my first reaction, and my main one, would be to acknowledge that people might, in fact, react phenomenologically to the different outcomes in the way suggested, but to contend that when they did so they were mistaken, and caught in the equivalent of a normative optical illusion. comparing outcomes x and y, we might well find the respects in which their values are the same especially salient, and this may lead us initially to judge them as equally good. however, once we are clear about what is going on in such cases, it seems clear that x and y are not equally good (or perfectly similar regarding value). there are, undoubtedly, respects in which their values are the same, represented by the two rectangles that they each have of exactly the same color and shape, but there are also, undoubtedly, respects in which their values are different, represented by the two rectangles that they each have of completely different color and shape. absent a plausible story that we have not been given for why it is permissible to completely ignore the respects in which x and y differ in the ways and extent to which they are good, it seems hard to stick with the intuitive judgment that x and y have exactly the same value, all things considered. similar points might be made, of course, about our initial intuitive judgment that y and z have the exact same value. my second reaction to this kind of case would be to point out that, while it would be true that whatever aspects of y’s value that we find ourselves responding to arise from y’s internal features, the particular features that we focus on in assessing y’s value will not solely be a function of y’s internal features. instead, it will be a function of the alternative outcome with which we compare y. so, contrary to the internal aspects view, we cannot first determine y’s value, considering y just by itself, do the same for x and z, and then find out how y compares with x and z by comparing them directly reply to persson 151 leap 2 (2014) in terms of the independent answers we came up with. rather, in assessing y’s value, we focus and rely on the ways and extent to which y is good that are represented by the bottom left rectangle in diagram one when we are comparing y with x, but we focus and rely on the ways and extent to which y is good that are represented by the bottom right rectangle of diagram one when we are comparing y with z. thus, here too, the factors that are relevant and significant for assessing y’s value vary depending on the alternative outcome with which it is compared, and hence it is an essentially comparative view, after all, that would account for the plausibility of principle add and the intransitivity of the “equally as good as” relation, not a rival internal aspects view to the version that i presented. let me make one final point. in presenting his view, persson makes it clear that if one is going to have an internal aspects view that would be compatible with the rejection of the various axioms of transitivity, then we have to reject the natural and plausible model for thinking about the goodness of outcomes that i present in my book, where goodness is understood as a property that can, in principle, be quantified and accurately represented by a real number, or a range of real numbers. 1 i agree with persson about this. moreover, as i point out in my book, there are various important problems with the “numerical” model in question (see for example temkin 2012: ch. 10, note 10). but recognizing this, it is not enough to note that we need something other than my numerical model if we are to explain violations of the axioms of transitivity in a way that is compatible with an internal aspects view. we need an account of what the alternative way of thinking about the internal aspects view looks like. so far, we don’t have even the broadest sketch of such an account —beyond the simple assertion that it can’t be like my numerical model. how, exactly, are we to understand this rival, non-numerical, conception of the internal aspects view, so as to capture the various features that persson and i both agree need to be captured? here, as elsewhere, the devil is in the details, and i think the burden of proof lies on persson to further develop and defend the conception he has in mind. perhaps he thinks he has already done this. but if he has, i am afraid i have missed it. and if i have, perhaps others have as well. 1. parfit has often made similar claims during our discussion about these issues. he eschews thinking about goodness in terms that can be represented by a real number. however, it is not clear to me what the coherent alternative to thinking about goodness in such terms is supposed to be, which fits with the underlying intuitions that motivate the internal aspects view in the first place. 152 larry temkin leap 2 (2014) 3. persson’s article presents a striking and intriguing suggestion. he suggests that even on an internal aspects view the axioms of transitivity should be rejected. moreover, he contends that this position offers the best way of interpreting what is going on in my book’s spectrum arguments. unfortunately, i don’t find persson’s claims convincing. as i try to make sense of persson’s view, i keep thinking that either his normative judgments are mistaken —caused, perhaps, by a cognitive illusion— or the real explanation for them is provided by an essentially comparative view. in sum, while i welcome further reasons to challenge some of our standard assumptions about practical reasoning, i am not yet persuaded that persson can deliver on the promissory note that his article offers us. specifically, i am not yet convinced that there is a plausible rival account of an internal aspects view that both fully reflects the position that an outcome’s goodness depends solely on its internal features, and is compatible with the rejection of the axioms of transitivity. moreover, even if such a view could be defended, i’m not convinced that it would provide the best explanation for what is going on in my spectrum arguments, rather than the one that i suggested in terms of an essentially comparative view. but i look forward to learning more from persson regarding all of this on another occasion. bibliography broome, j., 1991: weighing goods, oxford: basil blackwell. persson, i., 2014: “internal or external grounds for the nontransitivity of ‘better/ worse than’”, law, ethics and philosophy 2: 120-138. rawls, j., 1971: a theory of justice, cambridge (mass.): harvard university press. temkin, l., 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. — 2014: “rethinking the good a small taste”, law, ethics and philosophy 2: 58-86. 05 carens.indd expanding the brain drain debate jose ph h. c a r e ns university of toronto abstract the article argues that blake and brock do not disagree on any important issues of principle, thus bringing their positions closer together than is suggested in the “debate” language that frames their book. the article also recommends that the discussion of the brain drain be expanded beyond the question of whether or not governments may restrict emigration to include questions about the moral responsibilities of rich states to prevent harmful brain drain and the moral responsibilities of skilled individuals to serve the communities in which they have been raised. keywords: brain drain, emigration, immigration, moral duties, skilled medical personnel introduction the subtitle of debating brain drain is the question “may governments restrict emigration?” as this suggests, the central focus of the book is on the question of whether or not it is morally permissible for the governments of poor states to take legal measures to reduce the movement of their talented and skilled citizens to other countries, especially rich ones. gillian brock and michael blake are distinguished philosophers, and they provide a nuanced, thoughtful, and illuminating discussion of this question. while they differ in the emphasis they place on certain considerations, i do not think there is any real disagreement between the authors on the fundamental question posed in the subtitle, and i do not disagree with their shared conclusion. i should perhaps acknowledge, however, that in claiming that brock and blake are in basic agreement, i am disagreeing to some extent with brock and blake. 05 carens.indd 132 21/4/17 13:27 expanding the brain drain debate 133 leap 4 (2016) 1. the brock/blake consensus brock and blake agree that there are empirical disputes about the effects of the emigration of talented and skilled people from poor states on the people left behind in those states and on the ability of those states to build better economic and political institutions. brock’s reading of the literature leaves her more pessimistic about the consequences of such emigration and blake’s reading leaves him more optimistic. both acknowledge, however, that they are not specialists with an independent basis for judging the overall effects of emigration. neither am i, and so i will try to construct a response that does not depend on a particular view of the empirical literature. obviously, it makes no sense for poor states to seek ways to reduce emigration that is beneficial to them. so, it is appropriate to focus, as the authors do, on cases where emigration is actually harmful to those left behind in poor states. both authors treat the emigration of skilled medical personnel as the prime example of such a case. blake argues that, from a liberal perspective, individuals have a fundamental moral right to emigrate and a fundamental moral right to renounce their citizenship in their country of origin if they have another citizenship (blake and brock 2015: 114) he points out that these moral rights are ref lected in the universal declaration of human rights, and he insists that states normally may not use coercive measures to prevent individuals from exercising these rights, even when doing so would be good for other citizens. i agree with blake about these claims.1 so far as i can tell, so does brock. it may be fair to say that brock does not emphasize the moral importance of the right to leave in the way that blake does, but she does accept that right as a constraint upon morally legitimate policies. nothing in brock’s account suggests that she thinks it is morally acceptable for a state to adopt policies that violate the universal declaration of human rights, including its provisions regarding the right of exit and the right to change nationalities. the key point for brock is that these rights are not absolute. that is something that blake also acknowledges, however. while blake insists that the right to exit and the right to renunciation are so fundamental that they may not be restricted for the sake of distributive justice or the promotion of the good of others, he explicitly says that “violation of a free and informed 1 i would enter a note of caution, however, about blake’s claim that the right to change nationality (which is what the udhr protects) entails a right to renounce “any particularistic claim of justice” towards the inhabitants of the state one has left (brock and blake 2015: 114). blake seems to be assuming here that all particularistic claims of justice must be legally enforceable. as i will argue below, this presupposes far too narrow a conception of justice. 05 carens.indd 133 21/4/17 13:27 134 joseph h. carens leap 4 (2016) contract” can be grounds for limiting these fundamental liberties (brock and blake 2015: 115). a hundred pages later, he says that this makes it morally permissible for states to use contracts to limit emigration temporarily (brock and blake 2015: 215). while he insists that this is only a “very qualified yes” to the use of this technique, so far as i can see the qualifications he wants to impose are all ones that brock herself accepts as limits on the policies that states may legitimately use to reduce unwanted emigration. this becomes particularly clear in her discussion on p. 275 of the ways in which their views converge around educational contracts, taxation of emigrant citizens, organization of medical training, etc. i can find no actual policy proposal that brock endorses that blake rejects.2 the fact that brock and blake do not disagree about permissible policies does not prove that there are no significant philosophical differences between them. people can sometimes agree on policy proposals while disagreeing about principles. for example, conservatives may favor reducing criminal sentences because they think keeping people in prison is too costly, even though they regard long sentences as morally acceptable in principle. liberals may favor reducing criminal sentences because they think that long sentences are unfair in principle. in that sort of case, the parties agree on a policy but not on moral principles. but i don’t think that is what is going on in the brock/blake exchange. while blake talks more about freedom and brock more about reducing the harms of emigration, each accepts the other’s principles. brock does accept the principle that states may not violate the freedoms that blake is emphasizing. that is why she focuses on contractual arrangements and on the background conditions within which agreements take place. indeed, i think it becomes clear in brock’s response to blake that the whole purpose of her long discussion of the limited character of the demands being made upon potential emigrants was not to say, as blake seems to think, that intrusions on fundamental rights are acceptable so long as they are only modest intrusions, but rather to show that the contractual conditions required of those seeking medical training are not so unconscionable as to void the claim that it is legitimate to enforce the contract (see brock and blake 2015: 2 blake says that “many of the ‘compulsory service’ proposals brock defends … are unavailable for use by a liberal state” (brock and blake 2015: 112). the footnote specifies that he is actually rejecting only the first three of the seven proposals that brock mentions (on 49-50), and he offers no reason for thinking that these three proposals would be unacceptable if constructed as contracts rather than as imposed policies. i would add that brock herself notes that the label “compulsory service” given to these proposals was supplied by the authors of the article she is discussing and is not a label that she herself would necessarily accept. in any event, her actual policy proposals on p. 275, which use the same sorts of mechanisms as the ones discussed on pp. 49-50, all involve contractual agreements that meet blake’s concerns. 05 carens.indd 134 21/4/17 13:27 expanding the brain drain debate 135 leap 4 (2016) 256 and 271). and blake does accept the ideas that the emigration of skilled medical personnel from poor states contributes to global injustice, that poor states have strong and legitimate reasons to try to reduce this emigration if they can do so in a way that respects human freedom, and that contractually agreed upon restrictions on emigration are morally permissible given appropriate background circumstances. he may be more skeptical than brock about how effective such permissible policies will be but that is an empirical disagreement not a difference of principle. in sum, the contrasts between them on the key question that the book addresses are more rhetorical than real, ref lecting differences in emphasis rather than actual disagreements. 2. expanding the moral terrain of the debate one thing that puzzles me about the overarching framework of the book is that its focus is overwhelmingly on the question of what legal restrictions poor states may place on the emigration of their talented and skilled citizens. this is an important question but not the only one we should ask. indeed, the authors themselves wander off at various points to explore other parts of the moral terrain in which the brain drain problem is situated, only to have such explorations short-circuited, as it were, by a renewed focus on this question of what legal restrictions poor states may legitimately enact. in the rest of my comments, i want to bring more clearly into view some of the other moral issues related to the brain drain. 3. the duties of rich states brock and blake seem to agree that the brain drain problem emerges primarily as a byproduct of global inequalities that are themselves deeply unjust. they also both agree that rich states benefit from these unjust global inequalities. so, it seems natural to ask what (if anything) rich states ought to do to address this problem. even if we wanted to keep the focus entirely on what to do about the brain drain problem, rather than on the broader question of what to do about the global inequality that gives rise to the brain drain problem, why should we limit our normative evaluation to the behavior of poor states? are there morally permissible, or perhaps morally obligatory, steps that rich states can and should take with respect to the brain drain? after all, the brain drain exists as a problem only because rich states are willing to admit the talented and skilled from poor states. so, one solution might be for rich states to stop such admissions. what should we think of that approach to the issue? 05 carens.indd 135 21/4/17 13:27 136 joseph h. carens leap 4 (2016) brock has written extensively about global justice, of course, and she summarizes some of her key claims in chapter 2 of this book. surprisingly, however, she does not say much about what she thinks rich states ought to do (if anything) with respect to the brain drain problem. in particular, she does not address the possibility of changing the immigration polices of rich states (apart from endorsing blake’s support of “ethical recruitment” while expressing skepticism about the effectiveness of that approach). by contrast, blake does spend five pages on the topic (brock and blake 2015: 219-224). so, let me start with that. blake’s discussion is brief, but it provides a basis for beginning to identify some of the issues we need to consider in thinking about rich states and the brain drain. blake begins by raising the possibility of a rich state excluding immigrants whose entry will contribute to the brain drain. he rejects that idea for three reasons. blake’s first argument is “that the right to exclude is limited at best” (brock and blake 2015: 219). having argued for open borders and for freedom of movement as a human right, i am myself quite sympathetic to this formulation, but it seems to me to be a curious claim for an author who is at pains elsewhere to defend the right of states to control immigration. in elaborating the point, blake says that “those suffering under a nonrepresentative regime” have “rights to be admitted into a functioning liberal democratic state” (brock and blake 2015: 219). this sounds like an expansive definition of who ought to qualify as a refugee. again, i’m sympathetic but i would note that a great many people would probably qualify as refugees under this formulation, and blake has provided no basis for restricting the number admitted. so, treating the right to exclude as limited in this way seems to open the door to mass migration from poor states to rich ones, not a brain drain but a population drain. that raises a number of interesting questions that go well beyond the issue of the brain drain, but i don’t have space to explore them here.3 the main point is that this limitation on the right to exclude is not one that has any special bearing on the highly skilled. if the requirements to qualify for entry on the grounds that one is “suffering under a non-representative regime” are interpreted more narrowly, the right to exclude will seem more robust. that is the conventional view, and normally it is blake’s view as well. from that perspective, most people from poor states don’t have a moral claim to entry into rich states, whether they are talented and skilled or not, and rich states thus do no wrong in excluding them. 3 for an attempt to do so, see carens (2013: chs. 10-12). 05 carens.indd 136 21/4/17 13:27 expanding the brain drain debate 137 leap 4 (2016) blake’s second argument is that “exclusion might produce underemployment and undocumented migration rather than foreign skills acquisition” (brock and blake 2015: 220). blake gives no reason for supposing that this is a likely development, and it seems to me empirically implausible. the more important point, however, is that this suggestion is a distraction from the questions about principles that are the primary focus of the book. no one favors counter-productive policies. it is a premise of the whole brain drain discussion in the book that no state should adopt policies to reduce emigration from poor states if those policies are ultimately harmful to those left behind in the poor states. the philosophical debate is about whether it is morally justifiable, or perhaps even morally obligatory, to find ways to reduce emigration from poor states when that is beneficial to the poor states and their populations. it seems plausible to suppose that there are at least some circumstances under which reduced emigration would be beneficial. so, the key question is whether, under those circumstances, restrictions on immigration by rich states would be morally permissible, or perhaps even morally obligatory, if the restrictions helped to contribute to a reduction in emigration that would be beneficial to poor states. blake’s third argument is that for a rich state to restrict entry of the talented and skilled from poor states would be “objectionably paternalistic” (brock and blake 2015: 220). blake notes that he has argued that a poor state may not restrict the liberty of its own citizens for the sake of social justice and contends that it would be “equally disturbing” for a rich state to do this to the “foreign poor” (brock and blake 2015: 220). but this argument ignores the difference between a right of exit from one’s own state and a right of entry to another state. on blake’s own view and in international human rights documents, this difference is fundamental. the former, the right of exit, is a basic human right. the latter, the right to enter a state where one is not a citizen, is not conventionally seen as a basic human right.4 so, denying entry is normally not as “disturbing” as denying exit. of course, some reasons for denying entry (e.g., racial discrimination) may be morally objectionable, but on the conventional view states can justifiably refuse entry for many reasons that would not constitute a justification for refusing exit. the conventional freedom and human rights objections to restrictions on exit that constrain the way poor states may deal with their own citizens thus do not apply to restrictions on entry imposed by rich states. 4 for a defense of the view that freedom of movement should be seen as a basic human right, see carens (2013: ch. 11). blake himself explicitly rejects this view, however. 05 carens.indd 137 21/4/17 13:27 138 joseph h. carens leap 4 (2016) it seems to me therefore that blake has not offered any compelling moral reason why rich states should not restrict the entry of talented and skilled immigrants from poor states, when doing so would reduce the sort of brain drain that he himself sees as morally undesirable. indeed, the logic of blake’s own argument seems to lead to just such restrictions. a bit later on in this section, blake says that the most important thing that rich states can do to address the brain drain problem is to invest the resources needed to train their own doctors and nurses domestically (brock and blake 2015: 223). (i agree with this recommendation, by the way.) blake does not fully spell out why this approach would help to address the brain drain, but the implicit rationale seems to be this. if rich states had nothing to gain by admitting doctors and nurses (because they had an adequate internal supply), they would no longer give foreign doctors and nurses priority in admissions and indeed might not admit them at all, since the opportunities for foreign medical personnel to use their talents and skills productively in the receiving state would be limited. if skilled medical personnel cannot get into rich states, they will stay home and the harmful brain drain will be reduced. notice that there are two implicit presuppositions that underlie blake’s view, the first empirical and the second normative. first, rich states will construct their admissions policy with a view to their own interests. they admit skilled medical personnel now only because they see it as advantageous to do so. if they no longer have anything to gain by admitting skilled medical personnel, they will cease to admit them or at least cease to give them priority in admissions. second, this sort of restrictive immigration policy is morally permissible because (on the conventional view) immigrants with particular talents and skills have no special moral claim to priority in admission or indeed to admission at all. states are free to select immigrants on whatever basis they want, so long as they do not engage in impermissible forms of discrimination such as selection on the basis of race or religion and so long as they respect certain kinds of moral claims to admission such as those made by asylum seekers who qualify under the geneva convention and close family members who have a moral claim for family reunification.5 so, while blake ostensibly resists the idea that rich states should address the brain drain problem by restricting certain kinds of immigration, he actually recommends a course of action that is designed to lead to precisely that result. indeed, we could go further. while blake does not explicitly describe the domestic production of an adequate supply of medical personnel as a moral duty for rich states, it seems to me that his own analysis implies that it is, precisely because the failure to do this is directly 5 for a fuller discussion of acceptable and unacceptable criteria of selection and exclusion under the conventional view, see carens (2013: chs. 9-10). 05 carens.indd 138 21/4/17 13:27 expanding the brain drain debate 139 leap 4 (2016) connected to the reasons why rich states recruit skilled medical personnel from poor states. notice that what i am talking about is quite different from the “ethical recruitment” policies that blake and brock endorse. recruitment efforts already presuppose the existence of demand for the people with the skills and talents being recruited and the possibility of people with those skills and demands gaining admission. if doctors and nurses from a poor state stood no better chance of gaining admission to rich states than any other normal citizen of the same poor state, there would be no recruiters knocking at their doors. 4. morality and interest brock and blake have focused their discussion on what poor states may legitimately do to reduce harmful brain drain, and i have explored what rich states might do. there is, however, an important difference between the position of rich states and poor states with respect to the relationship between morality and interest when it comes to the brain drain. assume (as an unrealistic but analytically useful simplification) that governments want to act in the interests of those they govern. the governments of poor states have an interest in reducing emigration that harms those left behind. they have to be able to distinguish between harmful and beneficial emigration, of course, and to find policies that reduce the former but not the latter (at least on balance). as we see in this book, that is not always easy. but in this process, morality acts primarily as a constraint upon policy choices, not as the main motivation for a policy choice. to be morally acceptable, the policy must respect the moral claims of the state’s own citizens, especially their basic human rights which include the right of exit. but the main motivation and justification for a (morally permissible) policy that reduces emigration can be simply that it serves the interests of the population that is being governed. contrast this with the situation of the governments of rich states. if rich states stop giving preference in admission to skilled medical personnel from poor states (and assume here, for the sake of this argument, that this would in fact reduce harmful emigration from poor states), they will have to spend more money on training and educating medical personnel domestically or leave their populations underserved. either way, they will be adopting a policy that is contrary to the interests of the population that 05 carens.indd 139 21/4/17 13:27 140 joseph h. carens leap 4 (2016) they govern, at least as interests are conventionally understood.6 here morality becomes not simply a constraint on acceptable public policy, but its main motivation and justification. duty, not interest, would be the driving force behind the proposed policy change. the government would have to say we are adopting this course because it is morally wrong to continue to take advantage of the medical training provided by poor states to serve our needs in the rich states. that might work politically in some contexts, but it might not in others. as a general matter, it is easier to get governments (and ordinary people) to act in accordance with moral duty when their duty coincides with their interests, at least their long-run interests, than when it conf licts with their interests (as is sometimes the case). 5. moral tragedy and the brain drain one issue on which brock and blake do disagree is on whether it is appropriate to see the brain drain as a moral tragedy. towards the end of his initial statement, blake suggests that we think of the brain drain as a moral tragedy, i.e., a situation in which “we face significant injustice, and yet we cannot move away from that injustice without deploying means that are themselves unjust” (brock and blake 2015: 226). brock expresses skepticism that this is an appropriate way to characterize the brain drain problem, given the range of policies that she and blake agree it would be morally permissible to employ to reduce the effects of the brain drain (brock and blake 2015: 267-273). i agree with brock, but i would like to sharpen the critique even further. blake sets his worries about whether we know how to address the morally undesirable forms of brain drain in ways that are morally acceptable in the context of a wider concern about whether we know how to reduce global inequalities (which he regards as unjust) in ways that are morally acceptable. in effect, this attributes the enduring character of global injustice to a failure of knowledge, rather than a failure of will, on the part of rich states and their populations. i think that is a mistake. i do not mean to deny that there are lots of puzzles about the best way to eliminate poverty or promote economic development or reduce global inequalities and that some policies adopted with the best of intentions have proven to be counterproductive. but i also think that there are many, many examples of rich states simply pursuing their own interests at the 6 as plato shows in the republic, it is possible to argue that we always have an overriding interest in being just regardless of how that affects our interests conventionally understood. i set aside here the possibility of reinterpreting our interests in this way. 05 carens.indd 140 21/4/17 13:27 expanding the brain drain debate 141 leap 4 (2016) expense of poor states (e.g., in trade negotiations). in such cases, it is not knowledge of what would benefit poor states that is lacking but the willingness to put their interests ahead of the interests of rich states. or take the current refugee crisis. in my view, what justice requires is plain enough: the admission and settlement of large numbers of refugees in europe and north america. the problem is not that we don’t know how to do this, but rather that most rich states and their populations are unwilling to do what is morally required. so, they off load the responsibility for refugees onto the states nearest the ones from which the refugees are f leeing. there is no moral justification for this course of action. it is a failure of will, not knowledge. in sum, it is essential not to characterize these sorts of moral failures as moral tragedies brought on by our ignorance about what to do to reduce global injustice. with respect to the brain drain, the situation is perhaps a little more complicated. nevertheless, blake’s own analysis shows that one important way to reduce the demand for skilled medical personnel from poor states is for rich states to produce an adequate supply from within their own populations. and, as i have just argued, if they did that, the rich states would no longer have any incentive to give priority in admission to skilled medical personnel from poor states and they would violate no moral rights (as conventionally understood) in not giving admission priority to skilled medical personnel. i don’t say this would solve all of the issues raised in the brain drain debate, but it seems like one relatively clear and positive step that the rich states could take. again, the main problem, it seems to me, is not a lack of knowledge but an unwillingness on the part of rich states and their populations to do what is morally required when that conf licts with their interests. 6. duties and communities finally, the brain drain raises a number of interesting and important questions about the nature and extent of our moral obligations to particular communities or persons. leave aside for a moment questions about legal restrictions. do skilled medical personnel in poor states have a moral duty to stay at home and put their abilities to use in serving their fellow citizens? do they act unjustly if they move to a rich state, even if they are legally free to do so? brock and blake touch upon these questions, but again i think their exploration of them is short-circuited by their focus on legal constraints and the possibility of contractual agreements that can make legal constraints justifiable. brock spends a bit of time at the beginning of 05 carens.indd 141 21/4/17 13:27 142 joseph h. carens leap 4 (2016) chapter four identifying normative arguments about the duties of citizens to contribute, but she frames this as a part of a report to a government seeking to implement a legally binding policy, and, as i indicated before, her focus is on showing that the conditions to which people are asked to consent are not unreasonable. so, we don’t really get the fuller sort of inquiry that would be required to explore questions about the nature and extent of our moral duties to contribute to the political communities in which we live and whether we have any obligations beyond what can be extracted from a formal contractual arrangement. this is an important question for the brain drain because if skilled medical personnel in poor states only stay at home as long as it takes to fulfill the requirements of a reasonable contractual agreement, the existence of such policies will not do much to remedy the problem. it may matter a lot whether people with medical training feel they have a duty to stay and help out or whether they feel morally entitled simply to pursue their own interests and inclinations wherever those lead. and our ideas about our duties and our entitlements do not simply fall from the sky. they are taught to us, formally and informally, by our families, our schools, and our society. there is no social order without social norms. but, of course, some social norms infringe unduly on personal freedoms, and some ways of inculcating social norms are morally problematic. leave aside for the moment questions about the ways in which the normative ideas are passed on. what sorts of norms and values is it morally permissible for a political community to seek to transmit with respect to the concerns raised by the brain drain? for example, would it be morally acceptable for a poor state to teach children that those with special gifts and opportunities for advanced training have a particular obligation to use their gifts and training in ways that will benefit the community? would it be morally acceptable to tell students that they should not seek medical training unless they are willing to commit themselves to working within their home state over the long run, at least under normal circumstances, (even if there were no effort to enforce this commitment legally)? would it be morally acceptable to make that norm part of their professional training? medical ethics routinely comprises part of the training of doctors. would it be reasonable to see this sort of norm as one component of medical ethics for doctors in poor states? would it be morally acceptable if this sort of expectation became part of a wider social culture, so that most people in a poor state felt it would normally be wrong for skilled medical personnel to move to a rich country? i think that brock might be inclined to respond positively to some of these questions, but her focus on what legal requirements states can 05 carens.indd 142 21/4/17 13:27 expanding the brain drain debate 143 leap 4 (2016) impose prevents her from exploring them adequately. this is not a criticism. to explore one topic thoroughly, one often has to bracket others. my goal here is simply to draw attention to some of the interesting questions that have been left unaddressed. it might seem as though blake provides more resources than brock for answering at least some of these questions, and in blake’s case the answer would appear to be in the negative, because he does spend a fair amount of time in chapters 7 and 8 criticizing arguments that seem to advance these sorts of claims about our moral duties. at almost every critical juncture in his discussion, however, blake falls back upon an insistence that whatever sorts of moral duties we might have towards our communities or towards other people, they don’t justify using the coercive power of the state to compel people to take on certain jobs or perform certain tasks or to forfeit their legal right to exit. so, in the end, he doesn’t really tell us whether or not it is morally acceptable to have social expectations about what people do with their talents and skills or whether it is appropriate to see such expectations as legitimate moral duties. nor does he show that it can never be morally wrong, even unjust, to leave a society, even when one has the legal right to do so. consider, for example, blake’s discussion of the novel stoner in which the main character chooses to become an english professor rather than to acquire agricultural knowledge and return home to help with the family farm as his parents expected him to do when they paid for his college education. blake says that we can disagree about the morality of stoner’s choice but he should not be forced to study agriculture and to return to the farm. i certainly agree, but i would be interested to know whether blake thinks that stoner’s choice is morally justifiable or not and why. the fact that stoner should not be forced to act in a particular way does not help us in answering that question. would it be reasonable to say that stoner has failed in a moral duty in acting as he did, and even perhaps that he acted unjustly? (of course, we would need more information than blake provides to assess that question since it would presumably depend in part on whether he simply abandoned his parents or took positive steps to repay the money they had invested in his education or to provide for them in some other way.) blake sometimes writes as though any moral demand on a person to act in a certain way or to choose a certain path is an unreasonable infringement on free choice, but he doesn’t really develop that line of argument systematically, and i think it would be hard to sustain. at one point he distinguishes between “a duty of virtue” and “an enforceable duty of politics”, but i see no reason to assume that every political duty must be legally enforceable (brock and blake 2015: 121). similarly, on the same page, he seems to want to limit 05 carens.indd 143 21/4/17 13:27 144 joseph h. carens leap 4 (2016) the terms “justice” and “rights” to matters that are legally enforceable, but he provides no reason for this restriction and i don’t think it corresponds to the way we use these terms in ordinary moral life. later in the book, in criticizing the idea that it might be appropriate to say that people with greater abilities have stronger obligations because of those abilities, he criticizes the conventional gendered division of labor within the family, saying “we should recognize that we ought to allocate the burden of parenting fairly” (brock and blake 2015: 172). in this context he has no difficulty in recognizing that the language of fairness (justice?) can be invoked even when there is no question of legal enforcement of the requirements of fairness. the “we ought to allocate” is precisely a recognition of the existence of social norms (in this case, norms relating to gender) which are constructed collectively and which are an appropriate topic for political and moral disputation. so, in the same way, i don’t think that blake could rule out of bounds, as he sometimes seems to try to do, the sorts of moral demands that some people would like to address to skilled medical personnel in poor states. but as with brock, i think the main reason that blake does not provide answers to the questions i have asked is simply because he has chosen to focus primarily on the issue of legitimate legal restrictions on exit, and that is a reasonable strategic choice. so, how should we answer the sorts of questions i have posed? i must confess that i do not have a clear answer. on the one hand, like brock and, i think, more than blake, i am sympathetic to the idea that a just society can include legitimate expectations and social norms with respect to the ways in which people make use of their talents and skills. choice is morally important, but it is not the only morally important consideration. in that respect, i’m sympathetic to the idea that it is reasonable to expect skilled medical personnel in a poor state to use their abilities to meet the health needs of their fellow citizens rather than using them simply for material gain or professional advancement in another society. on the other hand, we don’t live in a just world. so, i would also be sympathetic to a doctor or nurse from a poor state who said, “why should i be the one to bear the burdens of serving the health needs of this community especially since they are in important respects the byproducts of an unjust social order? why shouldn’t skilled medical personnel from rich states be the ones with a duty to come and address these problems?” from this perspective, those who go to work for medecins sans frontieres are simply fulfilling a moral duty, not acting altruistically as we are often inclined to think. and the doctors who stay in their home rich states are the ones failing in their moral duties, not the doctors who leave the poor states. 05 carens.indd 144 21/4/17 13:27 expanding the brain drain debate 145 leap 4 (2016) to be frank, that is just the starting point for some of the intellectual puzzles that emerge when we seek to talk about moral duties in an unjust world. often we invoke the language of rights and duties in a context that simply screens this background injustice from view. that is understandable and perhaps even necessary to guide action in the world, but from an intellectual and moral perspective it is also unsatisfactory. i think that these deeper puzzles about moral rights and duties in an unjust world that emerge from thinking about the brain drain in a wider perspective deserve the same sort of extensive and thoughtful treatment that brock and blake have given to the question of whether states may legally restrict emigration. bibliography brock, g. and blake, m, 2015: debating the brain drain: may governments restrict emigration, oxford: oxford university press. carens, j. h, 2013: the ethics of immigration, oxford: oxford university press. 05 carens.indd 145 21/4/17 13:27 120 internal or external grounds for the nontransitivity of “better/worse than” ingmar persson gothenburg university and oxford uehiro centre for practical ethics abstract in his book rethinking the good: moral ideals and the nature of practical reasoning larry temkin contrasts two views of ideals for evaluating outcomes: the internal aspects view and the essentially comparative view. he claims that the latter view can make the relation of being better/worse than all things considered nontransitive, while the former can’t. this paper argues that the internal aspects view can also be a source of nontransitivity. the gist of the argument is that perfect similarity as regards supervenient properties, like value, is compatible with differences as regards their subvenient properties and that it’s logically possible that such sets of insufficient differences add up to differences that are sufficient for supervenient differences. thus, perfect similarity or identity is nontransitive as regards the supervenient property of value, and this implies that the relation of being better/worse than all things considered is also nontransitive. keywords: derek parfit, larry temkin, transitivity, non-transitivity, supervenience, outcome value, identity, similarity. 1. internal and comparative views and the nontransitivity of “better than” larry temkin’s monumental book rethinking the good is by far the most resourceful and penetrating investigation into the various aspects of the value of outcomes to date. it’s therefore invaluable to anyone with an interest in these matters. a central theme is the contrast between two views of ideals for evaluating outcomes: the internal aspects view and the essentially comparative view. according to the internal view, how good an outcome is with respect to any relevant ideal depends solely on its internal features, that is, features that it has irrespective of its relations to other outcomes (which are not parts of it). consequently, how good an outcome is all things —i.e. all relevant ideals— considered, will depend entirely on its internal features. according to the comparative view, there are some ideals such that how good an outcome is with respect to these ideals depends not only on its issn 2341-1465 leap 2 (2014): 120-138 internal or external grounds 121 leap 2 (2014) internal features, but also on its relations to other outcomes with which it is compared. thus, how good an outcome is all things considered will depend also on its external relations. to illustrate, consider three outcomes: a: a large number of people at a high level of welfare; a+: this population plus an equally large number of individuals at a significantly lower level of well-being, but still well above the neutral or zero level; and b: these two populations at a level which is a bit higher than halfway between their levels in a+. now suppose that inequality isn’t a bad feature that detracts from the value of an outcome if it comes about by bringing individuals into existence. hence, it isn’t a respect in which a+ is worse than a. however, it is a respect in which a+ is worse than b, since these outcomes only contain individuals who exist in both outcomes. therefore, b would be better than a+ with respect to equality, but a+ would not be worse than a in this respect. so, if a+ is better than a because its sum of welfare is greater, a+ will plausibly be better than a all things considered. b will reasonably be better than a+ all things considered because it is better both in terms of equality and in terms of aggregate welfare. true, it’s worse in one respect because nobody in b is as well off as the better-off individuals in a+; so, some of the better things in life may be lost. but we might feel that this aspect is outweighed by the other two aspects in which b is better. nonetheless, we might also feel that b isn’t better all things considered than a because its greater sum of wellbeing doesn’t outweigh the qualitative loss. then we would face what derek parfit calls the mere addition paradox (1984: ch. 19) if we also endorse the transitivity of the relation of being better than all things considered which implies that b is better all things considered than a because b is better all things considered than a+ which is better all things considered than a. by adopting a comparative view of the ideal of equality and taking it to be relevant for the comparison between a+ and b, but not for the comparison between a and a+, we can remove the paradox by denying the transitivity of “all things considered better than”. accordingly, temkin associates the nontransitivity of this relation with the comparative view. in contrast he affirms that on the internal view “‘all things considered better than’ must be a transitive relation” (2012: 494). 1 i shall argue, however, that a rejection of transitivity can also be justified by the internal view. the source of it must then be in the internal features of outcomes. i shall suggest that it is found in 1. however, in a footnote he seemingly concedes the possibility of constructing an internal view that doesn’t imply transitivity, but he doesn’t explore this possibility (2012: 386-7n). 122 ingmar persson leap 2 (2014) an imprecision of the relevant internal features that renders them inherently unquantifiable. this implies that the internal view cannot conform to the numerical model temkin assumes. i don’t believe, however, that the internal view gives a complete account of the value of outcomes. this view captures only the intrinsic value of outcomes. as some of temkin’s examples show —in my opinion, progressive diseasethird version (2012: 441-5) is especially persuasive— to decide whether one outcome is better all things considered than another outcome, sometimes it is not enough to consider the intrinsic value of these outcomes. it is also necessary to take into account various relations between these outcomes, such as relations of identity between people in these outcomes. (as we have seen, the fact that the people in a+ are identical to the people in b, but not to the people in a may be thought to make the ideal of equality relevant only to a comparison of the first two outcomes.) however, in many cases it is enough to consider the intrinsic value of outcomes in order to establish which one is better all things considered. my claim is that even in such cases the relation of being better than all things considered isn’t transitive. if so, the reasons for the nontransitivity can’t lie solely in variations of the evaluative factors that temkin regards as distinctive of the comparative view. to my mind, a case in point is the series of outcomes leading to the repugnant conclusion. this conclusion can be reached via the sort of mere addition case considered above, but it can arise simply from a spectrum of cases in which the level of well-being, the same for everybody, in each outcome is slightly lower than it is in the preceding outcome, but the number of individuals is twice (or several times) as high. here it is reasonable to hold that the second outcome, b, is better all things considered than the first, a, because the increase in quantity (i.e. the number of subjects receiving wellbeing), outweighs the loss of quality, the lowering of their level of well-being. thus, when we think about such outcomes, we are inclined to adopt what temkin calls an additive-aggregationist position. to continue the descent towards the repugnant conclusion: a third outcome, c, in which the level of well-being is slightly lower than in the second outcome, but in which there are twice as many people as in b is similarly better than b, and so on. however, at least when the level of wellbeing becomes so low that it is barely above the neutral level, we are inclined to think that however many the individuals are in this outcome, z, (as long as it’s a finite number), it’s worse all things considered than an outcome in which many individuals exist at a very high level, e.g. a. thus, we adopt an anti-additive aggregationist stance when the differences in quality or level of well-being become sufficiently extensive. but this is inconsistent with the belief that the relation of being better than all things considered is transitive: if b is better all things considered than a, c is better all things considered internal or external grounds 123 leap 2 (2014) than b ... and z is better all things considered than y, then, if this relation is transitive, it follows that z is better all things considered than a. like temkin, i am inclined to block the repugnant conclusion by rejecting transitivity of “all things considered better than”. 2 but i find it unsatisfactory to hold, as does the comparative view that temkin advocates, that this nontransitivity is based on a variation of the relevance or significance of evaluative factors in the process of comparing different outcomes of the spectrum, i.e. that the additive aggregationist and antiadditive aggregationist positions involve a variation of factors. let’s make the matter as simple as possible by assuming that the differences in respect of level of well-being in the repugnant conclusion spectrum derives from differences in respect of the intensity of some sort of physical pleasure, for instance, the sensations we have when we eat the tastiest food, the second tastiest food, and so on. we’re inclined to think that when the intensity of a pleasure becomes high enough, this pleasure, if of adequate duration, is better than a pleasure whose intensity is sufficiently lower, whatever the duration of the latter may be. however, it isn’t easy to see how this is possible, since this difference in intensity and duration consists in a number of smaller, intermediate differences in these respects. how can the value of this difference be anything other than a sum of the differences in which it consists? this question is especially pressing if one adopts a numerical model of these internal factors, as does temkin. he claims that in such a spectrum “the relevant factors, or the significance of those factors, for comparing ‘distant’ alternatives a and y, may differ from the relevant factors, or significance of those factors, for comparing intervening ‘adjacent’ alternatives” (2012: 224). therefore, he claims that the value of y might be n when y is compared to x, but different, o, when y is compared to a (see 2012: 229). this fits the value of a+ when a comparative view is taken of the ideal of equality; then the value of a+ will be higher when it is compared to a than when it is compared to b, since in the latter case the badness of inequality detracts from its value. in other words, one “factor”, the factor of equality, which is relevant for the comparison a+ and b, is irrelevant for the comparison of a+ and a. by contrast, in the repugnant conclusion series, irrespective of whether we compare the value of adjacent outcomes, like y and x, or distant outcomes like y and a, the factors seem to be the same, namely the intensity and duration of certain sensations (on my assumption above). these are internal features of these outcomes. moreover, the difference in intensity and duration between y and the distant a consists in a number of adjacent 2. he also considers the possibility of avoiding the repugnant conclusion by a capped model of utility (2012: 328ff ). but this model rejects the idea that “utility is intrinsically valuable” (2012: 343) which i regard as strongly counter-intuitive. 124 ingmar persson leap 2 (2014) differences in these respects; so how can the value difference between y and a be anything but the sum of the adjacent value differences, i.e. how is antiadditive aggregationism possible? it seems to me that, having found that variations in respect of evaluative factors explain nontransitivity in other cases, like mere addition, temkin simply postulates that such variations are also present in the repugnant conclusion series because there is apparently nontransitivity. but if this is his only reason for postulating such variations, it isn’t convincing to claim that they make up the explanation of nontransitivity, unless all alternative explanations have been excluded. also, one would like a more detailed account —of the sort temkin supplies as regards mere addition— of how evaluative variations generate nontransitivity in the series. otherwise, the reasonable conclusion might be that the apparent nontransitivity is just that —apparent. i shall suggest an alternative, more detailed explanation of how antiadditive aggregationism with respect to value is possible, of why bigger value differences aren’t necessarily identical to sums of intermediate value differences in the spectrum, but a big enough value difference such as between a and y can be greater than the sum of the intermediate value differences a-b, b-c, ... x-y. it’s made possible by an imprecision as regards what has intrinsic value, e.g. pleasure and pain, which is incompatible with an assignment of numerical values to their goodness or badness. in other words, we must reject numerical models of the value of pleasure which assigns a number to the value of a pleasant experience which is based on its duration and intensity. if we reject such numerical or linear models of value, the source of the nontransitivity of “all things considered better than” can lie in the internal features of outcomes that the internal view recognizes. 2. an argument against the transitivity of identity of supervenient properties it’s relatively uncontroversial that the value of a thing supervenes on other properties of it. i shall now present an argument to the effect that the relation of sameness or perfect similarity with respect to properties that are supervenient can’t be transitive. as we shall see, this argument implies that the relation of being better than all things considered isn’t transitive. according to an informal understanding of the notion of supervenience, to say that s is a supervenient property of x means that there have to be other properties of x, basic properties, b, in virtue or because of which x has s, properties that determine or explain x’s having s. i shall say no more about this notion than that i take it to imply that supervenient properties aren’t internal or external grounds 125 leap 2 (2014) logically entailed by or identical to their basic properties. 3 for instance, x’s having some less specific or more determinable property such as being yellow or green, or being coloured, isn’t supervenient on x’s being yellow because the former properties are obviously entailed by the latter. they don’t seem to be genuinely supervenient on x’s being yellow, since x’s having them isn’t ontologically anything additional to x’s being yellow. similarly, the weight and spatial properties of a thing don’t supervene on the weight and spatial properties of its proper parts, since if one knows the weight and spatial properties of all parts, one can deduce or calculate the weight and spatial properties of the thing they constitute. thus, the property of the whole isn’t anything over and above the sum of the properties of the parts. nor is a dispositional property like x’s being brittle supervenient on x’s having a certain molecular structure if being brittle is having this structure (identified in terms of how it responds to certain causes). as already implied, the properties of being of positive or negative (not neutral) value, or being good or bad, are usually regarded as paradigm examples of supervenient properties. another set of often cited examples are so-called secondary qualities, such as having a particular colour or taste. however, as has been pointed out, e.g. by simon blackburn (1988: 66 ff ), it appears to be a matter of linguistic competence to know that value properties are dependent on other properties. you show that you are not in command of the terms “good” and “bad” if you think that something can be good or bad without being so in virtue of some other properties that it has. in contrast, knowing how to apply colour terms apparently doesn’t entail knowledge that if something has some colour, it has it in virtue of some other properties. this difference with respect to linguistic competence between values and secondary qualities may be the reason why the notion of supervenience was first introduced in value theory by, g. e. moore (1922: 261). 4 but this difference doesn’t make it uncontroversial that values are supervenient in the sense that i’ve adopted which implies that they’re ontologically distinct from subvenient properties. this claim needs to be defended both in the case of values and secondary qualities, though i shan’t do so here. 5 3. in terms of jaegwon kim’s distinction between strong and weak supervenience (see, e.g., “concepts of supervenience” reprinted in kim 1993), the essential point is that the dependence mustn’t be so strong that it jeopardizes the distinctness or irreducibility of the supervenient properties. 4. the term was introduced by hare (1952:145). 5. for instance, value and secondary qualities will be supervenient in the requisite sense if they’re subjective in the following fashion: value is definable in terms of desire fulfilment rather than in terms of the properties that make things valuable, and secondary qualities are properties whose nature is revealed in our experiences rather than any properties which cause these experiences. 126 ingmar persson leap 2 (2014) it follows from the informal notion of the supervenience of a property that if there’s something, y, that’s perfectly similar to x in respect of the basic properties b, then x and y are also perfectly similar in respect of the supervenient s. in other words, if there’s a difference between x and y with respect to s —if x has s but y lacks it, or if x has s to a greater or smaller degree than y, etc.— there must be a difference in respect of b between x and y. otherwise the difference in respect of s can’t be explained in terms of b. in contrast, supervenience doesn’t imply that if there’s no difference or perfect similarity between x and y with respect to s, then there’s no difference between them with respect to b. differences in respect of b which are insufficient to generate differences in respect of s may well exist. for the purposes of my argument, i needn’t plunge any deeper than this into the notion of supervenience, since i’ve already secured the simple implication of supervenience which forms the first premise of my argument: simp: if s is a property of objects that supervenes on their having b, then, for all objects x, y and z, even if both x and y, and y and z, are perfectly similar or the same with respect to s, it’s logically possible that there are differences with respect to b between both x and y, and y and z. to illustrate: even if the physical stimulations x and y are felt to be equally painful and bad to humans, and the same is true of y and z, it may be that there are differences between x and y and y and z that are too small to be registered and transmitted by the human nervous system to the brain. 6 this is an example of the very simplest kind of value judgement. as will emerge, there’s reason to focus on such simple examples. but although this example is as simple as they come, it’s controversial how it should be properly understood. there are three things whose precise relations to each other are debatable: the painfulness of a sensation (for the subject), the (intrinsic) dislike of or aversion to it (which the subject has), and the (intrinsic) badness of it (for the subject). i shall assume that a pain is bad (for the subject) because it’s disliked (by the subject), and disliked because it’s painful. the precise force of these “because”, whether they’re conceptual or contingent, doesn’t matter for present purposes. the next step in the argument is a claim about the possible differences as regards b between x and y, and y and z, of which simp speaks: add: even if there are differences in respect of b between x and y, and between y and z, neither of which are sufficient for differences in respect of s between x and y, or between y and z, but x is perfectly similar to y, and y to z, with respect to s, it’s logically possible that there are differences 6. i take a “stimulation” to have both a physical aspect (a cut, burn, etc.) and a psychological aspect (a sensation). both can be said to be painful. internal or external grounds 127 leap 2 (2014) in respect of b between x and z that are sufficient for a difference with respect to s between x and z. the fact that the differences with respect to b between neither x and y nor y and z are sufficient for there to be a difference with respect to s between x and y, or y and z, is surely compatible with there being another difference in respect of b between x and z which is sufficient to mainfest itself in a difference with respect to s between x and z. since b and s are distinct properties, the sufficiency in question is contingent, e.g. causal. but, evidently, the fact that neither the difference in respect b between x and y nor between y and z is contingently sufficient for a difference in respect of s between them can’t logically entail that the difference in respect of b between x and z —which may be twice as big as either of the two other differences— isn’t contingently sufficient for a difference as regards s between x and z. for instance, the following is clearly logically possible: the difference between x and y and between y and z with respect to b (e.g. the pain-producing properties) is each one unit, but the difference in this respect between x and z is two units, and a difference of two units is minimally sufficient to give rise to a difference as regards s for the subjects in question. this additive possibility is one reason for the name of the second step of the argument. another reason is that it’s an additional premise, supplying the link between supervenience and transitivity. this link comes out in the third step: trans: if add is true, it must be false that the relation of perfect similarity or sameness with respect to s is transitive, i.e. it must be false that it’s a logically necessary truth that if x and y, and y and z, are perfectly similar or the same with respect to s, then x and z are perfectly similar or the same with respect to s. if add is true, it must be logically possible that there be a difference with respect to s between x and z, though there’s no such a difference between x and y, or between y and z, for, as we have seen, the latter similarities are compatible with there being a difference with respect to b between x and z which is sufficient to manifest itself in a difference with respect to s. if it’s logically possible that there’s a difference which is sufficient for the manifestation of another difference, it must be logically possible that the second difference obtains. now, from add and trans we may validly infer by means of modus ponens: conclusion: the relation of perfect similarity or sameness with respect to a supervenient property s isn’t transitive. 128 ingmar persson leap 2 (2014) according to simp, this is true of s because of something that follows from the fact that s is supervenient, namely that there may be differences in the subvenient properties, though there’s no difference in the supervenient ones. so, the nontransitivity of perfect similarity or sameness as regards these properties follows from their supervenience. it may in fact be true of some, or even all, objects x, y and z, that if x and y, and y and z, are perfectly similar with respect to s, x and z will also be perfectly similar in this respect. this may be because it’s in fact not only the case, as the notion of supervenience implies, that if two things are perfectly similar in respect of b, they are also perfectly similar as in respect of s but, conversely, that if they are perfectly similar in respect of s, they are perfectly similar in respect of b. this possibility refutes the (implausible) claim that the relation of perfect similarity as regards supervenient properties is intransitive, not my claim that it is not transitive, or nontransitive. the fact that in some cases it’s true that, if x and y, and y and z, are perfectly similar as regards s, then x and z are perfectly similar as regards s, doesn’t establish that this is so as a matter of logical necessity, which is what the denial of the transitivity of the relation of perfect similarity denies. it’s then logically possible that, even though the difference with respect to b between x and y, bxy, is insufficient to make a difference in respect of s between x and y, and another difference with respect to b between y and z, byz, is insufficient to make a difference with respect to s between y and z, a third difference with respect to b between x and z, bxz, is sufficient to make a difference in respect of s between x and z. the heart of my argument is that, since this possibility statement is incompatible with the necessity statement which expresses transitivity as regards sameness with respect to s —that it’s necessary that if x and y, and y and z, are the same with respect to s, so are x and z— the latter statement isn’t true when the former is. notice that it isn’t possible to argue “top-down” that since x and y and y and z are identical as regards s, and identity is a transitive relation, there can’t be differences as regards subvenient properties which are sufficient for a difference between x and z as regards s. since it’s subvenient properties which determine the supervenient properties, and not the other way around, the argument has instead to be “bottom-up”: because it’s possible that the difference bxz is sufficient for a difference between x and z in respect of s, transitivity has to go. internal or external grounds 129 leap 2 (2014) 3. three objections to the argument 3.1. an appeal to relativity let’s now consider some objections to this argument. i’ve assumed that the supervenient properties that x, y and z have are intrinsic properties, roughly, properties that they have independently of their relations to things external to them. 7 also, i take the relation of perfect similarity or sameness to be intrinsic in the sense that it holds between two relata independently of their relations to anything external to them. one objection challenges the assumption that the supervenient properties of x, y and z are intrinsic and claims that they’re instead relative to what the object of comparison is: rel: how something, e.g. y, is with respect to s depends on whether it’s compared to x or z. rel offers to explain how y can be perfectly similar as regards s to both x and z, though the latter aren’t perfectly similar to each other, by claiming that y isn’t the same with respect to s when it’s compared to x as when it’s compared to z. 8 but if how y is as regards s depends on the object to which y is compared, how y is as regards s can’t be an intrinsic feature of y. it has to be an extrinsic feature, which is dependent on whether x or z is the object of comparison. rel undercuts my argument against transitivity, but it does so by implying that transitivity isn’t applicable to the case at hand, since this applicability presupposes that how y is with respect to s is the same irrespective of whether it’s compared to x or z. otherwise, there’s no basis for any inference as to how x and z are as regards s. in defence of rel it may be said that it’s impossible that one and the same thing, y’s s-ness, can be perfectly similar to both x’s and z’s s-ness, when x and z are different with respect to s. but this is in fact not impossible if s is a supervenient property and how something intrinsically is with respect to s can remain the same, though the stimulation which is its cause varies within a certain range. for then the stimulation y may lie within the same range as the stimulation x and within the same range as stimulation z —at a point at which these ranges overlap— though x and z do not lie in the same range. 7. in order to cater for the possibility that an intrinsic property is subjective in the sense (alluded to in footnote 5) that x’s having such a property is analyzable in terms of some subjects reacting with some psychological state to x under certain conditions, one should say, alternatively, that a property is an intrinsic property of x if it’s possible to determine that x has it by considering only x and its parts. 8. this is a point that robinson (1972) and jackson & pinkerton (1973) make. 130 ingmar persson leap 2 (2014) imagine, again, that it takes a difference of two units of physical stimulation for there to be any difference in respect of s (painfulness, say) and that x consists in one unit of stimulation, y in two units and z in three units. x is then s-in-virtue-of-one-unit, y is s-in-virtue-of-two-units, and z is s-in-virtue-of-three-units. by hypothesis (since a one-unit difference in stimulation is insufficient to give rise to a difference as regards s), x and y are qualitatively identical as regards s-ness, and so are y and z. hence, being s-in-virtue-of-one-unit-or-two-units expresses one kind of s-ness, and so does being s-in-virtue-of-two-units-or-three-units. but being s-in-virtueof-one-unit-or-two-units and being s-in-virtue-of-two-units-or-three-units do not express one kind of s-ness, since x which is s-in-virtue-of-one-unit and z which is s-in-virtue-of-three-units differ in respect of s. nevertheless, since y is s-in-virtue-of-two-units, and this is a common element of the two disjunctive properties, y is both s-in-virtue-of-one-unit-or-two-units and s-in-virtue-of-two-units-or-three-units. so, y can after all exhibit just one kind of intrinsic s-ness and still be perfectly similar in respect of intrinsic s-ness to both x and z, though x and z are distinct from each other as regards intrinsic s-ness. therefore, although i can’t rule out rel as a possible description of the case at hand, my interpretation, according to which it violates transitivity, is also possible. 3.2. an attempted parallel with primary properties a second line of attack in effect draws a parallel between perfect similarity in respect of a supervenient property and perfect similarity in respect of a property whose exemplifications can’t be explained in terms of the exemplifications of any other kind of property. i shall call the latter properties primary. suppose that both x and y, and y and z, are perfectly similar with respect to a primary property, p. this is of course compatible with their being different with respect to other primary properties, q. but no difference in respect of q can make it the case that x differs from z in respect of p since, by hypothesis, an object’s having p isn’t supervenient on its having some other property. hence, if there’s a difference between x and z with respect to p, this must be explained by or grounded in there being a difference in respect of this property, p, between x and y or y and z (or both). so, if no such differences between x and y, or y and z, are observed, unobservable differences as regards p must be postulated. imagine that one observes a difference in length (weight, etc.) between x and z, though according to our most accurate measurements of x and y, and of y and z, the members of these pairs are equally long. then, provided that the comparison of x and z is correct, we’re forced to conclude that there must be unobserved or unmeasurable differences in length between x and internal or external grounds 131 leap 2 (2014) y or y and z (or the particles constituting them and the spaces in-between these particles). the present objection makes a parallel claim as regards supervenient properties: par: as in the case of primary properties, there must be unobservable differences in respect of s between x and y and/or y and z, when there’s an observable difference in respect of s between x and z. derek parfit seems to assume the existence of such unnoticeable differences as regards pain when he writes: “i believe that someone’s pain can become less painful, or less bad, by an amount too small to be noticed. someone’s pain is worse, in the sense that has moral relevance, if this person minds the pain more, or has a stronger desire that the pain cease. i believe that someone can mind his pain slightly less, or have a slightly weaker desire that his pain cease, even though he cannot notice any difference” (1984: 79). we have assumed, with parfit, that a sensation of pain becomes less painful “in the sense that has moral relevance”, i.e. becomes less bad, when one has a weaker desire that it cease. to fail to notice that one’s desire that a pain cease has become weaker then amounts to failing to notice that the pain has become less bad. certainly, people can be suspected of sometimes making mistakes when they introspectively investigate their desires. for instance, somebody who sincerely reports not minding people of other races might be suspected of being mistaken if he’s observed to avoid the company of such people. this is because the behavioural evidence contradicts his introspection. but imagine instead that the behavioural evidence supports the introspective finding that there’s no difference in respect of degree of being disliked between x and y, and between y and z: the subject doesn’t show any sign of choosing one member of these pairs in preference to the other. imagine, for instance, that he’s simultaneously pricked by pins in his left and right hands, and both his introspective scrutiny and his behaviour support the view that there’s no difference in his aversion to the two pains. then it seems that there’s no reason to hypothesize that the subject’s aversion to one pain is stronger than his aversion to the other, and, hence, that one pain is for him worse than the other than that this case is parallel to a case in which the comparison concerns some primary property (and there is transitivity). par’s claim that there must be such unfelt or unnoticeable differences as regards s between x and y, or y and z, and, hence, that the difference in respect of basic properties between x and y, bxy, or the difference in respect of such properties between y and z, byz, must be sufficient for a difference in respect of s because there is a difference between x and z in respect of 132 ingmar persson leap 2 (2014) s, betrays a misunderstanding of the nature of supervenient properties, of their dependence on subvenient properties. for the difference in respect of s between x and z can be explained in terms of the difference bxz, of this difference being sufficient to make up a difference in respect of s between x and z, even though each of the differences bxy and byz isn’t sufficient for a difference in respect of s. therefore, a postulation of unobservable differences in respect of s between x and y, and between y and z, isn’t necessary to make the difference between x and z intelligible, as it is in the case of primary properties. now, if it isn’t necessary that there be a difference in respect of s between either x and y, or y and z, when there’s such a difference between x and z, there’s no transitivity with respect to s. transitivity implies that it would be incoherent to assume that there’s a difference in respect of s between x and z, though there’s no such difference between x and y or y and z. but this isn’t incoherent, since the difference between x and z can be explained in terms of differences as regards the subvenient properties that, as a matter of definition, must underlie supervenient properties. the supervenience of s guarantees that there’s a difference like bxz to which an explanation of the difference in respect of s between x and z can refer. furthermore, the postulation of such unfelt and unnoticeable differences in respect of s isn’t only redundant, but impossible, if s is a subjective property, as painfulness presumably is. if the esse of pain is percipi, it can’t have any unfelt aspects. this rules out that my considered judgement that x and y are feeling equally painful to me can be rejected because of differences in painfulness that aren’t felt by me. analogously, it’s difficult to see what sense could be given to the concept of dislike or aversion if it isn’t construed as something that entails either behavioural tendencies of withdrawal or differences of feeling. but in the cases we have examined, there aren’t, by hypothesis, differences of either kind. it should be re-emphasized that i’ve assumed that supervenient properties are distinct from their bases. we shouldn’t expect perfect similarity to be nontransitive as regards properties which are disqualified from being supervenient by this distinctness requirement, but in some instances it is. for instance, it’s nontransitive as regards the properties of being yellow or green and having some colour. imagine that x is a two-coloured object, both yellow and green. so are y and z. imagine further that y has the same yellow shade as x, but a different green shade, whereas z has the same green shade as y, but a different yellow shade. then x and y are perfectly similar as regards both the disjunctive property of yellowness or greenness and some of their colours, and the same is true of y and z. but x and z are not perfectly similar as regards either of these properties. some identify secondary qualities with primary qualities, e.g. having some colour with reflecting light of a certain wavelength. likewise, according internal or external grounds 133 leap 2 (2014) to some metaethical theories, the relation between value properties and the properties they’re supposed to supervene on is entailment as in the case of the determinable properties under discussion. if this is right, secondary qualities and values won’t be supervenient in my sense, and my argument doesn’t apply to them. it’s only if value properties and secondary properties are taken as supervenient in a sense which, like mine, implies that they’re entirely distinct from their bases that my argument rules out transitive sameness with respect to them. 3.3. an appeal to roughness of comparison comparisons concerning supervenient properties may be rough or imprecise. a comparison of value will be rough, e.g. when you compare complex and qualitatively different things which must be evaluated along several dimensions that have to be weighed against each other, especially if evaluation along some of these dimensions is to some extent subjective. suppose, for instance, that you were to evaluate the greatness of novelists that are very different as regards style, content etc., like joyce, kafka and proust. the judgement that these writers are equally great novelists is obviously rough because no precise comparison between them is possible. if you compare a long string of novelists who are only roughly comparable, you may find it impossible to distinguish between the greatness of one writer and the next and still end up with writers who are distinguishable in respect of greatness because smaller differences eventually mount up. so, it isn’t to be expected that judgements of sameness under conditions of rough or imprecise comparability ensure transitivity. a final objection makes an appeal to such roughness: rough: similarity in respect of s between x and y, and y and z, can only be rough, or imperfect, when x and z aren’t the same with respect to s, though x and y and y and z are. however, a comparison between two simultaneous stimuli in respect of painfulness and badness can clearly be more precise than such rough comparisons as between the aforementioned novelists because it’s a comparison of much simpler entitities. it seems to me that it can be as precise as any comparison of the (intrinsic) value of two things can possibly be. the upshot of such a comparison can therefore be that one stimulus is precisely and perfectly as painful and bad as the other in the sense that there’s no difference whatsoever between them in respect of painfulness and badness. so, this comparison isn’t rough or imprecise in the sense that there are differences in these respects that it fails to register, as a comparison of the weight of two things based on lifting them is. 134 ingmar persson leap 2 (2014) it may be objected that someone with more acute pain receptors than mine could feel a difference between the stimulations x and y (and y and z), though i don’t. true, but this doesn’t show that there’s any difference between the pains i am feeling when i’m stimulated by x and y, since this subject is feeling two kinds of pain where i’m feeling only one kind. consider a creature whose pain receptors are as acute as you like. realistically, there will still be minute differences in physical stimulation which aren’t distinguishable by this creature, but suppose there isn’t. then this creature would never feel any difference in respect of painfulness between x and z when it feels no such difference between x and y, and between y and z. but, as long as the supervenient and subvenient qualities are distinct, this would still not be so as a matter of necessity. for the same reason, there being unfelt differences with respect to primary properties doesn’t imply that there are after all unfelt differences as regards the supervenient properties, or that the comparison with respect to the latter properties isn’t as precise as it could be. this is something that distinguishes the argument that i’ve been running from sorites arguments in which unnoticeable or negligible differences in respect of a feature add up to a difference that is noticed or significant. if you remove one grain from a heap, you will still have a heap, but —whether or not you notice it— you won’t have something which is the same in respect of “heapiness”, as much of a heap. you will have something which is less of a heap, and if you go on removing grains, you will eventually have something which isn’t a heap at all. this is because something’s being a heap is constituted by a number of grains standing in certain spatial relations to each other. the former isn’t a distinct property which supervenes on the latter in my sense of the term, as the painfulness supervenes on certain physical stimulation. so, it can’t remain the same when the constitutive elements undergo changes. i’ve considered the strategy of supporting the roughness of which rough speaks by (a) taking supervenient properties to be analogous to primary properties. but it could also be supported by (b) claiming that the relation of perfect similarity or sameness is, by necessity or definition, transitive. it could be claimed that the comparison between, e.g. the stimuli y and z in respect of painfulness isn’t as precise as possible if only y and z themselves are considered, that this requires comparing them to other things, such as x. so, y and z would be perfectly similar in respect of s only if, for x and all other things, y and z are perfectly similar in respect of s to x and other things (see goodman 1951: 221). failure of perfect similarity to other things is now no longer seen merely as evidence of there being undetected differences and, thus, no perfect similarity between y and z, but as something that entails that there’s no perfect similarity between y and z. but, apart from the fact that this way of defending rough is blatantly question-begging in the present context, it’s at odds with the intuition that internal or external grounds 135 leap 2 (2014) perfect similarity in intrinsic respects between two entities, like y and z, is an intrinsic relation between them such that it’s possible to determine whether it holds between them by examining only how y and z are as regards the relevant respects, and nothing external to them like x. this is a way to understand the relation in the case of intrinsic primary properties without getting nontransitivity as an inescapable result. turning to another way of buttressing (b), it may be true as a matter of definition that if x and y are perfectly similar in respect of a feature, such as s, there’s a feature s such that x has s if and only if y has s. but it can be seen from my reply to rel that it doesn’t follow from this claim that the notion of perfect similarity with respect to a feature is by definition transitive. i imagined the s-ness that both x and y have to be s-ness-in-virtue-of-oneor-two-units. but y, which was imagined to be s-in-virtue-of-two-units, also has the property of s-ness-in-virtue-of-two-or-three-units, and we saw that this could be a distinct kind of s-ness from s-ness-in-virtue-of-one-ortwo-units. y and z could be perfectly similar with respect to this s-ness in the sense that y has this s-ness if and only z has it. this obviously does not entail that there is any kind of s-ness such that x has it if and only if z has it. consequently, we should reject the claim that the proposed definition entails that the relation of perfect similarity or sameness as regards a property is transitive. this is rather an implication that the definition has when applied to properties that i’ve called primary, since the phenomenon that i’ve just described is impossible in the case of primary properties because there are no other properties underlying them. however, suppose that you’re feeling the sensations x, y, and z simultaneously. surely, you can’t simultaneously compare x and y, y and z, and find them the same, and x and z and find them different. i agree. the most accurate comparison between two sensations requires undivided attention to them, but when you try to execute the three comparisons at the same time, none of them gets undivided attention. this makes it likely that a minute difference between x and z won’t be noticed. so, all three sensations would come out as identical. if the series of sensations had consisted not in three, but in ten sensations, the difference in intensity between the endpoints could be greater, but then the distraction would also be greater, so bigger differences may escape unnoticed. i don’t think, then, that my account carries any implausible phenomenological implications. it doesn’t imply that the relations it describes are noticeable in all circumstances. indeed, it’s possible that they aren’t noticeable in any circumstances – this might be true if the pains are so intense that we can’t ever concentrate on the task of making accurate comparisons. 136 ingmar persson leap 2 (2014) 3.4. the nontransitivity of better/worse than i see no other way to resist my argument to the effect that the relation of identity or perfect similarity as regards properties that are supervenient isn’t transitive. i’ve assumed, rather than argued, that value properties and secondary qualities are supervenient in the sense explained at the outset. if no properties should turn out to be supervenient in this sense because all candidates are entailed by or identical to their bases, my argument will be less interesting, but i’m inclined to think that this isn’t anything i need to fear. now if values are supervenient, it’s easy to see how my argument could be extended into an argument against the transitivity of the relations of being better/worse than all things considered. 9 imagine, for instance, that the painful stimulation y is slightly shorter than x, though there’s no difference in the felt intensity of the pain. then y is better than x all things considered (assuming that intensity and duration are the only relevant factors). if the same is true of y and z, z will be better than y all things considered. still, it might be that z isn’t better than x all things considered because z is felt to be more intense than x, and this difference is judged to outweigh the longer duration of x. to take an example more similar to temkin’s spectrum cases, imagine that x is minimally more painful than y, but that y is markedly longer than x. the same goes for y and z. then y may be worse than x all told, and z may be worse than y all told because the greater difference in duration outweighs the smaller difference in intensity. yet, z may be better than x all told because, due to unmanifested differences in the subvenient properties, the difference in intensity between x and z may exceed the sum of the differences in this respect between x and y, and y and z. therefore, it is possible that the difference in intensity between x and z in z’s favour overpowers the difference in duration in x’s favour. in the case of both examples, nontransitivity may come out as more plausible if the series are made longer. 10 this nontransitivity isn’t due to any variation in respect of what factors are relevant; they are throughout the intensity and duration of sensations. it has to do with a variation of their “significance” if this refers to the shift from an additive aggregationist approach to an anti-additive aggregationist approach, 9. john broome claims that it’s an analytic or conceptual truth that comparative relations are transitive (2004: 50-1). but, to return to the two-coloured objects considered earlier, suppose that the green of y is greener than the green of x, but its yellow is paler. likewise, the yellow of z is yellower that the yellow of y; it’s in fact as yellow as the yellow of x, just as its green is as green as the green of x. then y is yellower or greener (or more saturated in respect of some colour) than x, and z is yellower or greener than y, but z isn’t yellower or greener than x. so, the comparative relation of being yellower or greener (or of being more saturated in respect of some colour) isn’t transitive. hence, broome’s claim is false. temkin gives the similar counterexample of “larger than” defined as “heavier or taller than” (2012: 164). 10. stuart rachels has also presented such arguments in (1998) and (2001). internal or external grounds 137 leap 2 (2014) but the explanation of this shift and nontransitity lies in the imprecision of the intensity of pain relative to the underlying physical stimulation. the intensity and duration of sensations are internal features of pains; so, a value that depends on them is captured by the internal aspects view. rethinking the good is a first-rate intellectual achievement. however, my conclusion is that, despite all his ingenuity and thoroughness, temkin has missed that there’s an internal aspects view of the intrinsic value of outcomes – a value which in many instances determines their value all things considered – that implies that values aren’t quantifiable in a way that guarantees transitivity. obviously, we can’t assign any number to the value of sensations which is based on their intensity and duration, since the number of this value of y would have to be the same as the numbers assigned to x and z, though these would have to be different from each other. this internal view seems to me to provide a more informative explanation of some simple spectrum cases than does temkin’s comparative view. but since i’ve agreed that the comparative view can provide a rationale for nontransitivity in some cases, it may be, for all i’ve said, that some other spectrum cases involving more complex value judgements are among these cases. however, although i’ve indicated that temkin’s comparative account of why we adopt an anti-additive stance when we compare distant outcomes in a spectrum needs to be filled out, i don’t think it can be filled out in the terms i’ve supplied without impugning the distinction between comparative and internal views. therefore, my conclusion is that temkin has to concede that the internal view provides the basis for the nontransitivity of better than all things considered in some cases and, thus, is capable of providing such a basis. 11 bibliography blackburn, s., 1988: “supervenience revisted”, in g. sayre-mccord (ed.): essays on moral realism, ithaca, ct: cornell university press. broome, j., 2004: weighing lives, oxford: clarendon press of oxford university press. goodman, n., 1951: the structure of appearance, cambridge, ma: harvard university press. hare, r. m., 1952: the language of morals, oxford: oxford university press. jackson, f., and pinkerton, r. j., 1973: “on an argument against sensory items”, mind 92: 269-72. kim, j., 1993: supervenience and mind, cambridge: cambridge university press. 11. sections ii and iii of this paper have been presented at pompeu fabra university, rutgers university, university of massachusetts at amherst, university of gothenburg, university of copenhagen, the moral philosophy seminar, university of oxford, and university of york. many thanks to these audiences for valuable comments. but a special thanks to larry temkin for many stimulating discussions of this topic through many years. 138 ingmar persson leap 2 (2014) moore, g. e., 1922: philosophical studies, london: routledge & kegan paul. parfit, d., 1984: reasons and persons, oxford: clarendon press. rachels, s., 1998: “counterexamples to the transitivity of better than”, australasian journal of philosophy 76: 71-83. — 2001: “a set of solutions to parfit’s problems”, noûs 35: 214-35. robinson, h., 1972: “professor armstrong on ‘non-physical sensory items’”, mind 91: 84-7. temkin, l. s., 2012: rethinking the good, new york: oxford university press. 2 lefkowitz.indd democracy, legitimacy, and global governance dav i d l e f kow i t z university of richmond abstract what property (or properties) render international institutions and law legitimate, such that those over whom they claim jurisdiction ought to defer to their directives rather than acting on their own judgment? in this essay i critically examine tom christiano’s treatment of two possible answers to this question: global democracy, and an institution’s or legal regime’s capacity to enhance its subjects’ responsiveness to the reasons for action that apply to them. while christiano rightly rejects the inference from affected interests to global democracy, his argument elides the fundamental reason we ought to do so, namely that at present the degree of cross-border interdependence does not rise to the level where it is possible for citizens of different states to treat one another justly only by submitting to a common legal order that substantially erodes state sovereignty. international law and institutions can enjoy some legitimacy on instrumental grounds, however, even if they are neither democratic nor the product of agreement in free and fair conditions. keywords: democracy, international law, legitimacy, authority, republicanism introduction what property (or properties) render international institutions and law legitimate, such that those over whom they claim jurisdiction ought to defer to their directives rather than acting on their own judgment? in this essay i critically examine tom christiano’s treatment of two possible answers to this question: global democracy, and an institution’s or legal regime’s capacity to enhance its subjects’ responsiveness to the reasons for action that apply to them (christiano 2010, 2011). with respect to the former, i argue that while christiano rightly rejects the inference from 2 lefkowitz.indd 200 21/4/17 13:30 democracy, legitimacy, and global governance 201 leap 4 (2016) affected interests to global democracy, his argument elides the fundamental reason we ought to do so, namely that at present the degree of cross-border interdependence does not rise to the level where it is possible for citizens of different states to treat one another justly only by submitting to a common legal order that substantially erodes state sovereignty. with respect to the latter, i argue that international law and institutions can enjoy some legitimacy on instrumental grounds, that their doing so does not depend on their being either democratic or the product of agreement in free and fair conditions, and that we can reliably identify legislative and judicial mechanisms that satisfy the instrumental standard for law’s legitimacy. 1. against global democracy a common argument for global democracy infers that from the fact that the conduct of people in one state affects the interests (or, more narrowly, those interests that ground human rights) of those living in other states that the former can treat the latter justly only by submitting to a common legal order whose laws are enacted by a directly elected global parliament (see, e.g. archibuigi and held 1995). while christiano is right to reject this inference, the arguments he offers to support this conclusion mask what i contend is its fundamental error, namely that if it is possible for agents to treat one another justly by limiting their interactions so that they do not threaten to setback one another’s fundamental interests, then they are not morally required to submit to a common set of rules that govern these interactions. instead, the decision to do so is one over which agents exercise moral discretion. this position is simply the converse of kant’s well-known argument for the moral necessity of the state, which holds that where agents cannot avoid interacting with one another justice requires that they submit to a common legal order. consider christiano’s unequal stakes argument against global democracy. he asserts that a far greater level of interdependence of interests obtains for those who are citizens of the same state than for those who are citizens of different states (christiano 2010: 132-33; christiano 2011: 74-5). the former share a common world, while the latter do not. but what exactly should we infer from this, supposing it is true? one possibility is that absent their sharing a common world democratic government will fail to publicly treat all subject to the resulting laws equally. a second possibility, though, is that absent a common world the level of interdependence of interests among a set of agents does not rise to the level where it is impossible for them to treat one another justly except by submitting to the same legal order. though the two possibilities are not 2 lefkowitz.indd 201 21/4/17 13:30 202 david lefkowitz leap 4 (2016) mutually exclusive, the second provides the more fundamental objection. this is so because the question of whether agents are morally required to submit to a common set of rules regulating some type of conduct is prior to the question of how the rules of such an order ought to be made if they are to be legitimate. the principle of public equality provides an answer to the latter question, but to answer the former christiano needs a version of the affected interests principle, namely one that holds that agents have a duty to submit to a common legal order if and only if doing so is necessary to avoid setbacks to their own and/or to others’ fundamental interest in judgment. christiano’s assessment of the advantages the fair democratic association (fda) model of global governance has over global democracy lends further support to the claim that it is the possibility of treating others justly without submitting to a common set of rules that blocks the inference from affected interests to global democracy. for example, christiano maintains that a fda is better able to mitigate the problem of persistent minorities “because states can refuse to enter into negotiations and agreements” (christiano 2011: 81; christiano 2010: 136). this claim implies, however, that the model of global democracy fails because it compels groups or states to submit to a particular legal regime when they need not do so in order to treat others justly. while it’s bad enough to be a persistent minority within a governing institution, it is even worse to be needlessly compelled to be a persistent minority within such an institution. with respect to the different stakes states may have in a particular system of international legal rules, e.g. those governing trade, christiano alleges a fda will be superior to global democracy because “states with high stakes in an agreement can invest a lot of time and energy in it, while states with lesser stakes presumably will invest less time and energy” (christiano 2011: 81; christiano 2010: 136). yet the focus on time and energy seems misguided for two reasons. first, a global democracy might serve equally well as a mechanism whereby those with greater stakes, such as representatives of districts heavily involved in international trade, invest greater time and energy in the development of, e.g., international trade rules, while those with less at stake (or their representatives) devote less time and energy. second, what is most important is not how much time and energy different agents devote to the development of international legal norms but how the authority to make those norms is distributed. if votes are equally distributed, despite unequal stakes, then christiano is committed to the resulting law being illegitimate. the fda’s true advantage over global democracy vis-à-vis the existence of unequal stakes is that states enjoy moral discretion over whether to enter into international 2 lefkowitz.indd 202 21/4/17 13:30 democracy, legitimacy, and global governance 203 leap 4 (2016) agreements, and the terms on which they are willing to do so. the fda model conceives of much new international law not as a set of impartial rules that aim to promote the common good but as mutually advantageous arrangements agreed to under free and fair conditions by parties pursuing their own interests on the basis of their relative bargaining power. the upshot is that those states with greater stakes will likely exercise a greater say in the construction of this kind of international law than will states with lesser stakes, since those are the terms on which it will be rational for both parties to converge. and as long as the resulting legal regimes are both genuinely morally optional (i.e. not required for the just treatment of others) and entered into under free and fair conditions, the resulting norms will be consistent with the publicly equal treatment of all. one final advantage christiano attributes to the fda model of global governance over global democracy is that the former is less vulnerable to the problem of citizenship than the latter. note, first, that even if this is true it is not clear that the fda model of global governance mitigates the problem of citizenship to a degree sufficient to render the resulting norms legitimate. the extent to which individuals are informed about and take responsibility for the content of international law may still be so slight that it does not warrant the belief that international law publicly treats them all as equals. second, global democracy may offer avenues for representation the fda does not that serve to galvanize a more informed and invested citizenry. for example, global democracy might facilitate a greater voice for views that are in the minority domestically, whereas negotiations between democratic states might well present only the views of the domestic majority. in addition, by increasing the number of institutions that might assert a right to govern a particular domain of conduct, global democracy could also foster the kind of forum shopping that can both lead to creative solutions to conf licts over the demands of justice and enhance agents’ belief that the overall system of governance exemplifies a commitment to the equal advancement of interests (see, e.g. berman 2014). third, and most importantly, when viewed through the lens of the problem of citizenship the key distinction between a fda and global democracy appears to be whether international legislators are to be directly elected or indirectly elected; for example, appointed by domestic legislators who are themselves directly elected, as was originally the method for selecting united states senators. but which of these two models of representation we should adopt is a separate matter from the question of whether states and the individuals they represent have a duty to submit to a common legal order. thus we might argue that becoming a party to a particular legal regime, e.g. one governing trade in a particular class of goods, is morally optional, while also maintaining that if the regime creates a somewhat 2 lefkowitz.indd 203 21/4/17 13:30 204 david lefkowitz leap 4 (2016) independent institution charged with developing this body of law its officials ought to be directly elected rather than appointed by the domestic legislatures of its member states. a possible response to the foregoing argument would be to contend that: (1) in certain circumstances, which presently obtain internationally, parties have a moral duty to submit to a common legal order governing some specified type of activity; but (2) because the parties do not have roughly equal stakes in the activity governed by the legal regime in question, its norms should not be made by a democratic decision-procedure that accords them all an equal voice. though christiano appears to believe that at present the first of the aforementioned conditions is rarely met, laura valentini has recently defended this position, arguing explicitly against christiano that democratic legitimacy does not require an equal say but only a say proportional to the stakes individuals have in the resulting law (valentini 2014; see also brighouse and fleurbaey 2010). as i will now demonstrate, however, the examples she gives to illustrate the joint satisfaction of the two conditions specified above fail to do so. thus it remains unclear whether once we have limited the scope of democratic authority to important interests (as valentini maintains we should) it will still be the case that the parties in question have different stakes in the decision. valentini asserts: “it is unreasonable to deny that, say, the inhabitants of bangladesh have a greater stake in decisions about how to deal with anthropogenic climate change than the residents of the united kingdom” (valentini 2014: 795). presumably that is because climate change poses a greater threat of harm to them than it does to the lives of uk residents. in the short term that is likely true, but in the long term it is not. british and bangladeshis have equal interests in the adoption of climate policies that cap the increase in the earth’s average global temperature, but they may well differ with respect to what the optimal increase is. claiming that bangladeshis have a greater interest in a lower peak average global temperature than do residents of the uk is not the same as maintaining that they have a greater interest in the question of what the optimal level of climate emissions are, or what policies ought to be adopted in pursuit of that optimum. climate policy, then, looks like a matter (one of very few, perhaps) in which all people on earth have a significant and roughly equal stake. valentini’s second example concerns laws aimed at facilitating access to public spaces for the disabled. “legislation about disabled access to public spaces has greater impact on people with disabilities than on the 2 lefkowitz.indd 204 21/4/17 13:30 democracy, legitimacy, and global governance 205 leap 4 (2016) rest of a country’s population”, which, she implies, entails that the disabled ought to have proportionally greater say in the crafting of such legislation than do the able (valentini 2014: 795). like the example of climate policy this argument begins in the wrong place, namely with the effects of the legislation rather than the interests in the activity it regulates. access to public spaces is something in which all individuals have an equal interest (or so i shall assume), and so all ought to have an equal say in the crafting of legal regulations that specify what those who maintain public spaces must do to advance these interests. deviation from a procedure that does so is called for only if the disabled turn out to be a persistent minority (as, in fact, has often been the case); that is, where an individual-majoritarian decision-procedure has persistently failed to correct the cognitive biases of the able regarding what the equal advancement of the interest in access to public spaces requires, and left the disabled feeling both alienated from society and not recognized as moral equals. while this argument sanctions an unequal say in making law, the rationale for doing so does not rest on unequal interests in the issue regulated by the law in question but the persistent failure of a process that accords an equal say to all entitled to it to generate just law. of course, these criticisms of valentini do not demonstrate the impossibility of satisfying both of the conditions set out above. absent a successful illustration, however, we have no reason to believe there are any cases in which a given type of conduct affects a set of individuals’ important interests in ways that morally require them to submit to a common legal order governing that conduct, but where those individuals have significantly different stakes in what the content of those legal rules turns out to be. at present, the common legal rules to which all agents, or the political communities of which they are members, have a moral duty to submit are largely those that serve to preserve the independence (or non-domination) of the distinct common worlds that exist and are partly constructed by their domestic legal orders. these are the core rules of westphalian international law, e.g. those that ban aggressive war and intervention in the domestic affairs of other states, or that internalize externalities by, for instance, allocating responsibility for cross-border pollution. a world in which such rules were respected would be one in which no individual’s fundamental interests were setback by the conduct of agents who reside in other states. again, that is not to say that in such a world the activities of individuals in one state would not impact the lives of those living in others, nor does it deny that all might stand to gain by the adoption of a common set of legal norms that eroded sovereignty for the purpose of creating a 2 lefkowitz.indd 205 21/4/17 13:30 206 david lefkowitz leap 4 (2016) partial common world (e.g. a common market in certain goods). neither of these facts, however, entails that individuals can treat people in other states justly only by submitting to common legal rules that take the place of or circumscribes existing domestic law. 2. an instrumental argument for international law’s legitimacy might international law enjoy some legitimacy even if it is the product of a legislative procedure that fails to fully conform to the principle of public equality? though he sometimes appears to think otherwise, in this final section i argue that christiano ought to give an affirmative answer to this question. recall that to characterize law as legitimate is to maintain that when they deliberate its subjects have a moral reason to defer to its judgment regarding what they may, must, or must not do even in a range of cases in which the law’s judgment conf licts with their own. for christiano law is fully (and inherently) legitimate if and only if it is the product of a lawmaking process that satisfies the principle of public equality: specifically, a democratic decision-making process in the case of a common world, and free and fair agreement where submission to a common rule is morally optional. at least in circumstances characterized by the facts of judgment, it is only by guiding their conduct according to law made in a way that satisfies the principle of public equality that individuals can advance or honor one another’s fundamental interests in judgment. these include the interest in correcting for others’ cognitive biases, the interest in being at home in the world, and the interest in being treated by one’s fellows as a person with equal moral standing. the value of the first of these interests appears to be largely instrumental; that is, the ability and opportunity to correct others’ cognitive biases is valuable primarily because – and to the extent that – it makes it more likely that individuals will treat one another justly. or perhaps the point would be better put in terms of reducing the incidence and severity of unjust treatment. regardless, suppose we concede arguendo that law made democratically or agreed to in free and fair conditions best serves the aim of advancing justice (or reducing injustice) by combatting cognitive bias. nevertheless, other legislative procedures that perform less well in this respect may perform well enough that their subjects do better at treating one another justly by obeying the law than by acting on their own judgment, even in a range of cases where they think it substantively mistaken. if so, the law produced by such procedures will enjoy some legitimacy in virtue of its advancing individuals’ 2 lefkowitz.indd 206 21/4/17 13:30 democracy, legitimacy, and global governance 207 leap 4 (2016) fundamental interests in having others, and their own, cognitive biases corrected. the form of the foregoing argument is most closely associated with joseph raz’s service conception of legitimate authority. raz maintains that a enjoys legitimate authority over b if the following two conditions are met (raz 2006: 1014): (1) the normal justification condition (njc): the subject would better conform to reasons that apply to him anyway (that is, to reasons other than the directives of the authority) if he intends to be guided by the authority’s directives than if he does not. (2) the independence condition (ic): the matters regarding which the first condition is met are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority. where the njc and ic are met, b has a duty to defer to a’s judgment; that is, to act as a directs him to act even if b believes he has an undefeated reason to act otherwise. as i understand it, the service conception provides a formal analysis of legitimate authority, by which i mean it tells us the kind of argument we must offer if we are to substantiate or successfully contest the claim that a putative authority, such as international law generally or wto law in particular, enjoys legitimacy. but the service conception itself tells us neither what reasons apply to agents independently of the law, nor how obedience to law serves to advance our conformity to those reasons. for example, the service conception does not rule out the possibility that individuals have fundamental interests in being at home in an egalitarian world and in recognition as a moral equal that all agents have reason to advance, nor the possibility that obedience to law can facilitate their doing so by constituting the advancement of those interests.1 theorists may dispute the existence or the importance of these interests, or the ways in which law may enhance its subjects’ responsiveness to them, without disagreeing over the general account of legitimate authority provided by the service conception.2 our concern, however, is whether law can enjoy legitimacy solely in virtue of its content ref lecting less cognitive bias than does the judgment of its subjects. it seems obvious to me that it can, and that where the law’s judgment regarding the demands of justice suffer from less cognitive bias 1 on christiano’s account, law serves to advance those interests in this way if it is the product of a process that satisfies the principle of public equality. 2 christiano acknowledges as much; see christiano (2008: 55). 2 lefkowitz.indd 207 21/4/17 13:30 208 david lefkowitz leap 4 (2016) than do the judgments of its subjects, they have a duty to obey it.3 but christiano’s admonition that justice must not only be done, but be seen to be done, rings true even where we are concerned only with law as a means to realizing justice (or mitigating injustice). while the service conception tells us when, as an objective matter, a legal subject has a duty to obey the law, we also need an account of how we are to identify when a putative authority satisfies the service conception. in the case of democratically enacted law, the right to an equal say serves both to correct cognitive bias and to provide subjects with reason to believe that the resulting law ref lects a good faith effort to equally advance the interests of all (enfranchised citizens) even where the content of the law strikes some subjects as at odds with that aim. might legislative processes that are neither democratic nor voluntary agreements reached under free and fair conditions satisfy this evidential demand as well, so that they not only satisfy the njc by, at a minimum, reducing some of the injustice individuals’ cognitive biases can cause, but can be reliably identified as doing so? i think the answer is yes, and at least with respect to the law of international organizations such as the wto, allen buchanan and robert keohane’s standard of complex legitimacy provides one example of an institutional design that would do so. the complex standard of legitimacy consists of a set of substantive and procedural requirements that, when met, provide evidence for the legitimacy of a global governance institution’s attempt to rule (buchanan and keohane 2006). the former include not persistently violating the least controversial human rights, and not intentionally or knowingly engaging in conduct at odds with the global governance institutions’ purported aims and commitments. the latter include mechanisms for holding global governance institutions accountable for meeting the aforementioned substantive requirements, as well as mechanisms for contesting the terms of accountability. to be effective, these mechanisms must be broadly transparent; e.g. information about how the institution works must be not only available but also accessible to both internal and external actors, such as inspectors general and non-governmental organizations. what unifies the various elements of the complex standard is that they all provide the legal subjects of global governance institutions with reason to believe that officials in these institutions are making a good faith effort to determine what justice requires. in the absence of one or more elements of the complex standard those subject to a global governance institution’s rule may (rightly) suspect that governance is being exercised in pursuit of 3 for descriptions of some of the ways in which international law can serve as a check on judgments of justice distorted by international actors’ predictable cognitive biases, see tasioulas (2010); lef kowitz (2016). 2 lefkowitz.indd 208 21/4/17 13:30 democracy, legitimacy, and global governance 209 leap 4 (2016) other goals, such as the national interests of powerful states. consider, for example, the substantive elements of the complex standard: no attempt at international governance by either global governance institutions or by states that persistently violated “the least controversial human rights”, or that systematically discriminated in the application and enforcement of international legal norms, could plausibly claim to be making a good faith effort to enhance its subjects’ conformity to the demands of justice. similarly, the procedural elements that compose the complex standard evidence a good faith effort to determine what right reason requires because they militate against efforts to deploy international law for private interest rather than the public good. christiano acknowledges the value of reforming global governance institutions so that they satisfy the complex standard of legitimacy, but denies that such reforms could render their rule legitimate. something like complex legitimacy, he writes, may give us reason to think that the institutions will produce minimally desirable outcomes. we may often have reason, therefore, to go along with those outcomes. but it does not give us the kind of moral legitimacy that implies reasons to go along with them even when we disagree with the outcomes (christiano 2011: 94). it seems to me that christiano makes the perfect enemy of the good, and in doing so downplays two crucial considerations. the first is that our own judgments regarding the justice of the outcomes of global governance institutions that satisfy the complex standard necessarily, and predictably, ref lect our biases and fallibility. in acting on those judgments, therefore, we may be less likely to treat others justly than if we obey the law. the second is that the law’s legitimacy requires only that its subjects be more likely to “get it right” by deferring to it than by acting on their own judgment. in circumstances where domestic political officeholders generally know very little about the interests of people living in other states and act within an institutional structure that provides them with a strong incentive to be unjustifiably biased toward the interests of citizens and against the interests of foreigners, the bar for international law’s legitimacy may be set quite low. indeed the complex standard suggests as much. thus i maintain that satisfaction of the complex standard of legitimacy does provide those subject to the resulting law with a duty to defer to it, a presumption in favor of doing so sufficiently weighty to warrant conformity to the law even in some range of cases in which agents believe the law is mistaken on its merits. in the constitution of equality christiano maintains that the mere fact that one is more likely to act as one has most reason to act by obeying the 2 lefkowitz.indd 209 21/4/17 13:30 210 david lefkowitz leap 4 (2016) law than by acting on one’s own judgment cannot provide a sufficient condition for the legitimacy of domestic law.4 if it did then individuals could have a duty to obey (some of ) the law of deeply unjust states, but that is absurd. such states often “implicitly threaten morally terrible consequences if their subjects do not comply with commands that require them to participate in evil activities” (christiano 2008: 234). christiano maintains, however, that: “even if complying without question is the right thing to do, the authority that issues the directives is clearly not legitimate” (christiano 2008: 234). might a version of this argument apply to international law, either in general or vis-à-vis specific international legal regimes? note, first, that the complex standard of legitimacy may well satisfy christiano’s demand that a political institution “have some reasonable degree of justice” in order to be legitimate. but second and more importantly, as i argued above, the significance for a political institution’s legitimacy of its satisfying certain minimal demands of justice is partly epistemic. where the institution fails to do so, its subjects have no reason to believe that it meets the njc. as christiano notes, they may still judge that they will do best by conforming to the unjust state’s laws, or even treating its laws as if they were authoritative. their operative reason for doing so, however, likely will not (and should not) be the belief that the unjust state is more likely than they to determine what justice truly requires of them. moreover, this conclusion holds even in those cases where, as a matter of fact, the unjust state is more likely than its subjects to discern what justice truly requires of them.5 where the njc is satisfied those whose just treatment is at issue have a claim against the law’s subjects that they obey it rather than act on their own judgment. those who are subject to the rule of a deeply unjust state are unlikely to be at fault for failing to discharge this duty, however; after all, they have little or no reason to believe they have it. as noted above, the foregoing argument rests on a distinction between what it is for a to enjoy legitimate authority over b, namely that b ought to act as a directs rather than on her own judgment, and the reasons that justify a’s legitimate authority over b; that is, the reasons why b ought to 4 christiano develops this argument as an objection to the njc, but in light of the earlier discussion in the text i think it better to construe it as an objection to a specific way in which law can serve to enhance its subjects just conduct (or at least reduce the injustice they commit). 5 one source of hesitation to embrace this conclusion may be the thought that no one can owe obedience to a political institution that perpetrates grave injustices. w here law’s legitimacy is a matter of it increasing the likelihood that its subjects will act justly, however, the duty to obey is owed not to the law (or legal officials) but to those the law’s subjects are more likely to treat justly by obeying the law than by acting on their own judgment. see lef kowitz (2016) for discussion of this point. 2 lefkowitz.indd 210 21/4/17 13:30 democracy, legitimacy, and global governance 211 leap 4 (2016) act as a directs. one advantage to drawing this distinction is that it allows us to focus on the most prominent substantive divide among theorists of legitimate authority, i.e. whether the exercise of moral judgment warrants respect per se, independent of its veracity, rather than getting bogged down in definitional battles.6 a second advantage to foregrounding the distinction drawn above is that it enables the concept of legitimacy to play a role in both ideal and non-ideal theories of global governance. christiano’s fda may model legitimate authority in an ideal moral community, and as such it may provide a lodestone for long-term reforms to the global political order. in the near and medium-term, however, the extent to which the current world order deviates from that ideal may render the purely instrumental accounts of international law’s legitimacy more important, both for rebutting those who deny that international law enjoys any legitimate authority and as a guide to feasible reforms that can begin to mitigate the extent to which international law and institutions serve merely as tools for the powerful. bibliography archibugi, d. and held, d., 1995: cosmopolitan democracy: an agenda for a new world order, oxford: blackwell publishers. berman, p., 2014: global legal pluralism, new york: cambridge university press. brighouse, h. and fleurbaey, m., 2010: "democracy and proportionality”, journal of political philosophy 18: 137-155. buchanan, a. and keohane, r., 2006: “the legitimacy of global governance institutions”, ethics and international affairs 20: 405-437. christiano, th., 2008: the constitution of equality: democratic authority and its limits, new york: oxford university press. —2010: “democratic legitimacy and international institutions”, in the philosophy of international law, eds. s. besson and j. tasioulas, 119-138, new york: oxford university press. —2011: “is democratic legitimacy possible for international institutions?”, in global democracy: normative and empirical perspectives, eds. d. archibugi et al., 69-95, new york: cambridge university press. —2013: “authority”, the stanford encyclopedia of philosophy, ed. e. n. zalta, url = <http://plato.stanford.edu/archives/spr2013/entries/authority/>. lef kowitz, d., 2016: “the legitimacy of international law”, in global political theory, eds. d. held and p. maffettone, london: polity press. raz, j., 2006: “the problem of authority: revisiting the service conception”, minnesota law review 90: 1003-1044. 6 “it is not a useful aim of philosophers or political thinkers to determine which one of these conceptual accounts of political authority is the right one” (christiano 2013). 2 lefkowitz.indd 211 21/4/17 13:30 212 david lefkowitz leap 4 (2016) tasioulas, j., 2010: “the legitimacy of international law”, in the philosophy of international law, eds. s. besson and j. tasioulas, 97-116, new york: oxford university press. valentini, l., 2014: “no global demos, no global democracy? a systematization and critique”, perspectives on politics 12 789-807. 2 lefkowitz.indd 212 21/4/17 13:30 leap, 1 (2013) a constitutivist theory of reasons: its promise and parts* michael smith princeton university abstract the aim of this paper is two-fold. first, it explains what a constitutivist theory of reasons is and why the theory promises to deliver the holy grail of moral philosophy, which is an argument to the conclusion that each of us would choose to act morally if we had and exercised the capacity to respond rationally to the circumstances in which we find ourselves. second, it describes the various parts of a constitutivist theory of reasons, and it explains how these parts give support to the premises required for the promised argument. keywords: reasons, constitutivist theory, moral action, rationality. 1. promise philosophers have long felt the need to provide morality with a solid foundation. among the ways in which they have tried to do this, perhaps the most common, the most optimistic, and usually the most disappointing, has been the attempt to reduce facts about the wrongness of actions to facts about the rational requirements to which they are subject (see for example kant 1786, nagel 1970, and korsgaard 1996, but contrast hume 1740, and blackburn 1998). according to the rationalist, wrong acts are irrational. nor should this be surprising given the nature of action on the one hand, and * an earlier version of this paper was delivered as the inaugural leap lecture, universitat pompeu fabra, barcelona, in 2011. special thanks are due to andrew williams, my commentator on that occasion, and to the members of the audience for their many helpful, if rather skeptical, comments and questions. the paper was written while i was visiting the humboldt university in berlin, germany, on a humboldt research award provided by the alexander von humboldt foundation. i am very grateful to the foundation for its support. the paper draws on, and attempts to provide the overarching rationale for, two others written during this period: “deontological moral obligations and non-welfarist agent-relative values” in ratio (24) 2011 pp.351363, and “agents and patients, or: what we learn about reasons for action by reflecting on our choices in process-of-thought cases” in proceedings of the aristotelian society, 2012. 10 michael smith leap, 1 (2013) the reason why morality’s foundations have seemed to be in such dire need shoring up on the other. anti-rationalism, it turns out, is very difficult to avoid. the promise of a constitutivist theory of reasons is that it can do the required shoring up, notwithstanding the formidable difficulties involved in providing such a rationalist reduction (see for example korsgaard 1996, velleman 2005, but contrast enoch 2006, and enoch 2011). as regards the nature of action, the key point to remember is the pervasive influence of the standard story of action we have inherited from hume (hume 1740, see also davidson 1963, davidson 1971, and smith 1998). what makes an agent’s movement of her body an action, according to this standard story, is the fact that that movement is produced in the right kind of way by two psychological states: some background final desire the agent has —that is, some desire she has for something for its own sake— and some belief she has about how her bodily movement will bring about, or perhaps constitute, the realization of that final desire. according to the most plausible version of this standard story, these two states combine, under the influence of the agent’s exercise of her capacity to be instrumentally coherent, so as to constitute an instrumental desire whose immediate causal role is to move her body (hempel 1961, smith 2012a). the main attraction of this story lies in its economy. the concept of an action is no longer a fundamental concept, but is rather analyzable in terms of psychological concepts in which we have to traffic anyway. a further attraction is that it makes various other concepts, concepts that we might otherwise find mysterious, much more transparent. let me give two such examples. since it is in the nature of beliefs and desires to be subject to rational requirements, and since actions are analyzable in terms of their relations to beliefs and desires, the standard story of action tells us that the rational standing of actions can be defined in terms of the rational standing of the beliefs and desires that produce them. the rational evaluation of an agents’ actions thus requires us to ask questions like these: are the beliefs that produce agents’ actions —that is, beliefs about the likelihood of their bodily movements bringing about, or constituting, their getting what they finally desire— well-supported by the evidence available to them? are the strengths of their instrumental desires proportional to the strength of their background final desires and the probabilities that they assign to the objects of their instrumental desires being ways of bringing about what they finally desire? in other words, are the agents instrumentally coherent? to the extent that questions like these get negative answers, the beliefs and desires that produce actions violate the rational requirements to which they are subject —the norm of total evidence on belief and instrumental co a constitutivist theory of reasons: its promise and parts 1111 leap, 1 (2013) herence on instrumental desire— and the actions that those beliefs and desires produce therefore violate rational requirements as well. the actions are irrational in virtue of the irrationality of the beliefs and instrumental desires that produce them. to the extent that these questions get positive answers, the beliefs and instrumental desires that produce actions, and the actions that they produce, conform to rational requirements (see also smith 2004). so, at any rate, the standard story suggests. here is a second example, consequent upon the first. there is a longstanding metaphysical puzzle about the freedom required for the allocation of responsibility (pettit and smith 1996). though this has led some to posit a faculty of choice, immediately prior to action, the standard story of action suggests that this is a gratuitous posit. think again about the different ways in which we can explain why people’s beliefs and desires violate some rational requirement. people might have but not exercise the capacity to access the evidence available to them, or the capacity to believe according to the evidence they access, or the capacity to form instrumental desires whose strength is proportional to their background beliefs about the likelihood that the means will achieve what they finally desire and the strength of their final desires. alternatively, people might lack one or another of these capacities. these two explanations in turn have an analytic tie to fault, and hence to responsibility. if people possess, but fail to exercise the relevant capacities, then there is something that they could have done in a perfectly mundane sense: they could have exercised the capacity to access the available evidence, or to believe in accordance with their evidence, or to instrumentally desire, in the way that’s rationally required. their failure to access or believe or instrumentally desire correctly is therefore their fault, in that same perfectly mundane sense, and so too is their failure to perform the act that they would otherwise have performed. but if people lack one or another of these capacities, then their failure to access or to believe or to instrumentally desire correctly, and hence their failure to perform the act that they would otherwise have performed, isn’t their fault. it isn’t their fault because they lacked one of the capacities required for them to access or believe or instrumentally desire correctly, and hence to act correctly. they have an excuse. they could still have done so, of course. but if they had done so, then it would have been a complete fluke, and so not something for which they could take credit (compare smith 2003). but even though the standard story of action is economical, and promises to make relatively transparent the idea of there being rational requirements on actions, and the idea of our being responsible for what we do to the extent that it is our fault, it also promises to drive a wedge between actions that conform to rational requirements, on the one hand, and those that conform 12 michael smith leap, 1 (2013) to moral requirements, on the other. moral requirements would therefore still stand in need shoring up, as would specifically moral responsibility. worse still, whatever we end up saying about moral requirements and moral responsibility, it now looms as a serious possibility that people may be morally required to act in certain ways even though we could rationally criticize them for acting in those ways, and that they could also be morally responsible for acting in certain ways even though, if they were to act in those ways, they would have to be flawed from the rational point of view, either by being at fault or by being incapacitated in some way. why does the standard story drive this wedge? consider again the questions we ask when we examine the rational status of an action. are the beliefs that produce agents’ actions well-supported by the evidence available to them? and are the strengths of their various instrumental desires proportional to the strengths of their background final desires and the probabilities that they assign to the objects of their instrumental desires being ways of bringing about what they finally desire? the problem is that, if hume is right, questions like these exhaust those that bear on the rational status of actions, as there is no way to rationally criticize the final desires that produce actions. but if there is no way to rationally criticize the final desires that produce actions, then we cannot rationally criticize agents whose only “fault” is that they act on the basis of such final desires (compare foot 1972). here is a passage in which hume makes the crucial point about final desires. a passion is an original existence, or, if you will, modification of existence, and contains not any representative quality, which renders it a copy of any other existence or modification. when i am angry, i am actually possest with the passion, and in that emotion have no more a reference to any other object, than when i am thirsty, or sick, or more than five foot high. ‘tis impossible, therefore, that this passion can be oppos’d by, or be contradictory to truth and reason; since this contradiction consists in the disagreement of ideas, consider’d as copies, with those objects, which they represent (hume 1740: 415). what hume says in this passage, translated into modern jargon, is that since final desires (in his terms, “original existences”) do not purport to represent things to be the way they are, they aren’t the sort of psychological state which can be true or false, and hence not the sort of state for which there can be reasons. though he doesn’t explicitly say why this is so in this passage, it is clear what the explanation is supposed to be. hume thinks that finally desiring something is just a matter of liking it for its own sake, and/or being disposed to bring it about in virtue of what it itself a constitutivist theory of reasons: its promise and parts 1�1� 1 (2013) is like. the contents of these psychological states are therefore not propositions that purport to represent how things are; they are propositions that represent how the world would be if it were the way the agent would like it to be for its own sake, or how the world would be if it were the way the agent is disposed to make it in virtue of what it is like in itself. but if final desires do not have contents that purport to represent things to be the way they are then they cannot be true or false, and if they cannot be true or false then they cannot be the sort of psychological state for which reasons can be given, because all there is to a consideration’s being a reason, according to hume, is its being a consideration that counts in favour of the truth of the proposition for which it is a reason, and hence in favour of the truth of the psychological state that has that proposition as its content. hume didn’t shy away from this conclusion, he positively reveled in it, as is clear from the following infamous passage. ‘tis not contrary to reason to prefer the destruction of the whole world to the scratching of my finger. ‘tis not contrary to reason for me to chuse my total ruin, to prevent the least uneasiness of an indian or person wholly unknown to me. ‘tis as little contrary to reason to prefer even my own acknowledg’d lesser good to my greater, and have a more ardent affection for the former than the latter... in short, a passion must be accompany’d with some false judgement, in order to its being unreasonable; and even then ‘tis not the passion, properly speaking, which is unreasonable, but the judgement (hume 1740: 416). imagine someone who acts in the most morally heinous way imaginable. perhaps he knowingly and intentionally tortures a baby just for fun. has he done something that there was a reason not to do, or which we can rationally criticize him for doing? hume’s answer is: not necessarily. if he knew exactly what he was doing, and if he just so happens to have a final desire to have fun that is in no way hedged about so as to rule out the possibility of his having fun when that comes at the cost of the suffering of a baby, and if this desire is so strong that it outweighs everything else he cares about —perhaps it is the only thing that he finally desires— then, in hume’s view, he may not be rationally criticizable. indeed, it may be that he would be rationally criticizable if he failed to torture a baby just for fun, as that would suggest either a failure to believe according to the evidence available to him, or a failure of instrumental coherence. here we see quite vividly why morality’s foundations seem so desperately in need of shoring up and why the shoring up seems to require us to respond directly to hume’s argument. absent skepticism about both moral requirements and moral responsibility, it seems that moral requirements 14 michael smith leap, 1 (2013) must, in some way, reduce to rational requirements. but what exactly is the response to hume’s argument to be? hume says: “in short, a passion must be accompany’d with some false judgement, in order to its being unreasonable; and even then ‘tis not the passion, properly speaking, which is unreasonable, but the judgement.” in other words, though instrumental desires have parts for which there may be reasons, as there may well be reasons for or against having the beliefs that partially constitute them, the wholes of which these beliefs are parts —the instrumental desires themselves— cannot be had for a reason, or contrary to a reason, because the final desire component is not the sort of psychological state that can be had for a reason. some philosophers think that this is where hume’s argument goes wrong. here, for example, is derek parfit. according to objectivists, we have instrumental reasons to want something to happen, or to act in some way, when this event or act would have effects that we have some reason to want. as that claim implies, every instrumental reason gets its normative force from some other reason. this other reason may itself be instrumental, getting its force from some third reason. but at the beginning of any such chain of reasons, there must be some fact that gives us a reason to want some possible event as an end, or for its own sake. such reasons are provided by the intrinsic features that would make this possible event in some way good (parfit 2011: 91). parfit here asserts that there are reasons to have instrumental desires, and he derives from this the conclusion that there must be reasons to have final desires. his own view, for example, is that the intrinsic nature of wellbeing provides everyone with a reason to desire that there be more well-being rather than less for its own sake, without regard to whose well-being it is (parfit 2011: 40). the person described earlier who finally desires to have fun, but where the fun is in no way hedged about so as to rule out the possibility of his having fun even if that comes at the cost of the suffering of a baby, thus most certainly fails to have a final desire that parfit thinks there is reason to have. for he fails to finally desire that there be more well-being rather than less without regard to whose well-being it is. there are two ways to understand what parfit says about reasons to have final desires. according to the first —which, for the record, is not what parfit has in mind— a consideration counts in favour of finally desiring some state of affairs in virtue of its being a consideration that counts in favour of the truth of the proposition that that state of affairs is finally good. this way of replying to hume’s argument grants that every reason counts in favour of the truth of some proposition, and hence is a reason for believing, but takes issue with the inference from this premise to the conclusion that there are a constitutivist theory of reasons: its promise and parts 1�1� 1 (2013) no reasons for final desires. on this way of understanding what parfit says, reasons for finally desiring something inherit their status as reasons from their being reasons that support the truth of the claim that that thing is finally good. what’s needed, on this way of understanding what parfit says, is thus some account of the relationship between facts about final goodness and final desires that would explain why reasons for the latter should inherit their status as reasons in this way from reasons for the former. let’s call this the ‘inheritance thesis’. according to the second way of understanding what parfit says in this passage —and, for the record, this is what he has in mind— we are committed to supposing that the intrinsic features of the things we finally desire provide reasons for finally desiring those things, but the concept of a reason in play here, and the concept of a reason for believing too for that matter, is a primitive concept. it cannot be further explained by anything. in particular, it cannot be explained in terms of truth in the way that hume proposes. the upshot is that when parfit says that “[s]uch reasons are provided by the intrinsic features that would make this possible event in some way good”, this is not supposed to be in any way explanatory, but merely notes the connection between reasons for final desires and final goodness. on this way of understanding what parfit says, hume’s argument fails because it contains a false premise about the nature of reasons, the premise that the concept of a reason can be explained in terms of the concept of truth. the problem with this second way of understanding what parfit says, however, is that it beggars belief to think that we cannot explain what it is for a consideration to be a reason for belief. hume himself thought something much more specific than that we could explain what such reasons are in terms of the concept of truth. he thought that we could explain what reasons are in terms of the concept of entailment. a fact is a reason for believing, he thought, just in case that fact entails the truth of the proposition believed. hume therefore happily embraced the radical conclusion that all reasons for belief are deductive reasons, and hence that there are no inductive or abductive reasons for believing. many have baulked at this conclusion, of course, and quite rightly so. but reductionism about reasons for belief doesn’t require us to buy into this radical humean conclusion, not even a kind of reductionism that takes its inspiration from hume’s idea that the concept of a reason reduces to the concept of entailment. the best way to develop a more modest humean view in a way that still allows for the possibility of inductive and abductive reasons would to build on david lewis’s contextualist theory of knowledge (lewis 1996). we might suppose that some fact p is a reason for a subject to believe that q if and only if and because p is the sort of thing that could give a subject knowledge that q, where this in turn is explained by the fact that, in those possible worlds in 16 michael smith leap, 1 (2013) which the subject does know that q on the basis of p, the fact that p removes all of the other possibilities except for q that the subject isn’t properly ignoring, where the norms of proper ignoring are semantic norms telling us when someone’s forming a belief in the ignorance of certain facts counts as knowledge. inductive and abductive reasons would both be possible, according to this view, though their status as reasons would be contingent on what’s properly ignored. would a view like this explain the concept of a reason? it most certainly would, as it would spell out quite precisely what relationship a consideration has to stand in to the content of a belief if that consideration is to count as a reason. the idea that the concept of entailment gives us no purchase on what a reason is should therefore be rejected out of hand, and with it the idea that the concept of a reason is a primitive concept. reductionism about reasons for belief of this kind is, however, very bad news for parfit. for on the assumption that we aren’t equivocating when we talk of reasons for believing and reasons for desiring, it follows that what he says in the passage makes sense only if the concept of a reason for final desiring similarly reduces to the concept of entailment. but hume’s argument purports to show that it does not, as a final desire doesn’t purport to represent things to be the way they are. so if hume’s argument stands —and at this stage we should think that parfit has given us no reason to suppose that it doesn’t— then the only conclusion to draw would be that, though there are reasons for the belief component of our instrumental desires, there are no reasons for the final desire component, and hence no reasons for instrumental desires. of course, even if hume’s argument does stand, agents are still required to be instrumentally coherent, so we can still rationally evaluate instrumental desires independently of whether their belief component or final desire component are had for reasons. but since instrumental coherence takes agents’ final desires as given, and merely constrains how strong agents’ instrumental desires are to be by the strengths of their final desires and the likelihood that they attach to the objects of their instrumental desires making the world they finally desire it to be, instrumental coherence allows us to rationally evaluate instrumental desires without supposing that there are reasons for desires, whether final or instrumental. this leaves us with the first way of understanding what parfit says in the passage quoted. the first idea, you will recall, is that reasons for finally desiring are such reasons in virtue of being reasons that support the truth of the claim that the object of the final desire is finally good. on this way of understanding what parfit says, hume is right that all reasons are reasons for belief, but wrong that it follows from this that there are only reasons for belief. this is the inheritance thesis. however, as i said, this way of understanding what parfit says clearly isn’t what he has in mind. the reason i said a constitutivist theory of reasons: its promise and parts 1�1� 1 (2013) that is because parfit thinks, with thomas scanlon (1998), that facts about final goodness are facts about reasons for having certain final desires. when we call something good, in what we can call the reason-implying sense, we mean roughly that there are certain kinds of fact about this thing’s nature, or properties, that would in certain situations give us or others strong reasons to respond to this thing in some positive way, such as wanting, choosing, using, producing, or preserving this thing... things can be good or bad in other senses... but the most important uses of ‘good’ and ‘bad’ are, i believe, reason-implying (parfit 2011: 38). to believe that something is finally good, according to parfit, is therefore just to believe, inter alia, that it has certain intrinsic features that provide us with a reason to finally desire it (parfit 2011: 50). but if this is right then reasons for finally desiring something cannot be reasons in virtue of being reasons that support the truth of the claim that the thing is finally good, as this would get the order of explanation the wrong way around. parfit must therefore reject the inheritance thesis. it doesn’t follow that the inheritance thesis isn’t true, of course. all that follows is that, if it is true, we cannot accept the scanlon-parfit view that goodness is just a matter of what there is reason to desire. is there any independent reason to think that the inheritance thesis is true? what view of goodness does it presuppose? and, if that view of goodness is plausible, and we do come to accept the inheritance thesis as a result, does this provide us with the wherewithal to resist hume’s views about the rational status of final desires? to answer these questions, we need to start much further back. we need to remember some lessons taught to us by judith jarvis thomson in her wonderful, if flawed, normativity (thomson 2008, smith 2010). thomson points out that many kinds of things are what she calls ‘goodness-fixing kinds’. these are kinds whose nature fixes a standard of success for things of that kind. here are some examples. toasters are devices for warming and browning bread so that you can enjoy eating it, so a good toaster is device that does all of this without burning the toast, so making it much more enjoyable to eat. burglars are people who make their living by breaking into buildings and stealing things, so a good burglar is someone who reliably does this without getting caught. tennis players are people who play tennis, so a good tennis player is someone who reliably wins all of his games. goodness-fixing kinds contrast with those kinds that don’t fix a standard of success. thomson’s examples of these are pebble, smudge, and cloud (thomson 2008: 21-22). no two pebbles, or smudges, or clouds can differ in that one is better at being a pebble or a smudge or a cloud than the other, in virtue of the standards that are internal to these kinds. not so for two toasters, burglars, or tennis players. 18 michael smith leap, 1 (2013) once we notice that there are such kinds, it should immediately strike us that the kind agent is a goodness-fixing kind. think again about the standard story of action. someone is an agent in virtue being capable of action, which is to say, in virtue of having the capacity to realize their final desires, given their beliefs. this fixes a standard of performance for agents. a good agent is one who has and exercises, to a high degree, the capacity to form beliefs about the world in which he lives in the light of reasons and to realize his final desires in it. since an agent’s beliefs about how to realize his final desires have to be not just had for reasons, but also true, if he is to realize them in action, we can restate what it is for someone to be a good agent. a good agent is someone who has and exercises, to a high degree, the capacity to know the world in which he lives and to realize his final desires in it. the dispositional theory of value in effect uses the fact that agent is a goodness-fixing kind in order to provide an analysis of a different concept of final goodness (smith 1994, smith 2010). according to dispositional theory, what it is for something to be finally good in this different sense, as indexed to some agent a, is for that thing to be the object of a final desire that a’s maximally good counterpart has. there are thus two quite distinct concepts of goodness in play. the latter concept of goodness is the one internal to goodness-fixing kinds. the former is the one that we have defined in terms of the latter. to avoid confusion, let’s use the term ‘ideal’ to pick out a maximally good member of a goodness-fixing kind and let’s use ‘good’ to name the other property of goodness. in these terms, the dispositional theory tells us that an outcome is finally good, as indexed to an agent a, just in case a’s idealized counterpart —that is, a himself in the nearest possible world in which he has and exercises a maximal capacity to know the world in which he lives and realize his intrinsic desires in it— finally desires that outcome. for a to believe an outcome to be finally good, as indexed to him, is thus just for him to believe that his idealized counterpart finally desires it. the attractions of the dispositional theory in explaining the inheritance thesis is, i hope, clear. according to the inheritance thesis, reasons for finally desiring something inherit their status as reasons from their being reasons that support the truth of the proposition that that thing is finally good. as we saw earlier, what we need in order to make this idea seem plausible is some account of the relationship between final goodness and final desire, an account that explains why reasons for final desires should inherit their status as reasons in this way. the dispositional theory provides the needed account because it tells us that facts about final goodness, as indexed to an agent, are fixed by the facts about the final desires of that agent’s ideal counterpart. these are the final desires that an agent should have, in the sense that his having those final desires is required for him to meet the highest standards a constitutivist theory of reasons: its promise and parts 1�1� 1 (2013) that are internal to the concept of agency. the contents of an ideal agent’s final desires and the objects of her knowledge about what’s finally good are therefore identical. the dispositional theory, together with the inheritance thesis, thus suggest that beliefs and desires are far more similar to each other than hume would have us think (pettit and smith 1996). just as there is a sense in which an agent’s beliefs should have as their contents the contents of the knowledge of that agent’s idealized counterpart, so there is a sense in which an agent’s desires should have as their contents the contents of the desires of the agent’s idealized counterpart. the former is the kernel of truth in the claim that belief aims at the truth. the latter is the kernel of truth in the claim and desire aims at the good. despite this similarity, however, and despite the fact that we have now found decisive reasons to reject hume’s claim that there are no reasons for desires, note that we have still found no reason whatsoever to reject his account of the rational evaluation of final desires. according to the dispositional theory, the final desires that would be possessed by an agent’s ideal counterpart are fixed by the norms internal to the concept of agency. however nothing we have said so far gives us any reason to suppose that these norms go beyond those that hume proffers. but if hume’s account of the norms governing beliefs and desires is right, then an agent’s ideal counterpart is going to possess whatever final desires the nonideal agent possesses. what will be finally good, relative to each agent, will simply be that the realization of that agent’s final desires. to return to the example that worried us earlier on, for all that’s been said, it may therefore be finally good, relative to some agent, that he has fun even when that comes at the cost of torturing babies. though establishing the truth of the inheritance thesis is necessary for us to take issue with hume’s account of the norms governing final desires, it plainly isn’t sufficient for us to do so. as i understand it, it is at this point in the dialectic that a constitutivist theory of reasons comes to the fore. constitutivists buy into everything that has been said thus far, but they add one crucial qualification. they insist that hume’s characterization of an ideal agent is inadequate because he fails to see that certain final desires are constitutive of what it is to be an ideal agent. more precisely, they think that all ideal agents have certain dominant final desires in common, where these desires are dominant in the sense that their realization is a condition of the realization of any other desires that an ideal agent might happen to have. the final desires that are constitutive of being ideal therefore make it the case that certain things are finally good no matter which agent final goodness is indexed to. the constitutivisits’s account of the dominant final desires that are constitutive of being an ideal agent thus provide the much needed link between 20 michael smith leap, 1 (2013) rational requirements and moral requirements that we’ve been looking for. in conjunction with the inheritance thesis and the standard story of action, it entails that there are certain final desires that everyone has reason to have, and so certain actions that everyone has reason to perform, and it further entails that agents with the requisite rational capacities are responsible for failing to have these dominant final desires and performing these actions when their failure to do so is a result of their failure to exercise these capacities, and it identifies these actions with those that are morally required. all this and much more is thus the promise of a constitutivist theory of reasons. the question that remains is how constitutivists manage to deliver on this promise. 2. parts though a constitutivist theory of reasons can take many different forms, in what follows i will focus on what seems to me to be the most promising version of the theory. for brevity, i will call this view ‘constitutivism’ and i will call the theorist who advances it ‘the constitutivist’. however, it is important to remember that other theorists do defend different versions of the theory, so problems that might arise for the version proposed here may not be problems for them (see again korsgaard 1996, velleman 2005). having said that, let me reiterate that the version i go on to describe does seem to me to be the most plausible and powerful version, and that my firm hunch is that it avoids the problems that face other versions. that is why i say that the version described here seems to me to be the most promising. having said that, let me emphasize that my main aim in what follows is not to mount a full defence of constitutivism, but rather to describe the main parts of the theory in the hope that doing so will make it clear what its virtues are (for a partial defence see smith 2011, smith 2012a). the division of the theory into parts will provide a framework for comparing different versions. the parts are: (i) a diagnosis of the main problem facing hume’s account of an ideal agent; (ii) an explanation of how that diagnosis leads to the conclusion that certain desires are constitutive of being an ideal agent; (iii) an explanation of how that provides us with an account of what is morally required at the most fundamental level, and how this account dovetails with an account of moral responsibility; and (iv) a derivation of various subsidiary moral principles and subsidiary responsibilities. 2.1. diagnosis of the main problem facing hume’s account of an ideal agent the constitutivist’s first and most important task is to diagnose where hume’s account of an ideal agent goes wrong. according to hume, an ideal a constitutivist theory of reasons: its promise and parts 2121 1 (2013) agent is one who fully and robustly possesses and exercises the capacities to do two things: to have knowledge of the world in which he lives, and to realize his desires in it. the main problem with this account, according to the constitutivist, is that in a wide range of circumstances their exercise pulls in opposite directions. the full and robust exercise of the one capacity does not fully cohere with the full and robust exercise of the other. to the extent that this is so, the ideal agent’s psychology is therefore not maximally coherent. since it is a contradiction in terms to suppose that an ideal agent’s psychology is not maximally coherent —two psychologies that differ in that one is more coherent than the other are also such that the more coherent one is more ideal— hume’s account of an ideal psychology must therefore be mistaken. in order to see why all of this is so, two important points must be kept in mind. the first point is that an agent who fully and robustly exercises the capacity to have knowledge of the world in which she lives is one who exercises that capacity across a wide range of possible circumstances, including those in which she has very different final desires from those she actually has, and an agent who fully and robustly exercises the capacity to realize her desires is similarly one who exercises that capacity across a wide range of possible circumstances, including those in which she knows very different things about the world from those things she actually knows, given that the facts about the world differ from world to world. the second is that, according to hume’s account of desire, an ideal agent can have final desires for anything. this is because being ideal does not in any way constrain the contents of an ideal agent’s final desires. with these two points in mind, consider the bare possibility that an agent finally desires that she now believes that p. this agent’s ideal counterpart desires that she now believes that p and, as she fully and robustly exercises the capacity to realize this desire, this in turn means that she must believe that p whether or not p is true. this is what we learn from the second point. but since in order to be ideal, she also has to fully and robustly exercise the capacity to know the world in which she lives, it follows that in the formation of her beliefs about p, she must also be sensitive to whether or not p is true. this is what we learn from the first point. so every such agent’s ideal counterpart is both sensitive to whether or not p is true in forming the belief that p, and believes that p whether or not p is true. since this is a contradiction in our description of an ideal agent, a contradiction to which we have found ourselves committed by working through the implications of hume’s account of an ideal agent, the account must be rejected. the humean must say that we have somehow misdescribed their account of an ideal agent. the humean could try suggesting that an ideal agent doesn’t have to fully and robustly possess and exercise the capacity to real22 michael smith leap, 1 (2013) ize his desires, only the capacity to know the world in which he lives, but in what sense would this make him be an ideal agent? or the humean could try suggesting that an ideal agent doesn’t have to fully and robustly possess and exercise the capacity to know the world in which he lives, only the capacity to realize his desires in it, but then how would he be imagining that the ideal agent manages to realize his desires? or —and this is the most plausible response for the humean to give— he could try suggesting that an ideal agent does have to fully and robustly possess and exercise both of these capacities, but insist that since the constitutivist is right that their exercise pulls in opposite directions from each other, a maximally coherent agent is one who is assessed as being such separately along two quite different dimensions: knowledge acquisition and desire-realization. an ideal agent thus turns out to be one whose psychology, by its very nature, displays lots of tension and disunity, as a higher score along one dimension comes at the cost of a lower score along the other. but though this is the most plausible response for the humean to give to the problem identified with his account, we should go along with what he says only if no alternative account of what it is to be an ideal agent reduces the amount of tension and disunity inherent in the humean’s conception of an ideal agent’s psychology. in particular, we should go along with it only if there are no additional psychological states that are plausibly thought of as being constitutive of an ideal psychology, much as an agent’s possession and exercise of the dual capacities to know the world in which he lives and realize his desires in it are plausibly thought to be constitutive of an ideal psychology, but possession of which would ensure that an ideal agent’s psychology is much more coherent and unified than it is according to the humean’s conception. if there are such psychological states, then we should suppose instead that they too are partially constitutive of an agent’s being ideal. 2.2. explanation of how the diagnosis leads to the conclusion that certain desires are constitutive of being an ideal agent the constitutivist thinks that there are such additional psychological states. in the most abstract terms possible, these are those psychological states, whatever they are, possession of which, alongside the dual capacities to know the world in which an agent lives and realize his desires in it, induce more coherence and unity in his psychology. less abstractly, the constitutivist’s suggestion is that these psychological states are coherence-inducing desires. the argument he gives for this conclusion is an argument to the best explanation. certain coherence-inducing desires are such that their possession would induce more coherence and unity in an agent’s psychology; the constitutivist can think of no other psychological states that could play this a constitutivist theory of reasons: its promise and parts 2�2� 1 (2013) role equally well; so he concludes that these coherence-inducing desires do play this role. imagine that all ideal agents have a dominant final desire that they do not now interfere with their current exercise of their capacity to have knowledge of the world, where a dominant desire is one that overrides all of the desires that aren’t partially constitutive of an agent’s being ideal, including desires like the desire to believe that p. this would remove all potential for conflict between the full and robust exercise of an agent’s capacity to know the world in which she lives and the full and robust exercise of her capacity to realize her desires —call these ‘potentially idiosyncratic’ desires. the only way in which an agent who desires to believe that p could robustly possess and exercise the capacity to realize her desires in worlds in which she is otherwise ideal, would be by leaving herself free to exercise the former, as her desire not to interfere would dominate her desire to believe that p. since an ideal agent would have and exercise the capacity to know the world in which she lives, this means that she would wind up knowing that p, or knowing that not p, depending on whatever happens to be the case in the world in which she lives. once we see that an agent’s final desire to not now interfere with her exercise of her capacity to have knowledge of the world in which she lives is plausibly thought to be constitutive of being ideal, the constitutivist thinks that other desires can be seen to be similarly constitutive of her being ideal. for example, consider someone who is otherwise ideal at a time, but not such as to be ideal at later times, and compare him to someone who is otherwise ideal at a time, and also such as to be ideal at later times. which of these agents is more ideal at a time? for example, consider someone who wants to believe that p now, and someone else who wants to believe that p later. both are equally such that, in order to exercise their capacity to realize their desires now, they have to interfere with their exercise of their capacity to have knowledge of the world, the one now, the other later. is one of these agents more ideal than the other? the constitutivist thinks that these agents are each equally less than ideal, and that what this shows is that being ideal now requires an agent to be such as she needs to be in order to be ideal not just now, but also later. of course, an agent’s being ideal later depends on something that the agent cannot control now, namely, whether or not she later exercises her capacities. but this leaves a great deal that she can control now through the direct exercise of her capacities. she can leave herself free to exercise her capacities later, and she can make sure that she has capacities later to exercise. the upshot is that, in addition to a dominant desire that they do not now interfere with their current exercise of their capacity to have knowledge of the world, ideal agents must have two further dominant desires as well: a 24 michael smith leap, 1 (2013) dominant desire that they do not now interfere with their later exercise of their capacity to have knowledge of the world, and a dominant desire they do what they can now to ensure that they have the capacity to have knowledge of the world later to exercise. so far we have focused on desires that ensure that an ideal agent can exercise her capacity to have knowledge of the world. but everything that’s been said so far about the threat that an agent’s potentially idiosyncratic desires present to her possession and exercise of her capacity to have knowledge of the world, whether now or later, applies equally to the threat that potentially idiosyncratic desires present to an agent’s possession and exercise of her capacity to realize her desires (on condition of course, that the realization of those desires doesn’t require her interfering with the possession or exercise of her capacities —i will take this qualification as read in what follows). imagine, for example, an agent who now finally desires that p will be the case later, whether or not she will later desire that p is the case, and so lays traps for her future self to ensure the frustration of any inconsistent desires, should she acquire them. or imagine an agent who is now totally indifferent to the fact that she will later lack the capacity to realize her desires, or perhaps one who positively desires that she lacks that capacity. these agents are also less than ideal in virtue of not being now such as to be ideal later. the upshot of these parallels, according to the constitutivist, is that ideal agents must also have dominant final desires that they do not interfere with their current or later exercise of their capacity to realize their desires, and to do what they can to ensure that they have the capacity to realize their desires later. finally, the constitutivist thinks that the limitation of these final desires’ contents to an agent’s own present and future possession and exercise of her capacities is ad hoc. an ideal agent would desire not to interfere with the exercise of the knowledge-acquisition and desire-realization capacities of not just herself in the present and the future, but of anyone whose possession and exercise of their knowledge-acquisition and desire-realization capacities is dependent on what she currently does. a variety of arguments can be given for this conclusion, but the most powerful is a symmetry argument (compare parfit 1984, especially §55). though, as we have seen, there is a deep difference between an agent’s relationship to her own current beliefs and desires, and those she has later, given that her current beliefs and desires are the ones she directly controls through the exercise of her rational capacities, there is no such deep difference between her relationship to her own later beliefs and desires and those of other people. the upshot is therefore that, just as an agent’s being ideal at a constitutivist theory of reasons: its promise and parts 2�2� 1 (2013) a time requires her to be, at that time, such as she needs to be in order to be ideal, not just at that time, but also at later times, so her being ideal at a time requires her to be, at that time, such as she needs to be in order to be ideal not just herself, at that time and at later times, but also as she needs to be for others to be ideal, whether at that time or at later times. let’s sum up. constitutivists argue that each ideal agent has the following final desires in common: the desire not to interfere with the current or future knowledge-acquisition or desire-realization capacities of any being whose exercise of these capacities is dependent on what the agent herself currently does, and the desire to do what she can to ensure that those whose possession of such capacities is dependent on what she currently does have such capacities to exercise. for short, let’s call these the desires to help and not interfere. constitutivists further insist that the realization of these desires is a condition of the realization of all other potentially idiosyncratic desires that an ideal agent might happen to have, and hence that they must be dominant. they must be dominant because only so could they play their crucial coherence-inducing role. 2.3. explanation of how the fact that certain desires are constitutive of being ideal provides us with accounts of both the most fundamental moral requirements and the conditions of moral responsibility in order to turn the constitutivist’s account of the desires that are constitutive of being an ideal agent into an account of moral requirements, we need to add to that account the materials adduced earlier: the dispositional theory of value, the inheritance thesis, and the account of the rational standing of action suggested by the standard story of action. once we have an account of moral requirements in hand, we can provide an account of the conditions of moral responsibility. let’s begin with the account of moral requirements. given that final goodness, as indexed to an agent, is fixed by what that agent’s ideal counterpart desires —this is what we learn from the dispositional theory of value— and given that helping and not interfering are finally desired by every agent’s ideal counterpart —this is what constitutivism tells us— it follows that helping and not interfering are finally good no matter to which agent final goodness is indexed. when we combine this conclusion with the inheritance thesis —this is the claim that reasons for finally desiring something inherit their status as reasons from their being considerations that support the truth of the proposition that that thing is finally good— the upshot is that everything that’s been said so far constitutes a reason for agents to finally desire to help 26 michael smith leap, 1 (2013) and not interfere. and when we combine this conclusion with the standard story of action’s account of the rational standing of actions in terms of the rational standing of the beliefs and desires that produce those actions, the upshot is that every agent has a reason to help and not interfere. the significance of this last conclusion cannot be overstated. we saw earlier that the rational evaluation of agents’ actions requires us to ask questions like these: are the beliefs that produce agents’ actions well-supported by the evidence available to them? are the strengths of their various instrumental desires proportional to the strength of their background final desires and the probabilities that they assign to the objects of their instrumental desires being ways of bringing about what they finally desire? but what we’ve learned from constitutivism, the dispositional theory of value, and the inheritance thesis, is that we must ask another question as well. we must ask whether the dominant final desires that move agents to act are those that they have reason to have. more specficially, since agents all have reasons to have the same desires, we must ask whether they are moved to act by the desires to help and not interfere. if these questions get positive answers, then the beliefs and final desires that produce agents’ actions, and the actions they produce, conform to rational requirements. in every case, whatever else agents are doing, it turns out that these will be acts of helping and not interfering. the striking similarity of these acts to those that we ordinarily take to be morally required is, the constitutivist insists, manifest. the only reasonable conclusion to draw is thus that every agent isn’t just rationally required to help and not interfere, but that, at the most fundamental level, every agent is morally required to help and not interfere as well. the concern that we may be morally required to act in ways we have no reason to act is thereby laid to rest. note that this doesn’t just provide morality with the rock solid foundation in rational requirements that it so sorely needs, but that it also provides us with a plausible and intuitive account of the conditions under which agents can be held morally responsible for their actions. imagine some agent who fails to help and not interfere. is he responsible for having acted wrongly? the constitutivist’s answer is that he is responsible to the extent that he had, but failed to exercise, the capacity to recognize and respond to arguments like those provided here. for any agent who fails to help and not interfere while having that capacity is someone whose failure to acquire the desires to help and not interfere, and so his failure to act on these desires, is traceable to his failure to exercise his capacity to recognize and respond to relevant arguments. there-in lies his fault. incapacity would of course excuse, and difficulty in the exercise of an agent’s capacities may mitigate his fault, but absent excuse or mitigation, those who act wrongly have no one to blame for their wrongdoing but themselves. a constitutivist theory of reasons: its promise and parts 2�2� 1 (2013) 2.4. derivation of subsidiary moral principles and subsidiary responsibilities so far we have focused on what is morally required at the most fundamental level. importantly, however, note that the account provided suggests that there will be many subsidiary moral principles. let me briefly describe what some of these subsidiary moral principles might be, just to convey some sense of how powerful the constitutivist’s account of the most fundamental moral requirements really is. imagine a situation in which one agent makes a promise to another, but then knowingly fails to keep that promise without taking steps to warn her, and without having some compelling reason to do something else instead. for example, suppose a young man promises to meet his friend at the movies, and she turns up at the agreed time, but he fails to show up, not because he was (say) tending to the victim of a traffic accident that he had on the way to the movie, but because he just didn’t feel like going when the time came. what is the wrong that he does, exactly? the constitutivist’s account of the most fundamental moral requirements suggests an answer. the young man knowingly interferes with his friend’s exercise of her capacity to have knowledge of the world in which she lives, as he led her quite reasonably to believe, falsely, that he would be at the movie, and he also knowingly interferes with her exercise of her capacity to realize her desires, as he led her to form that belief knowing that she would act on her desire to spend the evening with him, a desire that she had no chance of realizing, given that he wouldn’t be there. he therefore acted in the knowledge that, if she hadn’t falsely believed that he would be there, she would have acted on some other desire instead, a desire that she would have at least had a chance of realizing. the requirement to keep promises is thus a clear example of a subsidiary moral requirement, according to constitutivism, and with this example in clear view, we can see that there will be a whole host of other subsidiary moral requirements as well, subsidiary moral requirements grounded in the fact that the creation of reasonable expectations is ubiquitous in human life. wherever such reasonable expectations are created, but go unmet, the account provided thus suggests that there is a wrong in the offing of the most fundamental kind. lying, manipulating, cheating, being disloyal, betraying, and free-riding are all examples of subsidiary wrongs of this nature. moreover, wherever there are subsidiary wrongs of these kinds, and the agents of those subsidiary wrongs had the capacity to recognize and respond to the arguments for acts of these kinds being subsidiary wrongs, the agents of such acts will be at fault. 28 michael smith leap, 1 (2013) constitutivism suggests that there will be another quite different class of subsidiary moral requirements as well. imagine a father who fails to provide his child with the necessary lessons in life to be able to access and rationally evaluate the evidence available to her as she forms her beliefs about the world in which she lives, and who also fails to equip her with the personal resilience and confidence required to create opportunities for herself, as she goes through life. perhaps he drums into her his own views that books are full of useless information, that no one outside the family is to be trusted, that the only way for a girl to get ahead is by being attached to some powerful man, that she is unattractive and that no man will ever be attracted to her, and so on. what exactly is the wrong that a father like this does to his child? the constitutivist’s account of moral requirements once again suggests the basics of an answer. the child is, after all, someone whose development of her capacities to have knowledge of the world in which she lives and realize her desires in it is dependent on what her father does for her as he raises her, and he not only fails to do all that he can to ensure that she has such capacities to realize, he ensures that the capacities she has are warped in all sorts of ways. he was subject to a subsidiary moral requirement to teach her that books are full of useful information, that many people outside the family are to be trusted, that there are many ways for girls to get ahead without being attached to some powerful man, and so on, but these are all subsidiary requirements that he violates. assuming that he had the capacity to recognize and respond to the arguments that might be given for these being subsidiary moral requirements, he is therefore also at fault for his violations. the situation of the father is hardly unique. we are all in a position to influence the development of others’ capacities to know the world in which they live and realize their desires in it, so the constitutivist’s account of what’s morally required at the most fundamental level suggests that there will be a whole host of such subsidiary moral requirements. some of these will be as banal as helping those who are clearly lost to find their way, encouraging them to put their trust in others without thereby losing their faith in themselves, and so on. others will be much more significant, such as taking steps to ensure that everyone has access to a proper education and the opportunity to live in circumstances of political and social equality. to the extent that each of us has the capacity to recognize and respond to the arguments that can be given for these being subsidiary moral requirements, we are therefore all at fault to the extent that we fail to exercise that capacity. so, at any rate, constitutivism suggests. a constitutivist theory of reasons: its promise and parts 2�2� 1 (2013) 3. conclusion we saw at the outset that the promise of a constitutivist theory of reasons is that it can help us do something that we desperately need to do, which is to reduce facts about the wrongness of actions to facts about the rational requirements to which actions are subject. constitutivism does this by dividing that task into distinct parts. it begins by offering a compelling diagnosis of the problem facing the humean, anti-rationalist, account of an ideal agent. it shows how that diagnosis leads to the conclusion that the desires to help and not interfere are constitutive of being an ideal agent. it explains how the fact that that the desires to help and not interfere are constitutive of being an ideal agent provides us with all we need to give an account of what is morally required at the most fundamental level, and how this account in turn dovetails with a plausible account of moral responsibility. and, finally, it derives various subsidiary moral principles and subsidiary responsibilities from its account of what’s morally required at the most fundamental level. much work still needs to be done in filling out the details, of course. but hopefully enough has been said to make it clear how well-placed constitutivism is to deliver on its promise. bibliography blackburn, s., 1998: ruling passions, oxford: clarendon press. davidson, d., 1963: “actions, reasons, and causes”, reprinted in his essays on actions and events, oxford: oxford university press, 1980. — 1971: “agency”, reprinted in his essays on actions and events, oxford: oxford university press, 1980. enoch, d., 2006: “agency, shmagency”, philosophical review 115: 169-198. — 2011: “shmagency revisited”, in new waves in metaethics, ed. brady, m., london: palgrave macmillan. foot, p., 1972: “morality as a system of hypothetical imperatives”, reprinted in her virtues and vices, berkeley: university of california press, 1978. hume, d., 1968 [1740]: a treatise of human nature, oxford: clarendon press. kant, i., 1948 [1786]: groundwork of the metaphysics of morals, london: hutchinson and company. korsgaard, c., 1996: the sources of normativity, cambridge, uk: cambridge university press. lewis, d., 1996: “elusive knowledge”, australasian journal of philosophy 74: 549567. nagel, t., 1970: the possibility of altruism, princeton: princeton university press. parfit, derek, 2011: on what matters: volume one. oxford: oxford university press. pettit, p. and m. smith, 1996: “freedom in belief and desire”, journal of philosophy 93: 429-449 scanlon, t., 1998: what we owe to each other, harvard: harvard university press. �0 michael smith leap, 1 (2013) smith, m., 1994: the moral problem, oxford: wiley-blackwell. — 2003: “rational capacities”, in weakness of will and varieties of practical irrationality, ed. stroud, s. and c. tappolet, 17-38, oxford: oxford university press. — 2004: “the structure of orthonomy”, in action and agency (royal institute of philosophy supplement: 55) ed. hyman j. and h. steward, 165-193, cambridge: cambridge university press. — 2010: “on normativity”, analysis reviews 70: 715-731. — 2011: “deontological moral obligations and non-welfarist agent-relative values”, ratio 24: 351-363. — 2012a: “four objections to the standard story of action (and four replies)”, philosophical issues: action theory 22: 387-401. — 2012b: “agents and patients, or: what we learn about reasons for action by reflecting on our choices in process-of-thought cases” in proceedings of the aristotelian society, cxii: 309-331. velleman, d., 2005: self to self, new york: cambridge university press. leap 3 (2015) real freedom for all women (and men): a reply philippe van parijs université catholique de louvain abstract the disadvantages men suffer relative to women in certain dimensions are not always as significant as they seem. and even when they are real, they are not necessarily unjust. this reply to a set of six reactions to “four puzzles on gender inequality” offers a critical discussion of these claims. above all, it questions the very idea of discussing issues of gender and justice in terms of “gender justice,” i.e., of justice between two categories of human beings. keywords: gender equality, longevity, education, political representation, social justice introduction yes, my short speech on gender inequalities is what i think most of my commentators understood it to be: a modest invitation to help us better understand the demands of so-called gender justice and of justice more generally, by reflecting on some puzzles, none of them new but some of them sticky.1 ana de miguel’s superbly formulated and entertaining commentary was most useful in helping me see better why my initial speech could be misunderstood, even with the explanatory notes i subsequently added.2 i never read any masculinist pamphlet and do not intend to do so. but i can now imagine that some of what i said could have been reminiscent of some of what can be found in such w ritings and thereby suggest that i may be supporting their cause. ana de miguel can rest reassured. i do not believe, 1 in addition to the authors of the six comments included in this volume, i am most grateful to sophie heine, meira levinson, anja topolski, and the participants in the lovanium seminar in ethics and public policy (leuven, 21 november 2014) and the nuffield political philosophy seminar (oxford, 1 june 2015) for the sort of comments i was hoping to trigger – and be enlightened by. 2 perhaps contrary to her expectation, i particularly enjoyed de miguel’s contribution. i hope she enjoyed writing it at least as much as i enjoyed reading it – and more than i did trying to reply to it. 162 philippe van parijs leap 3 (2015) and never claimed, that it is high time we should start pitying the male gender, let alone that justice demands that it should be compensated for its many “weaknesses.” as a male member of a well-off segment of a wealthy society, i am only too aware of the privileges i enjoy, not only nor mainly by virtue of being a man, but definitely partly by virtue of being a man.3 thus, the aim was not pro-male advocacy but philosophical clarification, and the point of departure, as so often for us philosophers, was a set of genuine puzzles, the nature of which is well captured by paula casal (2015: 90-106) in the case of longevity. she is sure, she writes, “that if a random mutation resulted in women starting to die far ahead of men many of those who currently find van parijs’s suggestion [that men’s shorter life expectancy may be unjust] absurd would start listing lesser longev it y as one of the disadvantages women suffer” (90-106). if this is the case, and holds more genera l ly for at least some of t he ot her inequa lit ies i listed, does it not follow that they should count, albeit prima facie and pro tanto, as injustices against men? this is, at any rate, the upshot of gina schouten’s careful discussion of differential incarceration: “i tentatively conclude that men’s higher likelihood of incarceration is a distinct injustice to men” (3). schouten usef u l ly d ist i ng u ishes t wo ways of accom modat i ng t h is ack nowledgment. if one is w illing to adopt a genera l metric of justice, gender inequa lities in favor of women would reduce t he overa ll level of injustice t hey suf fer: good news for overa ll gender justice. if instead no inequality in life expectancy, homicide, or incarceration can do anything to offset inequalities in, say, labor income, social status, or sexual violence, a l l t hese i nequa l it ies si mply con st it ute i ncom men su r able for m s of injust ice, a nd if a n unjust inequa lit y develops in favor of women, t his would not reduce but further worsen gender injustice. but we are not there yet, a nd may never get t here : most of my commentators deny t hat t he inequalities i listed are injustices against men. in this response, i shall discuss several of their insightful, sometimes ingenious arguments. but i shall not bore the reader with a point by point response, in particular w ith a defensive inventor y of the many cases in which i feel that a (genuinely or falsely naïve) question i was asking was misunderstood as a suggestion, or even as an assertion. the literary genre 3 in particular, had i been a woman, it is most unlikely that i could have enjoyed as much as i did the immense privilege of combining a large family and a demanding job (see the section “femmes francqui” in my “allocution à l’occasion de la remise du prix francqui 2001,” www.uclouvain.be/8611). possibly in a slightly weakened form, jesús mora’s apt remark can most probably be generalized: “men with very successful careers in the hard sciences often have several children, successful female scientists often have no families at all, as they have to compete with men who have housewives that do everything for them whilst lacking one. so a group of well qualified women are childless or even entirely alone” (mora 2015:). www.uclouvain.be real freedom for all women (and men) 163 leap 3 (2015) of my initial piece is certainly largely to blame for such over-interpretations. precisely because it (uncharacteristically) abstained from making specific proposals, it did not need firm assertions by way of premises.4 it stopped at listing and motivating some questions. asking a question leaves open the possibility of an answer my critics would find objectionable but does not amount to proposing it. 1. no disadvantage the general format of the question i asked was: are the apparent disadvantages of men that i listed unjust and, if not, why not? a first type of response to this sort of question consists in arguing that, once looked at closely, the appearance of advantage vanishes, or at least much of it does. this is the case for life expectancy. paula casal (90) usefully invites us to have a look at the age pyramid. if it turns out that there is little difference between the two sides except at the very top, it reinforces the idea that the advantage, if any, cannot be that great. at the limit, women simply “enjoy” some extra miserable years in their nineties which they may prefer not to have to endure (and would not if euthanasia and assisted suicide were legally and socially easier). unequal numbers of years in good health would arguably be a better indicator of a genuine inequalit y of advantage, despite the unavoidable arbitrariness of the cut-off point between good and bad health. but this would still not do. as brief ly pointed out in my piece and insightfully developed in casal’s, this would overlook the asy mmetric care-giv ing to the ageing partner. even if preaching and material incentives (favorably discussed by casal) could drive down the average age gap between partners to zero, even if the disposition (and competence) for caring for one’s ageing partner had been equalized across genders, even if as much as possible was outsourced (as also recommended by casal), there would remain, on average, a greater burden for the female members of heterosexual couples, simply owing to t hei r longer l i fe ex pecta nc y. t h is g reater bu rden f u r t her reduces t he associated advantage. in order to assess what advantage is left (if any), this suggests designing a notion of qaly (quality-adjusted life years) that does not only take health into account, but also such burdens. inequality, using this amended metric, might still be in favor of women, but it will definitely be far smaller than when measured by the raw gap in life expectancy. 4 w hen in other contexts i asked such incongruous questions as whether surfers should be fed( van parijs 1991), or the elderly disfranchised( van parijs 1998) – which some hard workers and some pensioners might have found offensive – i did not leave the questions open but argued for an answer (yes to food for surfers, no to taking away the old folk’s vote!). 164 philippe van parijs leap 3 (2015) a second interesting example of an advantage that arguably melts once scr ut ini zed is prov ided by jesús mora in his st imu lat ing discussion of education. while claiming that education should be regarded as a dimension of advantage not entirely reducible to the earning power it generates, i had also stressed the relevance of a paradox: “having to work so much harder to be rewarded so much less is, as van parijs at one point suspects, one of the forms of compound injustice that women face” (mora 2015: 114). mora does not challenge the independent importance of education: “it is true t hat educat ion could potent ia l ly, in some possible world, of fset men’s economic advantage” (108). but his explanation for the paradox i stress makes the educational advantage enjoyed by women a necessary by-product of the inequality they suffer in other respects. here is the core of the argument. females invest more than males in their own education because they anticipate that they w ill need it more than men for their ow n material security: “with every pregnancy and every year into the marriage, women become less desirable both in the love and the labor markets”(109). this is ref lected, he conject u res, i n a mater ia l ret u r n to educat ion t hat is systematically higher for women than for men. women’s greater educational achievements“are thus sy mptoms of gender inequalit y, not signs of its disappearance” (114). to the extent that the higher average level of education is inextricably linked to disadvantages in other dimensions and hence, by hypothesis, would disappear in its absence, it is therefore no longer clear that it could be considered a separate, possibly compensating, dimension of advantage, or at least it is less clear than i had made it sound. this is an interesting conjecture, and certainly part of the story.5 even if it is not the full story, it can legitimately be used to argue that the alleged advantage is less than it seems. 2. disadvantage justified let us now accept, as several of my commentators do, that along some dimensions women enjoy some advantage, though possibly smaller than what it looks at first sight.6 a second response then consists in arguing that t here is not hing unjust about it. a f irst version of it is t he “rawlsia n” 5 can the comparatively high rates of absenteeism, unruliness, and dropping out among male teenagers and their long-term consequences on the education gap be entirely accommodated by this conjecture? i doubt it. 6 one candidate i did not mention is strikingly documented by casal (2015: 93): the probability of being killed is 2.5 times less if you are a white woman than if you are a white man, 9 times less if you are a black woman than if you are a black man. does the fact that the overwhelming majority of the perpetrators are men prevent us from regarding men’s much larger probability of being murdered as a genuine and potentially unjust disadvantage? real freedom for all women (and men) 165 leap 3 (2015) argument developed by casal (2015:98) against the background of fascinating evolutionary conjectures: “the inequality in longevity is not unjust because its removal would make humans worse off.” in the human and some other species, the females having longer lives than males is apparently beneficial to the care, survival, and education of all their offspring, male and female. this arguably turns women’s greater longevity into an adaptive feature, which natural selection has preserved throughout the millennia and is still with us. let us suppose that this explanation is correct. by no means does it follow that the inequality it explains is thereby justified. for the surplus of strength or resilience that enabled more mothers to steer their offspring into adulthood, despite the ha zards of deliver y and other perils, is now what accounts for a life expectancy of 85 rather than 80 or so. we are therefore talking here about one of those features which, however crucial they might have been in a more or less remote past, have lost their function in a deeply altered env ironment. similarly, male aggressiveness must have been a handsome asset, in both individual and group selection, throughout the millennia in which some of our ancestors lived in rival tribes of hunters, but this is no justification for it in our societies. the other challenges to the injustice of a recognized disadvantage suffered by men rely on the assumption that this disadvantage –in terms of longevity, incarceration, education, etc. –is mediated by a lifestyle or behavior pattern that is male-specific or at least displayed by men more often than by women. the phrasing of my puzzles occasionally suggested that it was essential to them that this propensity to behave in a certain way should be linked to man’s hormonal constitution. but i fully agree with convergent remarks by casal (2015: 91, 98), ottonelli (2015: 134), and schouten (2015: 139) to the effect that, however big a difference this may make as regards possible remedies, there is no crucial difference as regards justice or responsibility between causal accounts in terms of genetic equipment, early socialization, or socially sanctioned expectations about what it is to behave as a “real woman” or as a “real man.” early socialization and social sanctions are no more chosen by the individual men and women shaped by them than is their genetic equipment. this being clarified, let us consider the suggestion that women’s greater longevity is (prima facie and pro tanto) unjust, against the background of the factual assumption that men are predisposed, either by their genetic equipment or by their social environment, to a behavior pattern that will inf lict on them a genuine disadvantage relative to women, by costing them on average several years of valuable life. casal formulates t wo “liberalegalitarian” challenges to this disadvantage constituting an injustice, one inspired by tim scanlon, the other by ronald dworkin. 166 philippe van parijs leap 3 (2015) according to the “scanlonian” challenge, once society has done enough, i.e., once men, under appropriate circumstances, have been sufficiently warned that some behavior pattern can have detrimental consequences for them, there is no injustice involved if they persist in behaving in a damaging way. one serious problem with this challenge is that making people aware of the consequences of their choices does not get rid of the underly ing unchosen disadvantage, as well characterized by schouten in the case of incarceration: “whatever configuration of social and natural causes are at work, they presumably make males likelier to be incarcerated because they make it more difficult for males than for females to avoid the kinds of behav iors that lead to incarceration” (schouten 2015: 139). much of t he material injustice suffered by women is of fundamentally the same nature: “to make the counter-gender-typical choice of prioritizing paid labor, the average woman will have to overcome either ingrained social norms or a natural predisposition to prioritize others’ needs for care, or both; and she will have to pay the costs of violating social norms.” (141) whether or not men or women a re being properly wa rned about t he consequences of following their natural or social inclinations, “in both cases, the inequalities in the background against which the relevant choice is made are not chosen; and in both cases, the relevant choice is harmful to the chooser” (142). if appropriate warnings are deemed sufficient to nullify the alleged injustice suffered by men as a result of their choices, the door is wide open for this sort of excessively easy justification of inequalities suffered by women. the “dworkinian” challenge presented by casal deactivates the imputation of injustice by focusing on what the alleged victims of injustice identify with, rather than the warning given to them. there is no injustice involved (let alone compensation due), so the challenge goes, if men identify with the behavioral pattern that triggers the disadvantage. to the extent that they identify with it, such a behavioral pattern is not a handicap, like an addiction, which they would prefer to be w ithout. it is part of their identit y, like a religion which they may never have chosen – if they grew up within it – but which they embrace. the test proposed by dworkin in order to determine what counts as an injustice calling for redress or compensation consists in a counterfactual insurance dev ice, where people are supposed to know their ambitions but not their endowments. when performing this exercise, men “would have insured against illness or disability but not against being male” (casal 2015: 100). the trouble with this challenge is that nothing prevents, in dworkin’s dev ice, taking male, or female, or atheist, or muslim, as part of what one identifies with, and hence of one’s ambitions (like wanting to be a pianist or a gardener), while insuring against how costly it w ill prove to be. this them.there embrace.the real freedom for all women (and men) 167 leap 3 (2015) presupposes that one can dissociate being male from the cost it involves (here in years of life), and there is no reason why such dissociation should be ruled out, unless the cost is what one identifies with (as some may do w it h fa st i ng ).if one d id r u le it out, a s i mpl ied by ca sa l’s d work i n ia n argument, it is true that one could no longer make sense of the injustice of a number of disadvantages suffered by men, but equally of many putatively unjust disadvantages suffered by women. “some may worry,” casal (100) notes, “that this dworkinian use of selfidentification as a criterion for justif ying compensations may not always favor feminist demands.” indeed they should worr y. spending plent y of time with their children is part of an identity some women embrace, and if the implied cost in foregone (current and future) income could not be dissociated from what they identify with, they would have no “dworkinian” complaint of justice against the income inequalit y stemming from this source, just as men, for analogous reasons, would not have a “dworkinian” claim of justice against inequalit y in life expectancy stemming from a lifest yle w ith which they identif y. if we are not to miss a big part of the injust ice inf licted to women, it wou ld t herefore seem w ise to a l low a dissociation between gender-specific behavioral patterns and their cost, at the price of acknowledging the failure of the “dworkinian” challenge. are we then forced to admit that any disadvantage – whether higher chance of being killed or more expensive consumption – stemming from men’s specific lifestyle or pattern of behavior is, albeit prima facie and pro tanto, unjust, given that it is causally linked to the unchosen fact that they a re men? we a re not. clea rly, a ny plausible concept ion of just ice must manage to make a distinction between a handicap that justifies redress or compensation and preferences the cost of which need to be borne by those who have them. this point is forcefully made by de miguel (2015: 154) in the case of prostitution: “it is also very strange to say that somebody is to some degree disabled in an injustice-involving sense merely because they have, or a re more li kely to have, a preference. the sa me is t r ue if t he preference is a passion, for instance for the sea or the snow, that might kill you in some circumsta nces. the word ‘ha ndicap’ suggests somet hing stronger than the frustration of a mere preference, the ex istence of an unmet need.” thirst, she argues, can qualify as a need, but not the preference for having it satisfied in a fancy way. “and the desire for sex is like this ‘thirstt h i ng’ for most men. t hey love hav i ng it, a nd so long a s t hey a re not handicapped in other ways, and so still have hands, relief is simple, instant, and gratis” (de miguel 2015: 153). any sensible conception of justice must make room for a distinction of this sort. in the following section, i shall drop the ad hominem (or ad feminam) posture i have adopted so far (as well as in 168 philippe van parijs leap 3 (2015) my initial piece) and sketch how the conception of justice to which i subscribe myself tries to accommodate this important distinction and to address other key issues raised in the comments. 3. social justice as real freedom for all ottonelli (2015: 126) finds it puzzling that i assumed as unproblematic “some version of equality of opportunity for welfare or resources,” which fails to capture key aspects of the injustice suffered by women: “for example, women’s higher unemployment rates, lower income, and greater hardship resulting from divorce,” which should be “taken as signs of the domination, oppression, and exploitation that women suffer in our society.” she is right to complain. these aspects need to be taken on board, and the conception of justice i subscribe to can accommodate them, i believe, far better than the vague notion of equality of advantage which i have been relying on so far for the sake of the argument(s). this conception can be captured in the slogan “real freedom for all.” it essentially requires empowering as much as is sustainable those with least power to shape their lives. and it is leading me to advocate, along with carole pateman, for example, repeatedly cited by de miguel (2015: 153, 158), and along with many others, an unconditional basic income.7 for the sake of justice as real freedom for all, this unconditional income should be pitched at the highest sustainable level, part of it being given in the form of qua lit y education, health care, and a sane environment, in addition to an unflinching protection of physical integrity. however they are funded, the introduction of an unconditional basic income and the rise of its relative level are bound to involve a net redistribution from men to women and, more importantly, a greater expansion of life options for women than for men. it should not take too much effort to imagine, in particular, what difference the highest sustainable unconditional basic income would make to the prostitutes described by de miguel (153-6). its prospective effect is not mainly to increase their purchasing power. it is above all to increase their bargaining power on all fronts by multiplying exit options. nor should it take much effort to show that such a conception of justice is more than compat ible w it h ot tonel l i’s (130) v iew t hat “ou r t reat ment of ma le’s unfortunate hormonal constitution represents indeed a rare case of overaccommodation of an impairing disability”or with de miguel’s (158) call for putting an end to “overindulgence in the male itch.” moreover, if it is 7 see pateman (2006), murray &pateman eds. (2012), and, for recent discussion of the connection between gender inequalities and basic income, mclean (2015) and elgarte (in progress). real freedom for all women (and men) 169 leap 3 (2015) the case that “an overwhelming presence of men in dangerous, difficult, and hazardous jobs […] causes countless episodes of killings, torture, physical aggression, humiliation, maltreatment, medical malpractice, physical injuries, and deaths by negligence” (ottonelli 132), then there is no doubt that justice as real freedom for all would command that an end should immediately be put to this over whelming presence of men. there may well ex ist sound evolutionar y explanations for male-specific dispositions that generate despicable behavior, but this can never amount to justifying giving the latter free rein. this being said, it is of course intrinsic to a conception of justice that adopts freedom as its distribuendum that it should not erect into an ideal the achievement of equal average scores – or of an equal grand total score – by all categories of human beings for variables expected to be affected by the latter’s free choices. the monitoring of gender gaps, in particular, can play a useful role in locating forms of discrimination or intimidation that hinder the pursuit of justice as real freedom for all. but the existence of significant gender gaps in terms of expected lifetime earnings or qualityadjusted life years, for example, is not, as such, decisive ev idence that injustice is being perpetrated. the choices made by men and women that lead to such gender gaps are not made in an angelic vacuum. they are made by people enabled and inclined by their genes to do, on average, different t hings or do t hem dif ferent ly, depending on whet her t hey a re men or women. these human beings also grew up and currently live in immediate surroundings and wider societies that tend to expect different things from them depending on their gender. men and women may or may not identify with these expectations. a just society is not one in which all gender-specific capabilities and expectations have been eradicated. it is one whose institutions allocate resources in such a way that those women and men with least real freedom are made as really free as possible to live as they might wish to live, including of course by refusing to fulfill the existing gender-specific social expectations. so far (perhaps) so good. but how can such a conception of justice make room for a distinction between, on the one hand, handicaps for which it is fair that one should be compensated and, on the other hand, preferences the consequences of which one should bear? quite simple – in principle. as ment ioned above, pa r t of t he highest susta inable uncondit iona l basic income is to be given in kind, in particular, in the form of a health care package. how big this component should be, and what it should cover and how,is to be determined, in dworkinian fashion, through a thought experiment that requires us to hide behind a veil of ignorance those of our features – including our gender –that affect the probability of our suffering disabilities 170 philippe van parijs leap 3 (2015) and other health impairments in a very broad sense.8 the resulting just health care system can safely be expected to cover,for example, pregnancy, abortion, contraception, perhaps female and male infertility. it may well accommodate a dependency insurance that reduces the chance of elderly people needing to rely heavily on their close relatives. but i would not count on its including prostitution vouchers. 4. against categorical justice this is not the place to further spell out the content and implications of social justice as real freedom for all, except to further clarif y, using illustrations provided in the comments, in what sense it is incompatible with the very idea of gender justice(and, more generally, of category-based justice), and why this matters. to illustrate the incompatibility, let us first return to longevity. in her insightful discussion, casal (2015: 94) notes: “it would not make sense to compensate men who avoid all life-shortening behavior and are thus likely to live long. for then there will be nothing they have to be compensated for[…]. but it would make even less sense to compensate individuals who, despite engaging in all the life-shortening gendered behavior, still escape the fate for which they are supposed to be compensated.” quite right. let us radica li ze t he exa mple by considering t wo f ict it ious situat ions. in situation a, all females die at 85 and all males at 80. in situation b, everyone dies at 85 except for one baby boy out of seventeen, who dies shortly after birth, thereby giving males a life expectancy at birth of 80. surely, it would be absurd to count this lower life expectancy at birth as a disadvantage for the surviving males. if anything, it should count as an advantage, since the form taken by this shorter life expectancy has made them scarcer relative to females in the mating segment of their lives. but this is not only about just-born babies. suppose that the whole of the gender gap in life expectancy was the result of a higher probability of males dying before forty. there would be no longevity disadvantage in being a male over forty. this should suffice to convey the intuition of why the very idea of talking about justice between stat ist ica l categories, gender or ot her w ise, is problemat ic. wit hin t he framework of justice as real freedom for all, in particular, categorical justice makes no sense. 8 as explained in van parijs (2009: section 4), i now believe that this is a better way of accommodating what is usually captured by the preference/needs distinction than the criterion of “undominated diversity” proposed for this purpose in van parijs (1995: chapter 3) and mentioned by casal (2015: 9). real freedom for all women (and men) 171 leap 3 (2015) to illustrate the real-life relevance of this rejection of categorical justice, let us return to mora’s stimulating discussion of women’s educational advantage. i liked the compact summary of his analysis:“female educational efforts, far from signaling the arrival of equality, are the knotted rope women use to escape the f lames of discrimination, domestic and workplace exploitation, and poverty” (mora 2015: 110). in the same vein, mora points out that female higher educational efforts are worth pursuing because it is women’s “protection, and perhaps the only one, against being short-changed at work and at home,” and that higher education is the “irreplaceable tool for them to achieve levels of employability similar to men’s” (110). one conclusion one may be tempted to draw from this is that promoting the education of women, and in particular their access to higher education, is the only serious hope for addressing the injustice suffered by women. but i am sure that mora will want to resist this conclusion. for what about the countless women who, even in the best circumstances, will never go into higher education? surely, the injustice they suffer is in no way diminished as a result of other women escaping the f lames of discrimination and exploitation. justice as real freedom for all does not care about justice between genders, or any other categories, taken globally. it demands that prior attention be given to the real freedom, to the bargaining power of the worse-off, most likely women a nd men who never at tended a nd w i l l never at tend h ig her educat ion. therefore, the privileges, big and small, enjoyed by those who do get access to higher levels of education can be justified only by the extent to which they contribute to the real freedom of those who do not. the pursuit of social justice as real freedom for all may require policy tools that are categorical, in particular gender-specific. but social justice and injustice themselves must be understood as obtaining or failing to obtain between individuals. one of the great contributions of feminism to the thinking about justice is to have made it more indiv idua list ic by blow ing up t he black box of t he household and exposing intra-household injustice. thinking about justice as applying between categories is no better than thinking about justice as applying between households. 5. political inequality i have said nothing so far about one inequality i mentioned as a potential injustice suffered by men, the fact that they systematically form a political minority. as well explained by pierre-étienne vandamme (2015), this case is quite different from the other ones. the inequality, here, is not as such an advantage, but only a potential source of advantages. and it is, moreover, a source that is most unlikely to ever be activated. 172 philippe van parijs leap 3 (2015) vandamme does not question the existence of a solid majority of female voters in mature democracies. he even mentions the stunning figure of seven million more women than men voting at recent us presidential elections. however, he does challenge the expectation that this gap will widen as a consequence of the widening gap between the educational level of women and men. apparently, with some exceptions such as the us and switzerland, the positive correlation between education level and turnout is vanishing in mature democracies. by contrast, the positive correlation between age and turnout remains firm, even though one cannot expect the ageing of the population to deepen the gap in life expectancy, nor therefore the male-female imbalance in either the electorate or the turnout. the key issue, however, is whether belonging to a numerical majority – whether racial, religious, linguistic, professional, whatever – is a feature that matters as regards justice. clearly, no procedural injustice is involved: one person, one potential vote. hence, vandamme (2015: 120) rightly argues that injustice can only arise from a numerical imbalance if the more numerous g roup uses its electora l power to “turn t his numerica l adva ntage into a substantial injust ice.” one ca n imag ine t wo situat ions in which t his is unlikely to happen. one is a perfect deliberative democracy, in which all voters are guided by an impartial conception of justice or of the common good, not by their personal interests. the other situation is that of a democracy that is less than perfect in this sense, but in which the interests of majority and minority are so closely intertwined that the majority could not pursue its own interests without also pursuing those of the minority. if we diverge significantly from either of these situations, a serious risk of injustice arises, unless special constitutional or customary constraints are introduced in order to protect the minority, such as veto powers, guaranteed representation, quotas, and parity rules in executives and in legislative assemblies. w hy do such protections seem to make obv ious sense in the case of flemings versus walloons, shiites versus sunnites, etc. and not in the case of women versus men? the reason is not that the categories of women and men a re each ver y heterogeneous. so a re t he ot her major it y/m i nor it y pairs. the difference, i submit, lies elsewhere. if ever y fleming needed a walloon, or each shiite a sunnite, in order to procreate, if each of them was born from a mixed couple and if most of them cohabited in mixed households and ended up with offspring from either group, their interests on most issues would converge sufficiently for the risk of a tyranny of the majority to be very limited, far more limited at any rate than if none of this were the case. but this is exactly the situation that obtains between men and women. there is a (quasi) unavoidable territorial and personal closeness between genders that makes for a far more systematic convergence of interests real freedom for all women (and men) 173 leap 3 (2015) than in the case of ethnic categories. not a total convergence, needless to say, but one sufficient for no protective veto power to make sense, however large the gap between female and male voting power ever becomes, especially if, next to the convergence of interest, public deliberation plays some of its civilizing, justice-seeking role. for the time being, any way, the danger of misuse of political power is rather coming from the other side. vandamme rightly stresses that political power does not reduce to electoral power. whether because of the misplaced celebration of “leadership” qualities denounced by ottonelli (2015: 130) or because of the unequal distribution of relevant resources, more men than women tend to be involved in forms of political participation more demanding and more consequential than casting a vote at distant intervals. hence, if political power is being misused in those areas in which the interests of men and women systematically diverge, it is more likely to be at the expense of women rather than in their favor, for example, because platforms and policies are surreptitiously concocted and packaged in gender-biased fashion. this is why the presence of women at all levels of public (and private) power is so important. not for the sake of equalizing the chance of access to top positions for the select few, but in order to prevent the specific interests of women of all social classes being systematically under appreciated or completely overlooked. this is about political power, though not the power to impose one’s will through majoritarian voting, rather the power to make problems visible and intelligible in time, and to create the conditions for the adoption and implementation of solutions that can be regarded as fair by all women no less than by all men. epilogue “why not go to a disability conference to talk about the four downsides of being able-bodied?” de miguel (2015: 159) asks. good question. no, i would not do it. w hy t hen did i ag ree to do somet hing a na logous on gender i nequa l it y ? no doubt bec au se i bel ieve t hat t here a re some c r uc ia l differences bet ween the case of gender and that of disabilit y. and also because in this case i was specifically asked to raise some philosophical quest ions on gender by someone i li ke a nd whose act ion i wa nted to support. given the short time at my disposal, my first puzzles were the way i thought i could satisfy the request most effectively. this turned out to be a mistake in the short run, but perhaps not in the longer run, judging by the discussion in this volume, very instructive and clarifying certainly for me and probably for others too. 174 philippe van parijs leap 3 (2015) never t heless, as schouten (2016 : 137) puts it, “we might la ment t he opportunity costs of theorizing alleged injustices against men when women continue to be victimized by pervasive structural injustices, and worry that such theorizing will slow progress toward women’s equality.” i entirely share the underlying conviction that concern with real-life injustices should be at the core of much of our work as political philosophers. it has certainly been at the core of mine. asking, as i did, some seemingly incongruous questions was certainly not intended to “slow progress toward women’s equality” (137). as should be clear by now, it was meant to invite more careful thinking about the relation between gender and justice in a way that should have some relevance to the public debate on these issues, and hence also to real-life gender-related public policy. in particular, i wanted to highlight the possibility that gender justice, understood as justice between two categories, may be the wrong way to think about justice and gender –a point that, in different ways, both casal (2015: 91) and de miguel (2015: 159-60), also touch upon. to illustrate the relevance of this challenge to real life, consider the gender equality index developed by the vilnius-based european institute for gender equality.9 such a composite index aggregates a number of variables each of which ref lects some aspect of gender inequalit y, for example, the male-female gaps in earnings, in rates of participation in the labor market, in proportions of ter t ia r y educat ion g raduates, in life ex pecta ncy or in pa rlia menta r y representation. when collected in a reliable and comparable way, the data sets used as inputs are extremely useful for the sake of assessing a country’s performance and guiding its policies. but the categorical-justice approach such a composite index encourages and the arbitrary weights on which it relies are, in my view, obstacles rather than tools in the effort to guide and design public policies in the service of social justice. in order to engage w it h rea l issues, we phi losophers of ten have to venture outside our tiny field of professional expertise. no problem as such: this is both our right and our duty. but it inevitably involves taking the risk of saying or suggesting things that turn out to be wrong, and hence of being corrected by colleagues who know more about the subject or have thought more about it. this is part of the never-ending attempt to give a coherent picture of what we can and must be heading for, to address the objections this picture may give rise to, and to correct it whenever needed. i am most grateful to my commentators and especially to paula casal, who master-minded t his sy mposium, for hav ing helped me a long on t his – sometimes bumpy – road. 9 gender equality index 2012, european institute for gender equality, https://w w w. eige.europa.eu/gender-statistics/genderequality-index, consulted march 2016. https://www.eige.europa.eu/gender-statistics/genderequality https://www.eige.europa.eu/gender-statistics/genderequality real freedom for all women (and men) 175 leap 3 (2015) bibliography elgarte, j., in progress: gender justice and the future of the welfare state, doctoral dissertation in philosophy, université catholique de louvain. mcl e a n, c ., 2015 : “be yond c a re : e x pa nd i ng t he fem i n i st debate on ba sic income,”wise working paper 1, glasgow ca ledonian universit y, september 2015. murray, m.c. and c. pateman, eds. 2012: basic income worldwide. basingstoke: palgrave macmillan. patema n, c., 2006 : “democrat i zing cit i zensh ip. some adva ntages of a basic income,” in redesigning distribution, ed. e.o. wright, london: verso, 101-119. va n p a r ij s , p., 19 91: “ w hy su r fer s shou ld b e fe d : t he l i b er a l c a s e f or a n unconditional basic income,” philosophy and public affairs 20, 101-31. — 1995: real freedom for all. oxford: oxford university press. — 1998 : “the disf ra nch isement of t he elderly, a nd ot her attempts to secu re intergenerational justice,” philosophy and public affairs, 27, 292-333. — 2009: basic income and social justice: why philosophers disagree, joint joseph rowntree foundation/university of york annual lecture 2009, https://w w w. jr f.org.u k/repor t/joseph-row nt ree-fou ndat ion-lect u re-basic-i ncome-a ndsocial-justice-why-philosophers-disagree https://www.jrf.org.uk/report/joseph https://www.jrf.org.uk/report/joseph 190 issn 2341-1465 leap 2 (2014): 190-209 sufficiency, equality and the consequences of global coercion* kok-chor tan university of pennsylvania abstract in some discussions on global distributive justice, it is argued that the fact that the state exercises coercive authority over its own citizens explains why the state has egalitarian distributive obligations to its own but not to other individuals in the world at large. two recent works make the case that the global order is indeed coercive in a morally significant way for generating certain global distributive obligations. nicole hassoun argues that the coercive character of the global order gives rise to global duties of humanitarian aid. laura valentini argues that the existence of global coercion triggers global distributive duties more demanding than mere humanitarianism, but not necessarily as demanding as cosmopolitan egalitarian duties. this review essay suggests that hassoun’s and valentini’s depictions of the global order as coercive entitle them to the stronger conclusion that there are global egalitarian duties. keywords: egalitarianism, sufficientarianism, global justice, coercion, cosmopolitanism, statism. 1. introduction coercion plays a prominent role in some current discussions on global justice. in these debates, the fact of coercion in the global domain, or its absence thereof, determines the kinds of global obligations we are said to have or not to have. michael blake, for instance, has argued that egalitarian distributive obligations take hold only among persons who need to justify to each other the coercive institutional arrangements that they are jointly supporting. according to blake, such arrangements are justifiable only if they undertake egalitarian distribution commitments to those living under them. * many thanks to nicole hassoun, thom brooks, paula casal and two readers for their very helpful comments and suggestions. i am also additionally indebted to paula for her numerous editorial input and suggestions on structuring this review essay. sufficiency, equality and the consequences of global coercion 191 leap 2 (2014) since, so blake argues, the relevant kind of coercion in need of justification occurs in the state or domestic context but not in the global arena, egalitarian obligations are state-centric and not global in scope. 1 in a similar vein, thomas nagel argues that egalitarian obligations are activated only among individuals who are members of a shared coercive political arrangement. since the global order does not constitute a shared coercive political association, global egalitarian obligations have no place in the global arena. 2 i will consider the above to be the standard form of what has been called “coercion-based theories” of global justice. this is not to ignore that there can be variations within the standard form. in fact, there is an important difference between nagel’s and blake’s positions worth noting. for nagel it is not sufficient that one finds oneself institutionally coerced for justification to be owed to one. in addition, one must also be regarded as a co-author of the institutional system in order to enjoy the standing to demand justification for the coercion. the coercive character of political institutions presents a problem of justification to members because these institutions require an “active engagement of the will of each”; they are institutions supposedly created and imposed in their name. for blake, the problem with coercive institutions that introduces the problem of justification is the more direct one of systematic restrictions on personal autonomy (nagel 2005: 129). this important difference is reflected in the way each responds to the objection that (restrictive) immigration policies of countries are coercive of outsiders wanting in. blake’s response is that this coercion is not systematic and ongoing since it is not affected via a global institutional order but through the policies of individual states. so while immigration policies can be coercive of some people, it does not constitute coercion of the relevant kind (blake 2001: 280). in contrast, nagel’s response is that while outsiders are coerced by the restrictive immigration rules of particular countries, they do not have the standing to demand justification for this coercion since they (as outsiders) are not considered to be co-authors of these policies (nagel 2005: 129-30). 3 despite this difference, however, both their arguments share the following form: (1) there is a standing moral duty to assist people deprived of basic needs. (2) egalitarian obligations, however, take hold if and only if there is coercion of a relevant kind that needs to be justified. 1. blake (2001); blake further develops this account in his recent justice and foreign policy (2013). 2. nagel (2005). blake’s and nagel’s theses have attracted much discussion, including in the two books reviewed here. for one response, see caney (2008). for a discussion on coercion and its connection to distributive equality, see sangiovanni (2007). 3. a short way of seeing the difference between the two responses is that while blake has to show that immigration restrictions are not systematically and legally enacted at the global level, nagel has to show why outsiders are not properly co-authors of such policies. 192 kok-chor tan leap 2 (2014) (3) the domestic order is coercive in this relevant way. (4) the global order is not. (5) conclusion: there is a domestic egalitarian obligation but no global egalitarian obligation. so while nagel and blake disagree about the conditions under which coercion becomes morally relevant (as specified under [2]), their arguments share the basic commitments that (a) coercion (under certain contexts) is necessary and sufficient for generating egalitarian obligation, and that (b) the global arena is not coercive in the relevant way. two important points of the standard account are worth highlighting for my present purpose. one is that the claim that the global order is not a coercive order (of the right kind) is used to block attempts at extending egalitarian arguments to the global context. at issue is the specific matter of global egalitarian justice. the other is that it is not a point of contention that we have a humanitarian duty to assist people in dire need. more importantly, this humanitarian duty or duty of assistance is independent of facts of coercion. for nagel, it is simply a “prepolitical” moral right persons have to be assisted under such conditions, and for blake it is what respect for individual autonomy requires. 4 it is not my objective to engage with nagel’s and blake’s theses in this review essay. 5 i outline them to provide a framework and context for discussing two recent books that attempt to derive obligations of global justice from claims about coercion. 6 what is common to both these works is their belief that the global order is a coercive order in a morally relevant sense. although this is a rich claim in itself and deserving of extended discussion, i am more directly interested in the normative conclusions about global justice that these authors draw from their claims about global coercion. 7 2. poverty and global inequality: humanitarian and egalitarian duties to start, let me clarify two different categories of global obligations, already alluded to above, that will be relevant to the present discussion. the brief remarks here will be mostly familiar but i rehearse them to make more concrete the backdrop of my discussion to come. 4. see nagel (2005: 127, 131-32); and blake (2001: 258), here marking the distinction between concerns of “relative deprivation” (i.e. equality) that arise only in the context of coercion, and concerns of “absolute deprivation” that arise directly from valuing personal autonomy. 5. i attempt this in tan (2006). 6. the two books i will review are nicole hassoun’s globalization and global justice: shrinking distance, expanding obligations (2012); and laura valentini’s justice in a globalized world: a normative framework (2011). 7. parts of the present discussion expand on remarks in tan (2013). sufficiency, equality and the consequences of global coercion 193 leap 2 (2014) one global obligation is the duty to alleviate poverty; the other is the duty to regulate global economic inequality. we may call the former a humanitarian duty and the latter an egalitarian distributive duty. a humanitarian duty and an egalitarian duty are distinct kinds of obligations, both in their form or structure and in their objective. a humanitarian duty, the duty to counter poverty, is “sufficientarian” in form. it is non-comparative in that in that its benchmark is some non-relation threshold based on, for example, personal well-being, standard of living, or access to opportunities. and its objective is that of bringing individuals up to the defined standard of sufficiency. an egalitarian duty has a different structure. it is inherently relational, meaning by this that its benchmark is comparative. how well one is faring, from an egalitarian perspective, is not determined by reference to some nonrelational threshold, but by reference to how well others are doing. and the objective of an egalitarian principle is to regulate the comparative gap between the advantaged and the less advantaged according to some ideal of distribution. so while a humanitarian duty is discharged when persons achieve the target of sufficiency (however that is defined), an egalitarian duty is continuous and remains in play so long as there remain inequalities to be regulated. the distinction between humanitarian and egalitarian duties is not therefore merely semantic but in fact reflects the different forms and substantive goals of these duties. 8 in contemporary global justice discussions, there is a tendency to describe the latter as a duty of justice and a humanitarian duty to be different from duty of justice. depending on how an author defines a duty of “justice”, such a characterization can often be helpful in reminding us of the different categories of these duties. so, what is more important is not how we label and classify these duties, but the awareness that these are structurally and substantively different kinds of duties (as described above). so for the present purpose, nothing turns on whether humanitarian duties are duties of justice or not. we can count these duties, humanitarian and egalitarian, as duties of global justice so long as their structural and substantive differences are kept in sight. now, taking an egalitarian duty to be conceptually distinct from a humanitarian duty does not mean that concerns of equality and poverty are independent of each other. it can well be the case that global poverty cannot be properly mitigated while significant global inequalities between 8. thus a humanitarian duty in this context should not be wrongly equated with charity or an act of supererogation. it is a moral duty and hence in this sense not optional. what distinguishes it from duties of egalitarian justice is its form and objective. for more on the difference between sufficientarianism and egalitarianism, see casal (2007). for completeness, i should note that on this understanding of egalitarianism (as comparative), prioritarianism (i.e., prioritizing the needs of the worst off ) is non-egalitarian. here see parfit (1997). 194 kok-chor tan leap 2 (2014) persons or societies remain a fact. in this case, the commitment to eradicate poverty results in an instrumental commitment to limit inequalities. but it is, however, also imaginable that significant inequalities can persist between countries without anyone or any society being impoverished. or, put another way, even when all persons in the world are lifted above the poverty line, it is still possible, and likely in practice, that significant inequalities remain. below, i will first consider a coercion-based theory that relies on the fact of global coercion to support a humanitarian duty to protect and provide for the basic needs of persons, and then i will look at another that makes the stronger claim that legitimizing global coercion will require an obligation more robust than a duty of humanitarianism but less demanding than an egalitarian distributive duty. 3. humanitarian duty nicole hassoun’s purpose, in her book globalization and global justice, is to clarify the basis of the humanitarian duty to assist the global poor, and in so doing she hopes to provide a grounding of this duty that can overcome the libertarian objection that there are no positive duties to provide for people’s basic needs. philosophers typically regard the problem of world poverty to be less of a philosophical challenge and more of a problem of the lack of political will. in a sense this is right, for few people, politicians included, will openly deny that world poverty represents a serious moral failing for humanity. it is a failure to do what many people would say is required as a matter of justice. yet the seeming lack of political will in the global response to poverty is not entirely a non-philosophical one. this inaction has to do in large measure to disagreements about the causes of world poverty, and disagreements about the basis and therefore the content and limits of our humanitarian obligations to address a recognized global problem. moreover, there remain philosophical hold-outs, in this case, global libertarians (as we can call them), who will deny that there is any obligation to assist the global poor. it is therefore not superfluous for philosophers to address and examine the source and content of the obligation to aid the global poor. at the very least, we can achieve greater clarity about obligations we believe we have. hassoun’s basic claim is that since the global institutional order is coercive of virtually all individuals in the world, this institutional arrangement is illegitimate unless it also actively attends to the basic subsistence needs of individuals. for hassoun, an institution is coercive if “individuals or groups violating its rules must be likely to face sanctions for the violation... coercion usually creates conditions under which the coerced have no good alternative sufficiency, equality and the consequences of global coercion 195 leap 2 (2014) except to do what their coercer wants them to do” (hassoun 2012: 50). 9 she points out that institutions such as the wto, nato, and the un create and enforce rules and arbitrate between rules, and hence are coercive on her account (ibid). these are institutions attendant to the phenomenon of economic globalization or whose significance and pervasive force are enhanced because of it. granting this description of the global order, why does this present a problem of justice? why is there the need to legitimize the coercive global arrangement? that is, and this is what hassoun means by to “legitimize”, why is it necessary that people living under this order and subject to its coercive authority can see it as justified? 10 hassoun’s fundamental normative premise is that failure to make legitimate this arrangement to people living under it would amount to an unjustifiable restriction of their autonomy. because individuals are autonomous agents, any coercive arrangements impacting them —since they restrict their choices on pain of sanctions— that cannot be justified to them is illegitimate. what is needed to rescue our arrangements from this crisis of legitimacy is the consent of those subject to them. however, to ensure that individuals can consent properly to these arrangements, we must do what we can to “ensure that their subjects secure food, water, and whatever else they need for autonomy” (hassoun 2012: 89). in other words, the duty to provide for the needs of persons derives from the duty to protect the autonomous capacity of agents, and the duty to protect this autonomous capacity derives from the duty to ensure that persons are in a position to consent to their coercive situation. in turn, individuals must be able to so consent if our global order is to be rescued from the crisis of illegitimacy. it seems to me that the ideal of autonomy does double-duty in hassoun’s argument. first autonomy explains why, as a default, coercive arrangements are problematic absent consent. coercion is problematic, unless justified, because of its restrictions on autonomy. second, the value of autonomy identifies the preconditions for the exercise of proper consent. persons could not consent if they are deprived of basic needs. in sum: if the global coercive order is to be legitimate, it must enjoy the consent of those it is coercing (first autonomy argument). yet we cannot presume consent to be forthcoming, at 9. now the differences among coercion theories will be affected by how each theory understands “coercion”. for instance, for blake, the normatively relevant coercion he has is mind is one that is legal, systematic, and ongoing. thus he is able to argue, against his opponents, that immigration policies of a country are not coercive of outsiders in the relevant sense. as he puts it, there is “no ongoing coercion of the sort observed in the domestic arena in the international legal arena” (blake 2001: 280). but the interesting difference between hassoun and blake concerning the global arena is not ultimately conceptual but empirical: they disagree over facts of the global order. hassoun thinks there are global institutions that impose systematic and ongoing restrictions on persons (hassoun 2012: 77ff ); blake denies this. 10. for hassoun, “legitimacy ... is just a justification-right to exercise coercive force” against subjects who have a “natural right to freedom” (hassoun 2015: 18). 196 kok-chor tan leap 2 (2014) the very least, unless the autonomous capacity of those whose consent we are seeking is developed and protected (second autonomy argument). one can’t be exercising real choice for the purpose of expressing consent unless one is an autonomous moral agent. but because there are certain preconditions for agency without which we cannot possibly speak of autonomous agency, the legitimacy of coercive institutions remains in question if these institutions are imposed against a background where the preconditions for autonomy are clearly lacking. the lack of basic subsistence is just such a case. thus it is important for the sake of winning legitimacy for our global institutional order that we accept an obligation to address basic needs deprivation. as i will try to argue below, it is not clear what role exactly coercion has in hassoun’s argumentative strategy. it seems to me that either hassoun begins with a sufficiently substantive conception of autonomy in order to generate a concern with coercion of the kind she has in mind, in which case, so i will suggest, that conception of autonomy is also sufficient to directly ground a commitment to poverty alleviation (thus rendering the idea of coercion redundant); or she begins with a less robust view of autonomy, in which case it is not clear how this notion of autonomy can ground a concern with coercion of the sort that her argument needs (thus rendering the idea of coercion inadequate to her cause). to situate hassoun’s argumentative method in the larger philosophical literature, consider thomas pogge’s account of our responsibility to address global poverty (pogge 2001). for pogge, it is the fact that the global advantaged are helping (in a variety of ways) to sustain a global economic order that is harming the poor that imposes a duty of justice on the rich to respond to the poor’s plight. the duty to address poverty is, in pogge’s account, a duty based in justice to make good the harms that we the rich are inflicting or have inflicted on the poor. that is, the moral starting point for pogge is the modest one that we have the negative duty not to do harm to others. it is our violating of this negative principle not to do harm that in turn generates our positive duties to address the plight of the global impoverished. so, the rationale for pogge’s focus on the “factual” claim that the world order is harming the poor is that he wants an as ecumenical as possible a normative starting point, one that the libertarian can also find agreeable. any plausible moral position, pogge believes, accepts that we have a fundamental duty not to harm others, and thus the uncontroversial auxiliary duty to make amends for any harm we have caused or are causing. thus his argument turns on the empirical matter of whether and how the world order is indeed harming the poor, and how the global rich are implicated as class in this wrong. consider, in contrast, a different normative starting point, say that of henry shue’s which takes that we have as a basic moral obligation the positive duty to assist those deprived of basic needs (shue 1979). on this account, it is immaterial whether the deprivation confronting us is caused by us or sufficiency, equality and the consequences of global coercion 197 leap 2 (2014) not —the fact of its existence is sufficient for creating an obligation on those able to respond. my point here is not to get into the debate surrounding these two approaches, but to point out that it is significant for pogge that he establishes the harmful or coercive character of the world order because of his modest normative presumption —that our sole responsibility to each other is to avoid interfering with one another. hassoun adopts a similar methodology in making the case for humanitarian duties in light of the libertarian objection. like pogge, she does not want to butt heads with the libertarian. instead, she prefers to engage the libertarian on the libertarian’s own terms. but unlike pogge who finds the meeting point to be the no-harm principle, hassoun engages the libertarian’s concern about legitimacy, in particular, the legitimacy of coercive institutions. 11 but just as pogge’s argument has generated interesting and lively discussions about whether or not he is implicitly relying on a philosophically substantial notion of harm to advance his case (accordingly calling into question whether pogge has in fact reduced the debate on world poverty to a simply factual one), so a parallel question arises whether hassoun is not in fact relying on a rather substantive ideal of personal autonomy to carry her argument. 12 hassoun’s invocation of autonomy invites two possible queries: one is that her normative starting point need not be one that her opponent, the libertarian, will necessarily accept; and, second, given her substantive account of autonomy, her reliance on coercion seems normatively redundant. let me elaborate on the latter first. hassoun takes it to be important that the world order be exposed as a coercive one; yet she justifies her conclusion that coercion stands in need of legitimization because its potential blow on individual autonomy (in the way i tried to explain above). indeed, she takes what she calls “the autonomy argument” to be crucial to her argument. without this understanding of autonomy, specifically the preconditions of autonomy as defined, the conclusion that legitimizing coercion requires attention to basic needs does not follow. here a question arises: if individual autonomy is that morally significant, why can’t we just draw the conclusion that we have the obligation to ensure that persons have access to food, water and so on simply because autonomy is impeded without access to basic subsistence without having to show that 11. that libertarians should be consent theorists is of course a point of debate in the libertarian literature. hassoun is aware of this, and engages the discussion on consent and libertarianism to defend her consent reading (96ff ). 12. for some discussions on this and other matters of pogge’s approach to global justice (which i will leave aside here), see jagger (2010). hassoun herself notes that she is proposing an alternative to pogge’s account because of some difficulties surrounding what counts as “harming” the poor within pogge’s theory (42-43). 198 kok-chor tan leap 2 (2014) they are also being coerced? indeed, several philosophers have made the case for a human right to basic needs on account of individual autonomy quite independently of facts about coercion or other prevailing possible wrongs. 13 if respect for autonomy entails obligations to help provide subsistence in this more direct way, then the fact of coercion seems normatively superfluous for hassoun’s objective since the ideal of autonomy already features in the argument. what is relevant is that the global order provides for people’s basic needs because individual autonomy is offended against otherwise. indeed, hassoun’s own explication of her thesis suggests this much. hassoun’s argument proceeds in the following two steps that can be summarized as follows (hassoun 2012: 89). first, autonomy means that persons have the “autonomy-based” human right to food, water and other means of subsistence they need “for sufficient autonomy”. second, “to be legitimate, coercive institutions must do what they can to ensure that their subjects secure food, water and whatever else they need for autonomy” (ibid., emphasis added). but if there is an autonomy-based human right to subsistence, it is not clear why the presence of coercive institutions is seen as a necessary condition of the duty to provide subsistence. the fact of coercion seems normatively redundant. anyone and any institution has the responsibility to assist those deprived, irrespective of coercion. indeed, in the dominant debate on global justice, the fact of coercion is often presumed to be sufficient for triggering not merely humanitarian duties but egalitarian duties. in this regard, it is helpful to recall michael blake’s position for illustration. blake takes respect for personal autonomy alone to be sufficient to ground the concern for people’s “absolute deprivation” (blake 2001). that is, the respect for autonomy straightforwardly engages a commitment to provide for people’s basic needs. for blake, the fact of coercion becomes significant not when we are asking about our duties in response to absolute deprivation but when we are considering a different question: do we have the duty to respond to inequality? that is, should we attend to people’s “relative deprivation” as well? it is only with regard to this question that coercion makes a normative difference —the fact of institutional coercion for blake, coupled with the fundamental concern for autonomy, is what generates distributive egalitarian obligations. blake’s point in his paper is that since there is institutional coercion in the domestic setting but not in the global setting, we can see how one can consistently be 13. for one recent attempt, see gilabert 2012. gilabert argues that the obligation to assist the global poor stems directly from a cosmopolitan humanitarian concern, an obligation we have he argues independently of facts of coercion, association and so on. hassoun herself in her book (chapter one) offers a human rights based defense of meeting basic needs. this thus reinforces my question: what argumentative role is coercion really playing in defense of the conclusion that there is an obligation to meet basic needs? sufficiency, equality and the consequences of global coercion 199 leap 2 (2014) a domestic egalitarian and not a global egalitarian. one might push blake on his claim there is no global systemic coercion, or even challenge him on the normative premise that coercion is the sin qua non of global egalitarian obligations, but none of this rejects his view that there is a non-coercion based duty to provide for basic needs in virtue of personal autonomy. hassoun in effect seems to have (unintentionally) raised the justificatory bar for global justice for even duties of humanitarian assistance have to be premised on facts about global coercion, which someone like blake will not deem necessary. in short, in the main discussions on global justice and coercion, the dispute is not about humanitarian assistance but the stronger claim about global egalitarian obligations. for this reason, hassoun’s method of argument —invoking coercion to ground not global egalitarian obligations but humanitarian ones— is a little disconnected from this main discussion and appears a bit like a self-imposed handicap. but this disconnect is understandable if we keep hassoun’s main target in mind. as mentioned, her concern is the libertarian who will reject even the modest duty of humanitarian aid. blake’s project to the contrary is explicitly directed at the liberal egalitarian who can accept the significance and implications of the ideal of autonomy. such claims about autonomy will not hold sway with the libertarian, hassoun’s interlocutor, who will simply resist the claim that respect for autonomy enjoins the obligation to provide for persons’ basic needs. the libertarian can of course endorse the importance of individual autonomy, but she will deny that this alone generates any positive obligations to provide for the conditions of the exercise of autonomy. so hassoun thinks she needs to introduce the issues of coercion and consent in order to extend the normative implications of the libertarian ideal of autonomy. confronting and responding to the global libertarian is not without use, and this is hassoun’s motivating goal. libertarians have been rather ignored in the debate on global justice for the most part since this debate, as mentioned, has largely focused on egalitarianism rather than humanitarian aid. hassoun’s discussion reminds us that global libertarianism remains a serious philosophical position that needs to be addressed. in this regard, however, my second observation about autonomy’s role in hassoun’s argument comes in. unfortunately, it seems that hassoun’s notion of autonomy is not one that the libertarian can endorse. as said, hassoun wants to make the case that libertarians, who are themselves concerned foremost about the legitimacy of authority, will have to acknowledge that the global order faces a certain legitimacy crises unless individuals under its sway are in a position to give consent, and to give consent one must be autonomous to some extent. but she adds, as noted, that respect for autonomy requires that persons’ basic needs be met as a precondition for exercising autonomy. 200 kok-chor tan leap 2 (2014) yet it is not clear in the end if hassoun’s invocation of autonomy is really modest (or libertarian) enough to placate the libertarian. built into her notion of autonomous consent are precisely the preconditions for autonomous choice that i believe many libertarians will reject. libertarians who are also consent-theorists will of course require that consent be given freely and be non-rights violating. so clearly all libertarians will agree that a verbal agreement forced out of me under torture is no consent at all. but what about consent made under unfavorable economic circumstance? whether such a consent is or is not freely given, or whether it involves rights violation or not, will depend on some background conception of individual freedom and rights, and many libertarians will disagree with the liberal egalitarian that consent under some economic stress is not freely given or is rights violating. so while hassoun is on track when she says that the libertarian (who is also a consent theorist) will not approve of consent given under duress, she is too optimistic in thinking that the libertarian will agree that economic deprivation per se constitutes a morally relevant kind of duress. libertarians might concede that a famished individual has fewer options in terms of what she could consent to, compared to another in a more favorable condition, but they need not conclude that such consent is thereby void. certainly they will resist the claim that we therefore have some duty to improve the condition of the famished just so that her contracting situation is improved. the latter entails positive rights and duties that libertarians will not sign-on to. hassoun’s conception of autonomy and the obligations that she attaches to it seems, in the end, to be characteristically liberal rather than classically libertarian. it includes positive rights that libertarians will find unacceptable. so in the end, it appears that a particular conception of autonomy, one which libertarians will find hard to endorse, bears the weight of her ar gument. in sum, either we accept hassoun’s ideal of autonomy (which is really a liberal rather than a libertarian conception of autonomy) and conclude that there is a duty of humanitarian aid directly on account of what it means to take autonomy seriously, in which case coercion is dispensable to the argument; or we grant the libertarian notion of autonomy, in which case, even the fact global coercion is not sufficient to show that there is any reason to take on positive duties of aid. but if hassoun does not succeed in her primary task, her careful account of how the global order is coercive in an ongoing, legal and institutional way has useful implications for the global justice debate. for if coercion provides at the very least a sufficient condition (if not a necessary one) for engaging egalitarian obligations, then her depiction of the global order as coercive entails egalitarian global obligations beyond the humanitarian assistance she seeks to defend. this is not to say that hassoun must resist this global sufficiency, equality and the consequences of global coercion 201 leap 2 (2014) egalitarian implication of her argument, but it is a conclusion different from what she sets out to defend. indeed, on the matter of global egalitarianism, one might further wonder if true consent of the sort that hassoun demands (for the purpose of legitimizing global coercion) is realizable in the presence of significant inequality between consenting parties. on her own understanding of the conditions for the exercise of autonomy (upon which true consent is predicated), which i have suggested is a characteristically liberal rather than a libertarian ideal of autonomy, one could make the argument that excessive global inequality will compromise the quality of any consent about the global order. one need not be impoverished —being disadvantaged can be enough— in order to be made an offer that is difficult to refuse. thus the legitimacy of global coercion, on hassoun’s own principles, might demand more than a duty of humanitarian aid. 4. beyond humanitarianism but not quite egalitarian? the second coercion-based theory i will discuss will agree with my suggestion above that legitimizing global coercive arrangements will require global duties of justice more robust than humanitarian duties. but this account will disagree that these will therefore be egalitarian duties. instead, it attempts to show that there is a third category of obligation that is entailed by the need to justify coercive global arrangements, and that this duty falls in between humanitarian duties and egalitarian duties in terms of its substantive content and demandingness. in her justice in a globalized world, laura valentini makes the case for this middle alternative. she calls this the “third wave” in global justice which she takes to be distinct on the one side from “statism” that supports only humanitarian duties, and on the other from “cosmopolitanism” that enjoins global egalitarian duties. on her approach, “global justice requires more than statist assistance, but less than full-blown cosmopolitan equality” (valentini 2011: 20). 14 as with hassoun, the problem of coercion is a crucial part of valentini’s account. principles of justice are principles that establish “when coercion is justified” (valentini 2011: 4). but while hassoun begins from the ideal of autonomous consent, valentini begins from the notion of freedom as independence. for valentini, principles of justice are those principles that specify the conditions under which coercion is acceptable, and coercion introduces this consideration because it “involves non-trivial restrictions of freedom as independence” (valentini 2011:178). since 14. there is affinity of views here with cohen and sabel (2006). 202 kok-chor tan leap 2 (2014) principles of justice have the function of regulating and justifying coercion, justice-considerations kick-in only among agents who are interacting or institutionally engaged with each other and thus liable to be coercing one another. the key claim in valentini’s account is that the forms of coercion that provide the circumstance of justice include not just systematic coercion (i.e., coercion due to shared institutions people are imposing on each other) but also interactional coercion (i.e., direct agent-to-agent coercion) (valentini 2011: 15). as she puts it, understanding coercion more broadly to cover both interactional and systematic forms better captures “the multiplicity of constraints on freedom” (valentini 2011: 154). the significance of this distinction between the two kinds of coercion is that each requires different kinds of moral principles for its regulation. systematic forms of coercion are formalized and institutionalized. they shape the moral terrain in which individuals interact with each other on terms of freedom. to make acceptable this background condition to all participants, the coercive formal system of rules must be regulated by some egalitarian principles in the spirit of ensuring that it equally respects the freedom of all participants. interactional coercion, which is coercion at the inter-personal or agential level, demands different conditions of acceptability. since the concern here is not with a background structure that is presumed to regard the freedom of all with equal consideration, egalitarian considerations don’t arise. rather, since individual freedom can be preserved in case of interactional coercion in other ways —such as by interpersonal principles restricting or limiting intervention and by principles barring exploitation— egalitarian principles do not get activated. valentini agrees with those statists who hold that principles of justice play the role of legitimizing coercion within the state. but her broader reading of the forms of coercion that matter for justice also allows her to regard the global arena as a coercive one in a normatively significant way as well, and therefore also an arena in which concerns of justice have a place. thus she departs from statists who tend, as she correctly sees it, to limit concerns of justice to the domestic state. but because the moral condition (the forms of coercion, i.e.) in the global arena is quite different from the domestic one, the content of global principles of justice will be different from domestic principles. specifically while domestic principles of justice will include egalitarian obligations, global principles will not. thus her “third wave” of global justice that lies in between an overly modest statism and a too demanding “all out” cosmopolitan egalitarianism. we will better appreciate valentini’s broader reading of coercion and its significance to the debate by contrasting it with blake’s, whom she regards as a representative statist theorist. as mentioned, blake limits egalitarian justice commitments to the state because he takes systematic coercion to be the normatively salient form of coercion in need of justification. thus while the sufficiency, equality and the consequences of global coercion 203 leap 2 (2014) global arena, blake can concede, is coercive, it is coercive in an interactional way and so does not present a normatively significant (for purposes of egalitarian justice) form of coercion. on this matter of the coercive character of the global order, valentini departs from blake for two reasons. one is that, contra blake, she believes that the global order involves systematic coercion even if not in as encompassing a way as domestic institutions. she gives the example of the global economic system, which is an institutional order that systematically constraints the freedom of some people through its laws and regulations (valentini 2011: 193ff ). second, as already noted, she utilizes a broader understanding of the types of coercion that create conditions for justice. unlike blake who limits his analysis to systematic coercion, valentini regards interactional coercion as normatively salient as well. accordingly, since the global order (as blake will also agree) exhibits interactional or agent-to-agent coercion, as when one state intervenes or imposes sanctions on other, it is coercive in a normatively relevant sense for valentini. in short, valentini’s disagreement with blake on the coercive character of the global order is on one front empirical (there is in fact systematic coercion) and on the other normative (interactional coercion morally matters too from the perspective of justice). the basic implication of all this is that the global order is one wherein concerns of coercion do arise as to generate considerations of justice. granting valentini her broader understanding of coercion (which is instructive and illuminating) and her description of the global order as both interactionally and systematically coercive, i confine myself to this question: why aren’t global egalitarian obligations generated as a result? what is the moral difference in the forms of coercion in the domestic order and the global plane that can account for this difference? the basic difference as valentini sees it is that there is an encompassing institutional order or a basic structure (in the rawlsian sense) in the domestic case that regulates and restraints individuals’ lives in a pervasive and profound way (rawls 1971). given the pervasiveness and profundity of this coercive structure, it itself needs to be justified as an entity. to render this shared system acceptable to all subject to it, society must guarantee all members equal political rights, equal opportunities, and adequate economic rights (valentini 2011: 176). that is, domestic justice must include some egalitarian commitments (as noted for example by the equal opportunity commitment) if the systematic coercion that is inevitable in the state is to be acceptable to all. this is where valentini concurs generally with the main statist accounts of domestic coercion and egalitarian justice. on the other hand, the global order exhibits a more limited case of institutionalized coercion, for example, through the global economic order mixed with more common instances of interactional coercion (as mentioned earlier) that occur outside of a legal structure. since the systematic coercion 204 kok-chor tan leap 2 (2014) is limited and since the main form of coercion is interactional, the moral necessity here is not so much to justify a global institutional order as such (since there isn’t one) as to regulate the specific global systems (like the global economic system) and the various inter-state or personal conduct. so there must be principles of justice to render this condition acceptable to all living in it, but the level justification called for in this situation is, so to say, weaker and does not include egalitarian commitments to render it acceptable to all involved. indeed, one might think that global egalitarianism will run counter to legitimate statist interests such as the independence and self-determination of states which are the preconditions for ensuring the freedom of citizens. so while statists are wrong to think that the global order is one in which justice has no place, cosmopolitan egalitarians are mistaken in thinking that global principles will just be domestic egalitarian principles writ large. valentini outlines some possible implications for global justice under this systematically coercive scenario that are plausible and sensible. they include ensuring symmetrical rules of interaction “with no profit exception for the powerful”, trade rules skewed to favor the less advantaged, certain redistributive commitments, compensating poor countries for “otherwise adverse effects of liberalization” for instance, greater accountability and regulation of global economic institutions and so on (valentini 2011: 200201). these are just indications of what global justice would require and not meant as a complete articulation of the principles of global justice. they can be seen as a first sketch of what global justice would require minimally under her framework. but valentini is also firm that whatever else will be required for global justice, it will not include egalitarian commitments. valentini does a thorough job pointing out how the global order is coercive both interactionally and systematically even if in a circumscribed way. but what seems a bit quick is her conclusion that the character of global coercion unlike domestic coercion does not activate egalitarian principles of justice. why should this be so? now it might be the case that interactional coercion is sufficiently regulated by principles of compensation, of forbearance, of non-exploitation and so on, and so there is no cause to introduce egalitarian commitments. that might very well be the case, and i will not pursue this point here. but what about the presence of global systematic coercion that valentini also accepts? if systematic coercion in the domestic case generates egalitarian commitments (as she agrees), why does it not do the same in the global case? it might be because global systematic coercion is limited and so is affected through specific systems or particular institutional orders and not through an all encompassing global basic institutional structure. but why would that translate into no egalitarian commitments? why can’t these particular and limited systems or arrangements be regulated by egalitarian principles? for example, why can’t the global trade regime be governed by a principle that sufficiency, equality and the consequences of global coercion 205 leap 2 (2014) says that the gains of trade should be equally distributed among the relevant parties as a default (with specifications on when departure from this default is admissible, as when it advantages the less advantaged)? this egalitarian obligation will no doubt be specific to the order or system being regulated, but it is still a global egalitarian commitment. so the fact that the institutional site that we want to justify and regulate is limited in its purview (regulating trade but not other aspects of global relations) does not alone tell us that this site cannot be regulated on egalitarian terms. it will just mean the global trade regime as a global institutional order should be governed by egalitarian principles. why isn’t this a global egalitarian commitment? a principle of distribution can be egalitarian in pattern independently of the pervasiveness of the site that is applied to. there may be something about site-limitation of this sort that precludes egalitarian regulation but arguments must be given for this. the requirement that egalitarian justice must have an institutional site is not contradicted just because the relevant global institutions to which an egalitarian principle can apply are less pervasive and encompassing than the basic structure of domestic society. it is not implausible that global distributive obligations will have different content from domestic egalitarian distributive principles, that global justice will not simply be domestic justice extended to the world. but, again as with differences in site, that there is a difference in content alone does not render global principles non-egalitarian. there are different ways of specifying an egalitarian distributive commitment, and a global principle even though differing in content from a domestic egalitarian one can still be egalitarian. different egalitarian principles can establish different conditions and limitations of acceptable inequality. for example, rawls’s difference principle is one articulation of an egalitarian obligation, and g. a. cohen’s “equal access to advantage” is another (rawls 1971; cohen 1989). thus, just as there can be different sufficientarian principles that will propose different conceptions of the threshold of entitlements or flourishing persons are entitled to, so there can be different kinds of egalitarian distributive principles with different understandings of the limits of admissible inequalities. a global distributive principle grounded on the fundamental commitment to individual freedom from domination can, we grant, limit inequality differently than a domestic principle grounded on the same fundamental commitment given the different ways personal freedom is at risk in these settings. but if this principle is in the business of regulating inequality for the sake of ensuring freedom, it is formally an egalitarian principle. one implication of the above is that it is important not to assume that cosmopolitan egalitarians necessarily hold that global principles must be identical to domestic egalitarian principles. some cosmopolitans may indeed have so argued but that is not what defines their position as cosmopolitan egalitarian. cosmopolitanism is not a thesis about the content of equality 206 kok-chor tan leap 2 (2014) (to wit that global egalitarian principles must be extensions of domestic egalitarian principles) but a thesis about the reach or scope of egalitarian commitments. but egalitarian commitments can take different shapes, and there is nothing in the ideal that egalitarian justice has global reach that requires global principles to be replicas of domestic principles. one does not forfeit one’s cosmopolitan egalitarian credentials just because one offers a global principle that specifies the limits of acceptable inequality differently from a domestic principle. to clarify, i am not arguing that global egalitarianism is the only defensible or plausible option. and certainly i have not suggested independent reasons for why a concern with coercion should create obligations of egalitarian justice. my claim is that given valentini’s concern with coercion and her engagement with the statists for whom systematic coercion is sufficient for grounding egalitarian obligations, one would want to know more why she is able to resist egalitarian conclusions under these terms. let me connect these remarks to the opening comments on the difference between egalitarianism and sufficientarianism. a duty of basic humanitarianism will have a lower target whereas a more robust duty of assistance will have a more demanding requirement, but both are essentially versions of sufficientarianism. given that so-called statists in fact have different humanitarian targets in mind when they speak of “humanitarian duty”, their position as a whole is more helpfully described as a sufficientarian rather than humanitarian. one can disagree with a particular statist’s account of our humanitarian duty because it is too weak (covering only basic needs), and advocate instead a more demanding threshold (ensuring, in addition to basic needs, that members of a society can support functioning institutions of their own). but this does not introduce a new category of distributive duty —it is still a duty of sufficiency albeit a more demanding one. and just as there can be more or less demanding forms of sufficientarianism, so there can be more or less demanding kinds of egalitarian distributive justice. just because one thinks that more economic inequality is tolerable globally than domestically (and therefore global distributive principles will have a different content from domestic ones) does not mean that one is not a global egalitarian if one is still in the business of regulating global inequality. egalitarian principles are egalitarian because of their basic form —their comparative character and objective of regulating inequality— not because of their content or the way the limits of admissible inequality are specified. presenting the contrast more fundamentally in terms of sufficientarianism versus egalitarianism, the interesting question is, contra valentini, not whether there is a third alternative but what particular versions of sufficientarianism or egalitarianism to endorse. in the end, valentini may well be able to resist the egalitarian impulse i gesture at, but this will mean that she is opting for a stronger version of sufficientarianism than basic humanitarianism (perhaps sufficiency, equality and the consequences of global coercion 207 leap 2 (2014) something closer to rawls’s duty of assistance) (rawls 1999). ultimately the dispute concerning global distributive justice remains a dispute between two basic forms of global obligations —egalitarianism versus sufficientarianism. although this basic dispute is further complicated because there are different theories of sufficientarianism (some more demanding than others) and different theories of global egalitarianism (some more demanding than others), it remains essentially a disagreement between two different forms of obligations. there is no third category or third wave of global distributive justice. 5. concluding reflections coercion-based theories are often invoked for the purpose of marking a morally significant difference between domestic justice and global justice in order to explain why it is that certain duties obtain domestically but not globally. these theories introduce both a normative premise, namely, that coercion is a sine qua non for certain obligations of justice to take hold, and an empirical premise, namely, that the morally relevant kind of coercion obtains domestically but not globally. in particular, in the current debate on global justice, these theories are invoked to explain why egalitarian commitments obtain domestically but not globally. on what i call the standard form of these theories, the premise that the global order is not a coercive institutional order in the relevant sense is in the service of an antiglobal egalitarian conclusion. 15 against these anti-global egalitarian arguments, some commentators have questioned the normative premise and have argued that there are other sufficient conditions for caring about distributive equality besides the need to legitimize coercion (mitigating misfortune, for example). so even if the global order is not coercive in the right way, there could be other reasons for taking on global egalitarian commitments. another available response is to put pressure on the factual premise, and make the case for global egalitarianism by denying the observation that the global order is not a coercive order. in their stimulating books, hassoun and valentini opt largely for the second route. 16 but what is interesting is that they do not go on to oppose the antiegalitarianism of the standard accounts. they deny the empirical premise, but they arrive at conclusions that are not, so they say, global egalitarian. in valentini’ case, however, the engagement with the standard accounts is 15. again, i am referring to blake (2001) and nagel (2005). 16. so, although valentini has a normatively broader reading of coercion, she also disagrees with the empirical claim of statists that there is no significant systematic coercion in the global domain. it is this particular observation of hers about the global order that i have focused on in my discussion of her book. 208 kok-chor tan leap 2 (2014) clear in one respect. she wants to reject the statism that is characteristic of the standard accounts. the question i pose above, however, is whether she succeeds also in resisting the anti-egalitarianism as shared by the standard view. hassoun’s coercion-theory fits with the standard debate less neatly. as said, the standard coercion theories almost always accept that there is a humanitarian duty in response to poverty. their purpose is not to deny that there are such duties but to deny that there is an egalitarian duty in addition. rejecting the empirical premise that there is no global coercion in order to derive a duty of humanitarian aid is to argue for that which the main coercive accounts already affirm. but if hassoun’s project does not engage neatly with the coercion-based literature (as represented by blake and nagel), she also extends the coercion theory outside its normal confines, to challenge the libertarian who will deny that there is a straightforward duty of assistance. yet i noted that if the global order is in fact coercive in the different ways hassoun and valentini say it is, then on the understanding of the standard versions of coercion theories, global egalitarian commitments ought to be generated. within this debate, making the case that the global order is coercive has more significant normative implications for our global obligations than what they argued for. bibliography blake, m., 2001: “distributive justice, state coercion and autonomy”, philosophy and public affairs, 30/3: 257-96. — 2013: justice and foreign policy, oxford: oxford university press. caney, s., 2008: “global distributive justice and the state”, political studies 56/3: 487518. casal, p., 2007: “why sufficiency is not enough”, ethics 117/2: 296-326. cohen, g. a., 1989: “on the currency of egalitarian justice”, ethics 99/41: 296-326. cohen, j., and sabel, c., 2006: “extra rempublicam nulla justitia?”, philosophy & public affairs, 34: 147-75. gilabert, p., 2012: from global poverty to global equality: a philosophical exploration, oxford: oxford university press, 2012. hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, cambridge: cambridge university press. jagger, a. (ed.), 2010: thomas pogge and his critics, oxford: polity press. nagel, t., 2005: “the problem of global justice”, philosophy and public affairs 33/2: 113-47. parfit, d., 1997: “equality and priority”, ratio 10: 202-21. pogge, t., 2001: world poverty and human rights, oxford: polity press. rawls, j., 1999: the law of peoples, cambridge, ma.: harvard university press. — : a theory of justice, cambridge, ma.: harvard university press. sangiovanni, a., 2007: “global justice, reciprocity, and the state”, philosophy and public affairs 35/1: 3-39. shue, h., 1979: basic rights, princeton: princeton university press. sufficiency, equality and the consequences of global coercion 209 leap 2 (2014) tan, k-c., 2013: “the demands of global justice”, oeconomia 13/4: 665-679. — 2006: “the boundary of justice and the justice of boundaries: a defense of global egalitarianism”, the canadian journal of law and jurisprudence 29/2: 319-344. valentini, l., 2011: justice in a globalized world: a normative framework, oxford: oxford university press. 4 christiano.indd replies to david alvarez, david lefkowitz, and michael blake t hom a s ch r ist i a no university of arizona i am grateful for, and honored by, the papers by david alvarez, david lef kowitz, and michael blake on my recent work on the legitimacy of international institutions. i will give a brief introduction to some of the main ideas of the project before i respond to the criticisms. the basic project is animated by two basic concerns. the first concern is to try to devise a normative conception of the international political system under the guidance of cosmopolitan and democratic principles. the second is to see how far we can go in realizing cosmopolitan and democratic principles in the international political community while recognizing the centrality of states and the necessity of state consent to the legitimation of the international political community. the corollary to this project is to ask what kinds of modifications of the contemporary system of state consent would be necessary to realize the democratic and cosmopolitan concerns. what would a system of state consent have to look like in order for it to realize cosmopolitan and democratic ideals? what changes would have to be made relative to the one that we already see present. for many people, this project seems doomed from the start if not outright incoherent. many might ask, how can a theory that is devoted to cosmopolitan and democratic aims be compatible with a theory that says that states ought to play a central role in international decision making? surely we need to have global political institutions that are democratically organized in a way that is analogous to the democratic organization of modern states. to be sure, there are many f laws in these democratic states and they must be overcome, but some form of centralized collective decision making in which all adult persons can participate as equals is required to satisfy the cosmopolitan and democratic concern. and some of the criticisms offered in the papers suggest this. but i am not convinced that the project is incoherent and so i will lay out some of the reasons for engaging in this project and give a sketch of how i think the project must go. just as a quick response, it is not obvious why a system that relies on a qualified requirement of voluntary agreement 4 christiano.indd 221 21/4/17 13:31 222 thomas christiano leap 4 (2016) among a small number of groups is inherently disabled from making decisions in an egalitarian way that are designed to advance the common good among all the members of those groups. as i understand it, a political community is essentially constituted by three basic facts: one, there is a set of morally mandatory aims that each member has reason to see, and mostly does see, must be pursued through the cooperation of the members of the community. two, though there are commonly accepted mandatory aims, there is substantial disagreement about how to specify the aims and how to pursue those mandatory aims effectively and fairly. three, there is also a substantial diversity of interests with regard to how to pursue those aims. as a consequence of these facts, a community must have some kind of decision process by which to negotiate the disagreements and conf licts of interests in choosing how to cooperate in realizing the aims. i characterize the position that i am defending as a kind of progressive cosmopolitanism. what this means is that there is a cosmopolitan political community but that its aims are limited initially to what can be taken to be reasonable aims for the community. the progressive element is that as the community becomes capable of achieving the aims to some significant degree, the aims become more demanding over time. modern states pursue at the moment the most ambitious aims political communities can pursue, which are public justice and the common good. this involves basic liberties, distributive justice, retributive justice, a highly integrated system of economic activities constrained by considerations of fairness and efficiency, as well as basic public goods such as education and pollution control. the international political system is much less ambitious. it pursues international peace and security, the protection of persons from the most serious human rights violations, the avoidance of global environmental disaster, the alleviation of severe global poverty, and a decent system of international trade and finance. the vast majority of states have signed on to each one of these aims and it is generally recognized that cooperation among states is necessary to achieve these aims. but relative to the aims pursued internally by states, these aims are modest. my thought is that once we can fulfill these aims reasonably well, more fine grained aims will become important for the international community. the more refined the aims become, the more like the aims that states pursue, the more pressure there will be to make the international community more like a state. the more the international community becomes like a state the more it takes over the functions that states have fulfilled. but this is pretty far off still. 4 christiano.indd 222 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 223 leap 4 (2016) for the moment we have states as by far and away the most capable and the most accountable institutions in the international system. the reasons for staying with states for the time being as the building blocks of the international order, at this relatively early stage in the development of international institutions, are three: one, states are still by far the most effective systems for making power accountable to persons in the international system. many have developed egalitarian practices of accountability over the last five hundred years and have achieved a great deal in this respect. admittedly, the modern democratic state leaves much to be desired in terms of basic democratic norms and economic justice, yet it is a great achievement all the same; it ought to be preserved as long as we have little else to replace it with. second states are highly integrated systems for achieving justice and the common good that have developed over long periods of time. the integrity of the system of rights and justice and the democratic system by which this is preserved is complex. the social conditions that have arisen for sustaining this integrated system have taken a long time to develop and are essential to the proper functioning of the institution. we can look at the world as a whole as a geographically determined division of labor in which the basic interests and rights of persons are advanced in geographically defined areas by institutions that are highly accountable to the persons in them. this division of labor is highly imperfect, and in some places works hardly at all, but it is still the best we have for advancing the interests of persons. and we can see that, i think, from a morally cosmopolitan standpoint. we do not want to do violence to the integrity of states at this point, since that is likely to damage their capacities to carry out the basic functions they perform. hence we want international law and institutions to be compatible with the states and for that reason we want a qualified requirement of consent to those institutions or laws before states are obligated to comply with them, at least at the most fundamental level. furthermore, third, these states are in a position to represent their members to the larger community. because of the development of democratic accountability they not only are capable of making the internal systems responsive to the interests of their members, they are also capable of making their contributions to the larger world responsive to the members. the development of democratic institutions over the past century or so is a hard won and very difficult achievement that must not be tossed out. the development of international institutions and law must make use of these democratic institutions in order to give those institutions democratic legitimacy. to be sure, as david alvarez rightly notes, the citizenry in most of these states is not yet sufficiently oriented to the 4 christiano.indd 223 21/4/17 13:31 224 thomas christiano leap 4 (2016) important roles their states play in the international system. this is a problem that must be rectified if we are to make progress in solving the global problems the modern international system must solve. here we have one set of reasons for thinking that the pursuit of the mandatory aims of the international political system ought to be through the mechanisms of voluntary associations of states. these are reasons for preferring a decentralized consent based process of decision making among states and not having a centralized majoritarian collective decision making process among states or persons across the world. such decision making would threaten to breach the integrity of the states that remain essential elements of the division of labor. a second kind of reason has to do with the pursuit of mandatory aims in the international system. the idea is that states have a qualified immunity from having obligations imposed upon them that they do not consent to because it is important for the international community to allow a significant amount of experimentation in the making of international law, especially when it comes to the pursuit of the mandatory aims. the reason for this is that there is a great deal of uncertainty as to how the mandatory aims ought to be pursued. for example, there is a great deal of reasonable disagreement on how to end global poverty. it seems that under these circumstances, a state may in good faith refuse to enter into an agreement on the grounds that the arrangement is not likely to achieve the goal of lessening poverty. as long as the refusal is in good faith and on the basis of a reasonable disagreement, the refusal of consent makes the state immune to the imposition of obligation in this instance. states must, however, propose some alternative method of resolving the problem, which is feasible in the circumstances. so refusal of consent is permissible and undercuts the imposition of an obligation. but the immunity is only a qualified immunity. a state may not refuse consent on the basis of irrational, unscrupulous, or self-defeating grounds. that is, if a state refuses consent on the basis of beliefs that, say, ninety-seven percent of well-informed scientists regard as mistaken (as in the case of denial of anthropogenic climate change [anderegg, prall, harold and schneider 2010]) the refusal ought to be treated as impermissible. in addition, if a state refuses consent because it wants to free ride on the efforts of others or simply does not want to shoulder any burdens in realizing the mandatory aims, or on the basis of self-defeating considerations, the refusal is to be regarded as impermissible. the consequence of this impermissible refusal is that the state in question loses its immunity from obligation and may be pressured, or perhaps even coerced, to join the arrangement it is not consenting to, depending on what is proportional and prudent in the situation. 4 christiano.indd 224 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 225 leap 4 (2016) the requirement of a good reason does not entail that the consideration offered be the correct reason but only that the consideration is one that reasonable persons can disagree on. reasonable disagreement is disagreement that ref lects an epistemically serious approach to understanding the issues involved in pursuing the mandatory aims and ref lects a good faith effort to find a way to cooperate in pursuit of the mandatory aim. this openness of the system to reasonable disagreement is one concession to the character of the international community as a political community. in these situations, the community of states must judge whether the refusal to cooperate on the part of a particular state is unreasonable or not. the requirement of a good reason for refusal of consent and the consequence of failing to give a good reason are both generated because the aims are morally mandatory. but these requirements still leave a great deal of space for states to refuse consent to arrangements and to remain immune to the imposition of obligations by others. we should expect that different rival associations of states might arise in this context. regional associations and as well as competing global organizations may arise as a consequence of differing views about how best to solve a problem in pursuing a mandatory aim. to be sure, the requirement of reasonableness constrains here as well. when a state or group of states refuses to coordinate with another group on the grounds that they wish to establish their own distinctive international association and the failure of overall coordination would straightforwardly undermine the pursuit of the mandatory aims, this too would be unreasonable. the reason why is that the refusal to coordinate in this instance would be selfdefeating from the standpoint of the pursuit of mandatory aims. a mundane example of this kind of self-defeat would occur if a group in a society decided it was better to have a different set of rules of the road than the one that is currently in place. while it may be true that the alternative rules would be better were they universally adopted, they would create havoc were they to be only partially adopted. in the international realm, a uniform and universal set of standards for determining the borders of states is superior to the adoption by different groups of different sets of standards, even if one of these would be superior to the actual one were it universally adopted. the confusion generated by the diversity of set of standards might trip the system into war. here we see the significance of the mandatory aims for the international political system as well as the significance of reasonable disagreement on how to specify or pursue the mandatory aims. here we see the importance of consent as well. states may refuse consent and when they do consent, the power to consent gives them a say over the content of the agreements 4 christiano.indd 225 21/4/17 13:31 226 thomas christiano leap 4 (2016) they enter into, which implies that the people who are ultimately subjected to the agreements have a say in their content. here we have a political system that pursues mandatory aims but that does so in a manner that respects the different reasonable views of persons and that attempts to give people a say in the contents of agreements their societies enter into. furthermore, the system respects the integrity of the most important and efficacious political unit in the international order, the state. but it does so in a way that allows progressive change through state consent and in some cases is open to the imposition of obligations on states when they unreasonably refuse consent. in this way, international law and institutions can acquire a basic legitimacy from the agreements of states to them (christiano 2017). there are a number of other features of this conception of legitimate institutions that have a cosmopolitan and democratic grounding that are worth discussing, such as the relation of international institutions which have some independence from the states that create them, but i want to mention one feature in particular, which is the focus of some of the papers. this is an implication of the democratic aspirations of the system i am discussing. the idea is that the process of consent and agreement making must be one that treats the persons as equals. the basic requirement this implies for state consent is a requirement of fair negotiation among states. it is not enough that the states’ agreements to treaties or conventions be voluntary in the sense that they are uncoerced and undeceived. they must also arise from a process of fair agreement making. this is the most demanding feature of the conception i am suggesting here and it is not one that can be fully realized. for, on the one hand, a fair process of negotiation implies that states ought to have a kind of equal bargaining power in the process of negotiating arrangements (or at least power in proportion to population and major stakes). the ideal of fairness is a reasonably straightforward implication of the democratic ideal of persons having an equal say in deciding arrangements they share as it applies to a decentralized decision making system. on the other hand, the power of states in negotiating is often a function of wealth. so developing states normally have a significant deficit of power relative to developed states. and this matches the ordering of states as historically colonized or dominated states and colonizing or dominating states. the only way to rectify this fully would be to have some kind of redistribution of wealth, but this itself would require the creation of very ambitious international arrangements, which we are not in a position to realize yet. what we are required politically to do at the moment towards this aim is to contribute to the development of poor societies in pursuit of the mandatory aim of poverty alleviation as is required by the millennium development 4 christiano.indd 226 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 227 leap 4 (2016) declaration. in the meantime, there may be lesser ways of neutralizing the power relations among wealthy and poor states. treaties created through highly transparent multilateral treaty conferences may help rectify some of the imbalance, since, one, wealthy states prefer not to be seen as sticking it to the poor countries (albin); and, two, the one source of power developing countries can make use of is through the creation of strong coalitions of countries that may be able to counter the bargaining strength that wealthy countries have (narlikar and odell). here we might be able to learn a lesson from the creation of trade unions as ways of countering the relative bargaining strength of capital in capitalist societies. i want to make a brief remark about issues of feasibility here. in my view, in the long run, we must hope that the world will come under the jurisdiction of significantly more centralized democratic political institutions. perhaps there will be something like a world federal state or perhaps we will have learned by then how to construct better institutions than states. what animates the search for an alternative conception of the international political community at the moment is a kind of feasibility constraint. the thought is that it would be self-defeating from the standpoint of the cosmopolitan concerns to try to realize a global federal state now or even in the next couple hundred years. despite this, i am thinking of the view i am elaborating as a kind of ideal theory. and the reason why is that the current infeasibility of more ambitious global institutions is not based on an assessment of the bad moral motivations of the persons in the system. there is, to be sure, xenophobia, indifference to the plight of others, and naked self-interest among the peoples of the world. but i am not convinced these are the main obstacles to more ambitious global institutions. in my view, the obstacles are primarily informational and transactional. the information needed to integrate the many states of the world into a unified effective, accountable, and just system is enormous and currently overwhelming. but this is also why the view i am espousing is progressive. the thought is that the obstacles to greater integration are not permanent ones but ones that will slowly be overcome. in the meantime, we still have reason to see whether there is a way that democratic and cosmopolitan standards can be satisfied in the decentralized system we have. i think they can. with these remarks in mind, i want to discuss some of the main points in the three papers. i agree with david alvarez that my account of the legitimacy of international institutions is missing a significant piece, which is necessary to a fully adequate account of legitimacy. and i am grateful to alvarez for pressing me on this issue. but i am not entirely convinced of alvarez’s thesis that this piece cannot be supplied for the 4 christiano.indd 227 21/4/17 13:31 228 thomas christiano leap 4 (2016) account i have offered. the problem, as he describes it, is that modern democratic societies are inherently biased towards the welfares of their own citizens and away from the welfares of non-citizens. and this bias makes it nearly impossible for contemporary democratic states to live up to their obligations to the global community. this is, of course, particularly the case for arrangements that may require some significant element of redistribution such as the alleviation of global poverty or the mitigation of climate change or efforts to adapt to it. it seems even to hold in the case of the failure of wealthy states to diminish the subsidies they give to their agriculture, which subsidies damage the abilities of poor countries to participate in international trade since agriculture is the area in which they have a comparative advantage. in addition, wealthy states have systematically fallen short of the targets they themselves have set for global development aid. they have tended to fall short in establishing and implementing carbon emissions targets. one could also add that modern democratic states have fallen short in their purported efforts to include developing countries fully in the world trading system. i agree with alvarez that many developed societies have failed in these ways and that these failures are morally very egregious. i also agree that the reason for the failures is the bias of these societies’ democratic institutions towards the interests of their members. but i am not sure of his thesis that the democratic institutions are inherently biased and incapable of pursuing in good faith the morally mandatory aims that constitute the global political community. i am not sure that we are looking at a fundamental truth about these institutions. the question, in my mind, is whether the citizens of these democratic societies must necessarily be devoted only (or almost only) to the interests of their fellow citizens. i don’t see in principle why the citizens of representative democracies cannot be concerned with the interests of those who are not in their societies. after all, citizens are concerned with the interests of distant other fellow citizens, partly because they must negotiate with them in the making of domestic law; i don’t think it is true that representatives merely represent the interests of citizens, they do represent those but they also represent the other regarding views of citizens as well, which views citizens are duty bound to promote in this context. furthermore, there have been some important examples of such concern on the global level. protests against the vietnam war were partly motivated by these concerns. additionally, there is a general consensus among citizens of wealthy states that development aid is a duty wealthy countries owe to poor countries. and there is some significant variety among developed countries in how much concern their peoples show for poverty outside their societies. some countries give significantly above the .7 percent of gdp that is prescribed 4 christiano.indd 228 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 229 leap 4 (2016) by the millennium development goals but most do not and the average is lower than the .7 percent (center for global development 2013). there seems to be a correlation between the strength of the welfare state and the proportion of official development aid given. some of this may ref lect skepticism about the effectiveness of aid. the idea that there is an inherent bias is not born out by what we see. still, the amount of development assistance is low, and there are many other indicators that the concerns citizens show for their fellow human beings is on average low, so we must wonder how that can be increased. part of the problem may be rectified if the international community puts more pressure on recalcitrant states. and part of the problem may be resolved if greater fairness in the process of negotiation among states is achieved. if we think that part of the explanation for why citizens care about other distant fellow citizens is that they are forced to deal with them in a democratic system, the same may hold between persons of wealthy states and those of developing states when developed states are required to deal with developing states in a fairer way. some argue that a global education program could play a useful role. alvarez suggests that there ought to be global deliberative assemblies that can bring these issues to the fore. but it seems to me that we already have these in the united nations. there are a variety of un institutions that engage in deliberation regarding the duties of states. the general assembly, the security council, the various human rights treaty bodies, the conference of parties of the united nations framework convention on climate change are some of the deliberative bodies that give directives to states and put soft pressure on them to do more to cooperate in pursuit of the mandatory aims. i am open to the idea that these can be improved. and there is no reason why the deliberative bodies must be confined to the united nations bodies. the conferences of the world trade organization also play a role. and i think global civil society can play a role here in enhancing the deliberative activities of these bodies. and, of course, states can attempt by themselves or with others to persuade and pressure other states into playing more positive roles in cooperation. though here there is a danger of a kind of neo-imperial imposition on the part of powerful states. i have not developed a complete account of the necessary institutional structures necessary to promote effective deliberation in this regard and i think this is an important avenue for the development of international cooperation. however, i do think that the system is likely to remain fragmented as it is now. 4 christiano.indd 229 21/4/17 13:31 230 thomas christiano leap 4 (2016) alvarez suggests that there ought to be devices that correct for excessively low support for development assistance in the world as a whole, much like there are constitutional limits on what democratic assemblies can do. i agree with this and this is part of the conception of the international political system that i have proposed. i have argued that certain kinds of refusal of consent may be countered by pressure or even coercion when the refusal of consent is based on unscrupulous or irrational grounds. i think this serves roughly the same kind of function in the international system as a kind of constitutional limitation in a domestic system. we may hope that global concern will grow over time and that what we are observing is a lag effect of the fact that societies have not been focused on international relations other than war until relatively recently. but i have not made any recommendations about what kinds of institutions would be desirable here. this is an area that is very important but it is not one that i am prepared to make clear recommendations on at the moment. david lef kowitz’s comments press a number of important points. he argues that global democracy is not required because the conditions in the world at present do not require peoples to submit to a common legal order in order to treat each other justly. i am not sure how we are to evaluate that claim, but i have argued that the present global system already presents us with a distinctive type of political system. it is a political system whose decision making is primarily decentralized for reasons i have given above. but it is a political system because there are certain morally mandatory aims (such as the maintenance of international peace and security, the protection of persons from widespread human rights abuses, the alleviation of global poverty, the avoidance of global environmental disaster as well as the creation of a decent trade regime), which all, or nearly all, states recognize as requiring cooperation to pursue and which all states are duty bound to pursue. questions of how to pursue these aims effectively and fairly together arise because there is uncertainty, disagreement, and conf lict over how these should be pursued. the states need then to have a method for decision making in order to resolve these differences in trying to determine how to cooperate in pursuing the mandatory aims. thus we have a political system. not all the mandatory aims need be seen as concerns of justice and not all concerns of justice are taken as mandatory for this political system. there are many inequalities, which i regard as unjust, that cannot be dealt with by the global system at present and won’t be soluble by the system for a long time. the aims that i have posited are ones that almost all states have signed on to but are themselves very difficult to bring about as it is. they present a pretty thin but nevertheless quite challenging set of aims for the international community. 4 christiano.indd 230 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 231 leap 4 (2016) so there are moral reasons for cooperation but i have argued that the decision making leading to that cooperation ought to be a decentralized process of decision making with a qualified requirement of state consent. this is because of the centrality of states in bringing about the most basic goods for people and the consequent need to respect the integrity of those states. it is also because states have developed sophisticated and reasonably successful social systems for making power accountable to people and it is important to build on these systems that we should continue to use states as pillars of the system. also the need for experimentation with different methods of achieving the aims gives us reason to think that states should be permitted to refuse consent to arrangements if they reasonably dissent from them and they have reasonable alternatives to offer. i also think that given the greatly different stakes states have in the decision making, the usual centralized egalitarian methods of decision making seem inappropriate since power ought to be proportionate to stakes. lef kowitz takes me to task for neglecting instrumental grounds of legitimate authority but i have generally argued that there can be instrumental grounds of legitimate authority as well as legitimate authority that is grounded in considerations of intrinsic justice. indeed, i think that in order to explain the authority of courts and bureaucracies in domestic democratic societies we have to appeal in part to their instrumental importance in realizing democratically chosen aims. and i agree that political institutions may have instrumentally grounded legitimate authority even if there is no inherent political authority to back it up. i simply think this is a more weakly grounded and tenuous form of authority. i focus on issues of democratic legitimacy because i think that it is an interesting question to determine if a system of state consent can, when suitably modified, live up to cosmopolitan and democratic norms. my only concern with the very interesting discussion of keohane and buchanan (2006) is that they do not explain how content independent reasons for action are generated by the institutions that satisfy the kinds of desirable properties they describe. the fact that an institution realizes or brings about desirable states of affairs does not help us determine whether we have content independent reasons to do as it tells us or merely just content dependent reasons to do as they tell us to do. if the institution tends to do good things, what is wrong with only acting as it tells us when it tells us to do good things? this is the central question that a theory of authority must answer and they do not answer it. but i do not reject the idea that some institutions may have some form of instrumentally grounded legitimate authority. 4 christiano.indd 231 21/4/17 13:31 232 thomas christiano leap 4 (2016) the one instrumental approach that directly takes on this challenge is the normal justification thesis defended by joseph raz. according to this thesis, the normal and primary way to show that a has justified authority over b involves showing that when b takes a’s directives as authoritative (as content independent and exclusionary reasons for action) b acts better in accordance with the reasons that apply directly to her, that is, reasons independent of the authority’s directive (raz 1990). so i act better in accordance with the reasons of justice and fairness that apply to me, say, when i take the taxing authority’s directives as giving me content independent and exclusionary reasons. if i were not to so take the directives, in other words if i were to just follow my own judgment in each case, i would often act mistakenly and not do my fair share in supporting the relevant institution. this account does give us the right kind of idea but it is notoriously subject to counterexamples. the example i have used in the past is bernard williams’s case of a chemical scientist, george, who is an active opponent of the nazi regime (williams 1973). he is asked by the nazis to run a chemical weapons factory. george is deeply opposed to the nazis having these weapons but he also knows that he is not nearly as good a scientist as other more committed nazis. he agrees to run the factory and then takes the directives the nazis give him as content independent and exclusionary reasons. the consequence of his doing so is that this slows down production. and he must take the directives as authoritative because only then will he effectively be able to remain in his position. so he acts better in accordance with the reasons that apply to him (slowing down the production of chemical weapons) by doing this. nevertheless, the nazi leaders are not justified authorities over george. hence, the conditions of the normal justification thesis are satisfied but the authority is not justified (christiano 2008; see also darwall 2010). i do not mean to reject instrumentalist accounts generally with this counterexample. it is meant to show the difficulty of constructing a good instrumentalist account. there is another reason why i think it is of some significance to focus on the kind of high grade legitimacy that i do focus on. it is that a political system that satisfies this property is a moral community of equals in which each is treating the others as equals in a highly public way by taking the directives of that community as content independent and weighty reasons because they derive from their fellow citizens. instrumentally grounded authority has an opacity and tenuousness to it since it is not grounded in the right of the authority but in the expected effects, about which there is significant controversy. the inherent democratic authority i attempt to explicate is grounded in the right of each to be treated publicly as an equal. when i obey it, i am directly and publicly treating my fellow citizens as 4 christiano.indd 232 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 233 leap 4 (2016) equals. and i owe this even when i disagree with the content of the directives. hence the nature of the authority realizes the kind of moral community of equals that is not clearly present in instrumentally grounded authority. michael blake’s comments go to the heart of what i am arguing. i am arguing that the international community constitutes a distinctive type of political community. i think blake wants to argue that this is not so, which is why he wants to say that the obligations in the international community are more like the obligations i have in relation to the sierra club than in relation to the state. we also disagree on the nature of a political community. the picture of a political community that i am suggesting is that people are required to pursue certain mandatory aims in cooperation with each other. and in order to do this they have to make decisions in a way that negotiates a great deal of disagreement on how to do this as well as conf licts of interest on these issues. there are, in other words, certain moral aims that are given independent of the political community but which require cooperation among the members to achieve. a state is a community concerned with a particularly thick set of aims, centered around justice and the common good, where a great deal of coordination and cooperation are required to achieve these. in this sense, the duty to pay taxes is a kind of instantiation of the more general duty to do one’s fair share in pursuing the basic aims but this requires a bit more theorizing. there are moral requirements that determine how one is to decide how to pursue these aims and this is where democratic norms come into the picture. and so the idea is that in a just political community persons have rights to participate as equals in deciding on how to pursue the aims and what fair shares each must contribute to the pursuit of these aims. so the particular legal requirements of contribution that are chosen by a just political society are going to involve some kind of compromise among the participants to the extent that they disagree. hence the duties to pay taxes will be determined by a shared sense of the basic aims of the community and compromises between the members to the extent that they have different views about how to pursue the aims fairly. i have argued that the international society is a kind of political society. it is not merely a society of voluntary participants. and the reason is that there are mandatory aims that everyone must pursue in cooperation with others, despite disagreement and conf lict of interests. a world of voluntary societies is one in which it is not required to cooperate with others on a fixed set of aims. i regard the sierra club as pursuing desirable aims but i do not think that i am required to help them out. there are a lot of other goods that i may cooperate in producing and i have a significant amount of 4 christiano.indd 233 21/4/17 13:31 234 thomas christiano leap 4 (2016) discretion as to which goods i want to help promote. voluntary associations tend to be composed of reasonably like minded people concerned to pursue aims they all recognize and they all agree on. of course, as a citizen of a state i am required to do my part in achieving the mandatory aims the state must pursue. political associations pursue moral aims but since cooperation is required, they experience the clash of different opinions and interests. international society is a budding political society since all (or nearly all) the states in it recognize the necessity of cooperation in pursuit of certain morally mandatory aims such as peace and security, development, basic human rights protection, environmental protection, and decent trade. these aims are articulated in the major treaty bodies such as the charter of the united nations, the world trade organization, the united nations framework convention on climate change, and the millennium development goals. these are not merely voluntary clubs, they are organizations of states that self-consciously assert the moral necessity of cooperation and that are willing to engage in pressuring and even coercion of those who are failing to make any kind of good faith contribution. they derive their political authority from the fact that they have the consent of members to particular ways of pursuing mandatory aims. the decision making concerning these goals is decentralized to some significant degree so that consent is an important component but the requirement of consent is qualified, i think, in ways i outlined above. i don’t think that the picture i am outlining requires that contributing political societies maximize the extent to which the morally mandatory aims are achieved. the extent to which a political society is required to contribute will itself be a matter of controversy. the millennium development declaration requires societies to give .7 percent of their gdp towards poverty alleviation. this is not the kind of requirement that involves maximization, though most states fail to achieve even this. furthermore, i take it that the view i have defended implies a solution to the assurance problem blake outlines. there is a remedy to the problem of societies being taken advantage of by free riders in the scheme i am proposing. first, the account asserts that pressure and sometimes even coercion can be applied on a recalcitrant state that is unscrupulous, irrational, self-defeating or otherwise fails to make a good faith effort to pursue the mandatory aims in cooperation with others. second, societies are supposed to solve these problems by entering into explicit agreements with other societies, compliance with which can be monitored if the agreements provide for it. 4 christiano.indd 234 21/4/17 13:31 replies to david álvarez, david lefkowitz and michael blake 235 leap 4 (2016) i do agree with blake that when all other societies are acting badly generally, there may be a permission to go it alone. i am not convinced we are in that situation now. the situation we are in now is that states recognize the requirement to cooperate to pursue mandatory aims but they are still falling short of the behavior they recognize as required. i take it as a kind of support for the approach i am proposing that it can be seen as a kind of moral and rational reconstruction of what states are already committed to, though they are clearly coming up short on these commitments. furthermore, i think that the international community has made some serious progress in the development of international institutions. for all its f laws, the development of a more open system of international trade has played a role in lessening inequality and bringing people out of poverty. the climate change regime has been making some progress towards limiting carbon emissions. the respect for the territorial integrity of societies has become an increasingly powerful norm of the international community. there has been some progress in realizing democracy throughout the world. i think that there is at least a reasonable hope that the peoples of the world will continue to make progress on these issues through the modern system of state consent. bibliography anderegg, w.r.l., j.w. prall, j. harold and s. schneider, 2010: “expert credibility in climate change”, proceedings of the national academy of science (usa) 107, july 6: 12107-09 albin, c., 2001: justice and fairness in international relations, cambridge: cambridge university press. center for global development, 2013: “commitment to development index”, https://www.cgdev.org/sites/default/files/cdi2013/cdi-brief-2013.html christiano, th., 2008: the constitution of equality: democratic authority and its limits, oxford: oxford university press. christiano, th. 2017: “democracy, migration and international institutions”, in immigration, emigration and migration: nomos lvii, ed. jack knight, 239-276, new york: new york university press. darwall, s. 2010: “authority and reasons: exclusionary and second personal”, ethics 120: 257-278. keohane, r. and a. buchanan, 2006: “the legitimacy of global governance institutions”, ethics and international affairs 20: 405-437. narlikar, a., 2012: “collective agency, systematic consequences: bargaining coalitions in the wto”, in the oxford handbook on the world trade organization, ed. a. narlikar, m. daunton and r.m. stern, 184-209, oxford: oxford university press. raz, j., 1990: “authority and justification”, in authority, ed. j. raz, 115-141, new york: new york university press. 4 christiano.indd 235 21/4/17 13:31 236 thomas christiano leap 4 (2016) williams, b., 1973: “a critique of utilitarianism”, in utilitarianism: for and against, 75-150, cambridge: cambridge university press. 4 christiano.indd 236 21/4/17 13:31 symposium on liam shields' just enough: sufficiency as a demand of justice gu e st e di t e d by dav i d v. a x e l se n, l a s se n i e l se n, a n d pi e r r e -é t i e n n e va n da m m e leap 5 (2017) introduction dav i d v. a x e l se n london school of economics l asse nielsen university of southern denmark pierre-étienne vandamme university of louvain most people would agree that a world in which some people are starving and others take champagne showers is unjust. but is this unjust because some people have too little or because they have (much) less than someone else? this question has long played a role in public debates about redistribution, poverty, and the welfare state; is it insufficiency or inequality (or both) that matters? more recently, the notion that social justice is achieved when no-one has too little, and everyone has enough, has come into vogue in political philosophy. a sufficientarian view of justice,1 thus, now proposes a distinct alternative to prioritarian, egalitarian, libertarian, utilitarian and other conceptions of justice. in its original form, sufficientarianism entails that justice, or morality, is concerned with securing “enough” of the relevant distributive currency rather than aiming for an equal distribution of benefits. this notion underpins what frankfurt termed, the “doctrine of sufficiency” (frankfurt 1987). the doctrine is grounded in the belief that what matters is people’s absolute levels of opportunity and well-being and not their standing relative to others. as raz famously noted, it is “the hunger of the hungry, the need of the needy, the suffering of the ill, and so on”, with which morality is concerned (raz 1986: 240). justice, thus argued, is not upset by the mere fact that people are worse off than others. the doctrine of sufficiency, as first developed, however, was met with some powerful objections. in particular, it became apparent that the not giving any weight to inequalities above the threshold seemed untenable (casal 2007; holtug 2007). while most theories of justice would agree that getting people above some critical threshold is of significant importance, 1 see sen 1979; frankfurt 1987; crisp 2003; benbaji 2005; casal 2007; huseby 2010; gosseries 2011; a xelsen and nielsen 2015; fourie and rid 2016; shields 2016. d oi : 10. 310 0 9/l e a p. 2017.v 5.10 124 david v. axelsen, lasse nielsen, pierre-étienne vandamme leap 5 (2017) few seemed willing to accept the claim that inequalities above this threshold are of no concern to justice. but, as paula casal argued, for sufficientarianism to be a distinct view, it must hold both of these claims; both the positive thesis, that it is of special significance to get people above the threshold, but also the negative thesis, that once everybody is above the threshold, no further redistributive demands apply (casal 2007). several philosophers have developed sufficientarianism to better cope with this critique. some suggest multiple thresholds “vertically” at different levels of well-being, thereby making it less implausible that distributive demands do not apply above the “higher” threshold (benbaji 2005; huseby 2010). others suggest multiple threshold “horizontally”, applied to every distinct relevant dimension of value, so that to be above the threshold in a relevant sense is to be above all such thresholds (axelsen and nielsen 2015). yet others develop sufficientarianism into a hybrid-view by combining the positive thesis with other distributive principles above the threshold (fourie and rid 2016). liam shields’ just enough: sufficiency as a demand of justice (2016) is a new contribution to these theoretical debates, with the merit of applying the theoretical framework to concrete questions such as upbringing, education and global justice. its main ambition is to rescue sufficientarianism from “the indifference above the threshold objection”, mentioned above, and what we might call “the threshold fetishism objection”. stated formally, the two objections look like this: o1: it is implausible to be indifferent about the way benefits and burdens are shared once individuals have secured enough. o2: it is implausible to permit benefitting those that are just below the threshold by tiny amounts instead of benefitting those that are worst off by very large but insufficient amounts. the first objection applies to what shields calls “upper-limit sufficientarianism”, or the idea that once everyone has enough, there are no other requirements of distributive justice. the second applies to “headcount sufficientarianism”, stating that we should maximize the amount of people having enough. according to shields, all existing versions of sufficientarianism fall into these two categories and either are vulnerable to these decisive objections or must be revised in a way that does not make them distinct anymore from other conceptions of justice. fortunately for sufficientarians, there seems to be a way out of this, which requires combining the two following theses as shields recommends: the positive thesis: we have weighty non-instrumental reasons to introduction 125 leap 5 (2017) secure at least enough of some good(s). the shift thesis: once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further. this revised sufficientarian view avoids o1 because it is not indifferent towards inequalities above the threshold – it just affirms a discontinuity in the weight of our reasons to benefit people once the threshold is reached. and it avoids o2 because the shift assigns priority to benefiting those who do not have enough. the argumentation for the two theses follows two distinct lines. the first consists in identifying “sufficientarian reasons”. these are “weighty, noninstrumental, non-egalitarian and satiable” reasons. wherever we identify such reasons, there is a shift and hence there is room for a sufficientarian principle. for example, as shields argues in the third chapter, one condition of freedom is a sufficient degree of individual autonomy, understood as “the ideal of living one’s life in accordance with one’s own authentic judgments”. without this capacity, there is no freedom; hence it is required by justice. does this mean that we should not promote autonomy beyond the minimum level required for freedom? no, it just means that once sufficient autonomy is secured, claims to further promote autonomy must be made on different grounds than making freedom possible. the second line of argument consists in identifying debates in which sufficientarian principles can help solve clashes of values. wherever there are two values, interests or claims that clash, the sufficientarian solution will be to state that once one value, interest or claim is sufficiently satisfied, the other value, interest or claim becomes relatively more important. one example is upbringing, where the interests of children often clash with the interests of (prospective) parents. on this issue, shields argues in the fifth chapter that the child’s interests have priority over the parents’ interests until they are met to a sufficient extent. hence, as long as parents provide a good enough upbringing (which is in the child’s interest), they should not lose the child’s custody. only if parents did not perform well enough could a change of custody be envisioned. in other words, the child’s interests have priority. however, once a child receives a good enough upbringing, the parent’s interest (in keeping custody) matters more than the child’s interest (in receiving the best possible upbringing). after having applied a similar reasoning to education and global justice, shields concludes that the distinctive sufficientarian principles of justice are more plausible than their competitors and even indispensable to a sound and complete theory of justice – a claim assessed by several 126 david v. axelsen, lasse nielsen, pierre-étienne vandamme leap 5 (2017) contributions to this special issue. the contributions to this volume cover all the main topics discussed in shields’ book. two of them focus on shields’ core thesis: the shift thesis. lasse nielsen admits that it has some attractions, but is worried about the combination of the principles applying below and above the sufficiency threshold. either the principle of sufficiency is to be weighed against the principle applying above the threshold, with the risk of downplaying the sufficientarian intuition to a minuscule role, or it has absolute priority and shields faces objections applying to upper-limit sufficientarianism. moreover, it seems to nielsen that shields’ view hardly characterizes as distinctively sufficientarian, as it bears important resemblance with larry temkin’s pluralist telic egalitarianism. hence, he finishes his paper with a rehabilitation of upper-limit sufficientarianism – in particular against the “illusion of numbers”. counterfactual examples with numbers, as shields uses to disqualify the upper limit, can give the false impression that upperlimit sufficientarianism has no objections against some people being x times better off than others. yet with a sufficiently high threshold, it will not be possible for some people to fare x times better than others. they will just have more money, not (many) more opportunities, capabilities or even welfare. pierre-étienne vandamme is more positively inclined towards the shift thesis. as shields writes in his conclusion (2016: 199-200), he sees it as an opportunity to reconcile sufficientarian and egalitarian intuitions. for if sufficientarianism is detached from its negative affirmation that inequalities above some threshold do not matter from the point of view of justice, it becomes compatible with (luck) equality (or other principles) above the threshold. hence, shields’ contribution to the debate illustrates the distinction that should be made between moral indifference to inequalities above the threshold and agnosticism about these inequalities. endorsing the agnostic position entails that one defends only a partial theory of justice, which must be completed with another principle (at least). vandamme then enquires into the reasons one might have to leave aside the question of residual inequalities to focus exclusively on insufficiencies, and he highlights several pragmatic reasons to do so. he concludes with a qualified assessment of pragmatism about justice. three contributions then discuss shields’ view on autonomy. robert huseby expresses sympathy for the view but raises several clarificatory questions and invites further developments on the understanding of satiability, the relation to the conditions of freedom, and the location of the threshold. for example, if autonomy is satiable, it is not clear that further increasing autonomy above the sufficiency level will contribute to making introduction 127 leap 5 (2017) people better off. hence, in this respect, the principle of sufficient autonomy looks like an upper-limit sufficiency principle. perhaps there is a level of autonomy that is sufficient without being equivalent to full autonomy, but shields gives little specification of what this level would be and such view is exposed to the traditional “arbitrariness” objection to (low) sufficiency thresholds. as huseby argues, there are several formulations concerning the threshold of sufficient autonomy in shields’ book, and not all of them point in the same direction. christopher mills is more critical and offers two objections against the principle of sufficient autonomy. first, he argues that shields’ principle offers less protection for our capacities for autonomous behavior than it should. the reason is that it protects against coercion and other external threats acting on our beliefs, but not against internal threats such as selfdeception, or non-interpersonal external threats such as bad luck. second, he argues that shields fails to dismiss accounts of how welfare is partly constituted by autonomy (“constitutive welfarism”). these accounts do not tie our capacities for autonomy to our interest in freedom, as shields does, but instead tie both our capacities for autonomy and freedom to our interest in living good lives. as a result, they seem better able to protect our authentic decisions against internal threats and non-interpersonal external threats. danielle zwarthoed also discusses the principle of sufficient autonomy, yet in relation with shields’ views on education. zwarthoed first challenges shields’ contention that instrumental accounts of autonomy fail to support mandatory autonomy education in all cases. the reason instrumental accounts can succeed, she argues, is that an adequate level of autonomy might be necessary to live well. drawing inspiration from joseph raz, she claims that a minimal degree of autonomy might be necessary to secure the dependency of a person’s goals on reasons. otherwise, that person cannot make sure the reasons she has to pursue goals are independently valid and will contribute to her well-being. zwarthoed then compares the principle of sufficient autonomy with the rawlsian principle of fair equality of opportunity. shields argues that, by requiring talents discovery, the principle of sufficient autonomy renders rawls’ principle of fair equality of opportunity more plausible and should thus supplement it. yet zwarthoed points out that the two principles are not necessarily concerned with the same talents, which might bring them in tension in a context of finite educational resources. anca gheaus discusses the issue of upbringing. as mentioned earlier, shields believes that children are entitled to a sufficiently good upbringing, rather than to the best available one, and that their interests in that trump 128 david v. axelsen, lasse nielsen, pierre-étienne vandamme leap 5 (2017) the (prospective) parent(s)’s interests in parenting and keeping custody of their child. by so doing, he suggests an appropriate balance between the potentially conf licting interests of children and parents. gheaus agrees with the conclusion that “adequate parents cannot lose custody merely because a better parent is willing to take over”, but rejects shields’ argumentation in favor of a “child-centred” account of the right to parent. given that parenting entails the possibility to exercise a very significant amount of authority over children, she argues, it seems that the right to parent cannot be grounded on the right-holder. therefore, unless shields admits that justice requires equal opportunities to f lourish and that parenting is necessary to f lourish, which he denies, she claims that he should adopt a child-centred perspective. finally, siba harb and david v. axelsen discuss the application of shields’ sufficientarianism to global justice debates. in addition to applying a sufficiency threshold, shields differentiates between two ways in which our obligations may vary in demandingness: content (how much we owe) and stringency (how urgent fulfilling the duty is). he believes that this makes possible new ways of conceptualizing our duties of global justice compared with the traditional divide between statists and cosmopolitans. harb and axelsen argue that the combination of a sufficiency threshold and a shift in content-demandingness does not produce new viable positions. however, they highlight the conceptual and political benefits of the distinction between content and stringency. the latter means, for example, that someone can be statist qua content, i.e. consider that we owe more to compatriots than to foreigners, but cosmopolitan qua stringency, i.e. consider that our duties towards foreigners are more urgent. many other possibilities unfold, with the merit of shifting the lines of divide in global justice debates and bringing more attention to the question of political priority in our duties. bibliography axelsen, d. and nielsen, l., 2015: “sufficiency as freedom from duress”, the journal of political philosophy 23: 406-426. benbaji, y., 2005: “the doctrine of sufficiency: a defence”, utilitas 17: 310-332. casal, p., 2007: “why sufficiency is not enough”, ethics 117: 296-326. crisp, r., 2003: “equality, priority, and compassion”, ethics 113: 745 763. fourie, c. and rid, a. (eds.), 2016: what is enough? sufficiency, justice, and health, oxford: oxford university press. frankfurt, h., 1987: “equality as a moral ideal”, ethics 98: 21-43. gosseries, a., 2011: “qu’est-ce que le suffisantisme?”, philosophiques 38 : 465-491. introduction 129 leap 5 (2017) holtug, n., 2007: “prioritarianism”, in holtug, n., and lippert-rasmussen, k. (eds.) egalitarianism: new essays on the nature and value of equality. oxford: clarendon press, 2007, pp. 126-156. huseby, r., 2010: “sufficiency: restated and defended”, journal of political philosophy 18: 178-197. raz, j., 1986: the morality of freedom, oxford: oxford university press. sen, a., 1979: “equality of what?”, in the tanner lectures on human values 1, cambridge: cambridge university press. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. leap 3 (2015) offsetting the harms of extinction1 m ich a e l da si lva university of toronto abstract many people assume that the extinction of humanity would be a bad thing. this article scrutinizes this apparent badness and demonstrates that on most plausible consequentialist frameworks, the extinction of humanity is not necessarily bad. the best accounts of the badness of the extinction of humanity focus on the loss of potential utility, but this loss can be offset if it is the result of sufficiently large gains by the present generation. plausible mea ns of ca lcu lat i ng t he good ness of outcomes accord i ng ly sug gest hastening extinction even in some circumstances where the alternative is a long period of human existence at a high level. keywords ethics, consequentialism, existential risk, harms, extinction introduction many fear the potential extinction of humanity due to the common intuition that extinction is bad and should be avoided.2 yet what it means for extinction to be ‘bad’ is not obvious. this article scrutinizes the apparent badness of extinction. the most plausible candidate explanations for the badness of extinction do not rely on extinction itself being bad but on extinction pairing with other negative effects or forestalling other potential goods. not all extinction scenarios have these implications. extinction is not an impersonal bad and need not be personally bad even if we grant potential persons some moral personhood. extinction is thus not necessarily bad. even imminent extinction may be preferable to the continued existence of humanity for 1 thank you to derek parfit and jeff mcmahan for comments on the earliest version of this article, which was drafted for their graduate seminar at rutgers universit y. thank you also to the other students in that course for thoughtful conversations on many issues and to the anonymous reviewers for feedback on more recent drafts. 2 as larry temkin notes, “anything…anyone…writes on this topic should be taken with a large grain of salt” (2008: 193). it is hard to know what the futures below would look like. this may affect intuitions about some cases and the theories used to explain them. ‘extinction’ here refers to the extinction of humanit y. the argument has implications for other extinctions. offsetting the harms of extinction 9 leap 3 (2015) very long periods of time on plausible means of calculating the value of outcomes if the extinction is brought about under the right circumstances. once one recognizes that the badness of extinction is reducible to this lost potential utility, confidence in the intuition that imminent extinction is a bad thing that is to be avoided and/or delayed can be challenged on most plausible forms of outcome analysis that take potential utility into account. the lost potential utility of even a large number of future generations living lives that are worth living could be less than the amount of utility accrued by the current generation.3 extinction scenarios thus do not give one reason to choose between competing theories of outcome valuation. the argument for these claims consists of six substantive parts. the first section assesses competing theories of the good and demonstrates that the badness of ex t inct ion is reducible to t he lost potent ia l ut i lit y of f uture generations that could exist but for the extinction (and any negative effects on existing persons). the second section brief ly canvasses the best means of calculating the value of potential utility and outcomes including potential utility. i argue that intuitions that extinction is a bad thing to be avoided and/or delayed are undermined regardless of which mainstream position one takes. on total-, averageor perfection-based analyses, the badness of extinction can be outweighed if it takes place as a consequence of an act that creates sufficiently good benefits for existing persons. the third and fourth sections demonstrate that this is true in cases where there is a choice between extinction and humanity continuing to experience lives worth living for a short period and cases where the alternative to extinction is humanity continuing to exist with very good lives for very long periods. the f if t h sect ion exa mines t he sig nif ica nce of potent ia l f uture f lourishing generations in the analyses of the badness of outcomes. the final substantive section further defends the approach to extinction above by highlighting how it explains a separate intuition that the death of the last person is not the worst death in the history of humanity. 1. approaches to valuing extinction the claim that extinction is bad could mean several things. this section presents several alternatives and demonstrates weaknesses with many of them by way of defending the relative plausibility of a particular view. the most common view on the value of extinction is probably something like: a. extinction is intrinsically bad. john broome helpfully explains the structure of this view (but does not 3 ‘utility’ here refers to whatever is valuable in life. those who are queasy about hedonfocused utilitarianism can substitute their own units of measurement. 10 michael da silva leap 3 (2015) defend it) (2012: 180-181). contrary to (a), however, there are cases where many would not want to avoid (even near-term) extinction. all-else-beingequal, it is implausible to deny that one should choose extinction now over a million years of people living lives not worth living. moreover, this position seems confused on terminological grounds. non-existence has no intrinsic features/properties. if the badness of extinction is not intrinsic, it is likely tied to its effects on the amount of utility that is realized in the world. this raises issues in moral mathematics that can be fruitfully explored in extinction cases. one type of value assessment appeals to purely person-affecting principles in which the goodness and badness of outcomes is determined by their effects on persons. the most common response to extinction may be best explained by what derek parfit calls the narrow person-affecting principle, according to which one of two outcomes cannot be worse if it would be worse for no one (1984: 393-395). common aversive responses to extinction likely stem from imag ined lin ks bet ween suf fering a nd ex t inct ion. in severa l plausible scenarios, painful deaths act as a prelude to full extinction. common responses to such cases support: b. ex t inct ion is bad because t he ef fects on (including ha rms to) existing persons are sufficiently great to render it bad. if extinction were to take place as a result of a disaster that brought untold suffering with few benefits, (b) would be true. but determining whether extinction is necessarily (even comparatively) bad or necessarily includes bad-making features requires sifting out contingent facts. extinction need not include such effects on ex isting persons. an impartial non-human obser ver interested in utilit y could lament the suffering in (b), but this would not entail lamenting the fact of extinction. if the early deaths are the price for a shorter period of an extreme well-being greater than the amount of well-being expected for any potential extra years of life, it is plausible that early death would not harm them. imagine an extinction case where this is true for all existing persons such that no one currently alive is harmed by extinction. (b) is false in such circumstances and many others. further, strict person-affecting views, which calibrate the goodness of outcomes using the effects on persons alone, tend to have unintuitive determinations about the supposed badness of extinction. on these views, extinction is bad iff the sum of utility of existing people lost by the act of extinction is larger than the sum of the utility gained. this does not always hold true. therefore, offsetting the harms of extinction 11 leap 3 (2015) extinction is not always bad here.4 issues with (b) lead theorists to seek other ways in which extinction is a bad thing. one attempt merely modifies the person-affecting principle. this implausible approach can be dealt with brief ly. the badness of extinction is often thought to go beyond its effect on the currently living. some thus suggest that extinction is bad because of its effects on future persons. they explain the badness of extinction by extending the scope of the personaffecting principle to include potential future persons who do not exist because humanit y goes extinct prior to their birth. on such v iews, the badness of extinction can be calculated by some mixture of the effects on existent and potential persons, resulting in views like: c. extinction is bad because the effects on potential persons (which do not include direct harms) are sufficiently great to render it bad. and d. extinction is bad because the effects on ex istent and potential persons are sufficiently great to render it bad. these views likely describe the common views of lay persons, but are mistaken. at the time of extinction, potential future persons do not exist and cannot be harmed in the person-affecting sense.5 if potential persons cannot be harmed, future generations are not directly harmed by extinction either. it is not, then, enough to appeal to person-affecting principles about what might be in or against the interests of presently existing people and future people when analyzing outcomes if one wants to salvage the intuition that extinction is always bad. the modified person-affecting view nonetheless hints at an important point: there is reason to take future generations into accou nt when ma k i ng mora l decisions today a nd t he sense i n wh ich f ut u re persons a re mora l ly releva nt ex pla i ns why we shou ld usua l ly avoid/delay extinction. it is more plausible that the badness of non-existence stems from the fact that the history of the world would be better if extinction came later or never came about. the badness of extinction is impersonal. jeff mcmahan 4 complex person-a f fecting ca lcu li better demonstrate t he potentia l badness of extinction. james lenman (2002) suggests we care about future generations for selfish reasons (e.g., joy of knowing about future generations analogous to the joy of having children). this const r uct ion i ncludes a persona l bad, but ha rd ly suppor ts t he idea of ex t i nct ion a s a n impersonal bad whose badness extends beyond its effect on persons. samuel scheff ler (2013) suggests that the badness of extinction partly stems from the way that it negates our ability to value and thus destroys utilit y in the present and future. these contingencies may be undermined in some cases below. 5 they w ill not ex ist unless we act in certain ways. slight policy changes produce different future persons. recall derek parfit (1984: chapter 16). 12 michael da silva leap 3 (2015) (2013) plausibly ties together this impersonal bad and the potential interests of future persons. he suggests that the non-existence of a potential person is an impersonal loss. one cannot care for these persons morally for their own sake. mcmahan nonetheless holds that one has a reason to bring a better off person into existence rather than a worse off person, which he suggests implies a reason to bring the better off person into existence rather than no person at a l l. to br i ng a person i nto ex istence is to con fer a “non[-] comparative” benefit on him/her (9). extinction is potentially problematic because it forestalls the granting of many non-comparative benefits and thus produces a history with less utility than a history in which extinction either never takes place or comes much later and non-comparative benefits are bestowed on new persons. the most important implication of mcmahan’s view for the extinction case is that there are impersonal reasons to bring people into existence due to the value they will add to the world. the perspective of the aforementioned impartial non-human observer interested in utility is the best point of view from which one can assess the potential badness of extinction. from this perspective, extinction is bad because it forestalls potential utility. potential persons do not lose something by failing to come into existence. instead, if causing people to exist would be good for them, their not coming into existence is bad despite not being bad for them.6 if these people could have had lives worth liv ing, their non-ex istence is an impersonal loss of value. the lack of benefits is a detriment in the history of the world. comparisons of the utility of worlds with future generations and those without them help identify the bad of extinction: potential utility is not realized in the world where extinction is earlier. one should, then, count the potential future utility of presently nonexistent people when choosing between outcomes. this is not because of a duty to potential persons or because existence would be good for them. it is because it is comparatively better to have more utility in a given history than less utility. all-else-being-equal, it is better to bring about an outcome that realizes more of what is now merely potential utilit y than one that rea l i z es less of it . i f we cou nt potent ia l ha r m s i n ou r c a lc u lu s of t he badness of extinction, two plausible views arise. given the contingency of an extinction scenario harming current individuals, one may adopt a view focused on impersonal loss alone: e. extinction is comparatively bad if the loss of potential utility that would have accrued had the currently living people existed for a longer period of time and had other persons lived in the future is greater than 0. 6 our “moral reason to ensure the existence of future generations is at least in part a moral reason to provide, or not to prevent, the enormous benefits of life for the enormous number of people who might exist in the indefinite future” (mcmahan 1986: 335). offsetting the harms of extinction 13 leap 3 (2015) yet even the truth of (e) depends on how extinction arises. those interested in utility more broadly should take account of the utility of existing persons as well. while the badness of extinction may be reducible to (e), full utilitybased outcome analyses cannot ignore when an outcome includes the suffering of current existing persons; contingent suffering is relevant when present. the impartial non-human observer cannot ignore it. an alternative thus combines person-affecting and impersonal perspectives: f. extinction is comparatively bad if the sum of the suffering it imposes on living persons, the loss of potential utility that would have accrued had the currently living people existed for a longer period of time and had other persons lived in the future, or some combination of the two is greater than 0. richard kraut, an opponent of absolute/intrinsic value, supports something like (f). for kraut, the extinction of any species is bad iff the loss of the species is bad for the earth’s other creatures (2011: 169). the loss of beings that can and do experience and produce more good is worse than the loss of being who can and do experience and produce less good (185). humans, including future humans, can experience and produce more good than any other species. thus, the extinction of humanity would be the greatest of all catastrophes (164). like mcmahan, kraut takes future generations into account when assessing outcomes. he thereby commits to a v iew whereby potential utilit y must be weighed in our moral calculations. both the last generation of humanity and their possible beneficiaries in future generations would be negatively affected by an extinction scenario, reducing total utility in the world (164165). occasionally, kraut makes it sound as if future generations could be harmed by extinction, but to the extent that he can be plausibly be read as endorsing (f ), his view appears more plausible than alternatives. extinction scenarios, then, are most likely bad because of their negative impact on existing persons (to the extent that such effects are present) and because of the loss of the possible goodness of the people who might have ex isted and had good lives. the follow ing explains how to compare the values of histories including the potential utility of future persons and how plausible ca lcu lat ions st i l l lead to scena rios where ex t inct ion today is preferable t ha n ma ny yea rs of cont inued huma n ex istence. it t hereby explains why one should adopt a new approach to the badness of extinction, which is introduced in the next section. 2. calculating the badness of extinction there is, then, a comparative harm in future people failing to come into existence if they would experience utility that would not otherwise be realized. 14 michael da silva leap 3 (2015) this harm is impersonal. if the badness of extinction is comparative and its value is exhausted by the loss of potential utility (and perhaps the disutility experienced by existing persons when the extinction scenario arises), this raises questions about how to calculate potential utility and the overall utility of an outcome. the loss of potential utility stemming from an early extinction is a badmaking feature of an extinction scenario. comments on how bad it would be are necessarily speculative,7 but an impartial non-human observer would likely possess better measurement tools than i do. this piece thus assumes determinations on how much potential utility future persons would realize if brought into existence can be made, bracketing one source of uncertainty in population ethics, uncertainty about value, to assess the badness of extinction. one cannot place potential utility valuation completely in a black box, but attempts to answer hard questions about such valuation raise several problems. pract ica l decisions rely on informat ion ava i lable to modern humans, not impartial non-human observers. when comparing potential histories, we want to know if, for example, we should discount benefits to future persons or if potential utility is equivalent to actual utility (see e.g., bostrom 2002: 15-16). black boxing may thus be practically problematic. for present purposes, however, it suffices to note that the loss of potential utility is non-negligibly bad.8 regardless of how one values potential future 7 john broome agrees that we must take potential persons into account (2012: 175). the absence of persons accounts for our intuitions about the badness of extinction, even if we do not think it can explain why we think extinction is any worse than any other massive drop in the potential population. yet broome is more skeptical than mcmahan about the ultimate badness of large absences of persons: intuitively it seems most plausible that…[absences] are bad….but…we still have a lot of work to do before we can be sure that this is so….[e]ven if we can be sure a collapse of population would be bad, we have no idea how bad it would be. we have empirical work to do in predicting what would have been the well-being of the absent people, had they lived (183). this provides reason to question (e), (f), and (g). broome suggests we cannot be sure of our utility calculations and thus may not be able to do the moral mathematics necessary to support the views. if this is true, any comments on the value of potential utility, including comments on the value of outcomes that rely on potential utility calculi, are necessarily speculative. 8 i am tentatively wont to provide such a discount based solely on the uncertainty identified by broome, but the claim that the badness of extinction can be outweighed by other relevant circumstances even when the alternative would be many years of continued human ex istence does not depend on such a discount. e.g., parfit offers a two tier view, according to which we give greater weight to the badness of outcomes that would be worse for particular people, but give some weight to non-person-affecting good and bad outcomes (2011: 219-233). questions concerning whether extinction is always bad and whether we should always attempt to delay it arise even on versions of the two-tier view that give significantly less weight to effects on future well-being that do not affect particular people. offsetting the harms of extinction 15 leap 3 (2015) utility, it should be included in assessments of the good of outcomes. the more pressing concern is how to calculate the overall utility of an outcome given fixed inputs of the utility of existing persons and potential utility of future persons.9 two popular candidate principles for such determinations are the total principle and the average principle. the former holds that “other things being equal, the best outcome is the one in which there would be the greatest quantity of whatever makes life worth living” (parfit 1984: 387), but unfortunately entails the repugnant conclusion (388). the latter holds that the best scenario is one in which the average amount of utility experienced by each person is highest and may have similar implications in its widest form (399). it is also subject to further critiques, including the levelling down objection (described in temkin 2012: 75-76). there is thus reason to question the most intuitive non-person-affecting views. nearby views suffer from similar defects10 and extinction cases like the ones below raise similar problems.11 all principles of valuation suffer from some defects and are thus not obvious candidates for use in the valuation of the badness of extinction. the following possibility, which is agnostic about the competing principles, helps avoid these problems, but also supports the view that extinction is not necessarily bad: g. extinction is not comparatively bad if the sum of any negative disutility experienced in the process bringing about extinction and the impersonal negative effects of the potential utilit y of ex istent and future persons failing to be realized can be negated by earlier benefits conferred on existing persons. the scenarios below suggest followers of total-, averageand perfectionbased outcome valuation principles should all prefer imminent extinction 9 for simplicit y’s sake, calculations here ignore different people choices, wherein different persons will be born depending on which of two scenarios arise and we assess the relative value of their lives (parfit 1984: 356). the choice is between only this generation existing and any future generation existing. 10 given space limitations, other principles cannot be canvassed. yet it should be reasonably clear that nearby view suffer from similar defects. e.g., those who understand the case demonstrating how the average principle may lead to repugnant conclusion should understand how these arguments also apply to the average utility principle. small differences in particular cases are dealt with brief ly below. the key is that the treatment of (e)-(g) above remains true when reformulated to account for average utility. 11 t he i mper sona l tot a l a nd average p r i nc iples a l so ent a i l t hat, u nder cer t a i n circumstances, extinction is preferable to long periods of continued human success. indeed, the cases below suggest that extinction may be preferable on any plausible valuations. given the similar problems between these views and their nearby alternatives on the margins, it is likely that the total badness in (e) and (f) can be negated by earlier benefits conferred on existing persons regardless of whether the loss of utility is calculated in totals or as deviations from an average. 16 michael da silva leap 3 (2015) provided that the limit on the amount humans are able to flourish is sufficiently high. (g) is thus true regardless of whether one calculates the value of outcomes from a total-, averageor even perfection-based perspective.12 given that the most plausible outcome valuation theories all rely on one of these principles, one should not choose a theory solely to account for one’s pre-theoretical intuitions that extinction is bad and should be avoided or delayed to the greatest extent possible. regardless of whether one assesses the comparative badness relative to the possible total sum of utility that would have been contained in the lives of people who would have otherwise existed, on their quality of life, or some combination of these, imminent extinction may be preferable to long continued periods of human existence even at a high level of well-being. this does not entail that extinction is always the better outcome, but only that an early extinction may be a better outcome than a later one (from an outcome perspective) and a history with extinction in it may be preferable to one without it. this is an argument against those who consider extinction to be intrinsically bad and argue that it is always the worst, including those who say it would be intrinsically worse than humanity’s continuing to exist for longer.13 the main arguments for this claim are case-based and appear below. following theories to their logical extremes to derive implausible results is common in ethics. i hope to show that any view on valuation may have the implausible result that extinction could be preferable to continued human instance. this is not meant to be an argument against consequentialism, but it should help demonstrate that one should not accept a particular form of consequentialism just to avoid the conclusion that extinction is preferable to alternatives.14 for instance, mcmahan uses the badness of extinction as a datum for why one should admit non-comparative benefits, the aforementioned benefits that “cannot be explained in counterfactual comparative terms” (2013: 9), into one’s moral mathematics (26). for mcmahan, extinction appears to be “the worst of those possible tragedies that have more than a negligible 12 perfectionists believe ensuring people have a high quality of life is most important. perfectionism too produces results where extinction is preferable to even long periods of continued human existence. e.g., the impartial perfectionist who is only concerned with the potential humanity being fully realized may prefer a world in which humanity f lourishes to the greatest extent possible now even if the non-existence of many future generations who would otherwise exist is a necessary consequence. 13 i will not address an extreme view one could read into david benatar (2006: 194): h. earlier extinction is preferable to a later one because coming into existence is always harmful. we are obligated not to harm people and thereby obligated to hasten extinction by not procreating. 14 if (g) is true, those who believe that extinction is necessarily bad need to look outside utility-based analyses for justification. a rule-based approach to ethics may justify this belief. adopting such an ethics may be the right application of the argument’s conclusion. this piece merely seeks to identify implications of utility-based analysis. offsetting the harms of extinction 17 leap 3 (2015) probability of actually occurring”, not merely due to its effects on existing persons, but also due to the loss of potential future utility by potential future persons (26). since potent ia l f uture persons when choices concerning extinction are being made, there may be no relevant counterfactual in which they are comparatively benefitted or harmed. the purported losses of extinction thus appear non-comparative. extinction produces impersonal losses. mcmahan’s view’s ability to explain the general plausibility of (e) and (f ), in which extinction will almost always be at least comparatively bad, cou nts i n its favor. t he loss of potent ia l va lue i n (e) a nd (f ) a re best understood as non-comparative or impersonal. one should not, however, assume that (e) and (f ) are true. indeed, even mcmahan’s mathematics can be used to create a choice scenario where extinction is not the worst outcome. plugging non-comparative harms into (e) and (f) can still result in ‘extinction is bad’ reading false. the badness of extinction alone thus does not justify admitting non-comparative benefits and harms into our moral calculations. mcmahan is aware of other problems with non-comparative benefits and harms, but these considerations suggest that the extinction case may not provide adequate reason to accept them in the first place. to the extent that one prefers one’s intuitions about the badness of extinction to one’s ability to make plausible moral calculations, this is a problem with utility-based theor y. others should be moved to reconsider their distaste for certain imminent extinction scenarios. the remainder of this piece will demonstrate that one should not admit the potential utility of future persons into one’s moral calculations merely to explain pre-theoretical intuitions about the badness of extinction. this is because the addition of these people into our moral calculus will not always allow us to maintain these intuitions. providing future individuals with the means to realize their potential utility is good. since this good is merely comparative, however, it is not morally necessary that one bring it about in all cases. since it is impersonal, no one is harmed by failing to realize it. when the potential utility calculus is paired with the most plausible means for analyzing the overall goodness of outcomes, the loss of potential utility of a hastened extinction will not rule out choosing extinction over histories where human beings live longer in certain circumstances. extinction today may be preferable to millions of years of continued human existence in some circumstances. 3. easier cases the extinction of humanity, then, is not intrinsically bad and any potential negative effects on existent and potential persons can in principle be negated by earlier benefits conferred on ex isting persons. the follow ing cases, focused on the use of pills that are unavailable in the physical world but 18 michael da silva leap 3 (2015) common in phi losophy, suppor t t he more f unda menta l f irst conjunct concerning the intrinsic value of extinction. one may prefer a history with an earlier extinction to a latter one and a history with extinction in it to an alternative without it. moral mathematics does not always demand choosing an outcome that avoids extinction. nick bostrom notes that it is not “a conceptual t r ut h t hat ex istent ia l catast rophes a re bad or t hat reducing existential risk is right” (2013: 24). if one is solely concerned with outcomes, it also may not be a substantive truth that extinction is necessarily bad. harder cases below suggest early extinction may be preferable to circumstances in which humanity survives for a very long time. i first address less contentious cases where humanity will only continue to exist somewhat longer. the supposed badness of extinction is often demonstrated with hypothetical scenarios, but such scenarios also undermine this supposed badness. larry temkin provides an example of a scenario in which mass sterility leads to extinction to suggest that an outcome where regular regeneration continues is better than one giving current people immortality; contra jan narveson, if we developed a pill enabling each of us to live wonderful lives for 120 years, it would be terrible for us to take the pill if the cost of doing so were the extinction of humanity. this is so even if taking the pill were better for each individual who took it, and hence everyone whoever lived, collectively….[i]f the cost of immortality would be a world without infants and children, without regeneration and rejuvenation, it wouldn’t be worth it….[t]his is so even if each immortal would be better off than each mortal (2008: 208)15. intuitions about similar cases are supposed to demonstrate the badness of extinction. yet i suspect that our intuitions about the case will differ if it is altered such that existing persons are made sufficiently well off. extinction may be the worst outcome of a given decision, but if we remove personal ha rms f rom t he scena rio, ex t inct ion ca n be persona l ly good. in such circumstances, the impersonal loss is merely a function of the lost potential utility of future generations that would have otherwise existed. a sufficient level of personal good for existing persons could outweigh this loss. from a pure outcome perspective, case-based reasoning suggests that a histor y including extinction may be preferable to an indefinitely long history without one.16 imagine a choice between: 15 my thoughts on this topic were furthered by two temkin-inspired cases in nick beckstead’s doctoral dissertation (2013: 63). gregory kavka provides another famous pill case (1982: 98). 16 t hese i nt u it ions a f f i r m l en ma n’s cla i m t hat “[f ]rom a n i mpersona l, t i meless perspective it is hard to identif y good reasons why it should matter that human extinction comes later rather than sooner” (2002: 253). offsetting the harms of extinction 19 leap 3 (2015) the highest high: an intergalactic travelling salesman arrives on earth. the salesman offers the earth’s inhabitants a pill that allows ever yone currently alive to reach the highest level of f lourishing possible. infertility is a side effect. the salesman is only on earth for a brief period of time and will not make the offer again, but will only provide it to the current generation on the condition that everyone agrees to take it. ever yone agrees to take the pill. humanit y goes extinct when the last currently alive person dies.17 rejecting the offer 1: the intergalactic travelling salesman makes his offer, but it is rejected. humanity continues to develop, but extinction comes within a few hundred years due to natural circumstances. rejecting the offer 2: the intergalactic travelling salesman makes his offer, but it is rejected. humanity development plateaus due to unforeseen technological problems. extinction comes within a few hundred years due to the natural circumstances from rejecting the offer 1. return to the repugnant conclusion: the intergalactic travelling salesman makes his offer, but it is rejected. human development regresses. a large number of humans continue to exist for an indefinite period of time with lives barely worth living. the pill’s extraterrestrial origin removes contingencies in other pill cases.18 many of the worries surrounding extinction are also removed. preferences can be satisfied. voluntariness is not undermined. even the violent ends of the last generation that add to the badness of extinction in similar scenarios are not present.19 most forms of uncertainty are removed from the comparative equation. the possible outcomes are stipulated to identif y whether one with the extinction of humanity in it is necessarily 17 for simplicity’s sake, assume that the last people die together, everyone enjoys full material comforts, and no family members see each other suffer. this avoids pains in lenman (2002: 255). 18 in the absence of an ‘all or nothing’ decision on whether to take the pill, it is best to delay taking it until either scientists develop it without the sterility side effect or it is clear t hat t he side ef fect cou ld not be remedied. it rema ins importa nt to determine whet her extinction following f lourishing is problematic rather than focusing on when one can know the follow ing periods w ill not be better. if the side effect could not be remedied, the case would be akin to the extraterrestrial introduction in all relevant respects. 19 lenman provides a famous example of such a scenario and poses two questions: suppose it is w ritten in the book of fate that one day we w ill be w iped out in a nast y catastrophe. many millions of people will die in terrifying circumstances involving great pain and distress. the only thing the book of fate is silent about is when this is going to happen….the question is – should we care? does it matter how soon this happens? (2002: 255). 20 michael da silva leap 3 (2015) worse than the alternatives.20 it is not obvious that the highest high is the worst scenario. it is thus not obvious that extinction sooner rather than later is necessarily a bad outcome. human beings’ ability to f lourish could be limited by their nature and psychology. if so, a relatively small number of future generations existing below the limit may produce a larger number of posit ive benef its t ha n t he pi l l. if, however, t he level of f lou r ish i ng is sufficiently high, then the highest high creates more utility than rejecting the offer 1 and 2. it thus appears to be the preferable outcome. the choice above may be a mere choice between existential risks,21 but this does not undermine the broader implications of the example. w hen compared with return to the repugnant conclusion, the mere presence of extinction in the rejecting the offer scenarios does not make the situation worse than an alternative without it in any substantial way.22 nick beckstead (2013) is likely right that a given period with people in it is better than a period without sentient life, but the preceding choice scenario suggests that the disvalue of empty periods can be outweighed by sufficiently good periods when we look only at histories. 4. harder cases one may charge that the important comparison involves not just a few more centuries, but a much longer survival of humanity. parts of parfit’s reasons and persons (1984) and other influential works in population ethics assume that the human race could continue to exist for a long time.23 they then question whether an earlier extinction would be preferable to such long histories. even those who prefer the highest high to rejecting the offers 1 and 2 would likely find it less obviously preferable to a future where human beings continue to live for longer periods. 20 broome’s uncertainty about value potentially remains. this lingering uncertainty about the extent to which things are good or bad is no worse than what we find in any other scenario. even broome notes that expected value theory will not help with this uncertainty (2012: 184). 21 e.g., rejecting the offer 2 includes a long period of stagnation (which is not nick bostrom’s “permanent stagnation” (2013: 20) since extinction occurs). 22 one may argue that this would result in a decrease in morally relevant diversity, but a fully realized human contributes to diversity in the history, resulting in a tradeoff of the loss of diversity. there is reason to question the long-term relevance of this diversity criterion even in the absence of that tradeoff. as lenman argues (2002: 255), it seems more important that humanity exist at some point in a history to contribute to diversity than for it to continue to exist indefinitely. diversity could be a bad-making feature of extinction at any given time, but if we take a sufficiently impartial view and analyze outcomes of whole histories, it is no longer relevant. diversity over a history may additionally benefit from humans failing to exist if some species can only exist where humans do not. 23 bostrom suggests this is an issue with many existential risks (2013: 22). offsetting the harms of extinction 21 leap 3 (2015) it is important to examine these harder cases comparing early extinction to a history where humans continue to live for longer periods. yet the only fundamental difference where one is using the most plausible outcomes valuations is that the amount of utility the current generation would need to experience to make imminent extinction preferable is much higher than it is in the easy cases. even if we grant that the loss of potential persons could make a history worse, extinction is not worse than even alternatives where humans continue to live even very good lives for thousands or even millions of years if it came about as a consequence of existing people being guaranteed lives that were very much better. consider: rejecting the offer 3: the scenario in rejecting the offer 1 takes place but thousands of years pass before the extinction of the human race due to natural circumstances. rejecting the offer 4: the scenario in rejecting the offer 2 takes place but thousands of years pass before the extinction of the human race due to natural circumstances. given a sufficiently long period of time, one may plausibly believe that the gains in quantity of lives in these outcomes when compared with the highest high would be outweighed by the lower quality of people’s lives. much longer time periods make hastened extinction less compelling.24 if one accepts beckstead’s claim that “it is not absurd to consider the possibility that civ ilization continues for a billion years, until the earth becomes uninhabitable” (43), rejecting the offer 3, in which humans continue to develop, or rejecting the offer 4, where human development plateaus, could be plausible constructions of these long histories.25 variations on rejecting the offers 3 and 4 suggest that extinction should often be avoided, but, given certain assumptions, the highest high may still be preferable. from an outcome-based perspective, extinction should be avoided where the positive benefits of an act that w ill result in or hasten extinction will not outweigh the loss of potential utility of future generations. for any given comparison with a potential future, one should focus on the potential utilities of future histories. to determine whether the highest high is preferable to rejecting the offers 3 and 4, one must be able to calculate the total amount of utility in each. whether the highest high will outweigh 24 one may worry that these additional numbers will eventually lead to return to the repugnant conclusion. the structure of rejecting the offers 3 and 4 ensures a relatively high amount of well-being in both scenarios. i nonetheless discuss this concern below. 25 return to the repugnant conclusion is unlikely. broome says “we cannot reduce t he cha nce of ex tinction to zero” (2012: 179). richa rd k raut ag rees (2011: 163). they a re likely right. 22 michael da silva leap 3 (2015) rejecting the offers 3 and 4 depends in part on what ‘the highest level of f lourishing possible’ in the highest high means. it is easy to see how, allelse-being-equal, much longer periods of time w ill create much greater amount of utility over the history of humanity. rejecting the offers 3 and 4 thus include more utility than rejecting the offers 1 and 2 respectively. whether they will include more utility than the highest high is not obvious. it is natural to assume that we will eventually reach a point where the amount of time is sufficient long that even a much smaller amount will sum (or even average) to a higher amount than the pill in the highest high could possibly reach. return to the repugnant conclusion is supposed to make this clear. in cases where extinction will eventually take place, albeit millions of years later, the question of whether more people experiencing less good for longer periods of time includes more utility than everyone alive today experiencing the highest amount of utility possible depends on how much utility the present generation could enjoy. it is hard to imagine ‘indefinite utility’ that could offset any potential lesser good in the future. there likely is a limit to the amount of utilit y any person could experience, but (g) remains true where the alternative histor y extends for thousands or even millions of years iff the limit on the amount of utility currently existing persons could accrue is sufficiently high that they could accrue more utility than many future generations. if the limit is sufficiently high, it may be such that the good current persons get from taking the pill is greater than thousands, millions or even billions of years of existence in any of the four rejecting the offer scenarios. if the gap between present utility levels and our maximal utility levels is sufficiently high and one is only interested in choosing bet ween better outcomes, then, one may choose the highest high over rejecting the offers 3 and 4. given what we know about human physiology and psychology, the gap between humanity’s current utility level and the maximum amount we could enjoy is likely insufficiently large to offset millions of years at current or even lesser levels of utility. but imagine a pill that brings us beyond our current maximal capacity such that the highest level of utility is beyond current human limitations and results in each of us experiencing bliss much greater than the cumulative well-being of hundreds of persons at our current level living long lives. if this is the pill on offer in the highest high, humanity would not err in collectively agreeing to take it on risk of sterility. even if humanity would continue to develop such that future generations would flourish much more than we do today, experiencing goods far beyond our current capacities, a pill that could take existing persons beyond that level and provide the maximal amount of utility possible could produce more ut i l it y prov ided t hat t he ma x i ma l a mou nt of ut i l it y possible is suf f icient ly high. offsetting the harms of extinction 23 leap 3 (2015) one may suggest t hat beings who took t hat pi l l wou ld no longer be recognizably human. the pill would then result in the immediate extinction of humanity by another name. yet most theorists agree that any history of humanity that will continue for thousands, let alone millions, of years needs to appeal to human beings’ descendants (e.g., beckstead 2013: 43). the relevant comparison thus assumes we are dealing w ith beings that may not be recognizably human (but are closely related). while some will reject this assumption, it is sufficiently pervasive to support my demonstration that there is a way of understanding the highest high that makes it preferable to rejecting the offers 3 and 4.26 if the limit of human flourishing is sufficiently low, the highest high may not be preferable to different rejecting the offer scenarios. eventually there w i l l be a long enough period of t ime t hat w i l l ma ke reject ing t he pi l l necessary given a sufficiently long period of time and some cap on the highest level of utility possible. a problem for this salvation of anti-extinction-based intuitions nonetheless threatens. perhaps any time extension of this sort would create a gap between the level of well-being of pill takers and future generations such that the scenario would mirror return to the repugnant conclusion in certain respects. the idea that a world with more persons who are less well-off could be better than a world that has a smaller but still considerably large number of persons (and, indeed, more than enough for society to function) who are much better off strikes many as implausible, but the source of the repugnance of the repugnant conclusion is hotly debated. the repugnant conclusion seems to demonstrate that, once a sufficient number of persons exist, the aim should not merely be to ensure more people exist, but also to ensure that each person experiences a certain level of well-being. given that the persons in both worlds are living lives worth living, the problem cannot be that the level of well-being in either world is too low in an absolute sense. the repugnance of the repugnant conclusion only occurs in comparative analyses. one explanation for it is that the gap in well-being bet ween persons in the first possible world and those in the other is too large to be justifiable. the gap in quality of life across worlds makes the creation of lives worth living seem repugnant even when the lives would otherwise be worth living. if return to the repugnant conclusion is problematic not because of the much lower amount of well-being allotted 26 depending on how one individuates species, it is possible that beckstead’s multiple pha ses of hu ma n it y/post-hu ma n it y w i l l cont r ibute to d iversit y more t ha n t he i nsta nt development of the pill in the highest high. one may argue that this would be a further bad-ma k ing feature of ex tinction in t his circumsta nce t hat is not adequately covered by utility calculations. even if one grants that the manner of species individuation that would undermine my position is correct, it is possible that the number of species that could f lourish in the absence of humanity would be greater than the number of post-human species. such speculation should be examined elsewhere. 24 michael da silva leap 3 (2015) to each person in the world with more persons as such, but because it is much lower than what we take to be acceptable, perhaps a sufficiently high level of maximal utility could make existence even at the a very good level seem repugnant compared to the blissful level produced by taking the pill. even the existence of many more persons for a long period of time at a current level of well-being may seem repugnant when one compares the quality of life at the blissful level with the quality of life at our current levels of wellbeing. rejecting the offer 4, where human development plateaus, seems particularly problematic here, though development at a slow enough pace in rejecting the offer 3 could also be worrisome. i suspect that the comparative explanation for the repugnance of the repugnant conclusion is the wrong tack, but the fact that the lives in return to the repugnant conclusion are wor t h l iv i ng ma kes t he cla i m t hat t he y a re absolutely, r at her t ha n relatively, bad implausible. defenders of rejecting the offers 3 and/or 4 need to ex pla i n why we prefer t he hig hest hig h to ret u r n to t he repug na nt conclusion without appealing to the large gap in the relative well-being of persons across the scenarios or risk a similar gap in the relative well-being of persons in the highest high and rejecting the offers 3 and 4 undermining their position. the badness of extinction is still not as obvious as it seemed. if we can limit the maximal amount of utility that could be brought about by the pill, lengthen the amount of time in the rejecting the offer scenarios to a sufficiently long period that the total utility in the scenario would be g reater t ha n t hat a mount, a nd ex pla in why return to t he repug na nt conclusion is worse than the highest high without appealing to a comparison that is mirrored by any rejecting the offer scenario and the highest high, then it is easy to construct scenarios where even one who is only concerned with total utility in an outcome should refuse to take the pill. the number of conditions here would, however, likely surprise many. laypersons likely believe their intuitions that hastening extinction is a bad thing will survive most scenarios. this jolt to intuitions strengthens the claim that the highest high reveals a non-obvious truth about the badness of extinction on outcomebased analyses: it is comparative and can be offset. 5. possible future generations who would greatly flourish if beckstead’s speculation about the future is correct, however, it is more likely that anyone who will approach the blissful level will do so through a gradual process of development (like in rejecting the offer 3). the intergalactic salesman is unlikely to arrive soon. even if s/he could exist, it is likely that s/he w i l l on ly v isit in a fa r f uture in which we ca n communicate w it h extraterrestrials and interstellar commerce can be done efficiently. it is more likely that the highest level of flourishing will require continued technological offsetting the harms of extinction 25 leap 3 (2015) development.27 it is, in other words, unlikely that we will f lourish more than any potential future generation that could exist. it is thus worth considering what we should believe about the possible existence of people whose lives would be vastly better than the lives of the most fortunate actual people, but a few comments will have to suffice here. if an impartial observer knew that the highest high would take place 1,000,000 years from now, then, all-else-being-equal (e.g., assuming there are no periods where everyone has lives that are not worth living in the interim), s/he would have reason to prefer a history that lasted that long. consider: weak batch: the pill from the highest high is offered to humanity in a diluted form that will only bring the existent generation up to level of the best life anyone is currently living. the salesman says s/he could provide a better batch in the future that would bring a future generation up to the highest high. ingesting the weak batch now will produce infertility that would make such a trip useless. humanity takes the weak batch. the value calculations above suggest humanity should not take a pill that could raise all existing persons up to the level of the best currently existing persons with the same infertility side effect as the pill in the highest high if it knows that a much higher level of flourishing could be experienced by a future generation. the future generation would not be harmed by not being able to take the pill, but the history of the world would be worse if they were given the opportunity. even a massive boost in well-being for the current generation beyond what anyone experiences today cannot justify hastening extinction to an earlier date. a ‘stronger batch’ situation produces the same resu lt. from a n impa r t ia l perspect ive, t he current generat ion has no specia l standing. yet more interesting questions arise when we contemplate future periods of great levels of f lourishing below the maximal level in the highest high. consider: good times ahead: development in rejecting the offer 3 creates a period of overwhelming positive utility in the future, much higher than 27 bostrom posits a technological completion conjecture: “if scientific and technological development efforts do not effectively cease, then all important basic capabilities that could be obtained through some possible technology will be obtained” (2009: 190). one can imagine a version that brings humanity to its highest level of f lourishing. given certain technological developments, we may reach a point where humanit y’s highest ends can be realized even without the intervention of an intergalactic traveler. if reaching this point requires sterility a nd we k now t his side ef fect is unavoidable, t he choice scena rio is simila r to t hat of t he intergalactic traveler. this piece provides guidance on how to make that choice. see note 18. 26 michael da silva leap 3 (2015) the level any human experiences today. the forgoing provides the tools necessary to decide whether one should prefer this to the highest high. if its “overwhelming utility” is greater than one would get by taking the pill, good times ahead is preferable to the highest high. if the maximal level of utility in the highest high is sufficiently high and the “overwhelming positive utility” in good times ahead is less than the maximal level, it is possible that the gap is such that even the addition of other periods could not result in utility at the level of the highest high. the highest high would thus be preferable. 6. explaining another intuition extinction, then, is not bad in certain circumstances on most plausible outcome-based analyses. this helps explain common intuitions about the relative badness of the deaths of the last person and others. many do not think the death of the last person is worse than the death of others who preceded him/her. the fact that one death would bring about the extinction of humanity is not seen as conclusive proof that it is worse than others. the simplest explanation for this intuition that does not run afoul of other plausible ethical stances is that the outcome of this death, extinction, is not worse than the outcome of other deaths where other persons remain. the intuition about the relative badness of deaths is most easily raised when comparing the death of the last human and the death of the human immediately preceding him/her. it is stronger where we imagine that the last humans know each other. many people do not believe that the last human death would be worse than the penultimate human death. the penultimate death may even be worse since the last person will mourn the penultimate person’s death in the circumstances, if s/he knew that person, and then live alone without interpersonal connections that provide most of life’s meaning. s/he could be deeply affected by the death of the penultimate person even if s/he did not know the penultimate person, but only knew of his/her existence. samuel scheffler “would choose not to live on as the only human being on earth even if the alternative were not that human society would survive after my death but rather that everyone including me would die… [this preference most importantly] ref lects the strongly social character of human valuing” (2013: 80). this claim is supposed to be evidence for the badness of extinction, but can support the claim that the death of the last human may not be the worst one. for scheff ler, knowledge of imminent extinction renders one’s life plans meaningless and one’s projects valueless. one’s current values are likewise tied to the existence of other persons at the same time. we need other people to value our lives. if scheff ler is right, the death of the last person is less bad than the death of second last person. offsetting the harms of extinction 27 leap 3 (2015) desires to ensure that one last person remains alive, even indefinitely, are thus curious. the fact that the last and penultimate persons are among the last members of society obscures a larger truth: we often think that the fact that the last person alive is the last person alive does not make his death any worse than the death of many, and perhaps even any, other persons. the mere fact that s/he was the last person in existence does not make his/her life any more valuable than another. barring circumstances in which the person’s status as the last person was the result of virtues fully in his/her command, we often think that this status is arbitrary and could easily be otherwise. if this is the case, there is little reason to mourn his/her death any more than we would mourn the death of an equally valuable contributor to society today. the claim that the deaths are not worse than one another is slightly different from the claim that there is no reason to mourn one more than the other. the latter claim is trivially true if we consider mourning to be a strictly post hoc determination: there is by definition no one to mourn the last person on earth after his/her death. we must instead examine the former question in an ex ante manner and compare which of two deaths we would prefer not to take place in certain circumstances. this determination is similar to one on which death is worse all-things-considered from the standpoint of the impartial observer judging outcomes. many think neither death is worse than the other. some believe that the death of the last person on earth is better than the death of earlier persons in certain circumstances. the easiest explanation for these intuitions, treating one death as worse than the other seems arbitrary, is not the best explanation. the relative badness of the deaths of two persons who are otherwise the same should not be determined by the order of their death. reversing the order seems morally irrelevant. intuitions about the relative badness of the deaths of the last and penultimate persons thus cannot be fully explained by the irrelevance of the moral order of actions. the order of actions affects their independent moral status elsewhere.28 this could be true where the order ot her w ise seems to be a n a rbit ra r y dist ing uishing ma rk bet ween t wo cases. the best explanation for intuitions supporting the v iew that the death of the last human on earth is sometimes no worse than and even preferable to earlier human deat hs is simply t hat sometimes t he later deat h is preferable despite bringing about the extinction of a species. in other words, the best explanation is that the ultimate outcome of extinction is preferable to an alternative in which persons continue to live in limited circumstances. (g) helps explain intuitions about the relative badness of 28 mcmahan plausibly argues that “the order does make a difference” in determining the permissibility of certain actions in the domain of abortion and prenatal injury (2006: 649). 28 michael da silva leap 3 (2015) deaths without appealing to questionable claims about the moral irrelevance of the order of actions. this provides further reason to accept it. conclusion t he ex t i nct ion of hu ma n it y, t hen, is not i nt r i nsica l ly bad a nd m ig ht be comparatively bad only by being an absence of what would have been good. this absence can be out weighed by current goods. thus, the extinction of huma nit y is not a lways worse t ha n a lter nat ive possible f utures. even t he i m m i nent ex t i nc t ion of hu ma n it y may be prefer able to t he c ont i nue d existence of humanity for long periods of time at high levels of well-being on most plausible valuations of outcomes provided that extinction takes a certain for m. met hodolog ica l ly, t hen, one shou ld not choose a mea ns of va luing outcomes merely to avoid imminent extinction. extinction may be preferable in certain circumstances regardless of what view ones takes. the insights here, then, have methodological value. they should also help clarify why extinction should not be hastened now and when it may not be the worst outcome. bibliography beckstead, n., 2013: on the overwhelming importance of shaping the far future, phd thesis, department of philosophy, rutgers university. benatar, d., 2006: better never to have been, oxford: clarendon press. bostrom, n., 2002: “ex istentia l risks: a na lyzing human extinction scenarios and related hazards”, journal of evolution and technology 9. — 2009: “the future of humanity”, in new waves in philosophy of technology, ed. jan-kyrre berg olsen, evan selinger and soren riis, 186-216, new york: palgrave mcmillan. — 2013: “existential risk prevention as global priority”, global policy 4: 15-31. broome, j., 2012: climate matters, new york: w.w. norton & company. kavka, g., 1982: “the paradox of future individuals”, philosophy and public affairs 11: 93-112. kraut, r., 2011: against absolute goodness, new york: oxford university press. lenman, j., 2002: “on becoming extinct”, pacific philosophical quarterly 83: 253-269. mcmahan, j., 1986: “nuclear deterrence and future generations”, in nuclear weapons and the future of humanity, ed. avner cohen and steven lee, 319-339, totowa, nj: rowman & allanheld. — 2006: “paradoxes of abortion and prenatal injury”, ethics 116: 625-655. — 2013: “causing people to exist and saving people’s lives”, the journal of ethics 17: 5-35. pa r f it, d.,1984: reasons and persons, oxford: clarendon press. — 2011: on what matters: volume 2, oxford: oxford university press. — 2013: “death and the afterlife”, in death & the afterlife, ed. niko kolodny, 15-110, oxford: oxford university press. http://philosophy.rutgers.edu/dmdocuments/nuclear%20deterrence%20&%20future%20generations.pdf leap 3 (2015) temkin, l., 2008: “is living longer living better?”, journal of applied philosophy 25: 193210. — 2012a. rethinking the good: moral ideals and the nature of practical reasoning, new york: oxford university press. offsetting the harms of extinction 29 jesper ryberg.indd compulsory medication, trial competence, and penal theory j e spe r ry be rg roskilde university abstract due process requires that a criminal defendant must satisfy a number of minimal conditions with regard to his/her cognitive abilities, i.e. that the defendant possesses trial competence. but what if a defendant —for instance, as a result of a mental disorder —does not possess the requisite competence? would it be morally acceptable for the state to forcibly subject a defendant to psychotropic medication in order to restore his/her competence to stand trial? in this article it is argued that the reason that has constituted the main argument in favor of forcible medication of defendants —namely, that the state has an essential interest in convicting and sentencing defendants who are guilty of crime —is not as strong as has been assumed and may even, under certain conditions, speak against the use of forcible medication of trial incompetent defendants. keywords: forcible medication; mental disorder; punishment; retributivism; trial competence; utilitarianism. introduction due process requires that a criminal defendant is fit to stand trial. to be fit, a defendant must satisfy a number of minimal conditions with regard to his cognitive abilities. for instance, he must be able to participate and assist in his own defense, to observe the judge, jury, witnesses and other courtroom participants, and —not least —to understand the course of the proceedings against him. in short, a defendant must possess trial competence.1 1 for a review of the modern discussion of the legal definitions of competence to stand trial, see fogel et al. (2013). competence to stand trial is usually regarded as intrinsic to the fairness of a trial process. the main argument to this effect is that the lack of competence may imply that the defendant fails to communicate exculpatory information. see, for instance, mossman et al. (2007). jesper ryberg.indd 61 27/4/17 9:04 62 jesper ryberg leap 4 (2016) but what if a defendant —for instance, as a result of a mental disorder —does not possess the requisite competence? what measures is the state justified in taking to ensure that a person, who may have committed a crime, is brought to trial? for instance, would it be acceptable for the state to forcibly subject a defendant to psychotropic medication in order to restore his/her competence to stand trial? in contrast to other issues that are sometimes presented and discussed in legal philosophy, the question posed here is clearly not a purely hypothetical one dreamed up by imaginative legal philosophers. on the contrary, a number of criminal cases have in various ways directed attention to this question. the most significant case is undoubtedly that of sell v. united states, in which a former dentist, charles sell, was indicted for medicaid fraud and other offences. sell had a long history of mental illness, and mental evaluations showed that he suffered from a delusional disorder (persecutory type). he was consequently held incompetent to stand trial. the case eventually found its way to the supreme court, which addressed the constitutional question as to whether the government was permitted to forcibly administer psychotropic medication solely to render a mentally ill defendant competent to stand trial for serious (but nonviolent) crimes. the court held that —under a set of strict conditions —the government was permitted to impose involuntary psychotropic (anti-psychotic) medication in order to bring a mentally ill defendant to trial. unsurprisingly, the case itself and the supreme court ruling have prompted numerous reactions and comprehensive legal discussions (see for instance, baker 2003; hilgers and ramer 2004; page 2005; siegel 2008; perlin 2009). the purpose here, however, is not to elaborate on the details of sell, nor to contribute with considerations on the constitutionality of involuntary medication, but rather to address the overall question as to whether this method for establishing a defendant’s trial competence should be seen as morally acceptable. that this question poses an ethical dilemma seems obvious. on the one hand, it is usually regarded as crucial that the state upholds justice, and the bringing of defendants to court is an important step in this process. on the other, the forcible imposition of medication on someone is standardly regarded as highly problematic. in fact, what makes this side of the dilemma particularly problematic is the contextual nature of the concept of competence (see annas 2004). being competent is task-specific, in the sense that a person may be competent to do one thing but not another. however, this means that, insofar as the standards of competence differ (are lower) when it comes to the acceptance or refusal of medication than when it comes to proper trial participation, there can be cases in which an attempt to medically deal with the trial jesper ryberg.indd 62 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 63 leap 4 (2016) incompetence of a defendant not only involves involuntary medication but medication of someone who may be fully competent to refuse medical treatment. thus, the question of the acceptability of the use of forcible medication as a means of restoring trial competence comprises cases which —at least from the perspective of standard heath-care ethics — would be regarded as morally highly dubious. the purpose in the following, it should be underlined, is not to make a case against forcible medication by definitively rejecting this method for the restoring of the trial competence of defendants. however, what i intend do is to direct attention to an aspect of the problem that has so far been ignored in the discussion and which has implications with regard to the ethical assessment of the matter. more precisely, it will be argued that the problem, which has usually been analyzed as a conf lict between state interests, on the one hand, and the interests of the individual defendant, on the other, may on closer ethical scrutiny —involving both utilitarian and retributivist penal theoretical considerations —no longer constitute a genuine conf lict; that is, that the reasons that have been presented as the main argument in favor of forcible medication of defendants are not as strong as has been assumed and may even, under certain conditions, speak against the use of forcible treatment of trial incompetent defendants.2 in order to reach this conclusion, the paper proceeds as follows. in section 1, the interests that are at stake in the apparent conf lict between the state and the individual defendant will be outlined. subsequently —in section 2 —it is argued that what is usually regarded as the main interests of the state, namely, that the competence of mentally ill defendants is restored so that they can be brought to trial, may not —when analyzed from a penal theoretical perspective —be morally desirable after all. in section 3, a few objections to this argument are rejected. finally, section 4 summarizes and concludes. before embarking upon the discussion, a few conditions should be mentioned concerning the scope of the considerations. firstly, i shall not discuss whether the use of psychotropic medication is acceptable or unacceptable. critics have sometimes held that this kind of treatment in itself is problematic. however, in the following it will be assumed that the use of psychotropic medication as a treatment of disorders, such as those that may imply a loss of abilities required for trial competence, is not in 2 it is a fact that the state sometimes uses other compulsory methods in the way it deals with criminal defendants (e.g. pre-trial detention). even though it would be interesting to consider what the arguments presented below imply with regard to other types of compulsory methods, this question clearly reaches far beyond what can possibly by discussed within the framework of this article. thus, as mentioned, the focus here is place exclusively on forcible medication of incompetent defendants. jesper ryberg.indd 63 27/4/17 9:04 64 jesper ryberg leap 4 (2016) itself unacceptable. i believe that, given the widespread use of this type of medication for mentally ill patients and the fact that few (i guess) would object to this treatment if a defendant were to ask for it himself in order to achieve trial competence, this is not a strong assumption. secondly, the imposition of involuntary medication for the purpose of restoring trial competence has in legal contexts been held to implicate that important individual and state interests have to be weighed against each other in order to determine whether this practice is constitutionally acceptable. for instance, in sell the supreme court recognized the individual’s basic liberty interest in avoiding unwanted medical treatment, but also held that his interests were insufficient to outweigh the state’s interests in bringing someone to trial. in the following it will, as indicated, be argued that “state interests” do not provide as strong reasons in favor of forcible medication as is often assumed if seen from an ethical perspective. thus, from the outset i shall assume that it is relevant to include what is usually regarded as the state-interests perspective in an adequate ethical evaluation. clearly, not everyone will accept this. for instance, some might hold that forcible medication in itself violates a moral constraint and that such treatment, therefore, is morally wrong regardless of state interests, that is, independently of whatever moral reasons may point in the opposite direction. since the point in the following is to show that there may be stronger reasons against forcible medication of trial incompetent defendants even if one accepts that the most plausible moral answer must be based on some sort of weighing of pros and cons, the constraint-based position will not itself be considered any further.3 thirdly, given the context-dependent nature of the concept of competence, participation in the different processes of the work of the criminal justice system may require different sorts of competence. thus, questions of competence have been raised not only in relation to fitness for trial participation —which itself has opened up a discussion of the distinction between being competent to stand trial and being competent enough to conduct trial proceedings oneself —but also in relation to both pre-trial settings (e.g. competence to make confessions or participate in line-ups) and post-trial settings (e.g. competence to motion new trials, parole, and —perhaps more bizarrely —to be executed).4 however, even 3 more precisely, what i am arguendo assuming is that an absolutist interpretation of a constraint against forcible medication is not plausible. a threshold interpretation of such a constraint would still make it necessary to consider the weight of the reasons in favor of forcible medication in order to reach a conclusion on whether this practice is morally acceptable. 4 for a discussion of the use of medication as an instrument to render people competent for execution, see e.g., daugherty (2001) or latzer (2003). jesper ryberg.indd 64 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 65 leap 4 (2016) though the argument that will be advanced here may have implications with regard to several of these aspects of criminal justice competence, the ensuing discussion will be limited strictly to the question of competence to stand trial. 1. the pros and cons of forcible medication whether it is acceptable to impose psychotropic medication for the purpose of restoring competence to stand trial is a question which, as indicated, has typically been analyzed in terms of a conf lict between the interests of the individual and the interests of the state. strictly speaking, this way of phrasing the conf lict may not be adequate in an ethical analysis: there may be moral reasons that cannot be reduced to interests and there may be interests that are not morally relevant. be that as it may, let us now start take a closer view on the arguments that have been advanced for and against forcible medication of trial incompetent defendants. the arguments against the use of forcible medication of defendants fall into two categories: either they concern the impact on the defendant or the possibility of obtaining a fair criminal process. starting with the first class of arguments, the most obvious objection to forcible medication of incompetents is that this treatment constitutes an imposition of something against the will of the defendant. the appeal of this objection is probably most obvious in cases in which there is the above-mentioned combination of a defendant who, while trial incompetent, is still competent to refuse medical treatment. the shift in modern health-care ethics, from an earlier period dominated by a paternalist view on medical treatment to the view that favors competent individuals’ right to self-determination, is often emphasized as one of the most significant changes in the ethical approach to treatment. today, it is widely accepted that patients have a right to refuse medication, even if it would be in their own best overall interest, or in the interest of others, that they be medicated. as a recent medical theorist has pointed out that “… anyone who wishes to ague for forced or mandated treatment on the grounds that society will greatly benefit is working up a very steep ethical hill” (caplan 2008). whether the problem of imposing something on someone against his or her will is best described as a problem concerning lack of respect for autonomy (which constitutes the standard phrasing in medical ethics) or in other ways is not crucial here. it is sufficient to note that the imposition of medication against a defendant’s will constitutes a first reason against this sort of practice. another reason that has frequently been presented in the debate concerns the undesirable effects of medication. psychotropic medication, jesper ryberg.indd 65 27/4/17 9:04 66 jesper ryberg leap 4 (2016) for instance antipsychotic drugs, is known to have a number of side effects. in the amicus curiae brief in relation to sell, the american psychological association highlighted a number of both common and rare serious side effects (e.g. including “extrapyramidal” reactions —a family of disorders such as tardive dyskinesia, parkinsonism, and dystonia —blurred vision, sedation, orthostatic hypotension, dizziness, etc.).5 however, it should also be underlined that more recent antipsychotics have a more favorable sideeffect profile than older classes of drugs and that attempts to restore trial competence may involve only temporary medication. leaving aside the possible medical side effects, there is another potentially very serious effect that forcible medication may have on a defendant: if the medication is successful and trial competence is restored this may imply that the defendant is convicted and ends up being punished perhaps serving a long prison sentence, depending of course on the nature of the crime. according to some commentators, it is reasonable to believe that this prospect contributed to sell’s refusal of medication. now, whether the risk of conviction and subsequent punishment should be regarded as an objection against forcible medication is controversial. it might be held that, since the whole point of initiating forcible medication is to make it possible to determine the guilt of a defendant and to punish him if he is convicted, the suffering of the punishment cannot plausibly constitute an objection against medication. however, the answer ultimately depends on penal theoretical considerations and, as we shall return to shortly, there may be reasons to regard the risk of punishment as a drawback in the evaluation of forcible medication. so much for the set of reasons referring to the direct effects on the defendant who is made the subject of compulsory medical treatment. the other class of reasons that has been advanced against the use of forcible medication concerns the possibility of receiving a fair trial. the whole purpose of such medication is to make it possible for the defendant to stand trial. but, as several commentators have pointed out, the fact that trial competence is in this way restored does not imply that the trial will be fair. on the contrary, the side effects of medically induced trial competence may themselves turn out to compromise fairness. this could happen in various ways. first, depending upon how precisely the formal criteria for trial competence is put, it may be possible that a defendant’s abilities are restored to a level which satisfy the competence criteria, even though the medication itself implies that the defendant is still to some extent cognitively impaired (e.g. if his memory is affected). second, and more 5 counsel for amicus curiae, american psychological association (2002: 20-25). see also baker (2003). jesper ryberg.indd 66 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 67 leap 4 (2016) importantly, several of the above-mentioned side effects (e.g. parkinsonian tremors) may adversely affect a judge’s or a jury’s opinion of the defendant. in the same vein, a f lattened emotional reaction of a defendant who, as a result of medication, appears bored, cold, or devoid of compassion and remorse, may prejudice jurors and thereby threaten basic fair-trial rights.6 finally, it has been underlined that medication may diminish a defendant’s possibility of pleading insane at the moment of the crime. in a case in which a defendant appears too normal in the court this may affect, and in the worst case, undermine the persuasiveness of an insanity defense (see e.g. graber 1979: 8ff ). that this constitutes a genuine risk has been demonstrated in empirical studies which have found that jurors were more likely to hold a defendant not responsible on account of mental disorder if the defendant was psychotic at the time of the trial than if he or she appeared normal (see whittemore and ogloff 1995). the above-outlined reasons concerning the direct impact of forcible medication on the defendant, and on the defendant’s possibility of receiving a fair trial, roughly summarizes the main arguments that have been presented against this way of dealing with impaired trial competence. let us now move on by turning to the argument that has typically been advanced in the opposite direction. what reasons could there possibly be in favor of subjecting defendants with impaired trial competence to compulsory medical treatment? as already indicated, the answer is simpler than the objections against this practice. the argument, unsurprisingly, amounts to the state’s basic interest in bringing people who may have committed crimes to trial. that this interest is significant seems prima facie hard to dispute. a number of court decisions have addressed the state’s interest in adjudicating guilt and innocence and have characterized this interest as “essential” (see morse 2003: 320). moreover, few would object to the fact that a comprehensive and costly system has been designed with the purpose of bringing people who may have committed a crime to trial. and several other ways in which this system works clearly indicate the significance usually attributed to the possibility of having a trial. for instance, as morse has pointed out, the state may also take rather drastic initiatives —such as incarceration and perhaps even involuntary medication —of a material witness if the obtaining of a testimony of this witness constitutes the only effective means by which the state could try a defendant (morse 2003: 321). if this treatment of a purely innocent witness is acceptable then the interest in bringing a defendant to trial must be significant. 6 see counsel for amicus curiae. american psychological association (2002: note 7: 25); or morse (2003: 319). jesper ryberg.indd 67 27/4/17 9:04 68 jesper ryberg leap 4 (2016) but where does this presentation of the reasons that have been presented for and against the use of forcible medication on trial incompetent defendants lead us? given the initial and generally accepted assumption that the moral legitimacy of the use of forcible medication cannot be settled merely by focusing on the reasons on the one side of the scale, the complicated question one is left with is how the outlined reasons should be weighed against each other. how should we balance the protection of the individual against the interest in bringing defendants to trial? on this point theorists have been split. however, the point is not to engage in considerations on the weighing of the pros and cons but rather to adopt a more cautious attitude by asking whether the depicted picture of the outlined reasons is apposite. more precisely, what we shall now see is that on closer scrutiny it is not so obvious that the pro-side of the scale carries the weight with which, as we have just seen, it is usually attributed. 2. the moral significance of a trial why is it so important for the state to be able to bring a defendant to trial? why does this constitute an essential interest? the obvious answer is that there are strong moral reasons in favor of punishing people who have violated the law and that the criminal trial constitutes a vital step in the process of identifying those who fall into this category, that is, those who are in fact guilty of a crime. unsurprisingly, this is also the answer that has been given in several supreme court decisions. for instance, in united states v. weston it was specifically underlined that part of the state interest consisted in “demonstrating that transgressions of society’s prohibition will be met with an appropriate response by punishing offenders”.7 correspondingly, both “retributive” and “deterrent” functions were enunciated as ultimate goals of the state’s trial interests.8 however, further steps with regard to justificatory arguments are not usually taken. but this means that we are left with the basic question: how important is it that the state succeeds in punishing those individuals who have committed crimes but who belong to the group of defendants who are incompetent to stand trial? the answer to this question depends upon what constitutes the basic rationale behind state-inf licted punishment and, at this point, it is well known that there exists no theoretical consensus. thus, let us now consider the question more thoroughly from the perspective of the two rival theories that have dominated penal theoretical thinking, that is, respectively from a utilitarian and a retributivist point of view. 7 u.s. v. weston, 255 f. 3d 873 (d.c. cir. 2001), cert. denied, 122 s. ct. 670 (mem.) 2001: 880. 8 ibid. p. 881. jesper ryberg.indd 68 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 69 leap 4 (2016) according to the utilitarian approach to punishment, the inf liction of punishment on perpetrators is justified on the ground of future desirable consequences that will follow from this practice.9 though there may be different types of desirable consequences, the cardinal implication of punishment is usually held to be crime prevention. thus, seen from the perspective of crime prevention is it important to ensure that those defendants who have committed crimes, but who are trial incompetent, are brought to trial and subsequently punished? first, if the question is considered in terms of general prevention, then it is far from clear that the answer is in the affirmative. it is generally believed that the existence of a punishment system has a general crime-preventive effect (see e.g. nagin 1998). that is, the possibility of being punished deters potential criminals from engaging in criminal activity. however, when it comes to the question as to how the severity and likelihood of punishment affect general prevention, the picture becomes more complicated.10 the only way in which the punishment of more individuals —that is, those who are found guilty after being forcibly medicated to stand trial —can affect general crime prevention apparently is if this will have an impact on the perceived likelihood of potential criminals being caught and punished if they break the law. but is it reasonable to believe that there will be such an effect? there are several reasons to doubt this. first, the number of people who do not satisfy standards for trial competence is obviously small compared to the total number of people who end up in a criminal trial.11 second, out of the group of defendants who are found trial incompetent, certainly not all would end up in court if forcible medication were accepted. some may not be medicated because it is estimated that this would not have the desired effect, for instance, because from the outset they are simply too ill. in other cases defendants may be involuntarily medicated but may nevertheless not reach the level of cognitive ability required to make them trial competent. third, even if mentally ill defendants become trial competent as a result of medication, 9 in the following, i consider the utilitarian approach rather than a more general consequentialist approach. as is well known, the utilitarian approach to punishment constitutes the traditional rival to retributivism (very few non-utilitarian consequentialist approaches have been developed in modern penal theory). moreover, there is no reason to believe that a non-utilitarian consequentialist theory (e.g. favoring the existence to several intrinsic values) will significantly change the main argument advanced below. 10 for an overview and discussion of research findings, see durlauf and nagin (2011). 11 though some figures suggest that around 50.000 defendants are evaluation each year in the us it is reasonable to believe that many are referred inappropriately (e.g. they may be referred for strategic reasons). the vast majority of those defendants who are evaluated for competence each year are found competent (in some jurisdictions the majority is as high as 96 percent); see e.g. winick (2002). jesper ryberg.indd 69 27/4/17 9:04 70 jesper ryberg leap 4 (2016) this obviously does not imply that they end up being punished; some will be found not guilty.12 thus, in sum, there are reasons to believe that the use of forcible medication on trial incompetent defendants will only have a relatively very small impact on the total number of those who are punished in the criminal justice system. furthermore, it should be noted that the perceived risk one faces if one engages in criminal activity is not only a result of one’s view on the probability of punishment but also (perhaps even more so) on the expectation one has on the likelihood of being caught. but it should be kept in mind that what we are here considering is the medication of people who are in fact defendants, that is, who have been caught (or turned themselves in) and this is so irrespective of the fact that they, as a result of a mental disorder, may not in the end be punished. thus, all in all, that the relatively insignificant increase in the number of people who will be punished, if forcible medication is implemented, should manifest itself in the general perception of potential criminals of the probability of being punished in such a way as to affect crime rates seems highly unlikely. however, even if there is no general crime preventive effect following from the use of forcible medication, such a scheme may nevertheless have desirable effects from a utilitarian point of view. the desired effects might consist in particular prevention; that is, the punitive treatment of the criminal may inf luence him to desist from future engagement in criminal activity. though the idea of particular prevention as caused by deterrence or reform of the criminal has (in relation to imprisonment) been heavily criticized by criminologists and, despite the fact that the reference to general prevention has constituted the traditional justification in the utilitarian approach to punishment, it might be held that there is another way of reaching a particular preventive effect which is relevant in the present context, namely, incapacitation. a defendant who has committed a crime but who is too mentally ill to be trial competent may commit new crimes that could have been prevented had he or she been medicated, convicted, and placed behind bars. however, once again there is reason to doubt the empirical soundness of this argument.13 given the fact that imprisonment may have a criminogenic effect, this would have to be weighed against whatever is gained in terms of crime prevention caused by temporary incapacitation.14 moreover, in the present context, that is, when we are considering the value of forcible medication of mentally ill 12 for instance, by reason of insanity. 13 for a general review of research showing that the crime preventive benefits of incapacitation are highly uncertain, see e.g. nagin (1998). 14 for studies on the criminogenic effect of imprisonment, see e.g. vieraitis (2007); or camp and gaes (2005). jesper ryberg.indd 70 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 71 leap 4 (2016) defendants, there is a further reason that should be kept in mind with regard to the possibility of a particular crime preventive effect, namely, that the alternative to a conviction and punishment for a trial incompetent criminal who is not compulsorily medicated may well not be freedom. insofar as the defendant is regarded as dangerous he may be civilly committed. and even if the defendant is not dangerous —such as in the case of charles sell —the alternative may be long periods of hospitalization (according to some commentators sell ended up spending more time being hospitalized than he would have spent in prison had he been involuntarily medicated, convicted, and punished). when this is taken into account, it becomes even less obvious that there would be a particular crime-preventive effect supporting the use of forcible medication to stand trial. considering the utilitarian approach to punishment there is, however, another side to the discussion that should be emphasized. in the previous outline of the reasons against forcible medication, the suffering the defendant would experience if he, after having been involuntarily medicated, were to be punished, was presented as a reason against this sort of forcible treatment. however, as also mentioned, this contention has been viewed with skepticism. it could be held that the fact that a criminal ends up suffering from a punishment cannot constitute a counterargument against forcible medication. however, as underlined, the answer to this ultimately depends upon the penal theoretical view one holds. in the perspective of the utilitarian theory of punishment, there is no doubt that the suffering of the person who is being punished counts as a reason against punishment. it is only if this disvalue of the suffering is outweighed by the greater amount of suffering that is prevented, that the punishment is morally justified. in bentham’s original wording, the punishment, when considered in isolation, is “adding one evil to another” (bentham 1962: 306). to this it might perhaps be objected that, if the alternative is that a mentally ill person is forcibly hospitalized instead, then there is no real major difference when it comes to the drawbacks of forcible medication. however, this is not correct. numerous studies have shown that prison conditions are clearly detrimental to persons suffering from a mental disorder. for instance, as has been summarized in who’s considerations on the consequences of imprisonment: “the impact on someone in good mental health would be negative; for people who arrive in a vulnerable state of mind, the damage can be irreparable”.15 thus, that a person may end up by being punished —for instance, imprisoned for years or even 15 who seminar on mental health in prisons, ”prison can seriously damage your mental health”:http://w w w.prisonreformtrust.org.uk/uploads/documents/ mentalhealthsmall.pdf (at p. 6). jesper ryberg.indd 71 27/4/17 9:04 72 jesper ryberg leap 4 (2016) decades —does provide a strong reason against the use of forcible medication of defendants. in sum, what we have seen is that, from a utilitarian penal theoretical perspective, it is far from obvious that the clearing of the ground for the punishment of trial incompetent defendants by the use of involuntary medication is as morally important as has hitherto been assumed. there is reason to doubt whether punishment of this small group of people will have any effect in terms of general crime prevention or with regard to particular prevention.16 but it is clear that there is a reason for not punishing this group qua the suffering that is inf licted on them. so much for the utilitarian view of punishment. let us now consider the question from the perspective of the retributivist view of punishment. as is often described, retributivism has dominated penal theoretical thinking for the last three or four decades and has been developing in various ways (see e.g. duff and garland 1994 or ryberg 2004). however, in the present context it is not necessary to engage in considerations of the many different explanations that have been given as to why a perpetrator deserves punishment and of what precisely it is that the perpetrator deserves. rather, what matters here are the penal distributional implications of retributivism. thus, from a desert-theoretical perspective, how should we assess the moral significance of the fact that incompetent defendants who have committed crimes are brought to trial and subsequently punished? in contrast to the utilitarian approach to punishment, which has often been accused of holding only a contingent relation between guilt and punishment —precisely what has led to a number of traditional objections against this approach —this is not the case with regard to retributivism. however, if it is crucial, from a retributivist perspective, that those who have committed crimes are in fact appropriately punished then there seems to be a strong reason in favor of initiating procedures to ensure the adjudication of guilt or innocence of those who, from the outset, are not competent to stand trial. however, as we shall now see, on closer inspection the answer is not so simple. 16 as mentioned, there could also be other effects that ought to figure in the utilitarian calculus. for instance, it would be necessary to consider how it affects crime victims if some defendants are, as a result of mental disorders, held incompetent to stand trial. though it is difficult to make general estimates on this effect (it probably varies significantly between different types of crime) it should be noted that a least some studies have indicated that the imposition of suffering on the criminal does not constitute the main interest of crime victims; see, for instance, strang (2002: chapter 1). moreover, even if a victim is affected, this is only one of the many consequences that should be taken into account by the utilitarian. thus, it is far from clear that this would tip the scale in favor of compulsory medication. jesper ryberg.indd 72 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 73 leap 4 (2016) the contention that retributivism provides a strong justice-based reason in favor of identifying those who are guilty of crime and, therefore, also in favor an imposition of involuntary medication on trial incompetent defendants, is based on one crucial presupposition, namely, that the punishments imposed on those who are guilty are in fact just. if criminals are punished in a way that violates the prescriptions of retributive penal distribution, the reason in favor of forcible treatment may well be undermined. thus, the question is whether, in real life penal practice, there is reason to believe that criminals are punished in accordance with a retributivist view of punishment for different crimes. obviously, for the simple reason that punishment levels vary between different jurisdictions, there is no universal answer to this question. however, interestingly, many theorists in the modern area of retributivism believe the answer to be in the negative. two reasons have been presented in support of this. the first reason follows from a view to which many recent theorists subscribe, namely, that there is, most markedly in the us but also in several other western countries, a general problem of overcriminalization. a theorist in the retributivist camp such as douglas husak, who has comprehensively considered this issue, has even described overcriminalization as “the most pressing problem with the criminal law today” (husak 2008: 3). what this simply means is that there are currently too many criminal laws on the books. but if this is correct, then it follows that there are cases in which the criminal sanction is being overused, that is, where people are being punished even when they do not deserve to be punished. in other words, one of the problems of overcriminalization is that it produces overpunishment. the other reason is not concerned with the scope of legal prohibitions but with the penal levels themselves. several retributivists have underlined that many criminals of today are being punished in ways out of proportion with the gravity of the crime committed. for instance, richard singer has underlined that it is a misconception to think of the desert model as a derivative of a “throw away the key” approach to punishment; he has suggested that, in contrast to what is current practice in many jurisdictions, confinement should be reserved only for the most serious crimes and, even then, the duration of this should be relatively short (singer 1979: 44). in the same vein, another inf luential retributivist, jeffrie murphy, holds that if the desert theory were to be followed consistently one would punish less and in more decent ways than one actually does (murphy 1979: 230). and andrew von hirsch, who has extensively elaborated the penal distributional implications of retributivism, regards the proportionality principle as a means to restricting punishment, suggesting more precisely that terms of imprisonment even for the most serious crimes should seldom exceed five years (see e.g. von hirsch 1993: chapter 10). jesper ryberg.indd 73 27/4/17 9:04 74 jesper ryberg leap 4 (2016) suppose all this to be correct, that is, that there exists, as a result of overpunishment and excessive penal levels, a discrepancy between actual penal practice and what ideally constitutes the deserved punishments for different crimes, what does this imply with regard to the desirability of taking compulsory steps to ensure that criminal incompetent defendants are brought to trial and punished? the answer is not straightforward, depending upon the view the retributivist more precisely holds on penal distribution. suppose, firstly, that one subscribes to a so-called negative retributivist view, according to which desert is a necessary condition for justified punishment in the sense that the proportionate punishment for different crimes is interpreted as setting upper limits for punishment.17 in this view, it is morally prohibited to punish in a way that is excessive, that is, which is disproportionately severe given the gravity of the crime. however, it is not wrong, in terms of desert, to punish a criminal less severely. thus, while this position restrains the imposition of punishment, it does not itself dictate how precisely a criminal should be punished. an answer to this question could be given by supplying the theory with further considerations; for instance, as has been suggested, by holding that below the proportionality levels the more precise severity of a punishment should be determined on utilitarian grounds. however, given this position, the answer concerning the desirability of ensuring that criminal defendants are medicated, brought to trial, and punished, becomes obvious. if there is a constraint against disproportionately severe punishing then, in a state of overpunishment, it will be wrong to punish these criminals. and since there is no constraint against disproportionately lenient punishing, it is all in all clear that, following a negative retributivist account, the punishment of the criminal defendants whose competence has been restored would not be desirable (in fact, it would be wrong).18 suppose, alternatively, that one favors a traditional positive account of retributivism according to which justice implies that the proportionate levels of punishment for different crimes do not only set upper limits for acceptable punishment, but also set lower levels. that is, on this account the criminal should be punitively responded to with a punishment that is proportionate to the seriousness of the crime; both upward and downward deviations from this punishment would constitute violations of justice. given this position, the picture becomes more complicated. 17 the distinction between positive and negative retributivism was originally introduced by mackie (1985: 207-8). see also ryberg (2004). 18 a negative retributivist might of course hold that there are consequentialist reasons in favor of punishment. however, what is important is that such consequentialist reasons do not justif y a violation of the constraint against transgressing the upper level of proportionate punishment. jesper ryberg.indd 74 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 75 leap 4 (2016) on the one hand, the moral significance of bringing incompetent defendants to trial cannot be justified in terms of the moral importance of imposing punishment on them, because —in a state of overpunishment —such punishment would, as we have just seen, be violating the proportionality constraint and would be morally wrong. on the other, if those defendants who are criminal are not convicted and punished, this will also violate the proportionality requirement. by being treated in a disproportionately lenient manner —that is, by not being punished —they will not get what they deserve. confronted with these contradictory prescriptions, what should be regarded as retributively preferable: to punish too much or to abstain from punishing? in order to avoid being theoretically locked, that is, in order to be able to provide theoretical guidance with regard to what is preferable under these non-ideal conditions, one will have to engage in some sort of comparison of these two types of injustice. but it is fair to say that at this point retributivists have had very little to say. the modern retributivist discussion of penal distribution has been focused on clarifying what constitutes the proportionate punishments for different crimes —for instance, how should crimes be ranked in seriousness, how should punishments be scaled in severity, and how should these scales be anchored —not on the comparison and measurement of degrees of disproportionate punishments. however, it seems reasonable to hold that, if we wish to compare the two outlined states, then there are at least two aspects that must be taken into consideration. the first aspect concerns the extent to which a punishment of someone who is respectively overpunished or underpunished (in casu not being punished) deviates from what constitutes the proportionate punishment. for instance, punishing a person who deserves five years in prison for one extra day may be considered a very slight deviation compared to not punishing this person at all. correspondingly, punishing this person one day less than five years may constitute a minor deviation compared to locking this person up for a period of ten years. the second aspect concerns the moral weight of the two types of deviation; that is, how should we theoretically compare upward and downward deviations from the proportionate punishment? no one seems to believe that downward deviations are generally morally more problematic than upward deviations. this leaves two possibilities. either it might be held that —leaving aside the just-mentioned question concerning the size of deviations —both downward and upward deviations constitute violations of justice and should be regarded with equal concern. in this view, there is symmetry with regard to the moral significance of overand underpunishment. alternatively, it might be held that, even though both jesper ryberg.indd 75 27/4/17 9:04 76 jesper ryberg leap 4 (2016) downward and upward deviation from the proportionate punishment is cause for concern, overpunishment is nevertheless worse than underpunishment. this is the asymmetry view. which is then the more plausible? as mentioned, retributivists have on this point usually been silent. however, a recent exception is göran duus-otterström, who has argued in favor of accepting asymmetry. what he suggests is that, while overpunishment involves excessive suffering, which the retributivist along with every other reasonable person must regard as morally problematic, this is not the case with regard to underpunishment. therefore, even though both types of deviation are morally problematic, overpunishment is ceteris paribus worse (duus-otterström 2013). where does all this lead with regard to what positive retributivism implies, when it comes to the assessment of the alternatives of either bringing trial incompetents to trial and overpunishing those who have committed crimes or abstaining from bringing them to trial in the first place? given the theoretical deficiencies in the development of the retributivist view on penal distribution, there is no clear answer. there is no generally accepted answer with regard to what constitutes the proportionate punishment for different crimes; even those retributivists who agree that the existing penal order is clearly excessive do not agree upon precisely what constitutes the appropriate penal levels. moreover, even though there are arguments in favor of adopting an attitude of asymmetry, the question about the relative weight of overand underpunishment is not fully resolved (for instance, even if the asymmetry view is correct, it is still not clear how one should balance deviations of different sizes, that is, how an instance of minor overpunishment should be assessed relatively to an instance of severe underpunishment). thus, all in all, it is fair to conclude that it is simply not clear what positive retributivism implies. however, this is tantamount to holding that it is not clear whether there actually exists a positive retributivist ground in favor of ensuring, with the necessary medical means, that incompetent defendants are brought to trial and punished for their possible crimes. summing up, the point of departure of the above discussion is the argument that there is a strong reason in favor of administering psychotropic forcible medication of incompetent defendants, because the bringing of defendants to trial is a vital step in ensuring that those who have committed crimes are appropriately punished. however, as we have now seen, it is far from obvious that the punishment of this group of people carries the moral weight that this argument presupposes. from a utilitarian point of view, it is unclear whether or not it would be desirable to punish these people. in fact, it seems most reasonable to believe that nothing jesper ryberg.indd 76 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 77 leap 4 (2016) would be gained either in terms of general prevention or in particular prevention. nor is it clear that punishment of these people would be of moral significance if seen from a retributivist point of view. if it is correct, as several retributivist have suggested, that the existing penal order involves punishments that are out of proportion to those which criminals deserve then, from a negative retributivist view, it would seem preferable not to punish them while, from a positive retributivist perspective it was left theoretically unclear whether this would be preferable. thus, on closer scrutiny the main argument in favor of forcible medication of trial incompetent defendants, namely, that this practice is justified on penal theoretical grounds, seems far less convincing than has generally been assumed in debate. 3. a few objections some might find the above discussion premature. thus, in the following i will try to present a little more support in favor of the conclusion by considering it in the light of a few possible objections. a first objection is that the above considerations somehow rest on a confusion of the distinction between, on the one hand, the significance of establishing criminal guilt and, on the other, the sentencing of criminals. the guilt phase and the sentencing phase are separate parts in the work of the criminal court and this, it might be held, is precisely how it should be. therefore, the discussion so far is defective by inappropriately drawing on penal theoretical considerations, that is, on considerations that are only relevant in relation to sentencing. now, it is of course correct that the establishment of guilt and the sentencing of someone who is found guilty are usually regarded as different phases of the work of the criminal court. however, obviously this does not show that the moral significance of adjudicating guilt or innocence is not provided by considerations of the moral importance of punishing criminals, that is, by penal theory. the argument, that it is important to be able to distinguish the guilty from the innocent because it is vital to punish those who are guilty, does not rest on confusion. however, though this answer is relatively straightforward, there may still be something to the objection. it could be held that the previous considerations have focused solely on penal theory, thereby ignoring the fact that the guilt phase of the criminal court could be valuable in itself. in other words, it might be suggested that one should not hold, what has been called, an instrumentalist view of the criminal trial. jesper ryberg.indd 77 27/4/17 9:04 78 jesper ryberg leap 4 (2016) whether an instrumentalist or a non-instrumentalist view on the guilty phase of the criminal court is correct is not a question that will be discussed more comprehensively here; and, as indicated in the outline of the pros and cons in the previous section, an argument based on a non-instrumental view has not been presented in the debate. given the purpose of this article it is sufficient to keep in mind that even if there exist non-instrumental reasons in favor of adjudicating guilt and innocence this obviously does not show that there are no instrumental reasons. in fact, a rejection of instrumental reasons would be conspicuously implausible. therefore, it is still relevant to show, as has been argued above, that the instrumental reasons —i.e. the reasons based on the moral significance of punishing criminals —do not carry the weight that one might at first sight believe and which has been underlined by courts and legal theorists. a second objection that may have struck some readers of the previous discussion concerns the scope of the outlined argument. the considerations have been presented as focusing on the question as to whether it is morally acceptable to forcibly medicate defendants who suffer from impairments of trial competence. however, it might seem as if the penal theoretical discussion has a wider scope. put somewhat differently: if it is really correct to hold that there are no penal theoretical reasons in favor of bringing defendants to trial (or perhaps even reasons against doing so), does it not follow that there is no value in bringing anyone to trial? and if so, does this not seriously undermine the plausibility of the argument? the answer to this objection is twofold. first, whether it is correct that the argument has a wider scope depends upon which penal theoretical view one is defending. from a utilitarian point of view, it is certainly not correct that the argument can be extrapolated to include all defendants. as we have seen, the argument was that curable trial incompetent defendants only constitute a very small fraction of all defendants, and that the fact that they are not punished will not have any effect in terms of crime prevention. the picture is obviously very different if the state decides to abstain from bringing all defendants to trial. as mentioned, it is generally agreed that this would have rather radical consequences for the general crime level.19 turning instead to the retributive view of punishment, the picture is a little different. if it is correct that in a state of overpunishment it would be preferable if trial incompetent defendants were not treated, brought to 19 it is correct, though, that the arguments presented here could perhaps be applied in relation to other small fractions of defendants. w hether this is likely depends upon a more precise analysis of the members of this sub-group. however, in my view this should be regarded simply as an implication of the utilitarian approach rather than an objection. after all, as we have seen, the basic idea of the utilitarian outlook is that a punishment in itself should be regarded as an “evil”. jesper ryberg.indd 78 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 79 leap 4 (2016) trial, and subsequently punished —or if it is simply theoretically unclear whether this would be preferable —then this conclusion may be extrapolatable to other defendants. however, this brings us to the second answer. even if this wider implication is correct, that is, if the argument in this way has implications for other groups of defendants, this does not show that my argument concerning trial incompetence is defective. all it shows is that, under certain non-ideal conditions, retributivism may have some radical and perhaps not yet fully acknowledged implications; which is obviously not the same as holding that the argument i have advanced is f lawed. this brings us to the third and final objection. it might strike some that the previous conclusion concerning the implications of retributivism is premature or even dubious precisely because it is based on considerations of what this penal theory implies under non-ideal circumstances. would it not be more reasonable to consider whether trial incompetent defendants should be forcibly treated under ideal conditions? and even if one insists on adopting a non-ideal perspective, is all that follows not simply that the state should change the existing penal order in order to adapt to what justice requires? moreover, would it not sound almost absurd if the state were to proclaim: “we do not take the requisite medical steps to ensure that trial incompetent defendants are brought to trial because we are already punishing in a way that is clearly excessive and hence unjust”? the answer to the latter question is that this does not constitute an objection against the considerations that have been presented in this paper. what i have been considering is the overall question as to whether it is morally desirable to use compulsory measures to ensure that incompetent defendants end up in trial. however, the question as to what sort of (legal) justification the state should use if it decided not to accept forcible medication is another question. it is probably correct that the above proclamation would not only be highly unusual but might also have some undesirable consequences; however, this is fully consistent with the view defended here, namely, that it may not be morally desirable if the state medicates and punishes those who are trial incompetent.20 but what then of the first two questions? why consider the implications of retributivism under non-ideal conditions? if one wishes to consider —as a purely philosophical exercise —whether forcible treatment of trial incompetent defendants is acceptable under ideal penal conditions, then this is of course quite all right. however, if the purpose is to try to clarify 20 for instance, if it were held unconstitutional to forcibly medicate a defendant because this would violate certain legal rights, this would be fully consistent with the view presented here. jesper ryberg.indd 79 27/4/17 9:04 80 jesper ryberg leap 4 (2016) what we should do under the actual penal order when the criminal court is confronted with trial incompetent defendants —that is, if we wish to present guidance with regard to whether charles sell ought to be medicated against his will or, more generally, whether other people who are currently placed in corresponding situations should be made subject to compulsory treatment —then we have to engage in considerations under the actual existing penal order which, as we have seen, many modern retributivists themselves regard as non-ideal. and it is this practical, or for that sake, real-life approach to the question that has been taken in this article. therefore, the answers to the above questions are: first, it is an ethical problem as to what we should actually do with trial incompetent defendants that drove the previous discussion and, second, even though retributivists should obviously try to change the existing penal order in accordance with the prescriptions of their theory, this does not alter the fact that the theory may also have implications in real-life circumstances under which the ideal has not yet been realized. 4. conclusion the time has come to sum up the previous considerations. what we have seen is that the question as to whether it is acceptable for the state to administer forcible medication in order to restore the competence of defendants who do not possess the cognitive abilities to stand trial, has usually and understandably been framed as a dilemma between, on the one hand, the interest or protection of the individual and, on the other, the significance of the fact that defendants are brought to trial in order to ensure the punishing of those who have committed crimes. however, what i have argued is that, on closer scrutiny, it is far less obvious than has often been assumed that state punishment of criminals really constitutes a reason in favor of the forcible medication of defendants. following a utilitarian view of punishment, it was not clear that the imposition of punishment of this small group of criminals would contribute to anything in terms of crime prevention. and, without a gain in terms of crimes being prevented, it would actually be wrong to inf lict punitive suffering on members of this fraction of defendants. from a retributivist point of view, things were a little more complicated. however, given the assumption —to which many modern retributivists subscribe —namely, that actual penal practice involves a problem of the overpunishment of criminals, it becomes much less obvious that there is a justice-based reason in favor of forcible treatment of incompetents. on a negative retributivist view, punishing these people under such conditions would be jesper ryberg.indd 80 27/4/17 9:04 compulsory meditation, trial competence, and penal theory 81 leap 4 (2016) wrong. while, from a positive retributivist point of view, it was not theoretically clear whether it would be desirable to punish these people. all in all —and as pointed out in the beginning —i do not believe these considerations warrant a strong case against the use of involuntary medication of trial incompetent defendants. not all retributivists would accept the view of overpunishment, and the implications of positive retributivism under such conditions have not yet been theoretically satisfactorily developed. but i believe that the previous considerations justify the more modest conclusion, namely, that it is far less obvious than is usually assumed in the debate, that bringing about the punishment of criminals under the prevailing penal order constitutes a reason in favor of forcible medication of defendants who are not competent to stand trial. and that those theorists who have held that the scales should tip in favor of forcible medication, by taking for granted the state’s interest in bringing criminals to justice, face serious penal theoretical challenges in order to underpin this conclusion. bibliography american psychological association, 2002: amicus curiae brief, sell v united states, no. 02-5664. annas, gj., 2004: “forcible medication for court room competence —the case of charles sell”, new england journal of medicine 350: 2297-2301. baker, te., 2003: “can a mentally ill defendant just say ‘no’ to being drugged to become competent to stand trial?”, preview of the united states supreme court 5: 281-288. bentham, j., 1962: principle of penal law, in the works of jeremy bentham, ed. j. bowring, new york: russell & russell. camp, sd. and g. gaes, 2005: “criminogenic effects of the prison environment on inmate behavior: some experimental evidence”, crime and delinquency 51: 425-442. caplan, ca., 2008: “editorial”, addiction 103: 1919-1921. daugherty, km., 2001: “synthetic sanity: the ethics and legality of using psychotropic medications to render death row inmates competent for execution”, journal of contemporary health law and policy 17: 715-735. duff, ar. and d. garland, 1994: a reader on punishment, oxford: oxford university press. duus-otterström, g., 2013: “why retributivists should endorse leniency in punishment”, law and philosophy 32: 459-483. jesper ryberg.indd 81 27/4/17 9:04 82 jesper ryberg leap 4 (2016) fogel, mh. et al., 2013: “ten year research update (2001-2010): evaluations for competence to stand trial (adjudicative competence)”, behavioural science and the law 31:165-191. graber, gc. and fh. march, 1979: “ought a defendant be drugged to stand trial?”, hastings center report 9: 8-10. hilgers, k. and p. ramer, 2004: “forced medication of defendants to achieve trial competency: an update of the law after sell”, georgetown journal of legal ethics 17: 813-826. husak, d., 2008: overcriminalization: the limits of the criminal law, new york: oxford university press. latzer, b., 2003: “between madness and death: the medicate-to-execute controversy”, criminal justice ethics 22: 3-14. mackie, jl., 1985: persons and values, oxford: oxford university press. morse, sj., 2003: “involuntary competence”, behavioral science and the law 21: 311-328. mossman, d. et al., 2007: “a apl practice guidelines for the forensic psychiatric evaluation of competence to stand trial”, journal of the american academy of psychiatry and the law 35: 3-72. murphy, jg., 1979: retribution, justice, and therapy, dordrecht: kluwer academic publishers. nagin, ds., 1998: “deterrence and incapacitation”, in the handbook of crime and punishment, ed. m. tonry, 345-368, new york: oxford university press. nagin, ds., 2011: “the deterrent effect of imprisonment”, in controlling crime: strategies and tradeoffs, eds. p.j. cook et al., 43-94, chicago: university of chicago press. page, rw., 2005: “forcible medication and the fourth amendment: a new framework for protecting nondangerous mentally ill pretrial detainees against unreasonable governmental intrusion into the body”, tulane law review 79: 1066-1087. perlin, ml., 2009: “and i see through your brain: access to experts, competency to consent, and the impact of antipsychotic medications in neuroimaging cases in the criminal trial process”, stanford technology law review 4: 1-13. ryberg, j., 2004: the ethics of proportionate punishment, dordrecht: kluwer academic publishers. siegel, md., 2008: “involuntary psychotropic medication to competence: no longer an easy sell”, journal of medicine and law 2: 1-16. singer, g., 1979: just deserts, new york: balling publishing company. strang, h., 2002: repair or revenge: victims and restorative justice, new york: oxford university press. vieraitis, l. m. et al., 2007: “the criminogenic effects of imprisonment evidence from states penal data, 1974-2002”, criminology and public policy 6: 589-622. von hirsch, a., 1993: censure and sanctions, oxford: clarendon press. whittemore, ke., and jrp. ogloff, 1995: “factors that influence jury decision making”, law and human behavior 19: 283-303. who, 1999: ”prison can seriously damage your mental health”: http://w w w.prisonreformtrust.org.uk/uploads/documents/mentalhealthsmall. pdf jesper ryberg.indd 82 27/4/17 9:04 87 issn 2341-1465 leap 2 (2014): 87-107 in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions oscar horta university of santiago de compostela abstract according to the internal aspects view, the value of different outcomes depends solely on the internal features possessed by each outcome and the internal relations between them. this paper defends the internal aspects view against larry temkin’s defence of the essentially comparative view, according to which the value of different outcomes depends on what is the alternative outcome they are compared with. the paper discusses both person-affecting arguments and spectrum arguments. the paper does not defend a person-affecting view over an impersonal one, but it argues that although there are intuitive person-affecting principles that entail an essentially comparative view, the intuitions that support these principles can also be acommodated by other principles that are compatible with the internal aspects view. the paper also argues that the rejection of transitivity and the internal aspects view does not help us to solve the challenges presented by spectrum arguments. despite this, the arguments presented by temkin do succeed in showing that, unfortunately, our intuitions are chaotic and inconsistent. the paper argues that this has metaethical consequences that will be unwelcome by a moral realist such as temkin, since they challenge the idea that our intuitions may track a moral reality existing independently of our preferences. keywords: betterness, essentially comparative view, internal aspects view, person-affecting reasons, spectrum arguments, transitivity. 1. introduction larry temkin’s book rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012) is the most powerful challenge to our understanding of axiology and normative theory in contemporary philosophy to date. calling it a classic or a masterpiece is an understatement: 88 oscar horta leap 2 (2014) it is a true milestone with which we enter a new stage in the study of value theory. its importance can hardly be overestimated given how radically it will change axiology as well as normative ethics. the reason why this is so is that rethinking the good shows that a fundamental assumption in value theory that we used to consider axiomatic is not free from doubts and may be actually challenged. to understand why this is so, consider the following two opposing views about the factors according to which an outcome can be better than another: the internal aspects view: the value of different outcomes, and whether a certain outcome is better or worse than another, depends solely on the internal features possessed by each outcome and the internal relations between them. the essentially comparative view: the value of different outcomes, and whether a certain outcome is better or worse than another, depends on what is the alternative outcome they are compared with. a given outcome may have one value given one alternative, but a different value given another alternative. this can happen both when we compare outcomes regarding a certain ideal in particular or when we compare them as a whole, all things considered. the internal aspects view is of course the traditional and more intuitive view concerning the value of outcomes. value theory as we understand it today is based upon it. yet temkin has claimed that we should reject this view and accept instead an essentially comparative view. he has done this by presenting a set of arguments against the claim that betterness relations (“a is better than b”) must be transitive. 1 those arguments show that in a number of cases it is just impossible for us to hold intuitive views regarding which outcomes are better than others unless we abandon the axiom of the transitivity of betterness. if we do this, however, that would mean that a very important part of what has been considered essential to practical reasoning until now will no longer apply. temkin’s arguments are so strong that from now on we will not be able to just take for granted, as most of us have done thus far, the internal aspects view. this does not mean, however, that we have to abandon this view, as temkin argues. but it does mean that if we want to defend this view we will be now forced to respond to these arguments and not just presume the internal aspects view is true. in fact, this is what i intend to do in this paper. 1. see temkin (2012; see also 1987; 1996; 1997 and 2010). the other main proponent of this view has been stuart rachels (1998; 2001 and 2004). see algo friedman (2009). for criticisms of this view see norcross (1997; 1998 and 1999); binmore and voorhoeve (2003); voorhoeve (2008); broome (2004: 55-62). in defense of the internal aspects view 89 leap 2 (2014) i will argue that, powerful as temkin’s case for the essentially comparative view is, there are ways to resist it and to keep on maintaining the internal aspects view. i will claim that temkin’s arguments, instead, may drive us to doubt realist metaethics. in order to defend these claims, my argument will unfold as follows: in section 2, i will distinguish two main ways in which an internal aspects view can be challenged: by appealing to person-affecting essentially comparative principles such as the narrow person-affecting principle, and by appealing to spectrum arguments. i will claim that the kinds of reasons that are appealed to in each of these two lines of reasoning are essentially different ones. due to this, whether one of them succeeds does not mean that the other will succeed too. in section 3, i will explain that while some principles such as the narrow person-affecting principle can lead to intransitive rankings of outcomes, the job this principle does in accommodating some common intuitions regarding person-affecting reasons can also be done by other principles as well. i will present three other principles that can do this: the time-dependent personaffecting principle, the actuality-dependent person-affecting principle and the identity-dependent person-affecting principle. these principles entail the rejection of the transitivity of the “_ is better than _” relation. but they also seem to imply the asymmetry of that relation. i will claim that, despite this, when we examine the matter we discover that these principles do not really imply that betterness is not asymmetric or intransitive. 2 they only appear to have that implication. i will argue that, unlike the narrow personaffecting principle, they are not essentially comparative principles, and do not really question the internal aspects view. this does not mean that we should accept a person-affecting view instead of an impersonal one, but it does mean that those who accept it do not need to assume an essentially comparative view. i will then argue in section 4 that in spectrum arguments essentially comparative principles such as the narrow person-affecting principle do not play any role. i will then consider the puzzles we find in spectrum 2. note that nonasymmetry does not entail symmetry. the claim that betterness is an asymmetric relation means that if a is better than b, then b cannot be better than a. so the claim that betterness is not an asymmetric relation implies that if a is better than b, then b may o or may not be better than a. but if betterness were a symmetric relation that would mean that if a is better than b, then b is better than a. nonasymmetry is also different from antisymmetry. if betterness were an antisymmetric relation that would mean that if a is better than b, and b is better than a then a would be equal to b. similarly, although accepting that betterness is intransitive entails rejecting it is transitive the opposite is not the case. as temkin (2012: 17) points out, transitivity of betterness may fail to apply in a certain set of alternative outcomes without that implying that intransitivity does apply. that would happen, for instance, if a were roughly equal to b, a were better than a’ and a’ were roughly equal to b. however, all the cases of nontransitivity we will see in this paper will also be cases of intransitivity. 90 oscar horta leap 2 (2014) arguments, and will argue that they are not solved if we abandon the claim that betterness is transitive. we can see this when we consider what happens when we aim at global maximization instead of local maximization. this means spectrum arguments do not provide us with any conclusive reason to reject the internal aspects view. next, section 5 will conclude that in light of what has been argued in sections 3 and 4 the internal aspects view can be maintained despite the very strong objections temkin has presented against it. finally, in section 6, i will argue that there is a conflict between the arguments against the internal aspects view presented by temkin and his realist metaethical positions. even though the problems presented by temkin do not necessarily have metaethical implications, they still give us reasons to doubt moral realism. this is so because if moral reality exists we can only track it with our intuitions, and the arguments presented by temkin show that our intuitions are chaotic and inconsistent. temkin can only make his attack on the internal aspects view and the moral realist view he holds compatible by accepting a methodological approach that leaves room for inconsistency. but this clashes against some strong intuitions that many of us have towards consistency, as well as towards other metacriteria such as simplicity and transitivity. in fact, for many of us these intuitions can be stronger than those we have when we face pairwise comparisons of particular outcomes that contradict them. this is what will make us resist temkin’s arguments against the internal aspects view. but it will also drive us to doubt that those intuitions towards particular choices in pairwise comparisons of outcomes can be reliable, and thus to deny they can track any moral reality existing out there independently of us. 2. different ways to question the internal aspects view in rethinking the good temkin argues against the internal aspects view in different ways. i want to focus here in two of the strongest ones: 2.1. appealing to person-affecting reasons temkin tries to show that a consideration of person-affecting reasons is incompatible with the internal aspects view (2012: ch. 11 and 12). 3 this would be so because according to these reasons whether a certain outcome is better or worse than another depends on the relative situation of the individuals who are in them. if individuals in some outcome a 3. in chapters 11 and 12 temkin considers also other reasons apart from this one in favor of the internal aspects view that are closely related to the one i discuss here, but for lack of space i will not address them here. in defense of the internal aspects view 91 leap 2 (2014) are better off than they would be in outcome b, then a is better than b according to these principles. and if individuals in b are better off than they would be in c, then b is better than c. but this may be because the individuals that there are in a, b and c, and their relative situation in these outcomes, varies in such a way that makes it the case that the individuals in c are better off than they would be in a, so c would be better than a according to these principles. imagine, for instance, that outcomes a, b and c are as follows: figure 1 a p q q r r p b c suppose now that we accept a principle such as the following one: the narrow person-affecting principle: in assessing possible outcomes, one should (1) focus on the status of independently existing individuals, with the aim of wanting them to be as well off as possible, and (2) ignore the status of dependently existing individuals, except that one wants to avoid harming them as much as possible. 4 according to this principle b would be better than a, since independently existing individuals would be better off in b. but for the same reason c would be better than b and a would be better than c. this means that if we accept this principle we have to reject transitivity and the internal aspects view. due to this, we can consider it to be an essentially comparative principle, which we may define as follows. essentially comparative principles: a certain principle is essentially comparative if the factors for comparing two alternatives according to it may vary depending on the alternatives being compared, so an essentially comparative view necessarily is the case. 4. see parfit (1984: 392); temkin (2012: 417). 92 oscar horta leap 2 (2014) in other words, any principle whose acceptance entails accepting an essentially comparative view (as the narrow person-affecting principle) is an essentially comparative one. 2.2. appealing to spectrum arguments another way to question the internal aspects view is by considering what happens in spectrum arguments (2012: chs. 2 and 5). in them we compare a number of different outcomes in which the values or disvalues that there are vary with respect to at least two dimensions. for instance, the outcomes may differ according to the intensity and the distribution through time or among different individuals of certain harms. 5 let us focus here, for the sake of simplicity, on a single-person spectrum argument temkin discusses (2012: ch. 5). in it we compare outcome a, which is terrible torture for one year against outcome b, which is some only slightly milder torture for a much longer period. then, we compare b against c, which is again some torture only slightly milder than the one in b, but for a much longer period. and we go on comparing each new outcome against a new one in which the torture is just a bit less painful but lasts for much longer. at the end, we reach outcome z in which we experience some mild pain for a very long time —one which would be much longer than the total time we could ever live (temkin suggests this could be the pain that a mosquito bite suffered each month would cause). 6 z is worse than another outcome y in which we suffer for some pain which is only slightly higher but for a much shorter time. in this spectrum, a seems clearly better than b, which seems clearly better than c, which seems better than d, etc., until we reach y, which seems better than z, which in turn, if transitivity applied, should be much worse than a. yet z seems intuitively better than a. our intuitions in spectrum arguments therefore appear to entail that a > b; b > c; c > d; ... ; y > z; z > a. in this way, 5. see quinn 1990. 6. this stipulation is unfortunate because it complicates unnecessarily the examination of the problem by introducing in it another dimension according to which our evaluation of different outcomes may vary: intermittence. by presenting z as a situation in which one just suffers an extra mosquito bite for a month (in addition to other pains we may suffer, including other mosquito bites) we are not only considering intensity of pain and duration of pain, but also intermittence between different pains (this is not only so because a mosquito bite does not feel bad for a whole month, but also because mosquito bites do not itch continuously). many of us would think it is worse to receive a more intense pain of some non trivial duration altogether in time than distributed in very short times spread in time. consider, to see this, that a whole year of terrible torture seems to be worse than five seconds of torture each five years during a number of years equivalent to the number of seconds in a year. for the case to present the problem without including the problem of intermitence, the pain in z should be felt continuously and uninterruptedly, although it would be an extremely mild pain. in defense of the internal aspects view 93 leap 2 (2014) if we accept what our intuitions tell us, transitivity does not seem to apply, and the internal aspects view fails. these two lines of reasoning, the one appealing to person-affecting reasons and the one appealing to spectrum arguments, are very different ones. whether one of them succeeds is not dependent on whether the other one does. so in order to see if temkin’s case against the internal aspects view succeeds we will have to examine them separately. 3. the appeal to person-affecting principles 3.1. principles that can entail intransitivity: the narrow person-affecting principle in order to explain why person-affecting principles challenge the internal aspects view temkin considers what happens in the comparison that takes place between a and a+ in the mere addition paradox (parfit 1984: ch. 142). as it is well known, in the mere addition paradox a is an outcome in which a small group of individuals is enjoying a significantly high level of wellbeing. a+ is an outcome in which there are two groups: one of them is a group of individuals whose level of wellbeing is just like the one in a; the other one is a group of individuals whose level of wellbeing is a bit lower than the one of those in a. the size of both groups is just like that of the group in a: figure 2 a a+ is a+ worse than a? someone who considered this problem by taking into account exclusively impersonal reasons would reach always the same conclusion no matter the identity of those who are in a and a+. if she concluded that if a+ is worse than a, then that would mean that a+ has to be worse than a in all circumstances. and the same would happen if she concluded that a+ is better than a. 94 oscar horta leap 2 (2014) but those who accept person-affecting reasons can reach a different conclusion. the reason for this is that there are different ways in which we could move from a to a+. consider first the one we can see in the next picture: figure 3 a p q p q r s a+ in this case, all the individuals who live in a are also present in a+ with the same level of wellbeing, but in a+ we add an extra group of individuals whose level of wellbeing is lower but still very good. according to a view that takes into account person-affecting reasons this would not make a+ worse than a: if anything, it would make it better. but consider now this other way in which we may move from a to a+: figure 4 a p q p r q s a+ in this other case, half of those who are in a see their level of wellbeing reduced to the level of the worst off individuals in a+. and then, the population of both the better off and the worse off doubles. according to a view that takes into account person-affecting reasons and gives priority to the interests of those independently existing in both a and a+, this would make a+ worse than a. so a+ can be considered worse than a in some cases and not worse than a in others depending on the identity of those who are in defense of the internal aspects view 95 leap 2 (2014) in a+. 7 this can be concluded, in particular, if one assumes a principle such as the narrow person-affecting principle. the rejection of the axiom of transitivity is an inescapable conclusion of the acceptance of this principle, at least as long as we face comparisons with different individuals. this appears to be a powerful argument against the internal aspects view, although it depends on a view that is very controversial. it is not at all clear that we should accept a person-affecting view, and for those accepting a purely impersonal view temkin’s argument will have no force at all. in this paper i will remain neutral regarding whether we should accept an impersonal view or a person-affecting one. but i will argue that those who think that considering impersonal reasons alone has counterintuitive implications need not accept essentially comparative principles such as the narrow person-affecting principle. there are different ways to defend the idea that person-affecting reasons must be considered. there are different person-affecting principles. the narrow person-affecting principle implies rejecting transitivity, but other person-affecting principles lack this implication, even if they appear to possess it at first. let me elaborate. 3.2. person-affecting principles that seem to imply betterness need not be asymmetric in order to examine this i need to point at an important distinction between different principles that appeal to person-affecting reasons. some of these principles imply nontransitive or actually intransitive comparisons regarding the betterness of three or more outcomes, but despite this it is clear that according to them betterness is always asymmetric. the narrow person-affecting principle is an example of these principles. if a certain outcome a is better than another one b, then according to this principle it is not possible that b is better than a according to it. this seems very intuitive. but there are other principles that appear to imply that betterness need not be asymmetric. 8 i will consider here three different principles that can imply this. there are other possible principles which can also fall within this class of principles, but for simplicity i will focus on these three principles that i think many of those defending a person-affecting view can find intutitive. in particular, i think many accept 7. see temkin 2012: chs. 11 and 12. the initial trigger for the development of this idea was parfit’s claim that the inequality occurring in a+ cannot be bad because it is produced by a mere addition of extra individuals (1984: 425). see on this claim also temkin 1997: 304. for criticisms see dancy 2005; weber 2007. 8. they also seem to imply, in a similar vein, that the “_ is at least as good as _” relation need not be antisymmetric. 96 oscar horta leap 2 (2014) the actuality-dependent person-affecting principle: in assessing possible outcomes, one should (1) focus on the status of those who exist in the actual world, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who do not exist in the actual world, except that one wants to avoid harming them as much as possible. i think many people also accept the time-dependent person-affecting principle: in assessing possible outcomes that have not occurred yet, one should (1) focus on those who will exist in the outcome that will occur first, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who will not exist in the outcome that will occur first, except that one wants to avoid harming them as much as possible. and at least some philosophers also accept: the identity-dependent person-affecting principle: in assessing possible outcomes, one should (1) focus on the status of those whose identity is already determined, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those whose identity is not determined yet, except that one wants to avoid harming them as much as possible. i shall henceforth refer to these principles as “the three alternative person affecting principles” or simply “the three other principles”. now, to see these principles in action consider the way in which the move from a to a+ in the mere addition paradox may be assessed according to them. the standard way of presenting this move assumes we depart from a and then we move to a+. but suppose we depart from a+, and are asked whether it would be worse to remain in a+ rather than to move to a, in which only those who are best off at a+ will exist. if we applied any of the three principles i have introduced above, we would then claim that remaining in a+ would be better. the reason would be that in a+ certain individuals whose existence is good exist, who instead would not exist if we moved to a. but suppose we were not at a+, but at a. many people have the intuition that if we are at a, while it would be fine if we moved to a+, it need not be necessarily better to move to a+ than to stay at a. the reason for this is that after all those extra individuals who would exist at a+ do not exist, in fact they have never existed and may never exist. most people do not regret that there are possible happy individuals who may have lived but have never existed. on the contrary, if moving from a to a+ implied that the wellbeing of some of those in a is reduced, these principles would claim that a+ would be worse than a. therefore, a might be better than a+ if a was actual or in defense of the internal aspects view 97 leap 2 (2014) previous than a+, or if the identity of those in a was established but not the identity of those in a+. but a+ would always be better than a if a+ was actual or previous than a, or if the identity of those in a+ was established. 3.3. why person-affective principles that seem to deny non-asymmetry fail to support an essentially comparative view given what we have just seen, it seems that these three principles i have just introduced appear to imply an essentially comparative view in an even more radical way than the narrow person-affective view. this is so because although rejecting the transitivity of betterness is one way to reject the essentially comparative view, rejecting the asymmetry of betterness is another, more radical, way to do so. i will now claim, however, that this is not really the case. these person-affective principles only seem to imply that “better than” is asymmetric and intransitive. on closer examination, they are not. to see this, we must consider that whether an outcome is better than another depends on which of those outcomes is the actual outcome. these facts need to be taken into account to know what outcome it would be better to obtain. there are two ways to explain this. we can count temporal position, actuality and the determination of individuals’ identity as something internal to outcomes, or we can count it as something external to them. suppose we consider that these circumstances are internal to outcomes themselves. that is, suppose they are part of that which defines a certain outcome and, therefore, of what can distinguish it from a different outcome. this means that two outcomes that are equal in everything except the time at which they occur are in fact different outcomes. and the same happens if one of them is actual and the other one is not, or if the identity of the individuals in them is determined beforehand or not. if we accept this we will have to conclude that a and b are not really the same outcomes when a is better than b and when “b” is better than “a”. and when we claim that a is better than b, b is better than c, and c is better than a, what happens is that a when a is better than b is different from “a” when c is better than “a”. that is, let us assign the names a’ and b’ to “a” and “b” when “b” is prior to “a”, when “b” instead of “a” is actual, or when the identity of the individuals existing in “b”, but not in “a”, is determined. if a > b and b’ > a’, then a ≠ a’ and b ≠ b’. let us now assign the name b’ to “b” when “b” is prior to c, when “b” is actual, or when the identity of the individuals existing in “b”, but not in “c”, is determined, and the names c’ and a’’ to “c” when “c” is prior to “a”, when “c” is actual, or when the identity of the individuals existing in “c”, but not in “a”, is determined. if a > b, b’ > c and c’ > a’’ then a ≠ a’’, b ≠ b’ and c ≠ c’. given this, there is no reason to deny betterness is symmetric. but there is no reason either to deny it is a transitive relation. 98 oscar horta leap 2 (2014) consider now the other solution. let us suppose that when we compare two outcomes, whether one outcome is previous to another one, or is actual, or has individuals whose identity is already determined, is something “external”, so to speak, to whatever defines the outcomes themselves. we have seen that according to these principles it is impossible to know whether an outcome is better than another one without knowing which one is prior or actual, or whether the identity of those who exist in them is determined. but then, this means that knowing everything about two outcomes is not enough to know which one is better. this means that an outcome cannot be considered better or worse than another one in itself. so in order to compare two outcomes we need to know also something “external” to these outcomes. if this is right, then whenever we compare which outcome is better according to the three principles i have presented we are not comparing the outcomes as such, but outcomes and something else. therefore, it is not the outcomes themselves that are ordered according to the relation “all things considered better than”. we must thus conclude that these principles are compatible with (i) the view that “all things considered better than” is a transitive relation, and with (ii) an internal aspects view. as we saw above, this is not the case when we consider other principles such as the narrow person-affecting principle whose application does not depend on factors such as time, actuality or whether the identity of individuals is fixed. whenever we compare two outcomes according to principles such as this one we can tell which one is better without having to know anything else apart from the outcomes. therefore, these principles never give rise to comparisons regarding betterness that are not asymmetric. but they can genuinely give rise to intransitive comparisons regarding betterness all things considered. therefore, as long as we accept the narrow person-affecting principle (or any similar principle) we will have to reject the internal aspects view. the difference between the narrow person-affecting principle and the three other principles i have presented is that, unlike these three principles, the narrow person-affecting principle compares different outcomes by virtue of the features of the outcomes themselves and that these features do not include circumstances, such as which outcome is previous, or actual. it is for this reason that according to the three other principles in certain circumstances a would be preferable to b and in other circumstances b would be preferable to a, while according to the narrow person-affecting principle this cannot be so. this result, however, can also mean that while according to the narrow person-affecting principle it is possible that a > b > c > a (though not that a > b and b > a), this is not so according to the other three principles. while according to them it seems that it can be the case not only that a > b > c > a, but also that a > b and b > a, this is so either because (a) when a is better in defense of the internal aspects view 99 leap 2 (2014) than b, b and a are different than they are when “b” is better than “a”; and when a is better than b and b is better than c, a and c are different than they are when c is better than a; or (b) because the comparison is not only between outcomes but between outcomes plus other circumstances. it is due to this that the time-dependent person-affecting principle, the actualitydependent person-affecting principle and the identity-dependent personaffecting principle are fully compatible with an internal aspects view. this means it is possible to reject an impersonal view when it comes to comparing outcomes with different individuals and yet accept an internal aspects view. this setting aside the fact that those who accept an impersonal view will have no reason to reject the internal aspects view either. 4. what happens in spectrum arguments? 4.1. no essentially comparative principle applies in spectrum arguments let us assess another way temkin defends an essentially comparative view, the one that appeals to spectrum arguments. we have seen already that in them our intuitions regarding which outcomes are better than others appear to imply that betterness is not transitive. however, this does not happen due to the application of a certain essentially comparative principle such as the narrow person-affecting principle. to be sure, in spectrum arguments one can assume an essentially comparative view. but if that is so, it needs to be due to reasons other than the application of essentially comparative arguments such as the ones presented in the previous sections (note that appeals to person-affecting reasons play no role here). in fact, what happens in spectrum arguments is that certain principles appear to clearly outweigh other principles in certain comparisons, but they appear to be clearly outweighed by them in other comparisons. to use the language temkin introduces here (2012: ch. 2 and 5, appendices a and b), for some comparisons between outcomes there is a certain “standard view” that seems to be clearly right, while for other comparisons between outcomes there is another standard view that appears to be clearly correct as well. temkin points out that there is a standard view according to which trade-offs between the duration and the quality of a certain suffering are sometimes desirable (2012: 30). this is so because it is assumed that it is better to experience more intense suffering for a shorter period of time, rather than less intense suffering for a longer period of time, if the difference in the intensity of the two pains is sufficiently small, and the difference in their durations is sufficiently large. this is the view we can think of when we face comparisons between immediate options, as that of a against b, b against c, c against d, etc. it is therefore the one that may drives us to think that a > b > c. when we compare options that are located far away in the 100 oscar horta leap 2 (2014) spectrum, however, as when we compare z against a, temkin claims that there is another standard view according to which trade-offs between the duration and the quality of a certain suffering are not acceptable. this is so because it is assumed that it is worse to receive a more intense pain of some non trivial duration than a very mild pain of virtually any duration. this is the one that drives us to think z > a. so two standard views apply here, not a single principle. 9 and note that none of these two views is an essentially comparative principle as defined above. suppose we only accepted the standard view that claims that trade-offs between quality and duration can be desirable and therefore concludes that a > b > c. we would never reach any result according to which a > b > c > ... > y > z > a, because that view would give us no reason to conclude that z > a. suppose now that we only accept the standard view that in some cases trade-offs between quality and duration are not desirable and concludes that z > a. again, the same result obtains: this view would never drive us to conclude a > b > c > ... > y > z > a. in this case, because the view itself gives us no reason to accept a > b > c or y > z. so, our intuitions may drive us to conclude that a > b > c > ... > y > z > a only when we combine these two principles. consider now the issue the other way around. suppose we accept an essentially comparative principle such as the narrow person-affecting principle. this need not give us any reason to reject transitivity in spectrum arguments, because in them no variation regarding the individuals involved in different outcomes occurs. therefore, if in these cases transitivity and the internal aspects view also fail to apply it must be due to completely different reasons. as i mentioned earlier, the only reasons to doubt about whether transitivity applies here is the conflict between our intuitions concerning the two different principles that we may accept in spectrum arguments. the examination of spectrum arguments must thus be different from the discussion of the cases involving essentially comparative principles visited above. 9. note that the contradictions between the application of principles sometimes works in different directions, so it is possible to draw two spectrum arguments in which things work just the other way around as in temkin’s main spectrum argument. for instance, consider one spectrum argument that starts with a, in which we suffer a very mild pain for a month. then compare it to b, in which we suffer moderate pain for three weeks. b seems to be worse than a. then consider c, which is a much worse pain for two weeks. c appears to be worse than b. and so on. finally, you reach z, where you suffer excruciating pain for a second. many would deem z preferable to a (though maybe not on reflection, providing a second is a relevant duration). the fact is that the intuitions we have towards each spectrum argument vary. for instance, i find the idea that excruciating pain for a second is worse than a headache for a month harder to accept than the idea that torture for a year is worse than some very mild pain lasting continuously for immense periods of time. but other people have different intuitions. in defense of the internal aspects view 101 leap 2 (2014) 4.2. why denying betterness is transitive does not solve the puzzles entailed by spectrum arguments there are reasons to reject that the challenge that spectrum arguments present should drive us to reject the conclusion that transitivity does not apply to them. the main reason for this is that rejecting that betterness is transitive does not solve the problems implied by the conflict between different standard views. suppose we granted that in spectrum arguments comparisons must be essentially comparative, and that betterness can be intransitive. i may know that i intuitively prefer a to b, b to c, c to d... and then y to z and z to a. and i can decide accordingly which outcomes are better when i compare two options in turn. but what happens if i do not only need to compare two options, but more? what happens, in particular, if i want to know what is the best option among all the available options? rejecting transitivity may allow us to make the choices we find more intuitive when it comes to pairwise comparisons between different alternatives. but it offers no guidance whatsoever regarding what we may do when we have to choose one outcome in the whole spectrum. it leaves us without any way to look for a global maximum in which the harms we suffer are minimized (see elster 2000; mcclennen 1990: 231). if anything, it makes things far more complicated, since transitivity offers at least a possible method to solve the problem. we may consider that this is not really crucial to the problem we face here. having trouble finding the best outcome is surely a problem. but the fact that some outcomes such as y and z seem to be better than others such as a and b, which in turn seem to be better than others such as c and d, is also very problematic. so we could think that while the problem of which is the best outcome is one everyone faces, this other problem is one that only those who accept the internal aspects view have to face. in this way, rejecting transitivity would at least allow us to make some progress. this, however, does not seem correct, because the problems we face when we have to choose the best option in the spectrum have the same origin as the problems we face when we compare alternatives that seem to be intransitive. the reason we have problems identifying the best option is that a appears to be better than b, b appears to be better than c and z seems to be better than a. it is all about the conflict between the prevalence of two different standard views. this is the reason why, in the spectrum, it seems that z > a while it also seems that a > b > c > … > y > z. it is also the reason why we are at a loss to identify the best option. in addition, we may take into account something temkin considers when he wonders: “[w]ouldn’t the best alternative be the one that was best in comparison with all other possible alternatives, whether or not we might ever actually face them?” (2012: 470). this is a reasonable view, and if it is right, then in comparing two outcomes it makes perfect sense 102 oscar horta leap 2 (2014) to compare them considering all the different options that there may be in a spectrum within which these two outcomes can be included. we might believe that even if this is so, the problems we will have to face to do this will not be exactly the same ones that those faced by advocates of the internal aspects view. we may think that if we reject the claim that betterness is transitive we will have more alternatives available among which we can choose what solution is the best. but this is not so. to see this, let us examine what reasons we may have to support as sound candidates to the best outcome in the spectrum. 10 (a) duration prevails. we may hold that the worst pain is always the one that lasts more. according to this a is the best option. this view will solve the whole spectrum problem by rejecting the applicability of the two standard views. (b) quality prevails. we may also hold that the worst pain is always the most intense pain. if so, z is the best option. again, this would solve the spectrum problem by denying the applicability of the two standard views. (c) expected utility. we may also hold that expected utility theory tells us how good or bad is each option in the spectrum. we would then choose a. unlike in the case of the two other possible solutions we have just seen this criterion does not immediately dissolve the spectrum problem. on this view it makes sense to claim that there is intuitively less utility in a than in z. but expected utility theory assumes that betterness is transitive. due to this, it can revise this first judgement by acknowledging that it is in contradiction with agreeing that a is better than b, b better than c, and so on until we agree that y is better than z, and therefore conclude a is also better than z. (d) critical level. we may accept a capped model according to which there would be a certain critical level that ruled out as bad any outcome in which pain became too intense, if the critical level was set to rule out outcomes according to quality, or too persistent if the critical level was set to rule out outcomes according to duration. accordingly, we could choose a point of the spectrum such as m, for example, at which the pain was not too intense or too long. we may think that rejecting transitivity makes it easier for us to accept this, because it would make it easier for us to accept any option different from a. but the fact is that we can accept any of those options even if we do not reject transitivity. suppose we do this in the case of m. this will imply that we will have to accept that m is both better than 10. see on this handfield (2013). in defense of the internal aspects view 103 leap 2 (2014) l and n (l < m > n). this is very counter-intuitive and thus a high price to pay for holding this position. it is hard to see how m may be better than l and n, since the same reasons for m to be better than n seem to make it worse than l. but both advocates of transitivity and advocates of instransitivity face the same problem here. (e) strength of preference in pairwise comparisons. we may also decide to choose the option for which our preference over the immediate next option in the spectrum is the strongest one. in that case we would choose z, it seems, because our preference for z over a is stronger than our preference for a over b, from b over c, etc. we may think that this solution is easy for advocates of intransitivity. but it is not. the reason is that if transitivity does not apply, then there is no reason to assume a certain ranking according to which a certain outcome comes after another one. so the whole idea of having an immediate next option in the spectrum ceases to make sense. but then, for advocates of intransitivity, the intuitive initial preference for z over a is weaker than that for y over a, and that of x over a. and, as i have just said, if transitivity does not apply, then there is no reason to assume that z, and not y or x, is the relevant outcome we must compare with a. and mind that both y and x are clearly better than z, yet similar enough to z to make the distinction in quality between z and a, and between y to a trivial. so if we reject transitivity we will be at a loss about how to solve this problem. (f ) special preferences. we may just maintain an arbitrary view according to which some solution such as, say, g, is the best one just because it is. for instance, we may maintain that there’s something special about mild torture for 10 years that makes it less bad both than a slightly worse torture for fewer years and a slightly milder torture for more years. again, there is no reason why we may accept any solution if we reject transitivity but not if we accept it. as it happened when we considered critical levels, advocates of transitivity have to bite the bullet that some option is better than both the previous and the following option in the spectrum (which they may find preferable than having to reject transitivity). but advocates of intransitivity need to do so as well if they are to give a solution to this problem at all. there is only one way in which advocates of intransitivity can avoid all these difficulties which is not available to advocates of transitivity: by claiming that there is just no fact of the matter as to what outcome is the best one in the spectrum. but this is certainly not a way to solve the problem; rather, it is a way to claim (i) either that the problem has no solution or (ii) that we cannot solve it, both of which are odd replies. 104 oscar horta leap 2 (2014) in all these cases, rejecting transitivity fails to facilitate a solution. in fact, it makes it harder, if not impossible, to do so. to be sure, there can be other solutions to this problem apart from the ones i have presented. but it seems that the abovemention problems both for advocates of transitivity and intransitivity persist. 5. we do not need to reject the internal aspects view if my arguments above are correct, we have reasons to maintain transitivity and the internal aspects view. we have seen that some principles that appeal to person-affecting reasons are essentially comparative. but the intuitions supporting these principles can also be accommodated by means of other principles which are not essentially comparative. in addition, the argument will have no force for those who hold an impersonal view. we have also seen that it is possible to try to explain our intuitions in spectrum arguments by rejecting transitivity. but this does not solve the problems these arguments pose, in light of which we may simply opt for not rejecting it and not accepting the essentially comparative view. we can thus conclude that we do not need to reject the internal aspects view to find apt solutions to the challenges pressed against it. moreover, rejecting transitivity fails to yield better solutions. 6. the conflict between temkin’s normative and metaethical views 6.1. can inconsistent moral intuitions track an objective reality? the problems discussed thus far are normative and methodological, but may entail also metaethical consequences. this need not be so, since, strictly speaking, normative claims need not depend on metaethical views. temkin’s arguments, however, may give us reasons against moral realism (even though temkin is a realist himself ). this is so because if there are some substantive moral claims that are true regardless of what we think, we have no epistemological access to the moral reality other than our intuitions. moral realists thus claim that our intuitions somehow track moral reality. temkin’s attack on the internal aspects view, however, shows that the intuitions most of us have are inconsistent and chaotic. could it be that moral reality is also inconsistent and chaotic? this seems implausible. given this, it seems that either moral realism is also implausible or our moral intuitions do not really track any moral reality, in which case moral realism is indefensible (since we have nothing to back the claim that some moral reality exists). in defense of the internal aspects view 105 leap 2 (2014) temkin argues that rejecting transitivity need not imply an inconsistent viewpoint (2012: 500). this, however, is besides the point. the issue is not the inconsistency involved in rejecting transitivity, or the internal aspects view. the issue is that temkin’s arguments show that most of us have inconsistent intuitions. to see this, consider the way temkin argues that intransitivity does not entail inconsistency: suppose that there are three alternatives a, b, and c, such that we come to believe that it really is the case that, all things considered, a is better than b, b is better than c, but, all things considered, a is not better than c. would this mean that we have inconsistent beliefs or that we thought the world was inconsistent? no! it would mean this if we also thought that “all-things-considered better than” was a transitive relation. temkin’s argument is not necessarily implausible. the problem, however is that many of us do think that “all-things-considered better than” is a transitive relation. i have presented several arguments defending this view. we can accept them and yet feel the strength of the intuitions temkin appeals to when he claims, for instance, that in spectrum cases a > b > c > d > ... > y > z > a. but that means we have inconsistent intuitions. this means that if our moral intuitions tracked the world, such world would also be inconsistent. temkin defends the compatibility of his normative position and realism, claiming that moral reality could be inconsistent. he writtes that “[o]ur theories should reflect the world as it actually is, and on my view, whether or not the normative realm is vague, incomplete, or even inconsistent depends on facts about the normative realm, not on what is useful for us” (2012: 521). he adds to this: “[o]n my realistic conception of the normative realm, it is not [...]up to us to simply decide which positions should be accepted and which revised or rejected” (ibid.). such statements leaves us without guidance to accept or reject any kind of normative or metaethical views. moreover, we are the only ones who can decide which views to accept or reject, and we have nothing but our intuitions and our capacity to compare them to make such decisions (this is the case of both realists and antirealists). finally, the idea that there is an inconsistent moral reality appears to many of us both hardly conceivable and at any rate less likely than the falsehood of realism (regardless of other reasons we may have to doubt this). 6.2. our intuitions towards metacriteria how is it possible that there is this radical disagreement about the requirement of consistency between temkin and (surely) many temkin readers like myself? 106 oscar horta leap 2 (2014) to answer this question we can examine the kind of intuitions with which we can appraise the apparent paradoxes that temkin presents. it seems that most of us have intuitions both about whether certain particular outcomes are better than others and towards certain general axiological principles. similarly, we have intuitions about what we should do in some particular cases and about general normative principles. some of us, however, have also intuitions about metacriteria concerning our axiological and normative theories. some of us have a very strong intuition that betterness must be transitive. we also have a very strong intuition that our axiological and our moral views must be consistent. these are not the same; and it is possible that rejecting transitivity does not entail any kind of inconsistency. but they are both strong intuitive metacriteria for many of us. these are not, moreover, the only intuitions about metacriteria we have: many of us also have the intuition that there is something wrong with a theory that is very complex and includes lots of exemptions and provisos. in fact, many of us find these intuitions so compelling that when we have to decide between abandoning them or abandoning the claim that a year of torture must be worse than a very large number of mosquito bites we give up the claim about mosquito bites. however, temkin and others find that decision unacceptable. this is because their intuitions regarding consistency, transitivity and simplicity are weaker or even nonexistent. temkin is not only willing to give up transitivity and simplicity, but also consistency if it clash with his intuitions about pairwise comparisons of outcomes (2012: section 14.6). he argues that “[n]othing can force someone to give up a set of inconsistent views” (2012: 520). because we have inconsistent views, temkin suggests we give up our aspirations to have a consistent approach, so we can keep all our views. this can help temkin not only to hold the normative views he finds intuitive, but also to do so without abandoning moral realism. if we strongly believe all our views must be consistent, however, the problem continues, and consistency remains a requirement we do not want to drop. moreover, we probably do not want to drop other metacriteria such as transitivity and simplicity. this gives us reasons to resist temkin’s attack on the internal aspects view, and, if the argument presented above is correct, it also present a serious challenge to his realist views in metaethics. bibliography binmore, k. g., and voorhoeve, a., 2003: “defending transitivity against zeno’s paradox”, philosophy and public affairs, 31: 272-279. broome, j., 2004: weighing lives, oxford: oxford university press. dancy, j., 2005: “essentially comparative concepts”, journal of ethics and social philosophy, 1, url = http://www.jesp.org/pdf/dancy.pdf. in defense of the internal aspects view 107 leap 2 (2014) elster, j., 2000: ulysses unbound: studies in rationality, precommitment, and constraints, cambridge: cambridge university press. friedman, a., 2009: “intransitive ethics”, journal of moral philosophy, 6: 277-297. handfield, t., 2013: “rational choice and the transitivity of betterness”, philosophy and phenomenological research. huemer, m., 2013: “comparative value, and the methods of ethics”, ethics, 123: 318345. norcross, a., 1997: “comparing harms: headaches and human lives”, philosophy and public affairs, 26: 135-167. — 1998: “great harms from small benefits grow: how death can be outweighed by headaches”, analysis, 58: 152-158. — 1999: “intransitivity and the person-affecting principle”, philosophy and phenomenological research, 59: 769-776. mcclennen, e. f., 1990: rationality and dynamic choice: foundational explorations, cambridge: cambridge university press. quinn, w., 1990: “the puzzle of the self-torturer”, philosophical studies, 59: 79-90. rachels, s., 1998: “counterexamples to the transitivity of better than”, australasian journal of philosophy, 76: 71-83. rachels, s., 2001: “a set of solutions to parfit’s problems”, noûs, 35: 214-238. — 2004: “repugnance or intransitivity: a repugnant but forced choice”, in the repugnant conclusion: essays on population ethics, ed. j. ryberg and t. tännsjö, 163-186, dordrecht: kluwer. temkin, l. s., 1987: “intransitivity and the mere addition paradox”, philosophy & public affairs, 16: 138-187. temkin, l. s., 1996: “a continuum argument for intransitivity”, philosophy & public affairs, 25: 175-210. — 1997: “rethinking the good, moral ideals and the nature of practical reasoning”, in reading parfit, ed. j. dancy, 290-234, oxford: blackwell. — 2010: “intransitivity and the person-affecting principle”, philosophy and phenomenological research, 59: 777-784. — 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. voorhoeve, a., 2008: “heuristics and biases in a purported counter-example to the acyclicity of ‘better than’”, politics, philosophy and economics, 7: 285-299. weber, m., 2007: “is equality essentially comparative?”, ethical theory and moral practice, 10: 209-226. leap 5 (2017) on the limits of the principle of sufficient autonomy ch r is m i l l s university of warwick abstract in his recent book, just enough, liam shields offers a novel defense of the principle of sufficient autonomy. according to this principle, each citizen is owed ‘enough’ powers of deliberation and scope for decision-making as a matter of justice in order to satisfy our fundamental interest in acting and believing freely. in this article, i offer two objections against this view. the first objection challenges the plausibility of the principle. i argue that the principle that shields derives from our interest in freedom will struggle to secure the proper protection for our capacities for autonomous behavior that many autonomy-minded liberals would expect the principle to provide. the second objection challenges the distinctiveness of the principle. i argue that shields’ defense cannot successfully dismiss all of its competitors and i offer an account of constitutive welfarism to illustrate this point. keywords: sufficiency, personal autonomy 1. introduction theories of distributive justice cannot avoid questions concerning the value of choice and our capacities for autonomous decision-making in modern society. for example, we need to know how accessible our opportunities for valuable choice should be, how the opportunities to develop our decision-making capacities should be distributed between us, and how sensitive the distribution of goods and services should be to our individual choices. in his recent book, just enough, liam shields offers us a series of novel arguments that can help us answer these important questions.1 1 all in text references refer to this text. d oi : 10. 310 0 9/l e a p. 2017.v 5.14 165 leap 5 (2017) on the limits of the principle of sufficient autonomy shields argues that we have a fundamental interest in enjoying the conditions of freedom; conditions under which our actions and beliefs can be considered freely taken (52). each citizen requires sufficient autonomy in order to satisfy this interest because we each require some autonomy in order for our choices to be considered freely made by ourselves as agents. our interest in freedom thus establishes the need for a principle of sufficient autonomy. this principle requires citizens to be: (a) well-informed, (b) able to give reasons for one’s views, and (c) disposed to exchange reasons and participate in a public deliberative process with others (53). fulfilling these three satiable conditions secures ‘enough’ autonomy, understood in terms of: (i) the citizen’s powers of deliberation, and (ii) the scope of the decisions over which he or she decides (50). this principle maintains a conception of autonomy that is framed in terms of an ideal of living one’s life in accordance with one’s own authentic judgements (47). it emphasizes the role that critical deliberation plays in establishing our capacity for self-rule (51) and concerns itself with avoiding threats to this capacity (especially threats of alien control that circumvent this capacity, such as coercion and manipulation) (48). this principle is relatively thin in its content and moderate in its demands.2 it primarily focuses on establishing the conditions of authentic belief-formation and an ethos of well-informed and tolerant decision-making (53). shields’ principle of sufficient autonomy is notable for two reasons. first, his defense of a sufficientarian principle of personal autonomy is distinctive. the relationship between personal autonomy and sufficiency has been defended in various ways. this relationship is most commonly cashed out in terms of option sets. for example, joseph raz (1986: 373-7) famously argues that personal autonomy requires agents to enjoy an adequate range of objectively valuable options. gerald dworkin (1988: 62-81) defends an adequacy limit on option sets according to a range of moral and rational considerations. kerah gordon-solmon (2017) has recently offered a satisfaction-based defense of an adequacy limit on option sets grounded in the value of autonomy. however, this relationship has been explained in other ways. for example, ben colburn (2010: 89-92) defends a responsibility-sensitive threshold for autonomous capacities, below which we should not be held responsible for deficits in autonomy. although these arguments differ in their grounding or target, they all 2 for example, shields’ principle has relatively little to say about the structure of autonomous motivation, limits on the validity of motivating factors, substantive constraints on option selection, relational constraints on the standing of autonomous agents, or limits on consent’s role as a normative power. 166 chris mills leap 5 (2017) serve to defend autonomy-sensitive principles of sufficiency as shields understands the notion (i.e. as a shift or discontinuity in the rate of change in our marginal reasons to promote autonomy). shields’ argument is an important addition to this discourse. it distinguishes itself from preceding arguments by appealing to the rawlsian higher-order interest in the social conditions of freedom as conditions capable of securing our freedom and equality as moral persons (52). second, the principle serves a pair of important functions in shields’ general argument for sufficientarianism. shields primarily defends the principle as a central example of the indispensability of sufficientarianism to a sound and complete theory of distributive justice (26). in order to prove this, shields identifies sufficientarian reasons as a distinctive type of non-instrumental, non-egalitarian, weighty, and satiable reason (44). he then sets out to prove that we cannot do without these distinctive reasons in the most plausible account of justice by showing that these reasons support principles that are more plausible than their rivals (17). our reason to secure sufficient autonomy, and the principle that this reason supports, is a central example of this larger thesis. the principle plays a further role as a significant bridging argument between shields’ general defense of sufficientarianism and his subsequent claims concerning the specific role of sufficientarian principles in education. he suggests that the fact that we owe sufficient autonomy to all should inform how we justify education for autonomy to groups who reject autonomy’s value, how we educate in order to facilitate the discovery and development of talents, and how we conceive of the broader requirements of fair equality of opportunity (83). the reasons why shields’ principle is notable are the very same reasons that motivate this study of his explanation and defense of the principle. his argument takes the form of a two-stage defense; first of the principle’s content and then of its standing against competing principles. in this article, i offer a two-stage criticism that mirrors this strategy. first, i will object to the thinness of the principle and the protection of our capacity for autonomous behavior that it provides. i will then object to an important deficiency in his defense of the relative plausibility of his principle against its competitors. 167 leap 5 (2017) on the limits of the principle of sufficient autonomy 2. the first objection – can the principle achieve its aims? shields motivates his principle according to our interest in the conditions of freedom. this locates the principle of autonomy downstream from the interest in the conditions of freedom. this relationship explains why it is no objection to argue that the principle of sufficient autonomy does not provide us with enough autonomy to secure freedom. the proper role of the principle is not to secure all of the freedom that we might need. rather, we can secure freedom through a number of principles, one of which must be the principle of sufficient autonomy. however, we can legitimately object that the principle of sufficient autonomy, as it stands, does not provide us with all of the autonomy that our interest in the conditions of freedom should secure for us. this is the worry that i will press in this section. i argue that shields’ principle offers less protection for our capacities for autonomous behavior than it should, given that it is derived from our interest in freedom. this, in turn, leads us to question whether our interest in freedom is a satisfactory grounding for principles of autonomy. this objection rests on the different ways in which our free and autonomous behavior can be hindered. suppose that i sit down to write a short philosophy article. there are a variety of ways in which my decision to do so can fail to successfully translate into action through no fault of my own. shields’ explanation of these failures explicitly focusses on the social conditions that inf luence our belief formation (53). he distinguishes between coercion (47) and other failures of self-direction that are the result of external forces acting on our beliefs (48). a long-suffering and frustrated neighbor who barges in to snatch up my notes and prevent me from writing is an example of the former. a manipulative neighbor who tricks me into giving up writing for the afternoon and going out for an enjoyable (though ultimately regrettable) walk instead is an example of the latter. shields identifies both phenomena as possible threats to our autonomy because in both cases we are unfree to act or decide otherwise. the principle of sufficient autonomy is intended to respond to these threats to our free and autonomous behavior by securing the social conditions under which our beliefs and actions can be considered freely taken (53). as we have seen, the principle focuses on the conditions of belief-formation (51), and in particular on an agent’s powers of deliberation and the scope of the decisions over which he or she decides (50). this focus 168 chris mills leap 5 (2017) generates the requirement that citizens are: (a) well-informed, (b) able to give reasons for their views, and (c) disposed to exchange reasons and participate in a public deliberative process with others. with this in mind, let us question whether shields’ distinction between coercion and other external threats acting on our beliefs is exhaustive and plausible. i suggest that it is not for the following reasons. first, while it is true that my decision to write can be circumvented by some competing heteronomous motivation, it is not true that this motivation must stem from external forces. for example, i could deceive myself into over-estimating my writing ability and mistakenly lead myself into putting off my work for another day. alternatively, a bout of hysteria or ambivalence may drive me to throw my notes out of the nearest window. in these instances, my initial intention to spend the afternoon writing has been foiled by a pernicious inf luence that leads to an inauthentic change of plan. i will subsequently become alienated from these decisions and come to authentically reject and regret them, just as i would if they were the product of external manipulation. of course, it is well within my ability to change my mind as an autonomous agent and freely decide not to spend the afternoon writing. but there are troubling manifestations of this change of character that subvert my authentic will and are thus incompatible with my free and autonomous choice. crucially, not all of these threats to my autonomy come from external sources, such as my neighbor. second, while it is true that my decision can successfully motivate me to act but that my motivation can still be subsequently frustrated by coercion (thus preventing me from acting), it is not true that coercion is the only phenomena that can frustrate my behavior in this way. for example, i may misplace my pen, fail to wrestle my notes out of the clutches of my pet, or be plunged into darkness thanks to a broken lightbulb. in these instances, no other agent has frustrated my autonomous decision to write. rather, frustration is the result of simply lacking the option to perform the act that i had autonomously chosen to perform. it is frustration, rather than coercion, that prevents me from behaving authentically in these cases. frustration can occur by either natural accident or inter-personal sabotage. while extreme forms of frustration should not concern us (e.g. the irrational desire to perform the impossible), some forms of noncoercive frustration clearly threaten our free and autonomous decision-making. circumvention and frustration come apart in a similar manner to shields’ own distinction between coercion and other external threats to our autonomy. indeed, frustration will similarly occur in the absence of 169 leap 5 (2017) on the limits of the principle of sufficient autonomy circumvention as the latter precedes the former in the chain of action. however, both circumvention and frustration are broader than shields’ categories of coercion and other external threats. as a result, if you agree that my distinction provides a more plausible and comprehensive explanation of the various threats to our autonomy that we face, then you may worry that shields’ principle of sufficient autonomy does a poor job of protecting our authentic decisions against internal threats (such as selfdeception) or non-interpersonal external threats (such as bad luck). as a result, the principle appears to do a poor job at protecting our autonomy from threats that shields ignores. this objection is similar in form to shields’ own objection against john rawls. in his discussion of rawls’ argument from the interest in freedom, shields notes a possible ambiguity. shields interprets rawls’ argument to support the possibility of achieving a sufficient level of autonomy as one important option that should be open to citizens. this is too small a commitment from rawls. our interest in freedom does not merely require the possibility of achieving sufficient autonomy, but rather the actual achievement of sufficient autonomy (55). without the actual achievement of sufficient autonomy, we cannot know that each citizen’s decision whether or not to live an autonomous life is itself free. given that our interest in freedom suggests that we should strive to make sure that our adoption of an autonomous lifestyle is itself freely chosen, we require a larger commitment from rawlsians in their defense of sufficient autonomy. shields’ defense of the principle of sufficient autonomy is guilty of the same failing for which he dismisses rawls’ argument; at best, shields’ argument is necessary but not sufficient for establishing the conclusion that he wishes to draw. while it is true that the threats that he identifies are likely threats to autonomy, there are other threats to autonomy that should plausibly be recognized as contrary to our interest in freedom. shields may respond to this objection in one of two ways: he may concede by f leshing out his argument to encompass further types of threat. alternatively, he may resist by rejecting the notion that non-interpersonal threats (such as internal threats or accidents) threaten our freedom. according to this response, he has not mistakenly ignored a range of likely threats. rather, freedom is a question of interpersonal interactions not opportunities for autonomous action. for this reason, non-interpersonal threats should not be covered by a principle of sufficient autonomy that is grounded in our interests in freedom. those of us who are concerned with protecting further opportunities for autonomous action can look to other compatible reasons to promote autonomy (45), but shields’ focus on securing enough autonomy results from his core sufficientarian reason, 170 chris mills leap 5 (2017) and this reason only concerns interpersonal threats (that is, threats to our interest in freedom from other agents). therefore, shields’ principle is rightly insensitive to non-interpersonal concerns. this response is important because it shifts our gaze to the deeper question concerning the justification of his principle. sceptics may meet him here by denying the downstream relationship and arguing that our autonomy is threatened by more than a mere loss of freedom and therefore shields’ principle is incorrectly justified. both circumvention and frustration undermine our autonomy and, by doing so, prevent us from enjoying the conditions of freedom in line with our authentic conception of the good. we cannot pursue the opportunities afforded to us in line with our authentic wishes if we are constantly self-sabotaging or suffering from a pronounced mismatch between our preferences and our option set.3 therefore, his principle is too thin because its justification is wrong. autonomy tells us which freedoms matter, not the other way around. sceptics may conclude that shields’ principle only offers us an incomplete defense of our autonomy because he derives it from an interest in interpersonal considerations of freedom. this conclusion explains why shields’ principle is likely to be attractive to rawlsians (who may share the same conception and weighting of our interest in freedom) but unattractive to other autonomy-minded liberals who worry about a broader set of threats to our autonomy.4 seen in this light, the feature that makes shields’ argument distinctive is also a limitation. 3. the second objection – is the principle preferable to its competitors? having questioned the content of shields’ principle, i now turn to his defense of its relative plausibility against competing principles. shields’ rebuttal of his competitors first rejects rival distributive schemes of 3 these issues combine in cases of adaptive preferences. as fans of famous fables involving foxes will know, the fox that cannot reach the nearby bunch of grapes may mistakenly conclude that they must be sour, and thus undesirable. of course, adaption cases need not be so far-fetched. but even mundane versions of this phenomena can threaten our autonomy. crucially, the grapes need not be lifted out of reach by a devious neighbour for our out-of-character decision to override our preferences. rather, the mere absence of an option can trouble autonomous decision-making. for discussion, see elster (1983); colburn (2011); christman (2014); stoljar (2014); cudd (2014). 4 as a reviewer helpfully suggests, the rawlsian’s support will hinge on how they view shields’ interpretation of the higher-order interest in the social conditions of freedom. a less-relational reading of this interest will make rawlsians more likely share my concerns over shields’ argument. if this is the case, then shields’ view is even less attractive. 171 leap 5 (2017) on the limits of the principle of sufficient autonomy autonomy (equality, maximization, and priority) and then rejects rival accounts of the relationship between autonomy and other distributive values (instrumentalism). after quickly dismissing egalitarian and maximizing principles, shields focuses much of his argument against two main competitors: 1) uniform prioritarianism that those who have the least autonomy should be prioritized with no ‘shift’ or discontinuity in the rate of change in our marginal reasons to promote autonomy. shields rejects uniform prioritarianism because: (a) it cannot plausibly explain qualitatively different autonomy disadvantages, and (b) it requires a non-arbitrary measure of autonomy that allows us to make fine-grained distinctions at all levels of the distribution scale. if prioritarianism is to distinguish itself from sufficientarianism then it must provide a uniform metric for the distribution of autonomy that avoids appeal to a threshold. without this threshold, our metric must provide a plausible explanation of how we are better or worse off in terms of autonomy at points all along the distribution scale. shields is rightly skeptical that such a measure exists (69).5 2) instrumental welfarism that securing sufficient autonomy is an important demand of justice iff it has great effects on the more fundamental value of welfare. shields rejects instrumental welfarism with a pair of counter-examples (74). these examples aim to show that fully instrumental accounts of the value of autonomy fail to capture all of our intuitions about the noninstrumental role that the value of autonomy plays both in our lives and in a complete and sound theory of distributive justice. these examples suggest that welfarists who believe that autonomy holds purely instrumental value are committed to implausible conclusions, such as the permissibility of bypassing our deliberative capacities or shaping our ambitions to ensure that citizens live good lives. even if citizens are guaranteed a well lived life, we should suspect that something important is missing in such cases. however, crucially, shields fails to dismiss accounts of how welfare is partly constituted by autonomy and so is derivatively but noninstrumentally significant (71). we might call such views constitutive welfarism6 it is true that constitutive welfarism is compatible with shields’ 5 for more detail on this difficulty, see blake (2001: 269). 6 i do not intend constitutive welfarism as the only non-instrumental justification of the principle of sufficient autonomy (consider, for example, a kantian justification of the principle). however, i do intend it as one in a small possible set of justifications that can solve shields’ objections to uniform prioritarianism in a way that doesn’t fall foul of his objections to instrumental welfarism. 172 chris mills leap 5 (2017) claim that autonomy matters non-instrumentally. these views do not deny that there is a non-instrumental principle of autonomy and thus do not challenge shields’ arguments concerning the indispensability of the principle of sufficient autonomy. however, shields must still dismiss these views because, although they are in agreement with his stance against pure instrumentalism, they compromise his arguments against uniform prioritarianism. they do this by explaining autonomy’s non-instrumental value in terms of the constitutive role that autonomssy plays in promoting good lives. this autonomy-sensitive notion of welfare, in turn, can provide a compelling metric to measure our access to autonomy that is otherwise missing from uniform prioritarianism. to see this, assume that you agree that the value of autonomy plays a constitutive role in living a good life. if you believe this to be true, then you believe that some plausible account of well-being can explain the value of autonomy in a non-instrumental manner. for example, you might agree with perfectionists joseph raz (1986: 391) and steven wall (1998: 164-182) that the social forms of a liberal society require those who seek to live a good life in such a society to possess enough personal autonomy to make sense of the valuable options available to them. alternatively, you might agree with anti-perfectionists will kymlicka (1989: 10-13) and ronald dworkin (2000: 267-274) that authentic endorsement has a necessary role to play in explaining the value of a life well lived. these arguments (and others) open up the conceptual space for a principle that ties notions of autonomy and authenticity (similar to those favored by shields) to wellbeing in a non-instrumental fashion. these principles will capture all of our intuitions about the non-instrumental role that the value of autonomy plays both in our lives and in a complete and sound theory of distributive justice. this explains why constitutive welfarism cannot be dismissed by shields’ counter-examples. troublingly, these arguments allow uniform prioritarians to appeal to the value of well-being (suitably conceived) as a non-arbitrary metric of autonomy in order to defend their view against shields’ objections to the position. if you are a uniform prioritarian about welfare, then constitutive welfarism allows you to: (a) distinguish between qualitatively different disadvantages, and (b) appeal to some reasonably fine-grained metric of well-being in order to distribute autonomy without necessarily appealing to sufficientarian reasons. not only does constitutive welfarism evade the theoretical traps that shields lays out for his competitors, it may provide some with a more plausible explanation of the role that autonomy should play in a just society 173 leap 5 (2017) on the limits of the principle of sufficient autonomy than shields’ own narrower rawlsian framework. as we saw in §2, the protection for autonomous behavior provided by shields’ principle of sufficient autonomy is limited by its grounding in our interest in freedom. i suggested that some autonomy-minded liberals might be disappointed by this. this disappointment could be undercut if there are no other plausible alternative justifications for the principle. if this were true, then shields may offer his principle as the only show in town. however, constitutive welfarism offers us an alternative show. this justification does not tie our capacities for autonomy to our interest in freedom, but instead ties both our capacities for autonomy and freedom to our interest in living good lives. while such a view may trouble rawlsians, shields must provide further counter-arguments to reject this competitor.7 4. conclusion i have offered two brief objections to shields’ novel defense of the principle of sufficient autonomy. the first objection calls for shields to broaden his principle in order to more robustly satisfy the interest in freedom that motivates his arguments, and to ultimately reconsider this motivation. the second objection calls for shields to provide further justification for his principle in a manner that is more nuanced and more sensitive to competing positions. only an argument that satisfies these challenges will prove the indispensability of his principle of sufficient autonomy to a sound and complete theory of distributive justice. bibliography blake, m., 2001: “distributive justice, state coercion, and autonomy”, philosophy and public affairs 30: 257-296. christman, j., 2014: “coping or oppression: autonomy and adaption to circumstance”, in autonomy, oppression, and gender, ed. a. veltman and m. piper, 201-226, oxford: oxford university press. colburn, b., 2010: autonomy and liberalism, new york: routledge. — 2011: “autonomy and adaptive preferences”, utilitas 23: 52-71. 7 for example, the door remains open for shields to argue that constitutive welfarism must still secure a shift, either because the most plausible account of well-being requires us to have ‘enough’ autonomy, or at one level removed, because that account allows us to live a ‘good enough’ life. neither of these threshold arguments are out of the question for constitutive welfarism. however, this strateg y requires shields to accept another (nonrawlsian) defence of a competing principle of sufficient autonomy. accepting the existence of a valid competitor will lessen the importance of his distinctive argument to the broader case for sufficientarianism 174 chris mills leap 5 (2017) cudd, a.e., 2014: “adaptions to oppression: preference, autonomy, and resistance”, in personal autonomy and social oppression: philosophical perspectives, ed. m. oshana, 142-160, new york: routledge. dworkin, g., 1988: the theory and practice of autonomy, cambridge: cambridge university press. dworkin, r., 2000: sovereign virtue: the theory and practice of equality, cambridge mass.: harvard university press. elster, j., 1983: sour grapes: studies in the subversion of rationality, cambridge: cambridge university press. gordon-solmon, k., 2017: “why more choice is sometimes worse than less”, law and philosophy 36: 25-44. kymlicka, w., 1989: liberalism, community, and culture, oxford: clarendon press. raz, j., 1986: the morality of freedom, oxford: clarendon press. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. stoljar, n., 2014: “autonomy and adaptive preference formation”, in autonomy, oppression, and gender, ed. a. veltman and m. piper, 227-253, oxford: oxford university press. wall, s., 1998: liberalism, perfectionism, and restraint, cambridge: cambridge university press. leap 5 (2017) sufficientarian parenting must be child-centered1 a nc a gh e aus universitat pompeu fabra abstract liam shields’ sufficientarian commitments mean that he should subscribe to a child-centered account of the right to parent. this point most likely generalizes: sufficientarians who acknowledge children’s full moral status must embrace a child-centered account of the right to parent. keywords: parents, children, right to parent, sufficiency, child-centered account, dual-interest account 1. introduction one chapter of liam shields’s book just enough concerns justice in childrearing. shields believes that an ability to provide an adequate upbringing usually protects custodians against being stripped off their right to rear a child, even if better custodians are willing to parent that child. to argue for this conclusion, he advances his own version of a dualinterest account of the right to parent; an account that grounds the right by appeal to both children’s interest in parenting and prospective parents’ interest to rear. as a sufficientarian, shields believes that children are entitled to a sufficiently good parent, rather than to the best available one and, given the importance of parenting for many people’s wellbeing, he also believes that adults are entitled to an opportunity to parent. i agree with shields’ conclusion that adequate parents cannot lose custody merely because a better parent is willing to take over. but i disagree with his argument for this conclusion. i explain why other dual-interest accounts of the right to rear – as well as child-centered accounts! – can show that, once an adequate parent has acquired custody, she or he holds 1 i am grateful to tim meijers, two anonymous referees, and the editors of this special issue for comments on earlier drafts of this paper. this project has received funding from the european research council (erc) under the european union’s horizon 2020 research and innovation programme (grant agreement number: 648610). d oi : 10. 310 0 9/l e a p. 2017.v 5.16 190 anca gheaus leap 5 (2017) it securely. most importantly, i argue, shields’ sufficientarian commitments mean that he should subscribe to a child-centered account of the right to parent. the last point most likely generalizes: sufficientarians who acknowledge children’s full moral status must embrace a child-centered account of the right to parent. the general form of the argument is: p1. children have full moral status. c1. therefore there is a strong prima facie presumption that one cannot claim legitimate authority over them by appeal to one’s own interests. p2. parenting is a form of exercising a very significant amount of authority over children. c2. therefore, there is a strong prima facie presumption that the right to parent cannot be grounded in the interests of the right-holder. p3. so far, the most promising attempt to show that the presumption in c2 is overridden relies on the joint belief that justice requires equal opportunity to f lourish/pursue life plans and that parenting is a central and non-substitutable element of full f lourishing for some people. p4. shields denies both elements of the joint belief in p3 and does nothing else to show that the presumption in c2 is overridden. c3. shields must therefore be committed to a child-centered account of the right to parent. more generally, even if children are not entitled to more than enough, it is false that others’ authority over them may be justified by appeal to the interests of those who exercise the authority. 2. the challenge of custody change imagine a child is well-settled with her biological or adoptive parents, with whom she has a loving, close, trustful and nurturing relationship; moreover, the parents provide adequately for this child‘s developmental needs and give her a reasonably happy childhood (i must bracket the enormous issue of how to establish who is an adequate, and who is an even better-than-adequate, parent). now imagine that some people, who could do better on all these counts, express the intention to raise the child themselves. is there a reason or perhaps even a duty of justice on the side of some agent, such as the state, to allow or enable the second set of adults to take over, against the current parents’ will? the resolutely negative answer yielded by common sense is worthy of philosophical attention: children 191 leap 5 (2017) sufficientarian parenting must be child-centered are very vulnerable, they need parents in order to survive and thrive, and lack the authority to choose their own custodians. moreover, custodians command an unusually high level of power over children. some philosophers working on issues of justice in childrearing have considered whether, given these facts about children and childrearing, it can ever be permissible for suboptimal parents to be in charge of children‘s fates when better parents are available (vallentyne 2002; brighouse and swift 2006; hannan and vernon 2008; gheaus 2012; brighouse and swift 2014.) this is the literature about the grounds of the right to parent, and most of it discusses the question of how the right is acquired: (why) do adults who would make suboptimal parents have an entitlement to be parents? shields contributes to this discussion, with a focus on cases of custody change rather than on cases of the acquisition of the right. that is, he aims to explain why it is impermissible, once a person already has the custody of a child and raises her adequately, to allow another person, who would (by assumption) make a better parent for the child in question, to become the legal parent of this child (shields 2016: 22)2. shields is critical of both child-centered accounts of the right to parent – that is, of theories that appeal exclusively to the interests of children – and of existing dual-interest accounts – that appeal both to the interests of the would-be parents and to those of children – such as those defended by matthew clayton (2006) and by harry brighouse and adam swift (2006; 2014). he thinks that child-centered accounts cannot explain the impermissibility of custody change; therefore, he seems to assume that the strongest argument in favor of the dual-interest view is that it alone can address this challenge, albeit only imperfectly in the versions developed so far (shields 2016a, 2016b). shields’ argumentative strategy is to show why his own version of the dual-interest account yields more appealing results that existing versions. unlike shields, i believe that, in fact, the custody change worry can be easily averted not only by dual-interest accounts, but also by child-centered accounts. child-centered theorists can employ several strategies to explain why it is impermissible to allow a change in custody merely because an adult who would make a better parent for the child wants to take over. most obviously, they can appeal to the interest of the child in continuity of care, which is such that the transition costs to a different parent are enormous. indeed, so enormous that maybe child-centered theorists can employ this strategy in all or most cases when parents are adequate, i.e. have the moral 2 as he puts it: “the particular question i wish to answer is ‘on what grounds can custodial parents usually be denied the right to rear? ’” (shields 2016a: 122). 192 anca gheaus leap 5 (2017) right to parent in the first place.3 how bad must one’s parents be for a child to be better off changing custodians? but shields also wants us to consider cases when a change in custody would really be better for a child – that is, when the cost of severing the relationship with the initial, adequate, custodians would be lower than the gains for the child. assume that extraordinarily good alternative parents were available to adopt her.4 in such cases, child-centered accounts seem unable to explain why a change in custody is illegitimate. one answer to this is to bite the bullet and note that in these circumstances it is a lot less counter-intuitive that a change in custody is impermissible (especially if, indeed, only very rarely could the custody change to an extraordinarily good parent compensate for the loss of an established relationship with an adequate parent). this will not satisfy shields, nor any of the dual-interest theorists who want to show that, independent of such empirical matters, adequate parents have a right to continue to parent.5 however, there is a reason why a change in custody away from adequate parents is impermissible even when the child would really be better off with extraordinarily good parents. this reason is advanced by some childcentered theorists (vallentyne 2003). children‘s interests are well served if, once acquired, the right to parent is securely held; that is, there is immunity to custody change, as long as the parent is at least adequate. otherwise, only parents who are not too scared by the prospect of losing custody would volunteer for the role. but the prospect of losing the relationship with a beloved child is scary, and we know that good parents are loving and attached to their children. therefore, those undeterred by the prospect of losing custody are not, in general, less likely to make very good parents6. so, even if a particular child, who now has an adequate parent, would, by assumption, be better off with a new parent, allowing custody changes in such cases would make most would-be adequate parents unwilling to engage in parenting. this would set back most children’s interests. this is 3 indeed, in their dual-interest account, brighouse and swift, too, give a lot of weight to the interest of the child in preserving the relationship with her parents, once established (2014: 96-97). the interest, on their view, is powerful enough that may justif y even less than adequate parents to continue to have the child’s custody. 4 for this, see some of shields’ other work (shields 2016c). 5 brighouse and swift (2014: 97) employ an additional argument: they note that even in cases of abusive and neglectful parents – well below the adequacy threshold – it may be that taking the child in state custody and trying to place her with an adoptive or fostering family has poor prospects of success. but, i assume, shields is interested in cases when a state has better records than existing states do for handling such cases. 6 at least, usually. there may be isolated cases of would-be extraordinarily good parents who would not be deterred from parenting by the prospect of losing custody to an even better parent. 193 leap 5 (2017) sufficientarian parenting must be child-centered a child-centered explanation why a change in custody should not be permitted merely because a would-be optimal parent is willing to parent a child who is already adequately parented. being child-centered, it is also open to dual-interest accounts which, like brighouse and swift’s, give the child’s interests the primary role in the justification of the right to parent. in other work, shields provided a different line of reasoning, meant to explain why the worry concerning changes in custody can also emerge due to a requirement of equal opportunities to parent (shields 2016c): insofar as dual-interest accounts rely on the existence of a weighty, nonsubstitutable, right-generating interest to parent, they must attribute the interest – hence the right – to all would-be adequate parents, whether or not these individuals actually happen to be the custodian of a child. as egalitarians, dual-interest theorists (brighouse and swift 2006, 2014; clayton 2006) must also acknowledge that the distribution of the right to parent has to be regulated by the principle of fair equality of opportunity, meaning that adults who are already the custodian of a child have no more principled entitlement to enjoy the goods of parenting than those who are not yet custodians. in short, if would-be adequate parents have such a powerful interest in parenting, then they ought to have the same opportunity to have their interest satisfied. this means that the right to parent cannot be purely negative, namely a protection against interference with current custodians’ parenting their children. as shields writes: “a negative right to parent would treat some people with the nonsubstitutable interest in parenting, those who can produce biological children, very differently from others with that very same interest, those who cannot. it would not preserve equality of opportunity to fulfill their interest in parenting” (shields 2016c: 9). but this worry, too, can be dispelled, even if the right to parent goes beyond a mere protection, by appeal to a general negative right to continue one’s intimate relationship (gheaus 2018)7. consider an analogous case: we might have a very weighty, non-substitutable interest in finding a life partner. (is there any reason to think that such an interest is less weighty, or more easily substitutable, than the interest in parenting?) at the same time, individuals have negative rights against being separated from their partners even in cases when there is a shortage of partners to marry, and even in cases when different individuals, out of no fault or choice of their own, have much fewer opportunities to find a partner. 7 brighouse and swift frame the early version of their account (2006) as an attempt to explain why only adequate parents have a right to enter the parent-child relationship. they seem to assume that it is not difficult to explain why parents have a right to continue the relationship with the child, once it has been established. 194 anca gheaus leap 5 (2017) 3. sufficientarians should not endorse a dualinterest account i think that the most important accomplishment of dual-interest accounts lies elsewhere than in a unique ability to avert the custody change worry8: their greatest advantage over child-centered accounts is that dualinterest accounts alone are capable of explaining why it is wrong to deny would-be adequate parents a right to engage in, rather than continue, parenting. in brighouse and swift’s words: “no child has a right to be parented by the adult(s) who would do it best, nor do children as a whole have a right to the way of matching up children and parents that would be best for children overall. both scenarios could leave perfectly competent parents missing out on the goods of parenting.” (brighouse and swift 2014: 95) as shields (2016c) himself notes, dual-interest theorists appeal to a weighty and non-substitutable interest in parenting in order to explain why competent prospective parents are entitled to an opportunity to parent; they also presuppose an egalitarian principle of distributive justice, letting them conclude that we are entitled to equally f lourishing lives rather than merely sufficiently f lourishing. but, i argue below, if the interest in parenting is, in fact, substitutable, (shields subscribes to this claim in 2016c), or if one endorses a sufficientarian view of justice (as shields does in the book), it becomes impossible to explain what is wrong with denying prospective non-optimal parents the right to acquire custody. this has direct implications for allocating custody to adoptive parents and to settling custody disputes between individuals, none of whom is already attached to the child whose custody is disputed. it also has implications about any entitlement that individuals may have to become parents via subsidized ivf treatments. to elaborate, most of us now believe that children are our moral equals except from the fact that their lack of full autonomy makes paternalistic behavior towards them permissible (indeed, required). if so, then exercising authority over children must be justified by appeal to their consent or by appeal to their own interests but not, usually, by appeal to the interests of those who exercise the authority. children cannot give valid consent. therefore authority over them cannot be denied to those likely to advance their interests as much as possible for the sake of advancing the interest of other prospective authority-holders. parents have undeniable, and great, 8 other work by shields (2016b) ref lects a similar understanding of the merits of the dual-interest accounts. 195 leap 5 (2017) sufficientarian parenting must be child-centered power over their children. therefore (and assuming that it is impermissible to coerce people into the parenting role), it follows that custody ought to be allocated to the best available parent. this is the core of a child-centered account of the right to parent (vallentyne 2003). one dual-interest theory attempts to resist this conclusion by claiming that many, or most, people, can only have fully f lourishing lives if they have a chance to parent (brighouse and swift 2006; 2014). another version of the dual-interest account explains departures form a child-centered account by noting that “child” and “parent” are periods within the life of the same individuals, and claiming that the loss that we incur as children by having non-optimal parents is more than made up for by the gains we enjoy by having the right to parent (clayton 2006). this can be true only if the interest in parenting is indeed weighty and non-substitutable; otherwise, it seems more efficient to provide would-be sub-optimal parents with opportunities other than to a right to parent. further, dual-interest theorists are egalitarians: brighouse and swift believe that justice entitles all of us to equal opportunities to have fully f lourishing lives, and clayton thinks that we ought to have equal opportunities to pursue our life plans. therefore, all prospective adequate parents have a fundamental right to parent because, without it, individuals whose full f lourishing or life plans require an opportunity to parent would be unjustly disadvantaged. a fundamental right to parent is grounded in the prospective parents’ own interest and therefore the right holders cannot be denied custody in order to better advance children’s interests (assuming an even better parent is available) or third parties’ interests. the above argumentative strategy is not open to shields for two reasons, each of which is enough to show that he cannot endorse a dual-interest account. first, although he believes that the interest in parenting has significant weight, shields denies that parenting is a non-substitutable path to f lourishing (shields 2016b; 2016c). even on the assumption that the interest is non-substitutable, it is far from clear that it can justify a right: there may be several non-substitutable ways to f lourishing, which are such that we cannot pursue all of them within a lifetime. the way in which you f lourish through parenting cannot be substituted by the way in which you f lourish by traveling the world for much of your adult years, or by the way in which you f lourish by dedicating your life to doing the most good you can do, for example. but, unfortunately, you may be unable to do more than one of those things in your life. in that case, achievable full f lourishing need not involve the pursuit of every non-substitutable path to f lourishing. but if, in fact, the goods of parenting can be substituted, then it is quite clear that preventing an individual from parenting will not necessarily prevent her f lourishing: she can always find alternative ways to f lourishing, 196 anca gheaus leap 5 (2017) that do not require exercising authority over another human being. second, and more importantly perhaps, shields is not an egalitarian, but a sufficientarian. even egalitarians like brighouse and swift may have trouble justifying a fundamental right to parent. one can doubt that the interest in parenting they identify (assuming it is indeed very weighty and non-substitutable) can generate a fundamental right to parent. a reason is that there may simply not be enough resources to go around such that we all have opportunities to have fully f lourishing lives (gheaus 2015). in this case we are not entitled to an opportunity to a fully f lourishing life even on an egalitarian account; on a sufficientarian one, we aren’t any way. another reason to be skeptical of the egalitarian version of the dual-interest accounts of the right to parent, and even more so of the sufficientarian version, is that it mandates an otherwise impermissible exercise of authority. we usually do not think that we should allow person a to exercise authority over person b for the sake of person a’s interest even if there is no other way to bring person a to the level of f lourishing or opportunities to which she is entitled by justice. that our intuitions diverge from this standard when it comes to exercising authority over children might be due to empirical facts which explain why adequate birth parents have a right to parent in most cases (gheaus 2012; 2015) or to the long tradition of denying children full moral status (gheaus 2018). even the egalitarian version of the dual-interest account may be in trouble. but if sufficientarians are right and we are only entitled to enough, it is even less credible that we can make a derogation from the general way in which we usually think about legitimizing authority. 4. conclusions to sum up, if children have full moral status, that is, if they have rights/are recipients of duties of justice, then it is difficult to see why we should allow sub-optimal parents to control children’s lives, unless two conditions are jointly met: a. equality, rather than sufficiency, is the correct principle of justice; and b. there is a weighty and non-substitutable interest to parent, the fulfillment of which is necessary for full f lourishing. shields denies both the first and the second conditions above (in 2016a and 2016b, respectively). he also wants to defend the following claim: “in respect of deciding on the custodial arrangements of a child, the child’s interests have some priority over the parent’s interests until they 197 leap 5 (2017) sufficientarian parenting must be child-centered are met to a sufficient extent. thereafter the parent’s interests matter more relative to the child’s interests. this yields the following guidance: so long as a parent will perform well enough with respect to the child’s interests, we cannot usually remove the child from that parent’s custody”. (shields 2016a: 122) i agree with his judgement of when a custody changes are legitimate, but for reasons different from those he advances. if shields is right about sufficientarianism being the correct principle of justice, then it seems that he – like other sufficientarians – should embrace a child-centered account about the acquisition of the right to parent. the alternative would be to adopt a dual-interest account by denying children’s full moral status, and that, i assume, is unappealing. bibliography brighouse, h. and swift, a., 2006: “parents’ rights and the value of the family”, ethics 117: 80–108. brighouse, h. and swift, a., 2014: family values, princeton university press. gheaus, a. 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-455. — 2015: “is there a right to parent?”, law, ethics and philosophy 3: 193-204. — 2018: “biological parenthood: gestational, not genetic”, australasian journal of philosophy. 96(2): 225-240. hannan, s. and vernon, r., 2008: “parental rights: a role-based approach”, theory and research in education 6: 173-189. shields, l. 2016a: just enough, edinburgh university press. — 2016b: “how bad can a good enough parent be?”, canadian journal of philosophy 46: 163-182. — 2016c: “parental rights and the importance of being parents”, critical review of international social and political philosophy, forthcoming. vallentyne, p., 2003: “the rights and duties of childrearing”, william and mary bill of rights journal, 11: 991-1009. 02 oberman.indd emigration in a time of cholera: freedom, brain drain, and human rights1 k i e r a n obe r m a n university of edinburgh abstract can brain drain justify curtailing the right to emigrate? this article presents what might be called an “emergency justification” for emigration restrictions, one that defends the curtailment of a right as a means to prevent a severe cost. the justification presented in this article contrasts with the positions taken by gillian brock and michael blake in their highly engaging book debating brain drain. while both authors mention the possibility of an emergency justification, neither pays it sufficient attention. as a result, both list various conditions for justifying emigration restrictions that prove superf luous. this article thus criticizes brock and blake for their treatment of emigration restrictions. but it also criticizes them for failing to condemn the more pressing danger: unjustified immigration restrictions. keywords: emigration, immigration, freedom, brain drain, human rights, michael blake, gillian brock. introduction can brain drain justify curtailing the right to emigrate? this article presents what might be called an “emergency justification” for emigration restrictions. an emergency justification defends the curtailment of a right as a means to prevent a severe cost. given the importance of the right to emigrate in protecting personal liberty, only an emergency justification could succeed in justifying counter-brain-drain emigration restrictions. an emergency justification, moreover, has a firm basis within international 1 the article benefited from excellent feedback from edinburgh university’s ethics seminar and the workshop on the ethics of boundaries at the university of oslo. i would like to thank the respective organizers, guy fletcher and kim angell. 02 oberman.indd 87 27/4/17 9:07 88 kieran oberman leap 4 (2016) law. the emergency justification i shall present contrasts with the positions taken by gillian brock and michael blake in their highly engaging book, debating brain drain (2015). while both authors mention the possibility of an emergency justification, neither pays it sufficient attention. understating the importance of the emergency justification is thus the first point of criticism this article makes of brock and blake. the second (closely related) point is that they offer an inaccurate list of conditions for justifying emigration restrictions. the emergency justification presented here involves five conditions: necessity, efficacy, proportionality, duty to assist, and duty to stay. brock and blake offer a variety of further conditions, all of which prove superf luous. this article will thus sort through the possible conditions for justifying emigration restrictions, distinguishing the genuine from the fake. the article starts by offering an account of the moral foundations of the right to emigrate (section 1). it then outlines the emergency justification for restrictions and the five relevant conditions (sections 2 to 4). sections 5-7 turn to brock and blake. we find some things to admire but also much to disagree with: their misleading framing of the issue (section 5), the phantom conditions they impose on emigration restrictions (section 6), and their failure to condemn the more pressing danger: immigration restrictions (section 7). so can emigration restrictions be justified on brain drain grounds? two tasks require separation. first, explicating the conditions under which a right may be curtailed. second, assessing whether those conditions are fulfilled in the real world. this article focuses predominantly on the first of these tasks. it is only in the final section (section 8), that it turns to the second. the view presented there is that the relevant conditions are unlikely to be fulfilled. given current empirical uncertainties, there is no compelling case for emigration restrictions to stem the brain drain. 1. the moral foundations of the right to emigrate when assessing the ethics of emigration, it is helpful to start by considering the position taken in international law. in law, the human right to emigrate comes coupled with the right to free movement. article 12 of the international covenant on civil political rights (iccpr) declares: 1. everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 02 oberman.indd 88 27/4/17 9:07 emigration in a time of cholera... 89 leap 4 (2016) 2. everyone shall be free to leave any country, including his own. that these rights come coupled together is no accident. the freedom to emigrate extends the freedom to move. foreigners and citizens can move freely within the borders of a country (article 12.1) and leave those borders to explore other states (article 12.2). but why do people have these rights? again, international law offers guidance. among the rights listed in the iccpr and other human rights documents are a set protecting basic liberties. the set, which i shall term “human freedom rights”, includes freedom of association, expression, religion, occupational choice, and marriage. as a set, human freedom rights allow us to make basic life decisions regarding which (if any) religion we practice, with whom we associate and communicate, whom (if anyone) we marry, and which career we pursue. these rights entitle us to choose among the full range of, what we may call, “life options”: friends, family, civic associations, expressive opportunities, jobs, and marriage partners. when governments restrict our range of life options —banning us from meeting certain people, practicing certain religions, and so on and so forth —they risk violating our human freedom rights. under ordinary circumstances, we should be allowed to make basic life decisions without government interference. the human rights to freedom of movement and to emigrate derive their importance from these other human freedom rights. our range of life options depends on our range of physical space. if one is banned from moving freely within a country or from leaving a country, then one cannot visit friends or family, attend a religious or educational institution, express one’s ideas at a meeting or cultural event, seek employment or pursue a love affair, in the place one wishes to go. restrictions on free movement and free emigration are, at the same time, restrictions on free association, expression, religion, occupational choice, and marriage. since it will prove relevant below, two other rights deserve mention. first, consider the right to immigrate. while this right is unrecognized in international law, the same argument applies. if people are to be free to access the full range of life options, then they must be free to enter other countries. the freedom to emigrate is insufficient to ensure access to exterior options if the borders of other states remain closed. without the freedom to immigrate, people are unable to meet, associate, communicate, marry, worship, and work with people in those countries. immigration restrictions, no less than emigration restrictions, trespass on the personal domain.2 2 clearly much more needs to be said to properly defend the idea of a human right to immigrate. i offer an extended defense in other work; see in particular oberman (2016). 02 oberman.indd 89 27/4/17 9:07 90 kieran oberman leap 4 (2016) the second right is the right to stay in one’s own country. like the rights to move, emigrate, and immigrate, the right to stay enables people to access life options; in this case, the options available within their home country. however, the right to stay is of particular importance. to see this, it is worth distinguishing between two kinds of life options: what i term “attachments” and “possibilities”. attachments are those options that a person has chosen and now wishes to pursue. possibilities are those options that the person has not chosen, although they may come to choose sometime in the future. while our human freedom rights protect our ability to access both attachments and possibilities, it is attachments that tend to be of greatest significance. it is the freedom to be with our friends and family, to practice our religion, to pursue our career, and to be part of our community that we cherish the most. the fact that people’s attachments tend to be located within their own country lends the right to stay particular weight. important as it is that people are permitted to migrate to other countries, it is generally more important that people can remain in their own. the human right to emigrate exists then because of the role it plays within a larger set of human freedom rights. it protects our ability to communicate, associate, worship, work, and marry with people living abroad. human freedom rights, as a whole, entitle us to make basic life decisions free from government restriction on the options available to us. if we are prevented from migrating, our range of life options is significantly curtailed. 2. the emergency justification is the human right to emigrate absolute? not according to international law. article 12.2 of the iccpr proclaims the right. article 12.3 immediately qualifies it. restrictions on the human right to emigrate may be justified if they “are provided by law” and “necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present covenant”. the right to emigrate is not the only right regarded as non-absolute in international law. most of the rights the iccpr lists are subject to limitations or may be derogated from in times of emergency. interestingly, however, there are some rights that are treated as absolute. these include the right to life (article 6), the right not to be tortured (article 7), and the right not to be enslaved (article 8). 02 oberman.indd 90 27/4/17 9:07 emigration in a time of cholera... 91 leap 4 (2016) i think the position taken in international law is eminently sensible. the right to emigrate and other human freedom rights are important, but it would be a mistake to insist that they always be respected. sometimes, in emergency situations, human rights can justifiably be curtailed. thus a political demonstration might be justifiably banned, thereby restricting freedom of speech, if it would result in widespread rioting. or people might be justifiably subject to quarantine, thereby restricting their freedom of movement, to prevent an epidemic. international law is also wise to distinguish between different rights. while many rights can be overridden, some should be treated as absolute. consider the right not to be tortured. philosophers and tv shows can dream up scenarios involving ticking time bombs and the like in which torture seems permissible. but in the real world, such instances are so rare and the danger of institutionalizing torture so grave, that it would be a mistake to incorporate exemptions into law. torture marks such a severe infraction of a person’s basic interests that it is incomparable to measured restrictions of free speech, movement, and other basic liberties. as far as the law is concerned, the right not to be tortured should be regarded as absolute even though human freedom rights need not. we have then a possible justification for counter-brain-drain emigration restrictions that is compatible with international law. restrictions might be justified because the costs of brain drain are so severe. if, for instance, the f light of medical professionals from poor countries leaves needy people without care, then that might provide adequate reason for restrictions. public health, after all, is one ground for emigration restrictions that the iccpr explicitly cites. countenancing restrictions on such occasions does not involve denying the existence of a right to emigrate. rather it involves recognizing that the right is sometimes in tension with other human rights, such as the right to health. as we saw from the quarantine case, the right to health sometimes takes precedence. emigration restrictions cannot be justified, however, unless a series of demanding conditions are fulfilled. three of these conditions apply in the case of any non-absolute human right. these i discuss in the next section. two further conditions apply specifically to restrictions on migration for the sake of preventing brain drain. these i discuss in section 4. 3. necessity, efficacy, proportionality there are three standard conditions on the permissibility of human rights 02 oberman.indd 91 27/4/17 9:07 92 kieran oberman leap 4 (2016) curtailment. one finds such conditions stipulated in various places in international law, but here i offer my own formulation: 1. necessity: there must be convincing evidence that the proposed curtailment is necessary to prevent a severe cost. 2. efficacy: there must be convincing evidence that the proposed curtailment will be effective in preventing the severe cost. 3. proportionality: the curtailment of the right must be proportionate to the severity of the cost. a comment on each. necessity ensures that human rights are not curtailed when reasonable alternative measures are available. a government is not justified in banning a demonstration to stop a riot, for instance, if enhanced policing would work just as well. this example involves a ready alternative, but necessity can require us to consider radical change. many corrupt and repressive governments may find it necessary to curtail rights to prevent severe costs because their corruption and repression has caused such harm. on such occasions, the curtailment of human rights is, in fact, unnecessary. the governments have a reasonable alternative: to end their corruption and repression. this explains, incidentally, why the berlin wall —the most famous example of an emigration restriction —was unnecessary. given the many failings of the gdr regime, the wall may well have been necessary for the maintenance of a functioning society in east germany, but since that regime was itself unnecessary, so was the wall. it is no accident that the two fell together. little need be said concerning efficacy. clearly, governments cannot justify curtailing rights when doing so is ineffective. but notice the phrasing of necessity and efficacy: “there must be strong evidence”. when government seeks to curtail rights to prevent costs, the burden is on government to provide the evidence that the proposed curtailment is necessary and effective. restrictions of human rights cannot be justified when the empirical case for them is weak. proportionality is separate to both necessity and efficacy. even when there are no other means to prevent a severe cost and the proposed curtailment is effective, we might still judge it disproportionate. much will depend on the degree to which the right is restricted as well as the severity of the cost to be prevented. rights can be restricted to a greater or lesser degree. the complete prohibition of free speech within a country is clearly different to a ban on a particular demonstration in a particular city. the greater the restriction the less likely it is to prove proportionate. 02 oberman.indd 92 27/4/17 9:07 emigration in a time of cholera... 93 leap 4 (2016) 4. the duty conditions the above three conditions apply in the case of all human rights curtailments. there are two conditions, however, which are more specific to the brain drain case. to see this, note that counter-brain-drain emigration restrictions represent the curtailment of a human right by a certain means and for a certain purpose. they operate through the use of coercion to try to get one group of people to stay and assist another group of people. when one coerces one group of people to try to get them to assist another group of people, one must do more than show that the coercion used is necessary, effective, and proportionate. one must show that those who are being coerced have a duty to do what they are being coerced to do. to fail to do this is to come much too close to treating the coerced party merely as a means. each person has her own life to lead. one cannot treat people as mere tools to be used in the service of others.3 when applied to the brain drain case, this latest condition on justified coercion can be broken down into two parts. 4. duty to assist: skilled workers must have a duty to assist their compatriots. 5. duty to stay: skilled workers must have a duty to stay in the country to provide the assistance they owe. let us consider each of these conditions in turn. why would skilled workers have a duty to assist their poor compatriots? there are at least two reasons. first, many skilled workers received their training at government expense. they may therefore be obligated to assist their compatriots in some way as a form of reciprocation. it would seem wrong to consume resources that belong to poor people, knowing that they expect to benefit as a result and yet do nothing to help them. second, there is arguably a general duty upon people to help those in need simply because they are in need. this duty falls on everyone, skilled workers included.4 a duty to assist does not necessarily translate into a duty to stay. for one thing, skilled workers may be able to provide the necessary assistance from abroad by way of international transfers. for another, the burdens of 3 it is worth distinguishing the claim made here from two more ambitious claims. first, i am not arguing that coercion can only be applied to enforce a pre-existing duty. the concern here is specifically with the use of coercion to force one group of people to assist others. nor am i holding that to coerce people to get them to assist others is, in itself, to treat them merely as a means. one does not treat others merely as a means if one enforces a duty they owe to others. here i am at odds with blake; see section 6.3 below. 4 i develop both these points at greater length in oberman (2013: 434-9). see also sections 6.5 and 6.6 below. 02 oberman.indd 93 27/4/17 9:07 94 kieran oberman leap 4 (2016) staying might be unacceptably high. here, i assume a conception of morality under which there are limits to the level of altruistic sacrifice people can be asked to bear. it is reasonable for people to refuse to provide assistance when doing so involves particular hardship. for this reason, skilled workers who are subject to persecution, separated from their family, living in dire poverty or working in dangerous conditions do not have a duty to stay. it is only when a skilled worker cannot provide sufficient assistance from abroad and is enjoying a decent life at home that skilled workers have a duty to stay. let me sum up. we have seen that the human right to emigrate is important since it enables people to pursue life options beyond borders. we have also seen that it is non-absolute. like many other human rights, there are occasions in which the potential costs are so high that restrictions might be justified. restrictions could only be justified, however, if a series of demanding conditions has first been satisfied: necessity, efficacy, proportionality, duty to assist, and duty to stay. 5. curtailment, facilitation, violation central to the above discussion has been the concept of a human rights curtailment, so this is worth defining more exactly. when a government curtails a right it prevents people from doing something that falls squarely within the right’s scope. rights curtailments constitute a non-trivial frustration of the underlying interest or value. a government that curtails a right cannot claim that its actions are consistent with the right’s fulfillment. the two are in conf lict and this must be recognized. the curtailment might still be justified, but to justify it, one must point to competing considerations of overriding importance. an emergency justification seeks to do just that. with this in mind, let us turn to brock and blake’s treatment of the brain drain issue. both acknowledge the possibility of an emergency justification (more on that below). unfortunately, both tend to muddle the curtailment of a human right with other ways rights might be circumscribed. this muddling occurs in their eagerness to make emigration restrictions seem easier (brock) or harder (blake) to justify. brock’s aim is to defend compulsory service programs. under these programs, skilled workers would be required to fulfill some years of service before being permitted to emigrate. brock’s mistake, when defending these programs, is to muddle curtailing a human right with facilitating its exercise. thus she compares preventing a skilled worker from emigrating 02 oberman.indd 94 27/4/17 9:07 emigration in a time of cholera... 95 leap 4 (2016) for a number of years with the requirement that people wait their turn when exiting a plane or car park (brock and blake 2015: 248). one can see how such comparisons could work to make compulsory service programs seem more attractive. it would be foolish to kick up a fuss about exit queues, so perhaps it is foolish to worry too much about temporary emigration restrictions. but these comparisons fail. one difference is the severity of restriction. being prevented from living where one wishes for a number of years is a severe restriction on one’s autonomy. a five-minute wait while the plane or car park empties is not. there is another difference however. the restrictions in the plane and car park cases represent solutions to coordination problems. if everyone attempts to exit a plane or car park at once, the result is deadlock. on such occasions, a strong argument for intervention is to enable people to better exercise their right to free movement. in the emigration case, no similar argument applies. the aim of compulsory service programs is not to facilitate emigration but to counter the suffering of one group of people by forcing another group to stay and assist them. a restriction on the freedom to emigrate that was truly analogous to brock’s cases would be the requirement that when people leave a country they queue patiently at the border. a compulsory service program is not a form of queuing. to be fair to brock, her more general point is that rights to basic liberties should not be treated as absolute and that the temporary nature of a restriction can aid in its justification. this is correct. but the danger of her comparisons is that they make the task of justifying compulsory service programs seem much easier than it is. blake’s mistake is to muddle the idea of curtailing a human right with violating it. he does this when denying brock’s claim that the temporary nature of compulsory service programs makes them easier to justify. replying to brock, blake argues that “[w]e cannot think that the violation of a human right is legitimized merely because it is brief” (brock and blake 2015: 291). after all, he reasons, it is unjust to wrongfully incarcerate someone for a day, even if it is only a day (brock and blake 2015: 290). “a temporary violation of human rights is a violation nonetheless” (brock and blake 2015: 291). now it is certainly true that human rights violations remain unjust even when temporary. but this point proves much less than blake thinks. the claim that brock is making is that the brevity of a restriction can help justify the curtailment of the right to emigrate; she is not defending the violation of the right. a rights violation is unjustified by definition. once we know that the right is violated, matters are clear. the difficult part is 02 oberman.indd 95 27/4/17 9:07 96 kieran oberman leap 4 (2016) discerning the circumstances in which the right to emigrate is violated from the circumstances in which it may be justifiably curtailed. and it is on the question of justifiable curtailment that the brevity of a restriction proves relevant. as we have seen, the degree to which a right is restricted is an important factor in deciding whether proportionality is fulfilled. a compulsory service program that lasts a lifetime is much less likely to be proportionate than one that lasts a year. brevity cannot expunge the injustice of a right’s violations, but it can help to show that no human rights violation has occurred. this is the fact that brock emphasizes, but blake, in failing to distinguish violation from curtailment, manages to disregard. blake’s failure to distinguish the two concepts is actually symptomatic of two wider problems with his part of the book: a tendency to mischaracterize international human rights law and to make hyperbolic comparisons between emigration restrictions and other forms of coercion. blake styles himself as a defender of “liberal orthodoxy” and the “status quo”, a position he identifies with the universal declaration of human rights (udhr) and its inclusion of a right to emigrate (brock and blake 2015: 111-112). strangely, however, he never mentions the fact that the udhr, like the iccpr, lists circumstances under which the right to emigrate may be justifiably overridden (see udhr article 28). nor does he acknowledge the distinction between different kinds of rights. while the iccpr characterizes the right to emigrate as non-absolute, blake’s favorite comparisons are to rights it treats as absolute. to restrict migration is, in his view, akin to torture, kidnapping, and slavery (brock and blake 2015: 120-121, 183). it requires people to “sacrifice their own lives in the name of others” (brock and blake 2015: 169). this hyperbolic language contrasts markedly with the orthodoxy that blake claims to defend. while for blake, it seems, all rights are on par and all restrictions equally egregious, international law is careful to distinguish different rights and different levels of restriction. the result of all this muddling of concepts and misleading comparisons is that what should be brought to the fore is pushed to back: the emergency justification for emigration restrictions. while blake and brock both recognize the possibility of a justification of this form, neither offers it much space. brock believes she “can make the central case needed without resorting to this line of argument” (brock and blake 2015: 285). her eschewal of an emergency justification is in keeping with her misplaced identification of compulsory service programs with trivial restrictions to solve coordination problems. one need not argue that a rush to leave a plane or a car park would cause catastrophe to justify the demand that 02 oberman.indd 96 27/4/17 9:07 emigration in a time of cholera... 97 leap 4 (2016) passengers and drivers wait their turn. if emigration restrictions were a form of queuing, an emergency justification would be unnecessary. blake says more than brock regarding emergencies and much of what he says makes good sense. he believes an emergency justification can succeed given certain conditions and his list includes necessity and efficacy (brock and blake 2015: 211). still his blunt approach to human rights makes the emergency justification seem much more extreme than it is. in blake’s description, it is as if there are two possible worlds: an ordinary world, in which human rights law and liberal principles apply, and a brutal world, where matters have got so bad that “liberalism’s demands must be suspended” (brock and blake 2015: 209). in the latter world, no holds are barred. kidnapping of foreign skilled workers is permissible. the right to emigrate can be entirely suspended. all moral rights, in fact, are to be set aside (brock and blake 2015: 210). blake’s characterization of the emergency justification is more dramatic than accurate. when we curtail certain rights to prevent severe costs, we are not tossing law aside, but drawing on relevant clauses in international law. when we place some restrictions on some rights for some period, we are not suspending all rights entirely. indeed, it is telling that blake does not include proportionality among his list of conditions. had he done so, he may have been encouraged to abandon his all-or-nothing approach to human rights and recognize that the brevity of a restriction can aid in its justification. 6. phantom conditions i’ve listed five conditions. blake and brock list others. to my mind, their additional conditions are unnecessary. let me consider each in turn. 6.1 legitimacy: governments can only restrict emigration if they are legitimate both brock and blake are rightly concerned not to license tyrannical regimes to further oppress their people. their solution is the legitimacy condition. on brock’s definition, a government is legitimate if it comes to power through a democratic process, shows a concern for justice, and makes good faith efforts to respect human rights (brock and blake 2015: 85-86). i sympathize with the motivation behind brock and blake’s inclusion of leitimacy but i think it unnecessary. a state that is seriously misgoverned is unlikely to fulfill the five conditions outlined above. corrupt and 02 oberman.indd 97 27/4/17 9:07 98 kieran oberman leap 4 (2016) repressive governments could do much to improve the lives of their citizens by embarking upon reforms. being corrupt and repressive, they are also less likely to make effective use of the skilled workers they retain. (as economists often note, “brain waste” is as grave a problem as brain drain.) so emigration restrictions imposed by such governments are likely to fail both necessity and efficacy. they may also fail duty to stay. if skilled workers are themselves persecuted or living in desperate poverty they are morally free to leave. in short, the five conditions i listed offer sufficient protection against the misuse of the emergency justification by a tyrannical regime. but is it not possible that at least some illegitimate governments might fulfill the five conditions? yes and this is not a problem. imagine the following scenario. a government fails to hold democratic elections, represents a dominant ethnicity, and violates the rights of minorities. the government is, nevertheless, reasonably competent and is making great strides in eradicating poverty. (vietnam and china are possible real world examples.) now, suppose the government seeks to impose counter-braindrain emigration restrictions against well-off skilled workers from the dominant ethnic group. as long as the five conditions are fulfilled, i do not think this objectionable. what blake and brock refer to under the label of legitimacy is, in my view, nothing but a stand in for other concerns. note, i am not claiming here that illegitimate governments are permissible. illegitimate governments, being illegitimate, should step down. but the question we are asking is not whether illegitimate governments should hold power but whether, when they do hold power, they perform a further wrong by imposing emigration restrictions. brock and blake say, “definitely yes”; i say, “it depends whether the five conditions are fulfilled”. 6.2 contractual agreements: only skilled workers who have signed a contract can be prevented from leaving under brock’s compulsory service programs, governments would invite skilled workers to agree to stay for a number of years in exchange for training. brock stresses this fact in reply to blake’s objections. skilled workers are not like the victims of kidnapping, as blake suggests, since what they are being forced to do is simply fulfill a contract they consented to (brock and blake 2015: 253). i can see how the existence of a contract can aid in justifying restrictions. emigration restrictions are much more likely to be proportionate if agreed to in advance. nevertheless, there could be occasions, when the costs are 02 oberman.indd 98 27/4/17 9:07 emigration in a time of cholera... 99 leap 4 (2016) particularly high, in which a government could justifiably restrict emigration without prior agreement. the idea that human rights curtailments always require prior agreement is clearly false. when a government bans a demonstration to prevent a riot, it does not require the prior agreement of the demonstrators. when a government restricts the movements of infected people during an epidemic, it does not require the prior agreement of those it quarantines. in short, contractual agreements may be a contributory factor in the process of justifying emigration restrictions but not a necessary condition. 6.3. benefiting the coerced party: coercion is not permissible unless it benefits those subjected to it this is an important element in blake’s critique of compulsory service programs. blake argues that society cannot “coerce the individual except when we can, in some specific way, say, ‘we do this for your benefit, and not simply that of others’” (brock and blake 2015: 205). he associates this condition with rawlsian liberalism and its critique of utilitarianism. a utilitarian would permit the coercion of one group of people merely because it is useful to others. a rawlsian, blake argues, finds this unacceptable. each person has her own life to lead. one cannot treat people as mere tools to be used in the service of others. if benefiting the coerced party were a genuine condition, compulsory service requirements would be wrong. these programs are not implemented for the sake of the skilled workers themselves but their compatriots. benefiting the coerced party is, however, a phantom condition. to see this, note that the motivation behind most laws is to benefit people besides the coerced party. laws against rape are not imposed for the sake of rapists but their victims. laws requiring dentists to be qualified are not imposed for the sake of dentists but their patients. laws preventing mining corporations from operating on native reservations are not imposed for the sake of the corporations but the natives —and so on and so forth. one of the basic things we want governments to do is to ensure that other people treat us decently, even when —one might say, especially when —it is in their interests to treat us otherwise. despite leaning on the benefiting the coerced party at various stages, blake himself raises doubts. he notes that something as benign as redistributive taxation would seem to violate the condition. his response is to argue that redistributive taxation is nevertheless justified because wealthy people have their properties and persons protected by their state and will go on to benefit in this way into the future. emigrants, on the other hand, will not experience this benefit after emigrating (brock and blake 02 oberman.indd 99 27/4/17 9:07 100 kieran oberman leap 4 (2016) 2015: 205-207). this response involves refashioning the condition in ways that might be questioned. but suffice to note here that even with this refashioning, blake is still unable to distinguish redistributive taxation from emigration restrictions. for the desired distinction is not, in fact, between wealthy taxpayers and emigrants but between wealthy taxpayers and those subject to emigration restrictions. while emigrants do not enjoy the protection of property and person after leaving, those subject to emigration restrictions do not leave. they will thus enjoy the protection of person and property into the future no less than wealthy taxpayers. if protection of property and person is sufficient to fulfill blake’s condition in the case of redistributive taxation, then that same benefit is sufficient in the case of emigration restrictions. what about blake’s claim that benefiting the coerced party is entailed by rawlsian liberalism? here, blake gets things precisely wrong. rawlsians have no problem with some people being forced to make sacrifices for others. that is exactly what rawls’s two principles of justice require. it is the use of coercion to benefit the coerced party —paternalism —that rawlsians have the most trouble justifying. blake is right that we should oppose using people merely as tools for others. but this opposition to mere using need not require us to adopt benefiting the coerced party. consider three purposes to which coercion may be applied against party a: (1) to use a as a means to benefit some other party, b. (2) to enforce moral duties that a owes b. (3) to benefit a. blake is right to find (1) troubling. where he errs is in assuming coercion can therefore only be justified when purpose (3) is (also) being pursued. the possibility of (2) seems to have escaped him. while coercing people merely because it benefits others is rarely justified, enforcing people’s moral duties to others is the bread and butter of the law. in short, the solution to the concern that compulsory service programs involve mere using is not benefitting the coerced party but the two duty conditions outlined above: duty to assist and duty to stay. 6.4 compensation: one cannot curtail someone’s human rights without compensation this is another of blake’s conditions; one that he believes it is difficult to fulfill. he wonders whether “we will ever be in a position to adequately 02 oberman.indd 100 27/4/17 9:07 emigration in a time of cholera... 101 leap 4 (2016) compensate … the prevented emigrant for what we have done to them” (brock and blake 2015: 211). but no such condition applies. the idea that human rights curtailments require compensation seems reasonable when copious resources are available. but in the brain drain case, resources are scarce. we know this because any country that is justified in imposing emigration restrictions fulfills necessity: it lacks the funds to raise salaries, improve working conditions, or pursue any other non-coercive solution to the brain drain problem. given this lack of resources, it will often be unreasonable to expect poor countries to use limited funds for compensation. the stance taken here applies to other human rights curtailments. if a poor country is trying to cope with an epidemic, it may be justified in quarantining. ideally, those quarantined would be compensated, but it would be a mistake to insist that compensation always be dispensed. in a poor country, every penny that is spent on compensation could be spent on meeting more urgent needs.5 the stance also fits the logic of emergency justifications. in recognizing the possibility of emergency justifications, we acknowledge that sometimes a person’s rights may be curtailed to prevent a severe cost. in rejecting compensation, we likewise acknowledge that sometimes a person’s claim for compensation can be overridden to prevent a severe cost. if a person’s human freedom rights are not absolute, there seems no reason to treat their claim to compensation as such. blake’s combination of an emergency justification with compensation is morally contradictory. 6.5 fairness: no one should be forced to provide more than her fair share of assistance i have claimed that everyone is obliged to assist the global poor. if we take this point seriously, we must radically re-conceptualize the brain drain problem. in rich countries, brain drain is not an acute problem. they have the resources to train and retain skilled workers. now, the world as a whole is a rich place. were resources to be shared out globally, there is no reason why sufficient numbers of skilled workers could not be trained and retained to run adequate public services for everybody every where. from this perspective, brain drain does not represent a migration problem but a problem of global inequality. 5 recall, once more, that we are discussing here compensation for the curtailment of a human right. the case for compensation when a human right is violated might be stronger. this is another place in which the distinction between curtailment and violation proves important. 02 oberman.indd 101 27/4/17 9:07 102 kieran oberman leap 4 (2016) anticipating a view of this kind, blake asks how it can be fair to force skilled workers from poor countries to stay and assist their compatriots. is this not forcing one group of people to make up for the unfairness of others? is that not unjust (brock and blake 2015:169-173)? the correct answer, to my mind, is yes, counter-brain-drain emigration restrictions involve forcing skilled workers to make an unfairly large contribution, but no, this does not make restrictions unjust. governments routinely force people to bear unfair costs. consider the criminal justice system. if it is unfair to fail to pay one’s share of the costs of meeting some need, then it is also unfair to unjustly create a need that others must meet. this is what criminals do. in a perfectly just society, there would be no crime, so there would be no need for the police, the courts, and the prison service. criminals unfairly create this need. nevertheless, it is much better that governments force citizens to bear the costs of criminal justice, than leave people unprotected.6 indeed, talk of unfairness in such cases can itself be misleading for there are actually two forms of unfairness here. there is the unfairness of forcing some to correct for the failings of others (the unfairness blake highlights) and there is the unfairness that would result were nothing done (an unfairness blake neglects). in both cases, people suffer due to the failings of others. where the difference lies is in who suffers and by how much. unfair as it may be if skilled workers are forced to stay, a world in which the poorest people lack basic services is the least fair of all. 6.6 coercing foreigners: poor country skilled workers cannot be forced to stay unless rich country skilled workers can be forced to migrate the cosmopolitan view just outlined entails that skilled workers in rich countries have as significant duties towards the global poor as skilled workers in poor countries. but this view generates what might be called the “foreign worker problem”. if emigration restrictions forcing skilled workers from poor countries to stay were permissible, why would it not be permissible to force skilled workers in rich countries to migrate to poor countries to apply their skills? for many, this forced migration proposal will seem intuitively objectionable. but if it is objectionable, must we not also condemn emigration restrictions? blake raises the foreign worker problem using the example of a foreign 6 in response, blake might try to distinguish between costs that have been unfairly created (the criminal justice case) and costs that have been unfairly shirked (the brain drain case) and argue that governments are permitted to force third parties to bear the former but not the latter. but the problem with this response is that there seems no relevant moral distinction between shirking and creating to be found here (see murphy 2000: 124-126). 02 oberman.indd 102 27/4/17 9:07 emigration in a time of cholera... 103 leap 4 (2016) worker kidnapped by poor state’s government (brock and blake 2015:130). like brock, i find this analogy unhelpful (brock and blake 2015: 253-254). it suggests the sudden capture and confinement of a person, by a foreign state, without legal oversight. to my mind a much better analogy would be this: rich countries pass a law that enables the conscription of their own skilled workers into a program that sends them to poor countries to fulfill some period of service. this is not kidnapping but it is controversial, so the foreign worker problem remains. two responses. first, i do not think we can deny the possibility that forced migration might, in some extreme occasions, be justified. not even blake denies it. he accepts that global poverty constitutes an ethical emergency and that emergencies call for extraordinary measures. his claim is that emigration restrictions cannot be justified except when forced migration is justified: the coercing foreigners condition. if the conscription proposal still sounds radical this is because cosmopolitanism is radical. the dominant view has long been that people are obliged to make significant sacrifices only for their own compatriots. cosmopolitanism challenges this view. we should not be surprised if a radical approach to global ethics has some surprising implications when applied to real world problems. second, coercing foreigners is a phantom condition. it is, in fact, much harder to justify forced migration than emigration restrictions even assuming a cosmopolitan perspective. this is because forced migration is less likely to satisfy the relevant conditions. consider necessity. rich countries, unlike poor countries, have the resources to provide powerful financial incentives. this is how they retain their own skilled workers. if they used these resources to raise salaries and improve conditions in poor countries, sufficient numbers of workers could be retained without need for coercion. the conscription proposal seems unnecessary. when unnecessary, it is unjust. next consider proportionality. recall the distinction between the right to stay and the right to emigrate. the right to stay is typically much more important because it protects people’s abilities to access their attachments (life options already committed to) not just mere possibilities (as yet unchosen options). because people’s strongest attachments, such as their friends, family, and community, tend to be situated within their home country, forcing people to leave is less likely to prove a proportionate response to brain drain than forcing people to remain. for the same reason, foreign skilled workers are less likely to have a duty to migrate than citizen skilled workers are to have a duty to stay. people do not have duties to undergo particular hardship for the sake of those in need and separation 02 oberman.indd 103 27/4/17 9:07 104 kieran oberman leap 4 (2016) from one’s strongest attachments often involves such hardship. i have made the proportionality point in previous work (oberman 2013: 438). in this book, blake responds. he notes that rich country skilled workers would have the resources to enjoy a decent quality of life in poor countries. many poor country skilled workers, by contrast, live in severe poverty. separation from attachments is, in this way, balanced out by material advantage (brock and blake 2015: 133). there is something true in this response but also something misleading. what is true is that emigration restrictions are difficult to justify when skilled workers themselves live in severe poverty. severe poverty is one factor that can negate a duty to stay. what is misleading is the suggestion that among people who are not severely poor, those separated from attachments have no special complaint when they enjoy greater material advantages. people have basic interests in not being forcibly removed from their families, friends, and communities. people have no basic interests in the perks of an expat lifestyle. governments cannot act then as if the one balances out the other. since it is less likely that forced migration will satisfy the five conditions than emigration restrictions, coercing foreigners is a phantom condition. emigration restrictions can be justified even when forced migration is not. 7. the elephant in the room in the contemporary world, few states impose emigration restrictions. almost all states impose immigration restrictions. in section 1, we found that the same freedom is at stake in each case: the freedom of individuals to make basic decisions about their lives. it is surprising then that brock has nothing to say regarding immigration restrictions and even more surprising that blake defends them. compare the following: 1. hasma lives in a poor country and wants to migrate abroad. she possesses scarce skills. if she migrates, her compatriots will suffer severe costs. to prevent these costs, hasma’s state subjects her to emigration restrictions for two years. since it is poor, it is unable to compensate her. 2. nazma lives in a poor country and wants to migrate abroad. she does not possess scarce skills. if she migrates, no one will suffer in either host or home countries. unfortunately, every state nazma wishes to migrate to subjects her to immigration restrictions for her 02 oberman.indd 104 27/4/17 9:07 emigration in a time of cholera... 105 leap 4 (2016) entire life. although they are rich, they refuse to compensate her. which of these two women has the stronger complaint? surely nazma. she is barred for life, without compensation, for no good reason. but on blake’s account, it is hasma who suffers injustice. how can this be? blake offers two kinds of argument. in other work, he presents a justification for immigration restrictions (blake 2013). in this book, he presents an alternative foundation of the right to emigrate. the former argument has already been subject to criticism (see for instance brezger and cassee 2016); so let me here consider the latter. according to blake, the primary purpose of the right to emigrate is to uphold our interest in forming consensual relationships with states (brock and blake 2015: 198-199). suppose nazma is from india and wishes to go to belgium to join friends and pursue her career. once there, she would also like to make new friends, attend university, join a religious congregation, and find a partner. for blake, nazma has a right to leave india because she has an interest in forming a consensual relationship with belgium. since relationships are two-way things, belgium is free not to enter into a relationship with her. it can spurn her if it wishes by imposing immigration restrictions. but as a third party, india has no right to stop a nazmabelgium relationship from developing. this explains the immigration/ emigration asymmetry. the interest that grounds the right to emigrate is an interest in forming consensual relationships with states, and that interest is frustrated only by emigration restrictions not immigration restrictions (203). how plausible is this as a foundational argument for the right to emigrate? not very. it is strikingly at odds with the reasons why people migrate. people do not migrate to have relationships with states, but with the people who live in states. this is ref lected in my account of the right to emigrate. nazma has a right to emigrate, i would argue, so that she can have the consensual relationships with friends, employers, teachers, coworshippers, and partners she desires. she has an essential interest in having relationships with people in belgium, not with belgium itself. someone who is passionate about forming new relationships with states is a bit of a crackpot. someone who is passionate about enjoying relationships with other people is a typical human being. blake seeks to motivate his account by noting that migrants often feel emotional when undergoing naturalization. this emotion, he claims, indicates the strength of interest we have in forming relationships with states (brock and blake 2015: 199). what he fails to mention is that migrants are naturalized after years of living in a country. if some migrants are teary eyed at citizenship ceremonies, it is because they have made their new 02 oberman.indd 105 27/4/17 9:07 106 kieran oberman leap 4 (2016) state their home. this sense of belonging might ground a right to citizenship, but it cannot ground a right to emigrate. an interest in being recognized as a member of a state does not entail an interest in becoming a member. note further that if we really were worried about making our relationships with states consensual, the right to emigrate would be insufficient. three points bring this out. (1) we are born into a state and would find it difficult to leave our state, due to financial, linguistic, and cultural ties, even if the borders were open. (2) since states have taken over the earth’s surface, we cannot leave the state system altogether. (3) because of (2), a person who is prevented from entering other states is prevented from leaving their own. together, these points make states very different to clubs, religions, or marriages, in which consent is crucial. states, as john rawls emphasizes, are not consensual associations (rawls 1993: 222). this lack of consent does not particularly bother us as long as states treat us justly. just states, after all, do not require us to have recreational, spiritual, or romantic relationships with them, but allow us to pursue our own. the people of planet earth live inside states. when states prevent us from migrating, they interfere with our relationships. states have taken over the earth’s inhabitable land; the least they can do is allow us to freely interact. 8. empirical uncertainties this article has specified five conditions for justifying emigration restrictions on brain drain grounds. since i have rejected conditions that brock and blake defend, it might appear that i believe that emigration restrictions are easy to justify. but this is not so. we cannot assume that a set of conditions are easily fulfilled simply because they are fewer in number. to judge whether the conditions are fulfilled requires an extensive examination of the empirical literature. i will not undertake this here. having investigated the issue elsewhere, however, i am confident of three points (oberman 2015). first, many skilled workers in countries experiencing brain drain suffer particular hardship due to poverty, persecution, unsafe working conditions, or some other misfortune. second, there are many things governments of poor countries could be doing to improve the lives of their citizens besides restricting emigration. these two points lend us reason to doubt the fulfillment of necessity, proportionality, and duty to stay. 02 oberman.indd 106 27/4/17 9:07 emigration in a time of cholera... 107 leap 4 (2016) the third point is that there is significant empirical uncertainty as to the effects of skilled worker migration on poor countries. skilled worker migration has a number of positive effects, including the receipt of remittances and the incentivizing of education, which might outweigh the negative. the fact of uncertainty here is important. brock draws upon various sources to question the positive effects of skilled worker migration. but to justify the curtailment of a human right one must do more than show that some journal articles suggest that there is a genuine problem. one must be able to find wide agreement among experts that skilled migration is causing severe costs. among migration economists there seems to be only one point of agreement: migration, as a general rule, benefits the global poor. there is no agreement as to when or where exceptions occur. indeed, it is telling that some of empirical sources brock uses to support her pessimistic view ill fit the role. for instance, while brock makes frequent reference to a survey article by economists frédéric docquier and hillel rapoport, the article concludes that, “many developing countries appear to actually benefit from high-skill emigration”, that “skilled emigration need not deplete a country’s human capital stock”, and that the conditions for success “depend on [non-coercive] public policies” such as the creation of diaspora networks (docquier and rapoport 2012: 725). one can tell the extent of empirical uncertainties when witnesses called for the prosecution speak up for the defense. what stands then in the way of justifying emigration restrictions is not a lack of government legitimacy, contractual agreements, compensation, fairness, benefits for the coerced party, or the need to justify the coercion of foreigners. it is something much more mundane. counter-brain-drain emigration restrictions are hard to justify because the empirical data fails to provide a convincing case for them. while we can imagine a world in which emigration restrictions could be justified to prevent skilled migration, it is probably not our own. bibliography blake, m., 2013: “immigration, jurisdiction, and exclusion”, philosophy & public affairs 41: 103-30. blake, m. and brock, g., 2015: debating brain drain: may governments restrict emigration, oxford: oxford university press. brezger, j. and cassee, a., 2016: “debate: immigrants and newcomers by birth— do statist arguments imply a right to exclude both?”, journal of political philosophy 24:367-378. 02 oberman.indd 107 27/4/17 9:07 108 kieran oberman leap 4 (2016) docquier, f. and rapoport, h., 2012: “globalization, brain drain, and development”, journal of economic literature 50: 681-730. murphy, l. b., 2000: moral demands in nonideal theory, oxford: oxford university press. oberman, k., 2013: “can brain drain justify immigration restrictions?”, ethics 123: 427-55. —2015: “poverty and immigration policy”, american political science review 109: 239-51. —2016: “immigration as a human right”, in migration in political theory: the ethics of movement and membership. eds. s. fine, and l. ypi, oxford: oxford university press. rawls, j., 1993: political liberalism, new york, ny: columbia university press. 02 oberman.indd 108 27/4/17 9:07 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice si b a h a r b ku leuven/fwo-flanders and leiden university david v. a xelsen london school of economics and political science abstract in the global justice debate, our duties to compatriots and foreigners are often held to differ in terms of demandingness. statists, in particular, think that duties to compatriots are more demanding than duties to foreigners. in this article, we f lesh out and scrutinize the main elements of liam shields’ considerations about global justice in his recent book, just enough. shields notes that the global justice debate largely overlooks that our duties may be more or less demanding in two distinct respects; in terms of content and in terms of stringency. he suggests that the distinction between content and stringency, combined with his sufficientarian thesis, opens up new and (more) plausible positions in the debate. here, we f lesh out the implications of shields’ tentative suggestions and consider the viability and novelty of the potential positions it permits. we conclude that his considerations of content provide little new to the debate, as this is already the focus of most global justice theorists. however, stringency brings a much needed concern with how to prioritize conf licting duties to the debate, and potentially opens up a range of new positions on how to make sense of our duties across and within borders as well as allowing us to reimagine already existing theories. the article outlines some new potential positions and novel readings of existing views. keywords: stringency, global justice, liam shields, sufficiency d oi : 10. 310 0 9/l e a p. 2017.v 5.17 199 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice 1. introduction many of us feel a strong sense of moral outrage and obligation when confronted with news of malnourished children or people f leeing civil war abroad. many have similar responses when confronted by the realities of inequality that affect their own societies, such as vastly unequal access to higher education, inequalities in wealth and property, and the larger obstacles to political inf luence faced by racial and cultural minorities. but which of these issues place greater moral demands on us and how do we even compare our obligations in the global and domestic realms? for the last couple of decades, the debate about global distributive justice has been defined by a stark divide between two overarching sides: statists and cosmopolitans. statists hold that our duties1 to compatriots are significantly more demanding than our duties to foreigners. cosmopolitans, on the other hand, hold that compatriots and foreigners are entitled to (more or less) the same. the two sides often seem irreconcilable. in his book on distributive justice, just enough (2016), liam shields explores how his sufficientarian account of justice might be applied to the global realm in order to overcome this stalemate. he does so by introducing two variables that make possible new ways of conceptualizing our duties of global justice. these two new nuancing variables are: 1. the sufficiency threshold: what we owe to others varies according to whether they fall below or above the sufficiency threshold; whet her t hey a lready have enough. the debate bet ween cosmopolitans and statists has been about whether the domestic and global spheres are different realms to which different reasons apply. shields’ sufficientarianism introduces an additional division of realms: it divides the realms of reason below or above the sufficiency threshold. 2. two components of demandingness: content and stringency. content is about how much we owe others; stringency is about the urgency of fulfilling the duty when its fulfillment conf licts with other duties. the debate thus far has almost exclusively been about content-demandingness. shields seeks to apply his sufficientarian reasoning to both content and stringency in the global realm. shields’ analysis is preliminary, but suggests new ways of nuancing the debate. in this paper, we build and elaborate on his aperçu, investigating how the resulting conceptual map compares to the existing positions on 1 in this paper we use the terms duties and obligations interchangeably 200 siba harb, david v. axelsen leap 5 (2017) global distributive justice, and exploring whether it, in fact, opens up hybrid positions between the two ends of the statist-cosmopolitan divide. we conclude that the combination of a sufficiency threshold and a shift in content-demandingness does not produce new viable positions. however, the distinction between content and stringency can provide new perspectives on the debate. thus, we f lesh out how the stringency dimension can inform contemporary debates of global distributive justice. we begin by brief ly explaining shields’ view on sufficiency and the distinction between content and stringency within demandingness of duties upon which his analysis turns. 2. sufficiency and demandingness in global distributive justice the central claim of shields’ book is that justice makes different demands upon us depending on whether the individuals with whom we are concerned are above or below the sufficiency threshold. this is because our reasons for what individuals are entitled to and what duties we have with respect to meeting those entitlements differ, or shif t, once we move from a context in which some have less than enough to a context in which everyone has enough. furthermore, it is the case, shields stipulates, that for several central dimensions of societal justice, the primary goal is to ensure sufficiency for everyone, and once someone reaches this threshold, benefitting them further brings about a different kind of value or is supported by a different sort of reason. reasons that, in this way, apply only up to a certain threshold are referred to as satiable. for example, our reasons to give a loaf of bread to someone who is starving are different from the reasons we may have to give a loaf to someone who is well fed but collects loaves of bread as a welfare-generating hobby (however passionately). and this might be explained by the fact that when one is below a threshold of basic needs (starvation) our reasons to benefit her are of a different character than the reasons we have to benefit someone above the basic needs threshold (loaf-collector). reasons to do with basic needs are satiable. this is what shields calls the shift thesis.2 this idea underlies the first nuancing variable. in the book’s chapter on sufficiency and global justice, shields, points 2 as robert huseby points out in his article in this volume, there are two ways of understanding the shift; one which concerns the weight of additional benefits above the threshold and one which concerns a shift in the nature of the reasons. we think this second reading is the more plausible one and will, hence, be assuming that here. 201 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice out that there are two ways to characterize the demandingness of a duty; two ways in which one duty can be more demanding than another. first, the demandingness of a duty may refer to the content of the duty. this refers to “the conditions under which the obligation has been successfully discharged” (shields, 2016: 173). in other words, the demandingness of our duties refers to how much it takes for them to be fulfilled. a duty is more demanding than another content-wise when it requires more of us than the other duty does. for example, if a good friend invites you to a wedding then you are, barring exceptional circumstances, obligated to go. if, on the other hand, a stranger (generously and somewhat surprisingly) invites you their wedding you are not obligated to go. however, you do owe them declining their offer politely. duties to friends, we normally think, demand more of us in terms of time and effort. in what follows we refer to the content dimension of demandingness as content-demandingness. second, the demandingness of a duty may refer to its stringency, by which shields means the priority that is attached to the duty’s fulfillment (shields, 2016: 177). a more stringent duty, then, is more urgent to fulfill. a duty, d1, is more stringent than a duty, d2, when fulfilling d1 takes priority over fulfilling d2. this means that we should fulfill d1 before fulfilling d2 and that if the two duties clash such that we could only fulfill one, we should fulfill d1. in terms of demandingness, whereas content concerns the ‘size’ of the duties, stringency denotes the ‘weight’ to assign to the fulfillment of a particular obligation. to illustrate the notion of stringency, imagine you are sitting between a friend and a stranger who are both suffering from heartache (incurred, perhaps, because the weddings to which they both invited you are not going as planned). imagine further that you are in the position to alleviate their pain somewhat by way of a similar effort; a kind word. in terms of content-demandingness, in other words, the two are the same. you might, further, think you have moral reasons to do both. but the urgency of fulfilling those duties would differ; the stringency of your obligation to your friend would be greater. in what follows we refer to the stringency dimension of demandingness simply as stringency. 3. a global shift in content? as mentioned in the introduction, statists and cosmopolitans disagree about the comparative demandingness of domestic and global duties of justice. the notion of demandingness that inf luential statist and cosmopolitan accounts employ is (usually) content-demandingness.3 the 3 see, however, miller (1995: ch. 3; 2013: ch. 7) 202 siba harb, david v. axelsen leap 5 (2017) main focus for statists against cosmopolitans, thus, is that our duties to co-citizens demand significantly more of us than our duties to foreigners in terms of content. in this section, we investigate whether introducing shields’s sufficientarian shift thesis to the current debate about contentdemandingness brings out new distinctive positions. many statists have a sufficientarian component in their theories of global justice and hold that, while we have egalitarian duties to our compatriots, for instance, we are only obligated to ensure that foreigners reach a level of sufficiency (blake, 2001; miller, 2007; sangiovanni, 2007). clearly, on statist accounts, duties to compatriots are more contentdemanding than duties to foreigners. for statists, the difference between what we owe compatriots and what we owe foreigners stems from the fact that the domestic sphere and the global sphere are two distinct areas of interaction each with different reasons of justice operating within it. some cosmopolitans also have a sufficientarian component in their views. either by defending a high threshold of sufficiency for everyone (nielsen & axelsen, 2016; nussbaum, 2000) or by arguing for a (lower) global sufficiency threshold as part of what is owed to everyone (caney, 2005: 122; shue, 1980). for cosmopolitans, unlike for statists, the same reasons of justice are at play within the domestic and global spheres (although, obligations may differ depending on how well-placed one is to fulfill them – caney, 2011: 514; goodin, 1988). the duties to compatriots and foreigners are equally demanding in terms of content. shields suggests that statists and cosmopolitans each capture one familiar and plausible intuition which he calls, respectively, ‘compatriot partiality’ and ‘state is arbitrary’ (2016: 188). the aim of his sufficientarian global justice exploration, then, is to seek to capture both. one can do this, shields holds, by applying the shift thesis to our theorizing: how we reason about distributive justice is different for a context where some fall below the sufficiency threshold compared to a context where all are above the threshold. this opens up positions according to which our obligations to compatriots vary depending on whether they are below or above the threshold, making space for some (threshold-dependent) partiality towards compatriots. but it still leaves room to say that this partiality should be contingent on whether (or the degree to which) foreigners are below or above sufficiency, thus including a concern with the morally arbitrary effect one’s birth country has on one’s life prospects into in the reasoning. this, shields suggests, opens up new positions in the debate. most interesting, he thinks, are those potential positions where compatriots or foreigners crossing the threshold of sufficiency leads one to shift from 203 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice being a statist to being a cosmopolitan, or vice versa.4 shields outlines one version of a shift from statism to cosmopolitanism: “we could owe prioritarianism domestically and sufficiency globally but once some level of sufficiency is reached for one or both groups, we owe equality to all” (shields 2016: 176).5 however, it is unclear to us that a shift in content does, or even could, actually open up any viable or new positions on global justice. consider the example shields uses where one shifts from being a statist to being a cosmopolitan once we cross the sufficiency threshold. now, according to shields, reasons that can justify the existence of a threshold are ones that are satiable. the main candidates for satiable reasons that shields explores in previous chapters are basic needs and autonomy. both are satiable in the sense that they do not provide a normative basis for benefits above a certain level (the threshold) (shields 2016: 34-37). but it is not clear how such satiable reasons can justify a division between the global and domestic realms in terms of content. reasons of basic needs and autonomy apply universally; everyone shares the trait that gives rise to the relevant obligations. and, indeed, when theorists in the global justice debate, be it statists or cosmopolitans, claim that we owe basic needs fulfillment to foreigners, they do so on the basis of universal human traits and vulnerabilities, not because the potential recipients are foreigners.6 shields, it seems, assumes that a division between the two realms can be drawn. but that is difficult to justify on his account, since no satiable reasons seem to support this divide. it is difficult to see, then, how one can be a statist about content below the threshold. now, despite this, one might still consider the global and domestic realms to be distinct when reasoning about the demands justice. one might do so even when the content of our duties in both realms is basic needs fulfillment and where our duties in the domestic realm are more demanding than globally for other reasons, and perhaps this is what shields has in mind. but differences between the two realms are, then, due to the different reasons we have to prioritize duties to compatriots vs. 4 shields refers to this as radical content shift sufficientarianism (2016: 176). 5 shields’ example identifies distributive rules; priority, sufficiency, and equality. distributive rules, although they are often built around reasons that provide content, are not in themselves content. this is an issue because several distributive rules have stringency considerations as a constitutive feature. prioritarianism, in particular, says less about how much we owe to someone than about how urgent it is to fulfill such duties. although, this makes it more difficult to evaluate shields’ content-position, we disregard this issue here. 6 this issue applies when the threshold is the same for the domestic and the global realm. one might think that two different thresholds govern the two realms. it is possible that shields has this in mind. if he does, he does not mention it and, in any case, this would give rise to a host of very different and difficult questions. 204 siba harb, david v. axelsen leap 5 (2017) foreigners. in other words, such considerations concern reasons to give the fulfillment of one group’s basic needs higher priority. but this difference is not one of content-demandingness, but of stringency; it tells us something about how urgent it is to get people in different realms up to the threshold. we conclude that it is not clear that applying the shift thesis to the contentdimension of demandingness adds viable and consistent new positions to the global justice debate. we now move to discuss the stringency dimension and explore whether it provides us with new positions or insights into the global justice question. we think it does. 4. stringency in global justice the global justice debate has to a large extent focused on what we owe to compatriots and non-compatriots as a matter of justice: whether and to what extent duties to compatriots make greater demands on us than duties to foreigners. however, as shields points out, the debate about our duties of global justice has paid little attention to a different dimension of demandingness: stringency. to recall, we say that a duty, d1, is more stringent than a duty, d2, when fulfilling d1 takes priority over fulfilling d2. shields says little about what inf luences stringency considerations and how stringency might illuminate the debate on global justice. however, we think the idea of treating stringency as a separate dimension has a number of advantages and generates valuable insights. in this section, we f lesh out and explore how it may do so. introducing the stringency dimension opens up new possible theoretical positions in the global justice debate whose plausibility can be explored further. stringency works as a new dividing line that brings some positions closer together and pushes others farther apart than otherwise assumed. a new and different conceptual map emerges when we take the comparative stringency of duties into consideration because one’s view regarding the comparative stringency of our domestic and global duties of justice need not necessarily track one’s view on the comparative contentdemandingness of those duties. the two dimensions, in other words, come apart. for instance, one might hold, like statists do, that the content of justice-based duties to others depends on whether or not one shares membership in a state; i.e. equality for co-citizens and basic needs fulfillment for foreigners. but one might also think that state membership plays no role in defining the stringency of our obligations. instead, factors such as how badly off a person is, how urgent their plight is, etc., would then determine this. we can say of such a position that it is statist about 205 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice content but cosmopolitan about stringency. to illustrate this difference and how shields’ distinction may look in practice, consider andrea sangiovanni’s account of global justice.7 sangiovanni thinks that we owe more (in terms of content) to conationals than we do to foreigners. this is because, on his reciprocitybased conception of justice, we owe others a fair return on their participation in the cooperative scheme we share with them. as such, we owe co-nationals a fair return on their participation in the cooperative scheme that is the state, and we owe foreigners a fair return on their participation in the cooperative schemes that function globally.8 according to sangiovanni both the type of goods produced and the extent of one’s contribution to their production are significantly more encompassing domestically than they are globally, and this explains why we owe conationals more. but nothing in sangiovanni’s account commits him to assigning higher stringency to domestic duties of justice over global duties. although sangiovanni does not explicitly take a stand on this, his view at least allows for the possibility that the stringency of duties is not membership dependent. a view about content like sangiovanni’s is therefore compatible with a view assigning higher stringency to fulfilling duties to those who are very badly off or to those for whom it is more urgent that duties are fulfilled, independently of whether they are compatriots or foreigners. in policy terms, such a view would entail that we should seek to alleviate global poverty before turning to domestic inequalities. indeed, the grounds upon which sangiovanni’s account is built are particularly well-suited for this interpretation, since there is nothing inherent in his conception of reciprocity or the content of the particular duties that justifies granting one precedence over the other. it would be perfectly compatible with such an account to say that duties to the badlyoff ought to take precedence regardless of whether those suffering this plight are co-nationals or foreigners. thus, for an account like the one proposed by sangiovanni, a whole range of positions on stringency is available. and this includes the one sketched here which, as far as we know, is an unoccupied seat in the global justice debate chamber. the space opened up by introducing the stringency dimension becomes clearer if sangiovanni’s position is contrasted with one that does not allow 7 we also note that thomas nagel (2005) makes a number of comments that suggest sympathy to the view that factors related to urgency of need inf luence the stringency of duties. he writes, for instance, that “[t]he urgent current issue is what can be done in the world economy to reduce extreme global poverty” (118, emphasis added). we thank an anonymous reviewer for pointing this out. 8 see sangiovanni (2007), p. 4, fn. 5 for his view about what is owed to all human beings. 206 siba harb, david v. axelsen leap 5 (2017) for similar interpretations. the way in which david miller’s statist account is grounded, for example, seems to commit him to assigning higher stringency to our duties to co-nationals, to be, in other words, statist about content and about stringency. miller thinks that our duties to co-nationals are more demanding in terms of content than our duties to foreigners. to miller, this is because co-nationals share a relationship that is intrinsically valuable. furthermore, having and acting on special commitments to each other are constitutive elements of what makes the relationship between co-nationals valuable in this manner. in order to maintain the intrinsic value that f lows from such relations, then, co-nationals must give (some, although not absolute) priority to fulfilling their duties of social justice over those of global justice (miller 2007: 40; 2013: 175-179). such relations, on the other hand, do not exist globally and so similar priority is not required. unlike for sangiovanni, then, on miller’s version of statism, higher stringency to domestic duties is constitutive of the account. in our world of massive global inequalities, statist views strike many as morally objectionable for asserting that duties of domestic justice eclipse duties of global justice. but as we have pointed out, when statists talk of demandingness, most often they are talking about content-demandingness. taking note of the fact that one’s view on stringency can come apart from one’s view on content-demandingness renders some statist views less objectionable from this point of view. a statist position as sangiovanni’s, for instance, seems more plausible if combined with a cosmopolitan take on stringency; a view, that is, which assigns higher stringency to fulfilling our duties to the worse off or those most urgently in need of help regardless of their membership. and, in that, it is importantly different from a view such as miller’s which, if we are right, is committed to assigning both higher content-demandingness and higher stringency to our domestic duties of justice. the stringency dimension of our duties of justice has potential implications for cosmopolitan positions too. for just as it is open for statists to be cosmopolitan about stringency, it is open for cosmopolitans to be statist about stringency. cosmopolitans can, for instance, maintain that domestic and global duties of justice are equally demanding but submit that fulfilling our duties to compatriots takes priority. or they can be cosmopolitan through and through, maintaining that both the content and stringency demandingness of our duties to compatriots are on par with our duties to foreigners. reasons for why a person can have a more stringent duty to fulfill d1 (e.g. domestic duties) than to fulfill d2 (e.g. global duties) include that she is in a better position to fulfill d1, or that she has created the expectation in targets of d1 that she will fulfill d1, or even 207 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice plain partiality towards the targets of d1 on account of their special relationship. several factors, thus, might impact our judgement of the comparative stringency of our duties, some have to do with the level of wellbeing of the target of the duty, others have to do with the capacity of the duty holder, and others still with the relationship between the duty holder and the target. some cosmopolitans have noted this possibility. simon caney, for example, is of the view that both compatriots and foreigners are equally entitled to equality of opportunity but entertains the possibility that: “[o] ne has a ‘special’ duty to protect the (cosmopolitan) entitlements of one’s fellow citizens, as well as a ‘general’ duty to protect the cosmopolitan entitlements of everyone” (2008: 511). caney is vague on what could justify uncoupling entitlements from duties. and it seems to us that the best way to make sense of caney’s view would be to understand him as highlighting exactly the distinction between the content of duties of justice and their stringency: the content of what we owe to compatriots and foreigners is the same; but in terms of stringency, what we owe to compatriots might be more demanding. this is an interesting potential position on global justice, one that may in some of its variants be attractive to those who worry that standard cosmopolitan views do not leave adequate space for ethical partiality towards those with whom one shares special bonds such as one’s family or, in the case at hand (which is not as similar to that of families as some theorists would have us believe), one’s compatriots. besides separating the two dimensions of demandingness, shields mentions the possibility of applying the shift thesis to stringency. shields suggests that our reasons about the comparative sufficiency of duties shifts according to whether some are below the sufficiency threshold or all are above. it seems plausible to us to hold a view according to which stringency is determined by level of wellbeing when some are below the threshold but then shifts to being determined by other considerations such as legitimate expectations and ethical partiality when all are above the threshold.9 we merely want to note that if shields is correct then this quickly multiplies the possible positions in the debate. here is one possibility: one might be statist about content and cosmopolitan about stringency when some are below the sufficiency threshold (like in our reconstruction of sangiovanni’s view), then back to being statist about stringency when all are above the threshold. another possibility would be that one is cosmopolitan about content and stringency when some are below the sufficiency threshold and 9 it may seem as though there are no duties left to fulfil after everyone is above the sufficiency threshold if one is a statist. however, recall that shields’ account is shiftsufficientarian and, thus, places some (diminishing) value on adding benefits above the threshold. 208 siba harb, david v. axelsen leap 5 (2017) statist about stringency when all are above the threshold.10 here, we have sketched a range of new positions that become possible with the introduction of stringency as a dimension of the demandingness of our duties of justice. it goes beyond the scope of this piece to evaluate the sketched positions. what we have done, instead, is to show how reconceptualizing and f leshing out shields’ notion of stringency casts the global justice debate in a new light. 5. conclusion shields introduces two new ideas to the global justice debate. first, he applies the notion of a sufficiency threshold and suggests that this could apply to both the global and domestic realms; that we might have different obligations to both compatriots and foreigners, depending on whether they have enough. second, he differentiates between two ways in which our obligations may vary in demandingness: content and stringency. in this paper, we have cast doubt on the usefulness of applying the contentdimension of shields’s sufficiency thesis to the global justice debate in which the global and domestic realms are separate. when spelled out clearly it turns out that it opens no new, viable positions regarding the content of our duties of global justice. the stringency dimension, however, does illuminate the global justice debate in new and interesting ways. while global justice theorists have sometimes hinted at considerations of stringency, it is indeed surprising that so relatively little attention has been paid to this aspect of our justice-based duties. picking up on shields’s suggestion that the content and stringency dimensions of our duties of justice are distinct and inf luenced by different considerations, we have tried to show how introducing the dimension of stringency can provide an alternative map of the global justice literature. but this is not just about conceptual possibilities. understanding demandingness not only in terms of content but also in terms of stringency, allows us to see that some positions have more similar implications and others more dissimilar implications than otherwise thought. consider two discussed statist accounts, sangiovanni’s and miller’s. while both agree 10 things become more interesting, and perhaps more plausible if we think that different goods may have different levels of stringency. for instance, we may think that we have especially stringent duties to ensure some goods for our compatriots – i.e. social status and political inf luence – which we are particularly well-placed to facilitate qua compatriots. but the duty to ensure other goods – i.e. those pertaining to material opportunities and freedom – might not entail differences in stringency across the two realms (because we are equally well-placed to provide these for foreigners). 209 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice that our duties to compatriots are more demanding than duties to foreigners (albeit for different reasons) sangiovanni’s account opens up the possibility of giving priority to the fulfillment of the basic needs of poor foreigners over social justice obligations to compatriots (even if the latter are more demanding in content). miller’s account, on the other hand, does not seem to allow assigning the same stringency to basic need fulfillment. in this way, sangiovanni might be closer to a cosmopolitan who assigns higher stringency to basic needs fulfillment, while miller might be closer to a cosmopolitan who assigns higher stringency to fulfillment of domestic duties of justice. this reshuff ling of positions can be useful in pulling the debate about global justice out of the stalemate in which it has, arguably, landed. and, no less importantly, thinking about stringency points us towards important discussions about what to do first, rather than merely speculating about where we should end up. bibliography blake, m., 2001: "distributive justice, state coercion, and autonomy", philosophy and public affairs 30: 257–296. caney, s., 2005: justice beyond borders, oxford: oxford university press. — 2008: "global distributive justice and the state", political studies 56: 487–518. — 2011: "humanity, associations, and global justice: in defence of humanitycentred cosmopolitan egalitarianism", the monist 94. goodin, r. e., 1988: "what is so special about our fellow countrymen?", ethics 98. miller, d., 2007: national responsibility and global justice, oxford: oxford university press. — 2013: justice for earthlings. cambridge: cambridge university press. nagel, t., 2005: "the problem of global justice", philosophy and public affairs 33: 113-147. nielsen, l., & axelsen, d. v., 2017: "capabilitarian sufficiency: capabilities and social justice", journal of human development and capabilities, 18: 46–59. sangiovanni, a., 2007: "global justice , reciprocity , and the state", philosophy & public affairs 103: 48–75. shields, l., 2016: just enough : sufficiency as a demand of justice, oxford: oxford university press. shue, h., 1980: basic rights subsistence, affluence, and u.s. foreign policy, princeton: princeton university press. leap 5 (2017) just say no (for now): the ethics of illegal drug use1 m at h i eu douce t university of waterloo abstract the war on drugs is widely criticized as unjust. the idea that the laws prohibiting drugs are unjust can easily lead to the conclusion that those laws do not deserve our respect, so that our only moral reason to obey them f lows from a general moral obligation to obey the law, rather than from anything morally troubling about drug use itself. in this paper, i argue that this line of thinking is mistaken. i begin by arguing that the drug laws are indeed unjust. however, so long as they remain prohibited, i argue that we have strong moral reasons to avoid drug use. first, drug users are partly responsible for the violent and exploitative conditions in which many drugs are produced and distributed. second, the unequal ways in which drug laws are enforced make drug use by many an unethical exercise of privilege. these reasons do not depend on the existence of a general moral obligation to obey the law; we ought to refrain from illegal drug use even if prohibition is unjust and even if we have no general obligation to obey the law. in fact, drug laws turn out to represent an interesting exception case within the broader debate about this obligation, and i argue that it is the very injustice of the law that generates the reasons not to violate it. keywords: war on drugs, obligation, drugs, consumer ethics 1. introduction is it unethical to use illegal drugs? according to one way of thinking about this question, the answer depends on our views about the ethics of obedience to the law. we might think drug use is unethical because it is 1 thanks to lisa farlow, the audience at the 2014 canadian philosophical association meetings at brock university, and an anonymous reviewer for this journal for helpful comments on previous versions of this paper. d oi : 10. 310 0 9/l e a p. 2017.v 5.01 10 mathieu doucet leap 5 (2017) illegal, on the grounds that it is (typically) unethical to break the laws of a just state. on the other hand, we might think that drug prohibition is unjust, and therefore does not command our obedience. there is, however, another way of thinking about the question. rather than focusing on the ethics of drug use through the lens of the law, we might think instead of recreational drugs as popular consumer products. considered in this way, we can ask whether the purchase and consumption of illegal drugs is unethical, in much the same way we can ask whether it is ethical to purchase any other consumer product. many consumer goods are produced in harmful, exploitative, or environmentally damaging ways, and this raises important moral worries for consumers. the 2013 rana plaza garment factory collapse in bangladesh, for instance, brought the ethics of low-cost clothing into public consciousness; animal welfare activists have long argued that factory-farmed meat is unethical; and the environmental costs of gas-powered suvs, for example, make them targets of moral critique. this way of asking about the ethics of drug use does not presume that the most important element in the answer is their legal status. nonetheless, i argue that, considered simply as consumer products, we have strong moral reasons to refrain from the use of recreational drugs so long as they remain illegal. this is not because we have strong moral reasons not to break the law, but rather because drug prohibition contributes in an important way to the conditions that do make the purchase and use of recreational drugs unethical. section 2 argues that drug prohibition is unjust. for some, this means that the drug laws do not deserve our respect, and so drug use is not a significant moral issue. however, section 3 goes on to argue that so long as drugs remain illegal, there are strong moral reasons to avoid using them. this is for two distinct reasons. first, drug users are partly responsible for the violent and exploitative conditions in which many drugs are produced and distributed. second, the unequal ways in which drug laws are enforced make use by many into an unethical exercise of privilege. the fact that drugs are legally prohibited plays an important role in this argument, since the harmful conditions of production and distribution and the unequal enforcement are both generated by prohibition. however, the argument does not depend on the existence of a general moral obligation to obey the law: section 4 argues that we ought to refrain from illegal drug use even if prohibition is unjust and even if we have no general moral obligation to obey the laws of a just state. in fact, drug laws turn out to represent an interesting exception case within the broader debate about this obligation. regardless of whether we have such an obligation, we have just say no (for now): the ethics of illegal drug use 11 leap 5 (2017) strong moral reasons not to violate drug laws. finally, section 5 considers a range of potential objections to the argument. paradoxically, the very reasons that make drug laws unjust also give us strong moral reasons not to use illegal drugs. our strong moral reasons to avoid drugs arise not in spite of the injustice of the drug laws, but rather precisely because of those laws; in the absence of prohibition, drug use would be, at the very least, much less immoral (and perhaps not immoral at all). this gives us a reason both to avoid drugs while they are illegal, and to seek to overturn the prohibition of drugs, whether or not we wish to use them. 2. the injustice of prohibition there are many arguments that drug prohibition is unjust. some claim that drug use is a 'victimless crime', and so prohibition interferes with liberty. others point to the hypocrisy of governments banning most drugs out of a professed concern for health while permitting – and profiting from – the sale of alcohol and tobacco. while drugs can be very unhealthy, so too are many things that governments do not control with criminal sanctions (husak 2002, 2005). these arguments are powerful, but they are not my main focus.2 even if we set aside concerns about liberty and hypocrisy, existing drug laws are unjust because of the considerable harms they generate. drug prohibition is often justified on the grounds that drugs are harmful to users’ health. drug use can indeed cause significant harms, including death, and one powerful idea supporting prohibition is that it reduces overall rates of drug use, and so protects potential drug users from serious harm. however, proponents of the ‘harm reduction’ approach to drugs often point out that prohibition can exacerbate the health problems it is intended to address. prohibition does not put an end to drug use; in fact, the evidence from europe suggests that it does not even effectively reduce drug use, since decriminalization does not contribute to an increase in drug use (vuolo 2013). what prohibition does do is marginalize drug users, making them more vulnerable and less able to access health care and other social services. it can therefore increase the negative health impacts of drug use, even when rates of drug use decline (drucker 1999). advocates of harm reduction therefore frequently advocate for decriminalization in order to reduce the health impacts of drug use. if the justification for 2 two potential objections are that: 1) some liberties can be justifiably restricted to achieve important social goods, and drug prohibition may be an example of such a justified restriction; and 2) inconsistencies can be resolved in more than one way. perhaps the real problem is the legal status of alcohol, not the prohibition of other drugs. 12 mathieu doucet leap 5 (2017) prohibition is that it protects health, and if, as the evidence seems to suggest, it actually contributes to worse overall health outcomes, then prohibition, with all of its attendant costs, is unjustified. these costs are significant, and affect many more people than drug users. in fact, these costs are so significant that there are good reasons to think that prohibition would be unjustified even if it did succeed it its aim of protecting the health of potential drug users. first, prohibition creates an illegal black market for the production and distribution of drugs, and this black market is remarkably violent. between 2006 and 2010, for example, the war between drug cartels and the mexican government killed at least 41,648 people and perhaps tens of thousands more.3 much of this violence is a direct result of existing drug laws. the trade is not governed by contracts, disputes cannot be dealt with in the courts, and because it is illegal the drug trade is (for some) incredibly profitable. these facts combine to incentivize violence. repealing drug laws and ending the war on drugs might not completely eliminate drugrelated violence, since even legal markets can attract violence. nonetheless, the evidence strongly suggests that prohibition significantly increases that violence (werb et al. 2010). second, violent crime is not the only social cost of the drug trade. those who work in the drug trade are workers: they are employed in a large and profitable economic sector. because it is illegal, those workers face the risk of violence without protection from contract law, labor law, employment insurance, or workers’ compensation. they are therefore open to serious exploitation, and are generally poorly paid: american drug dealers often earn less than minimum wage in a very dangerous occupation (levitt and venkatesh 2000). if the exploitation of bangladeshi garment workers gives us pause, the exploitation of mexican and north american drug workers made possible by prohibition should as well. third, drug workers and users face significant risks of incarceration, which, even more than drug-related violence, is the direct result of prohibition. in 2015, there were close to 300,000 people incarcerated in american for drug crimes (carson and anderson 2016), and another 947,000 on probation (kaeble and bonczar 2016), for a total of more than 1.2 million americans with their autonomy significantly restricted because of 3 for the lower estimate, see (rios 2013). for a discussion of the criticisms of this estimate, see (cave 2012). just say no (for now): the ethics of illegal drug use 13 leap 5 (2017) drug prohibition.4 since this number excludes most drug-related violent crime, it likely under-reports the number of people incarcerated because of drug prohibition. moreover, incarceration does not just impose a cost on drug offenders: it is costly to the state, since housing so many prisoners is extremely expensive. government money spent on the drug war is money that cannot be spend on other valuable government programs, and such opportunity costs should be counted among the real costs of the drug war. if the drug laws are not justified, then many of these costs are not justified either. fourth, those convicted of drug crimes suffer real harms in addition to incarceration. in many jurisdictions, released felons lose voting rights and the right to sit on juries. they also lose access to public housing, federal student loans, federal health and welfare programs, and food stamps (alexander 2010: ch. 4). if they were employed, they typically lose their jobs, and face reduced economic opportunities upon their release, as employers can deny jobs to those convicted of a crime. finally, drug laws are enforced in an unjust way. despite roughly similar rates of drug use, african-americans are arrested for drug crimes at a much higher rate than whites, a difference that cannot be explained by the differing nature of drug offending between races (mitchell and caudy 2015). for example, african-americans make up 13.3% of the us population, but 38.3% of those in federal prison on drug changes; white (non-hispanic) americans, by contrast, are 62% of the us population but only 21.6% of those in federal prison on drug charges (tax y et al. 2015). this means that african americans are nine times as likely as white americans to be in federal prison on drug convictions. the injustice of the racial disparity in drug law enforcement compounds the social costs of incarceration. it is not merely that drug offenders are imprisoned, lose their political rights, and suffer economic and social dislocation, though these are serious costs. it is also that these costs are born disproportionately by already disadvantaged racial minorities. this has led michelle alexander, among others, to compare drug laws to the jim crow laws, which were used to deny african-americans housing, jobs, and democratic rights (2010). the racial disparity in enforcement makes african-american communities poorer, more vulnerable, and less politically inf luential. drug laws therefore play an important role in 4 the 298,704 people in state and federal prisons on drug charges in 2015 represented a relatively small percentage – under 20% – of those incarcerated in america (carson and anderson 2016), and so as john pfaff points out (2017), drug prohibition cannot explain the phenomenon of mass incarceration. nevertheless, the overall american incarceration rate is so high that the drug crime incarceration rate is higher than the total incarceration rate in many countries, including germany and canada (wagner and walsh 2016). 14 mathieu doucet leap 5 (2017) perpetuating the systematic racism in american society. all told, then, drug laws carry enormous social costs. if these costs are to be justified, they should be outweighed by corresponding social benefits. w hile the exact effect of prohibition on the rate of drug use and the health-related harms of drugs is a complex question, those who aim to reduce the health costs of drug use frequently argue in favor of decriminalization or legalization rather than prohibition. but even if this is a mistake, and it turns out that prohibition does reduce the rate of use and the health-related harms of drugs, these benefits need to be balanced against the other enormous costs associated with prohibition. those costs – including violence, worker exploitation, mass incarceration, community dislocation, and systematic racism – significantly outweigh whatever marginal reduction in drug use or health costs might be gained by prohibition. as a result, the legal prohibition of drugs is unjust. 3. moral reasons to avoid illegal drugs i’ve argued that drug prohibition is unjust. but what are the moral implications, for individuals, of this claim? the most obvious one is that we ought to work to repeal prohibition, including pressuring our political representatives to abandon the war on drugs. some jurisdictions have taken steps in that direction. in 2001, portugal decriminalized simple possession of all drugs: drug users are directed to treatment, and punished with, at most, a small fine. drug dealing, however, dealing remains criminalized. recreational use of marijuana is legal in uruguay, in eight american states and the district of columbia, and the government of canada has committed to the legalization of marijuana by july of 2018. at present, however, the wholesale legalization of drugs is politically unfeasible in almost every country. given the injustice of those laws, it is tempting to suppose that they simply do not have any claim on our respect, and so that drug use is not particularly morally objectionable. there are certainly perfectly good non-moral reasons not to take drugs. first, many illegal drugs carry serious health risks. these risks may not be a good reason to outlaw drugs – in fact, they may be a good reason not to outlaw drugs – but they can be a very good reason not to take drugs. second, given the drugs are illegal, in buying and using drugs one runs the risk of criminal sanction, including prison. as we saw, this is a non-negligible risk for members of underprivileged groups. however, both of these reasons are prudential. it may be in our self-interest to avoid illegal drugs, but do we have a moral reason to refrain from purchasing and consuming them? just say no (for now): the ethics of illegal drug use 15 leap 5 (2017) i argue that illegal drug use is indeed immoral. the prohibition of drugs is certainly unjust. nonetheless, the current prohibition drugs gives us two distinct moral reasons to not violate drug law. first, drugs are produced and distributed in ways that are unethical. second, the use of drugs by many consumers represents an objectionable form of privilege. moreover, we have these moral reasons to avoid drugs, not merely in spite of the law’s injustice, but rather because of it. paradoxically, it seems, it is precisely the injustice of the laws banning drugs that makes violating those laws immoral. 3.1 unethical production the harm reduction approach to drugs endorses treating them much like other dangerous consumer products. this is an argument for repealing prohibition, but thinking of drugs as consumer products has other moral implications. after all, we have strong moral reasons to avoid consumer products that are produced in unnecessarily dangerous and exploitative ways. for example, we ought to avoid purchasing clothing that is made is dangerous sweatshops or by child labor. ethically produced clothing might be more expensive, but cost savings for relatively aff luent consumers do not justify the exploitation and deaths of bangladeshi garment workers. the drug trade, as we saw, is violent and exploitative: drug workers are killed and exploited in significant numbers. we ought therefore to avoid drugs for the same reason that we ought not to buy clothing made in dangerous sweatshops; both are produced in dangerous and exploitative ways, and consumers both enable and benefit from that exploitation. the point it is not merely that we could do something to prevent the harms of the drug trade, though this is certainly true. rather, the point is that drug users are in an important sense directly responsible for those harms. it is their demand for drugs that allows the harms of the drug trade to persist. drug users are not, of course, solely responsible for those harms, since governments who enforce prohibition share in the blame. nonetheless, given the reality of prohibition, drug users are blameworthy for the harms that their consumption choices help to bring about. the many aff luent north americans and europeans who insist on purchasing ethically produced, organic, and fair-trade consumer goods should also avoid illegal drugs, since the reasons we have to avoid such drugs are of a piece with the more general moral reason we have to avoid all unethically produced products. however, these moral reasons to avoid illegal drugs are arguably stronger than they are for most unethical consumer goods. first, compared to other unethically produced goods, the drug trade combines significantly 16 mathieu doucet leap 5 (2017) greater harms with significantly fewer consumers. almost everyone in north america and western europe wears clothing every day. the majority likely own some clothing produced in an unsafe and exploitative sweatshop. by contrast, around half of north americans have never used illegal drugs,5 and under 10% use them regularly.6 nonetheless, despite the much smaller size of the illegal drug market, drug-related violence kills many more people than die in unsafe garment factories. the collapse of the rana plaza in april 2013 killed 1,129 bangladeshis, mostly garment workers, and a factory fire in 2012 killed another 117. these numbers are alarming, but they pale in comparison to the thousands of americans and tens of thousands of mexicans killed in drug violence since 2006. this is not to minimize the harms of the garment industry, but instead to highlight the enormous harms caused by the drug war. to the extent that those who buy drugs or unethically produced clothing are implicated in the harms associated with their production, those who buy drugs are much more implicated, since the far greater harms are spread across a much smaller number of customers. second, there are institutional differences between the harms resulting from the drug trade and from unethical garment factories. the harms of the drug trade are a direct product of the criminal laws: it is because drugs are illegal that there is so much violence and exploitation in their production and distribution. the harms of the garment industry, by contrast, emerge in large part from a global economic system in which multinational corporations seek to maximize profits by manufacturing goods in countries that have low labor costs, and correspondingly low labor standards and protections. this is an important difference, since the criminal law is under democratic control in ways that global economic institutions are not. americans cannot simply end prohibition by voting for a party that promises to do so; there is no such party and in any case american (and other) democratic institutions are structured so that majority public 5 in 2015, 50% of americans over the age of 25 reported using illicit drugs at least once in their lives. by far the most commonly used drug is cannabis, with 46% reporting lifetime use. cocaine and hallucinogens, both at 16%, were next on the list of lifetime prevalence. only 2% have ever tried heroin (nida 2015a). canadian numbers are similar: in 2012, 43% of canadians reported lifetime use of cannabis, though that number drops to 34.7% when one-time users are excluded (rotermann and langlois 2015). numbers from mexico are less reliable, but a 2008 who survey put lifetime cannabis use by mexicans at 7.8%, and lifetime use of cocaine at 4% (degenhardt et al. 2008). 6 in 2015, 13% of canadians reported using illegal drugs in the previous year, a number that falls to 2% when marijuana is excluded. (health canada 2015). in 2013, 9.4% of americans reported illicit drug use within the past month, and fewer than 3% reported pastmonth use of illicit drugs other than marijuana (nida 2015b). just say no (for now): the ethics of illegal drug use 17 leap 5 (2017) support for a policy does not guarantee that the policy will be advanced by a governing party or passed into law.7 still, it is within the power of democratically elected governments to end prohibition, and its persistence results at least in part from its continued support among the electorate. were ending the injustice of prohibition an important enough issue for enough voters, it would have greater political traction. moreover, those jurisdictions that have liberalized their drug laws have largely done so as a result of political pressure from their citizens. seven of the eight american jurisdictions that legalized recreational cannabis did so as the result of a majority vote on a ballot initiative (i.e. via plebiscite);8 the canadian government’s plans to legalize cannabis in the first half of 2018 would fulfil a promise made by the governing liberal party in the course of the 2015 election campaign; and, of course, the 1933 passage of the 21st amendment to the us constitution, which repealed the prohibition of alcohol, was the result of a 2/3rds majority vote of both houses of congress.9 because the criminal law is under democratic control, the citizens of states that prohibit drugs – all of them, and not merely drug users – are in an important sense responsible for the harms that result from the drug trade. those harms are the result of policies enacted by democratic institutions and so in principle expressing the considered views of the public. while the connection between majority policy preferences and the content of the law is far from straightforward, there is nevertheless an important sense in which ending prohibition is within the control of the american public; it simply requires repealing some criminal laws and passing some news ones, something that is entirely within the power of democratically elected governments who are responsive to the publics that elected them. that this is extremely unlikely ref lects in part the fact that a significant proportion of the american public endorses the war on drugs and the harms that it creates, and this tacit endorsement arguably makes that public complicit in the harms that prohibition generates. this institutional responsibility, however, is much less clear in the 7 thanks to an anonymous referee for urging me to discuss the relationship between majority preferences and policy changes in democratic contexts. 8 alaska, california, colorado, maine, massachusetts, nevada, oregon, washington, and the district of columbia all legalized marijuana through majority vote on a proposition appearing on the ballot. the sole exception thus far is vermont, which did so via a bill introduced in the state legislature, rather than via ballot initiative. 9 it’s worth noting, however, that the 21st amendment is the only constitutional amendment to secure the required ratification by three fourths of the states through the use of one-off state conventions rather than by passage in state legislatures. it therefore stands alongside the use of ballot initiatives to legalize marijuana as an example of the ways in which majorit y policy preferences are not always easily secured through legislative means. 18 mathieu doucet leap 5 (2017) example of sweatshop labor. global economic institutions are not under the direct democratic control of the citizens any particular country: in fact, many such institutions often are not under any centralized control at all, and are certainly not constrained significantly by democratic control. democratically elected governments can choose – at significant cost – to opt out of some of those institutions, but even if they do so those institutions continue to be in force and to wield significant power. so individual consumers in wealthy nations are far less responsible for the workings of those institutions. moreover, the political institutions of garment-producing nations like bangladesh also bear some responsibility for lax labor standards and enforcement. that is not to say that there is nothing we can do, of course, but the enforcement of global labor standards is much less subject to democratic control than the content of domestic criminal law. while we cannot just change the global economic order by voting to do so, we can change the criminal laws of our state through straightforward democratic means, as was done in portugal and several american states. our ability to reduce the harms of the drug war through democratic means makes us more morally responsible for the persistence of those harms. 3.2 privilege we all have a reason not to consume unethically produced consumer goods. but just as we can satisfy this responsibility by purchasing fair trade and organic food and clothing, perhaps we can do the same with drugs: home-grown and ethically sourced marijuana, for example, would avoid many of the concerns raised above. i will return to this objection in section 5.1, below. however, even if we concede the possibility of ethically sourced drugs, there is an additional moral reason to refrain from drug use that applies to many – though not all – drug users. the freedom to use illegal drugs without significant fear of criminal sanction is one expression of white middle-class privilege. given the extreme racial disparity in the enforcement of drug laws, it is arguably among the more powerful forms such privilege can take. white, middle-class, university-educated north americans can typically purchase and consume illicit drugs safe in the knowledge that it is very unlikely that they will be stopped by police, searched, arrested, charged, or convicted. african-americans, however, are more than four times as likely as white americans to be arrested for drugs, despite using just say no (for now): the ethics of illegal drug use 19 leap 5 (2017) drugs at roughly the same rates (mitchell and caudy 2015).10 a drug charge also has the potential to be much more costly for a low-income american than a middle-class one; the loss of public housing, welfare, or food stamps is a non-issue for white professional home-owning drug users, but is a significant risk for low-income drug users. that african-americans are more likely than white americans to be poor compounds the potential for injustice, as they are more likely to be arrested for drug crimes, and more likely to suffer significant hardship as a result of such an arrest. not only are they much more likely to be arrested for drug use that aff luent white drug users, but such arrests can easily make them homeless. the ability to violate the law and use drugs involves much less risk for some citizens than for others. this inequitable treatment is unfair, and is directly generated by prohibition. as with the harms of drug production, the main way of ending the unfair privilege in drugs is by repealing prohibition. nonetheless, while the unfairness exists, the exercise of such privilege is something those who have it have a moral reason to avoid. at the very least, those who use drugs recreationally and who have the privilege to do so without significant fear of sanction ought to both endorse and actively work toward the end of prohibition. drug users who do not take a public stance in favor of ending prohibition show themselves to be willing to accept a privileged de facto immunity that they are unwilling to extend to others. they therefore treat the interests of others as less deserving of concern than their own. this powerful and morally objectionable form of hypocrisy is on display any time someone is willing to blithely break the law and yet not object to – or, worse, actively endorse – the prosecution of others who break the same laws.11 this hypocrisy would be objectionable even in the absence of racial bias in the enforcement of drug laws. given the existence of such bias, those who are privileged enough to be largely free from fear of drug-related arrest or prosecution should refrain from the use of illegal drugs. 4. the paradox of drug laws thus far i’ve made two distinct arguments. first, existing drug laws are unjust. second, illegal drug use is unethical. these two arguments appear to be in tension, since it seems that i am arguing that both drug prohibition 10 more precisely, african-americans of 25 and under are somewhat less likely than whites to use drugs, while those 26 and older are somewhat more likely to use drugs; this is sometimes called the “racial age crossover effect” (mitchell and caudy 2015). 11 r. jay wallace offers an account of the moral blameworthiness of hypocrisy along these lines in (wallace 2010) 20 mathieu doucet leap 5 (2017) and drug use are unjust. but, one might think, if laws banning drugs are unjust, then shouldn’t we conclude that there’s in fact nothing immoral about drug use? one straightforward way of resolving this tension would be to appeal to the existence of a general moral obligation to obey the law in a just state, even in cases where we believe the law to be unjust. john rawls, for example, argues that, provided the injustice does not exceed certain limits, in just states we “normally have a duty to comply with unjust laws in virtue of our duty to support a just constitution.” (1971: 311). there are several arguments for such an obligation, drawing on the tacit consent of those subject to the law (locke 1988), the importance of general obedience in securing the many valuable benefits of a just state (wellman 2001), or principles of fairness and the unfairness of free-riding within generally just social institutions (rawls 1999). as rawls puts this point, provided that “the constitution is just and that we have accepted and plan to continue to accept its benefits, we have both an obligation and a natural duty… to comply with what the majority enacts even though it may be unjust”. justice, he argues, “binds us to a just constitution and to the unjust laws which may be enacted under it” (1999: 180). however, many theorists reject the idea that there is a general obligation to obey the laws of a just state (e.g. wolff 1970, raz 1984, simmons 2001). we may have strong moral reasons to conform with just laws, but this does not mean that the law itself gives us any such reasons. rather, the law, when it is just, tracks what we have independent moral reason to do. when those reasons exist, we should do what the law requires, but not for the reason that the law requires it. and when no such independent reasons exist, the law typically does not create one, particularly when there are independent moral reasons not to comply with the law. as joseph raz puts it, the purported moral obligation to obey the law “is at best redundant” (1984: 140). ‘at best,’ because it would only make a difference when there are no independent reasons to do what the law commands, and so, if taken seriously, could easily lead people to act in ways that are unjust. this suggests two distinct perspectives on obedience to unjust laws. either we have an obligation to obey them in virtue of their being laws, or else their injustice means that, since we have no independent reason to do what they require, we have no obligation to obey them. however, the case of unjust drug laws represents an interesting exception to this general way of carving up the conceptual terrain. because the drug laws are unjust, there are no independent reasons justifying those laws that explain why we ought to obey them. nonetheless, the existence of the drug laws creates a strong moral reason not to use drugs, a reason that is entirely independent just say no (for now): the ethics of illegal drug use 21 leap 5 (2017) of any general moral obligation to obey the law. to say that unjust laws create moral obligations to obey them might seem paradoxical without appeal to a general obligation to obey. however, this paradox is only apparent. existing drug laws are unjust because they impose significant harms on many vulnerable people, and these harms could be greatly reduced by ending prohibition. these same reasons explain why illegal drug use is unethical. that is, the production and distribution of drugs is so harmful precisely because it is illegal, and these very same harms explain why consuming drugs is unethical. drug laws both create the conditions for violence and exploitation, and make possible the kind of systematically racist enforcement that makes recreational drug use by privileged individuals morally troubling. in both cases, then, the reason that drug use is unethical is because of the existence of laws prohibiting drugs. so while prohibition makes it unethical to consume drugs, the mere fact that drug use is against the law does not carry any moral weight at all. rather, it is the unjust conditions created by the existence of the laws, and not the laws themselves, that make recreational drug use unethical, and these very same conditions explain why prohibition is unjust. those, like raz, who reject the existence of a general obligation point out that a law is just if there are independent moral reasons to do what it commands. however, drug prohibition is an example of an unjust law that we have independent moral reasons not to violate. of course, these reasons are independent only in the sense that it is not the existence of the law qua law that gives us a moral reason not to violate the law. in a different sense, the existence of the obligation is highly dependent on the existence of the law, since the law creates the conditions – violence, exploitation, and biased enforcement – that make the activity of drug use deeply ethically troubling. so while the claim that the injustice of the law creates the moral obligation to obey it sounds paradoxical, the paradox dissolves when we recognize that the injustice of the drug law does not explain the existence of the obligation to conform to it. rather, both the injustice and the obligation are explained by the existence of the violence, exploitation, and discrimination that the law brings into being. 5. objections and replies 5.1 ethically sourced drugs the analogy between drugs and low-cost clothing suggests a possible defense of recreational drug use. the existence of unethical low-cost 22 mathieu doucet leap 5 (2017) clothing is clearly not a reason to forego clothing altogether. rather, it is a reason to purchase ethically sourced clothing, even if that clothing is more expensive. by the same token, the existence of unethically sourced drugs may not be a reason to avoid drugs altogether: instead, it simply gives drug users a strong reason to choose ethically sourced drugs. homegrown organic marijuana, for example, seems to avoid concerns about the harmful and exploitative drug trade raised above. there are two points to make in response to this suggestion. first, while it is true that ethically sourced drugs would certainly be better than unethically sourced ones, there simply are no ethical sources for many recreational drugs. cocaine and heroin, for example, are not grown in north america or europe, and as a result need to be smuggled from asia and south and central america. drugs smuggled in this way are part of the violent and exploitative global trade, for which recreational users are in part responsible. moreover, even drugs produced in north american and europe – such as marijuana and synthetic drugs like mdma and crystal methamphetamine – are often produced and distributed by the same violent and exploitative criminal organizations that distribute cocaine and heroin, and the people who produce them are not protected by labor laws. while marijuana and many synthetic drugs might, in principle, be ethically sourced by discreet small-scale producers who treat their employees well and who avoid violence, users who buy such drugs will typically have no way of knowing where their drugs come from, and so no way of knowing whether it is linked to such violent and exploitative drug markets. second, while those who grow their own organic marijuana or produce their own synthetic drugs strictly for personal use can avoid being implicated in many of the harms of the drug trade, they may nonetheless participate in the unethical exercise of privilege. while the exploitative source of most drugs is a reason to avoid them, so too are the unequal and unjust ways in which prohibition affects underprivileged groups. in fact, even the ability to produce one’s own drugs without fear of detection can require access to space and privacy that members of underprivileged groups often lack: a homeowner can more easily produce drugs at home than a renter, for example. one thing this argument suggests is that members of vulnerable and underprivileged groups who consume ethically sourced drugs do not behave immorally, since their drug use is not an example of unethical privilege. that is consistent with the argument advanced above, which does not depend on the claim that there is anything about drug use itself that is immoral. it is the nature of the drug trade and the privilege implicit just say no (for now): the ethics of illegal drug use 23 leap 5 (2017) in much illicit drug use that makes it morally objectionable. illegal drug use that avoids both of these objections might not be open to moral censure. however, the vast majority of recreational drug use does not fall into this category. 5.2 civil disobedience civil disobedience is a powerful way of protesting unjust laws, and one that is endorsed even by those, like rawls, who defend the general obligation to obey the law. since prohibition is unjust, drug use is arguably a form of protest against that injustice, and so counts as an instance of civil disobedience. while civil disobedience is a morally admirable way of seeking to overturn unjust laws, it does not work as a defense of recreational drug use. first, drugs purchased to be used for the purposes of civil disobedience would still be unethically sourced, and so users remain implicated in the harms of the drug trade. second, and more importantly, typical private recreational drug use does not count as an example of civil disobedience, which requires publicly breaking the law, doing so with the aim of communicating a political message or bringing about a change in the law, and willingly accepting the accompanying punishment (rawls 1971, brownlee 2004). perhaps taking drugs in full view of the police at a public anti-prohibition rally counts as an instance of civil disobedience, and so of morally permissible drug use. typical recreational drug use, however, does not. 5.3 medical uses of drugs many people use drugs for a range of health-related reasons, so another objection is that my argument unfairly blames people for using medicines for which they have a legitimate need. this includes drug use by addicts, but also includes other uses: people self-medicate with a variety of drugs to treat chronic pain, nausea, anxiety and depression, to combat the side effects of prescription medication, and for a range of other non-recreational reasons. i accept that the medical use of drugs is different in important ways. it would indeed be unfair to blame those with a legitimate medical need for drugs for using them, including addicts, particularly when such users are not responsible for the ban on drugs and are in fact among those most affected by that ban. my argument addresses the recreational use of drugs for the sake of the pleasure they deliver. in fact, a recognition of the difference between medical and recreational uses is at the heart of one of the main exceptions to prohibition: the legal regulation of medical marijuana in many jurisdictions. such programs generally provide users with both legal protection from prosecution and an ethical source for 24 mathieu doucet leap 5 (2017) marijuana. a similar recognition justifies the common practice of prescribing methadone – otherwise an illegal drug – to opiate addicts. again, this practice provides addicts with both legal protection and an ethically sourced product, while also addressing the health costs of drug use. however, not every person who uses illegal drugs for medical reasons uses marijuana or opiates, or even has access to legal medical marijuana or methadone. those who have a legitimate medical need for drugs but do not have access to a legally sanctioned supply do indeed use drugs that are produced in unethical ways. in their case the blame more properly falls on the law-makers who are responsible for depriving people of medically necessary drugs, rather than on those who have the need for those drugs. recreational users lacking a legitimate medical reason for drug use, however, remain blameworthy for the unethical use of illegal drugs. 5.4 drugs may continue to be unethical even if drugs were legalized while the illegal drug trade is violent and exploitative, this does not mean that the legal trade in drugs would be an ethical one. after all, many perfectly legal consumer products are unethical, from cheap sweat-shop produced clothing and electronics to so-called conf lict diamonds. legalization is no panacea. while it might make it possible to provide ethical sources of marijuana and many synthetic drugs, drugs like cocaine and heroin would continue to be produced in the developing world by lowwage workers, and such workers would likely remain vulnerable targets of exploitation. at best, legalization might make possible a market for (perhaps more expensive) ethical drugs, but it would almost certainly not do away with unethically produced drugs. the realities of production and distribution in even a legal drug trade might mean that many drugs would continue to be unethical. it is certainly true that legalization would not instantly make drug use ethical, and that many drugs might continue to be unethically produced and distributed even if prohibition were repealed. however, this is consistent with the argument advanced above: recall that it is not the mere illegality of drugs that makes them unethical, but the conditions created by that prohibition. to the extent that those conditions remained in place after prohibition was lifted, the argument would remain in force. prohibition would make it possible for recreational drug use to be ethical, but it certainly would not guarantee it. but even if most drugs continued to be produced and distributed by vulnerable exploited workers, legalization would likely secure some degree of improvement in their working conditions, simply by making legal oversight and regulation possible, and by reducing the incentives for violence. such improvements might not be just say no (for now): the ethics of illegal drug use 25 leap 5 (2017) enough to make drug use ethically unproblematic, but they could nonetheless be significant. 5.5 prohibition is justified i have argued that drug prohibition is unjustified, in large part because of the enormous social costs that it imposes. but perhaps this is a mistake. for example, perhaps the costs of prohibition – in lives lost, workers exploited, rights sacrificed, and people incarcerated – are worth it to keep drugs out of the hands of children, to secure an overall reduction in drug use, or to convey society’s profound disapproval of drugs.12 or perhaps the problem with the drug war is in the execution, not in the general approach. the current heavily punitive approach to drug crime may be ill conceived and enforced in a discriminatory manner, but this does not necessarily show that prohibition itself is unjust. rather, it might show that prohibition ought to be pursued in less harmful and discriminatory ways. for example, justice might require reforming policing practices, eliminating mandatory minimum sentences for non-violent drug offences, or diverting those who commit such offences into alternatives to the prison system. while prohibition is enforced in discriminatory ways, the problem may not be prohibition so much as racism; after all, even perfectly just laws can be unjustly enforced. african-american drivers are much more likely to be stopped and searched than white drivers (lafraniere and lehren 2015) – a phenomenon known as ‘driving while black’ – but that does not mean that traffic laws are unjust. rather, it simply means that they are often enforced in a discriminatory way. it may be that, were drugs not currently illegal, it would be unjust to introduce prohibition. but it may be a distinct question whether we ought to repeal prohibition, given that it is place. after all, even if we would have been better off had drugs never been prohibited, repealing prohibition might still make things worse. many of those involved in the illegal drug trade would not transition directly into the legal drug trade, which could draw from a larger labour pool and which would have less need for smugglers and enforcers. so an end to prohibition might well leave many criminals unemployed and without their main source of income, and such criminals might respond by turning to other crimes, thus making crime worse (rios 2012). perhaps this is not relevant to the justification of prohibition, since some would argue that incarcerating people for 12 peter de marneffe argues that the prohibition of heroin is justified in order to secure an overall reduction in harm, and in particular to protect children, though he agrees with husak that most other drugs should be legalized (de marneffe 2005). see also (bean 2008: 262-266). 26 mathieu doucet leap 5 (2017) recreational drug use is necessarily unjust, regardless of whether repealing prohibition would lead to an increase in harms. but lawmakers interested in adopting policies that reduce the harms of drugs might justifiably choose to continue with prohibition even if they recognize that it is an imperfect policy that would not be implemented if it were not already in place (wolff 2011: 78). whether prohibition is ultimately justified, however, does not affect the argument that illegal recreational drug use is unethical. if it turns out that the laws prohibiting the use of drugs are just, then that of course is a reason to follow them, since we have a moral reason to comply with laws that are just. my argument shows that we have moral reasons not to violate the drug laws even if they turn out to be unjust, and this is perfectly consistent with insisting that prohibition is just and that, as a result, drug use is unethical. my argument would, however, lose some of its paradoxical appeal if it were true that drugs prohibition is ultimately justified. i have argued that prohibition makes the drug trade harmful and exploitative, and so makes drug use unethical. if it turned out that ending prohibition would not reduce the misery associated with the drug trade, then arguably prohibition itself would turn out not to create the conditions that makes drug use unethical. but this would be because those harmful conditions would continue to obtain in the absence of prohibition, and my argument is that it is the harmful conditions in which drugs are produced and distributed, and not the mere fact that they are illegal, that makes drug use unethical. regardless of whether prohibition is just, then, the use of prohibited drugs remains unethical. 5.6: drinking alcohol during prohibition there is a clear and oft-noted analogy between the current prohibition of drugs and the prohibition of alcohol in the united states between 1920 and 1933. one potential objection to my argument, then, is that it would strongly suggest that drinking during prohibition was immoral, even though prohibition itself is now widely recognized as a mistake and the moderate consumption of alcohol is morally unobjectionable. it’s worth noting that drinking was not illegal during prohibition, as the 18th amendment and the volstead act outlawed the production, distribution, and sale of alcohol, but not possession and consumption. so to the extent that the argument in this paper addresses the ethics of illegal drug use, it may not apply at all to drinking during prohibition. moreover, the alcohol example could only serve as an objection to the just say no (for now): the ethics of illegal drug use 27 leap 5 (2017) argument that illegal drug use is unethical if it were obviously true that drinking during prohibition was morally licit, and that is far from certain. some of the arguments offered in this paper also apply to drinking during prohibition, and so do show that such drinking may well have been unethical. in particular, both the violent and illegal black market and the exploitation of workers outside the protection of the law were moral problems that faced prohibition-era recreational drinkers who drank bootlegger-sourced alcohol. those objections do not apply to the wealthy americans who were able to rely on private reserves of alcohol stockpiled before the introduction of prohibition, but this legal and ethical access to alcohol was a privilege that was denied to the vast majority of americans. so as with drug prohibition, the risks and harms of alcohol prohibition were far from equally distributed. in such a context continuing to drink while at the same time supporting prohibition arguably constituted an objectionable form of privileged hypocrisy. drinking in the absence of prohibition may well be entirely unobjectionable, but then so too would be many cases of recreational drug use. so our current attitudes toward the ethics of drinking and the error of alcohol prohibition are perhaps best understood as suggestive of what ethical drug laws would look like, rather than as an objection to the argument that drug use under prohibition is unethical. 6. conclusion existing drug laws are unjust, and cause considerable harm; we should work to overturn them. one might therefore be inclined to conclude that such laws do not deserve our respect, and so that we are free to violate them. this, however, would be a mistake. the ban on drugs may be unjust, but while they are banned it is immoral use them. drug use is immoral because of the conditions created by the law, rather than because of the law itself. the very facts that give us a strong moral reason to conform to the law therefore also give us reason to overturn it. bibliography alexander, m., 2010: the new jim crow: mass incarceration in the age of colorblindness, new york: new press. bean, p., 2008: drugs and crime 3rd ed. portland: willan publishing. brownlee, k., 2004: “features of a paradigm case of civil disobedience”, res publica 10: 337-351. 28 mathieu doucet leap 5 (2017) carson, e and anderson, e., 2016: “prisons in 2015”, bureau of justice 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puzzling. however, liam shields, offers an account of sufficiency that has the potential to reconcile these egalitarians with the principle of sufficiency. this comes from his endorsement of what he calls “the shift thesis”, stating roughly that there is a discontinuity in the weight of our reasons to benefit people once they have enough. this thesis distinguishes his theory from other accounts of sufficientarianism by not denying the injustice of inequalities above the threshold. it thereby changes the way one can look at the relation between sufficiency and equality. the principle of sufficiency becomes the first principle of a conception of justice that must be completed by another – possibly egalitarian – principle. in the first section, i start with a brief exposition of the shift thesis and the way it relates to other accounts of sufficiency. in the second, i introduce a distinction between agnosticism and indifference towards inequalities above the sufficiency threshold. in the third, i argue that pragmatism might provide positive reasons to focus on insufficiency if one is agnostic about these inequalities. i conclude with a brief discussion of this pragmatic stance and of the choice to defend a partial view of justice as shields does. keywords: equality, sufficiency, justice, pragmatism, ideal theory for people starting from a presumption in favor of equality, or the intuition that unless there is a good reason to do otherwise, any distribution of goods or advantages should be equal, the very idea of a sufficiency threshold where the 1 i thank david a xelsen, a xel gosseries, lasse nielsen, liam shields, julia sichieri moura and the anonymous reviewers for useful comments on previous versions of this paper. d oi : 10. 310 0 9/l e a p. 2017.v 5.11 131 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold demands of justice would stop because everyone has enough is puzzling. what puzzles them in particular is that some inequalities are tolerated by sufficientarians although they do not have a special moral justification (such as being the result of genuine choices, valuable efforts, or ‘sacrifice’ for the community). the main merit of liam shields’ stimulating account of sufficiency as a demand of justice is to potentially reconcile these egalitarians2 with the principle of sufficiency. this comes from shields’ endorsement of what he calls “the shift thesis”, stating roughly that there is a discontinuity in the weight of our reasons to benefit people once they have enough. this thesis distinguishes his theory from other accounts of sufficientarianism by not denying the injustice of inequalities above the threshold. it thereby changes the way one can look at the relation between sufficiency and equality. the principle of sufficiency becomes the first principle of a conception of justice that must be completed by another – possibly egalitarian – principle. in the first section, i will start with a brief exposition of the shift thesis and the way it relates to other accounts of sufficiency. then, in light of this, i will introduce in the second section a distinction between agnosticism and indifference towards inequalities above the sufficiency threshold, shields’ position being associated with agnosticism. in the third section, i will argue that pragmatism might provide reasons to focus on insufficiency and leave aside other inequalities if one is agnostic about them. and i will conclude with a brief discussion of this pragmatic stance and of the choice to defend a partial view of justice as shields does. 1. the shift thesis and the distinctiveness of sufficientarianism as highlighted years ago by paula casal, sufficientarianism is usually conceived as the combination of two different theses: a positive thesis stressing “the importance of people living above a certain threshold” (casal 2007: 297-298), and a negative thesis denying “the relevance of certain additional distributive requirements” (298). many people think that it is the negative thesis that makes of sufficientarianism a complete 2 egalitarians committed to “comparative fairness” (temkin 2017) must be distinguished from other egalitarians, like many relational egalitarians, whose position is compatible with some forms of (relational) sufficientarianism. from the latter perspective, if people have enough to stand in a relation of equality with others, no additional redistribution is required. yet from the viewpoint of comparative fairness, any distributive inequality must be justifiable, whatever its impact on social relations. 132 pierre-étienne vandamme leap 5 (2017) and distinctive conception of justice3. it is complete because there are no distributive requirements other than those expressed by the principle of sufficiency. and it is distinctive because it is the only conception of justice that gives a pivotal role to some threshold of sufficiency and disregards the remaining inequalities. in contrast, the mere affirmation of the positive thesis can be included or absorbed into a more complete and ‘hybrid’ conception of justice such as sufficiency-constrained (luck) egalitarianism4 or sufficiencyconstrained (responsibility-catering) prioritarianism (318-323). however, shields proposes another way of understanding the distinctiveness of sufficientarianism. he endorses the positive thesis, which he formulates as follows: “we have weighty non-instrumental reasons to secure at least enough of some good(s)” (shields 2016: 28). but he rejects the negative one – which he calls “upper limit sufficientarianism” – because of its “inability to condemn some regressive policies, which require greater contributions from the worse off than the better off [when they are both above the threshold], and are unable to condemn huge inequalities between those who have secured enough” (23). yet, recognizing that the positive view is not enough to distinguish sufficientarianism from other views of justice that might also include this concern (among others), shields adds what he calls the “shift thesis”: “once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further” (30). this shift thesis is, according to him, what distinguishes sufficiency from priority, because prioritarians usually believe that “priority to the worse-off diminishes at a continuous rate” (30), whereas the sufficientarian threshold marks a discontinuity. this also explains why he does not endorse luck or outcome equality: because unless these views are coupled with a sufficiency constraint, they do not do justice to this discontinuity in the moral importance of redistributions. however, if prioritarianism or egalitarianism were to include a sufficiency constraint, they would become compatible with the principle of sufficiency. yet shields does not arbitrate between priority, equality and other candidates. he simply recognizes that the shift thesis is “compatible with a wide range of distributive criteria once everyone has secured enough” (34). 3 see for example a xelsen and nielsen 2015: 407-408: “[t]he acceptance of the negative thesis is [….] distinctively sufficientarian”. 4 here we should distinguish between forms of egalitarianism that are themselves sufficientarian (this is the case of several ‘relational’ egalitarian views), others that include a sufficiency constraint, and others yet that reject the moral significance of any sufficiency threshold. 133 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold as shields rejects the negative thesis, we can characterize his sufficientarianism as a distincticve yet partial view of justice. the principle of sufficiency is not enough by itself, as it does not provide guidance regarding the treatment of inequalities above the sufficiency threshold. it requires a complementary principle which can be, for example, outcome or luck egalitarian, utilitarian, prioritarian, leximin or maximin – the second principle applying specifically to what we might call the residual inequalities. w hat is particularly interesting with shields’ view is that it illustrates the distinction that should be made between agnosticism and indifference towards these residual inequalities5. although principles of sufficiency are often defended in opposition to principles of equality (see for example frankfurt 2015; crisp 2003; a xelsen and nielsen 2015), shields’ view makes them potentially compatible. it sheds light on the fact that sufficientarians are not necessarily morally indifferent towards residual inequalities. hence, it makes sufficientarianism attractive for people committed to comparative fairness and yet convinced of the centrality of people having enough. to be sure, this is not new (see casal 2007 or gosseries 2011), but this point has usually been made by egalitarians interested in sufficiency, not by sufficientarians. w hat is more, the shift thesis introduced by shields has the merit of making this compatibility between sufficiency and equality appear more clearly. 2. . indifference and agnosticism towards residual inequalities given that sufficientarians face more egalitarian alternatives6, they must be able to provide convincing reasons not to equalize social positions beyond what is required to achieve their goal. in other words, they must be able to justify their choice for a principle of sufficiency rather than some principle of equality (or another alternative conception of justice). nonetheless, as shields’ case illustrates, some sufficientarians do not 5 a xelsen and nielsen (2015: 423), for example, seem to conf late the two attitudes, using one term and then the other as if they were similar. 6 outcome egalitarianism is certainly more egalitarian than any account of sufficientarianism. yet regarding luck egalitarianism, things are more complex. given its emphasis on choice, luck egalitarianism can be both more and less egalitarian than sufficientarianism. unless they include a form of sensitivity to personal responsibility in their principle, which they usually refuse to do (gosseries 2011: 473), sufficientarians will generally accept more inequalities (related to bad luck) than luck egalitarians, but they will also sometimes reject some inequalities (related to choice) that luck egalitarians might have accepted. 134 pierre-étienne vandamme leap 5 (2017) provide this justification. shields rejects principles of equality that fail to take into account the discontinuity introduced by the sufficiency threshold, but he does not provide a justification for not adopting a form of sufficiencyconstrained egalitarianism. and this might be explained by agnosticism towards residual inequalities. agnostic sufficientarians have a strong feeling or intuition that deprivation (and/or domination) is unjust, but they do not know whether inequalities between well-off people – or billionaires as in the caricatural example often discussed – should be characterized as unjust or not7. another possibility is that they have an opinion about these inequalities, but they do not know how to argue in favor of it, or consider it a waste of time to make this argument. in this case, they are not really agnostic themselves, but they withhold their judgment and thereby endorse an agnostic position. in contrast with the agnostics, other sufficientarians such as harry frankfurt are morally indifferent towards residual inequalities. the two attitudes must be carefully distinguished. agnosticism entails either admitting that one does not know if these inequalities are unjust, or explicitly withholding judgment – which shields does, for example. moral indifference means that one does not consider these inequalities as unjust. what can explain such moral indifference? following roger crisp8, for example, one might believe that it is envy that leads some of us to develop hostility towards some inequalities which are not unjust in themselves (crisp 2003: 749), and that it is compassion, not env y, that should feed our judgments of justice and injustice. although we feel compassion for those who are badly off, we do not feel compassion for well off people having less than other well off people. hence, rather than pursuing “env y-freeness” through equalizations of bundles of resources, as dworkin (1981) would recommend, we should fight against feelings of env y and accept some inequalities as an integral part of social life. crisp’s argument about env y can of course be objected to. it is not because a judgment (of justice) comes from an inappropriate attitude (env y) that it is wrong9. nevertheless, it provides us with one explanation why one might be indifferent to inequalities above the sufficiency 7 as suggested to me by david a xelsen, they might also think that we cannot know because we are so far from that world and therefore lack epistemic access to intuitions about these kinds of cases. 8 crisp himself may not be morally indifferent towards residual inequalities as he expresses sympathy for utilitarianism above the sufficiency threshold (crisp 2003: 758), and utilitarianism can have redistributive implications. 9 i thank the reviewer who pointed this out. 135 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold threshold: a kind of psychological moderation or wisdom characterized by the absence of env y, which is obviously more plausible if the sufficiency threshold is relatively high. yet some people might also be env y-free for the simple reason that most people in the world are poorer than them. this could be characterized as biased sufficientarianism: although this sufficientarian has more than what is sufficient and would probably still have more in a situation where everyone had enough, s/he affirms that sufficiency is enough for the others. in other words, the indifference towards residual inequalities is explained by the fact that the person gains from these inequalities compared with a more egalitarian distribution. to be sure, no sufficientarian is likely to recognize him/herself in this picture. yet this could be an unconscious bias10. and if we want to build impartial moral judgments, we should certainly distrust principles of justice that suit our self-interest, especially when we are quite well off and unlikely to be victims of strong injustices, as most professional philosophers are11. hence, there is a variety of factors that can explain indifference towards residual inequalities: among others, a particular understanding of the notion of justice and the idea that it should be exclusively based on compassion; a rejection of envious comparisons; or, in some cases, a positional bias. in the next section, i would like to explore a more positive reason why one might be attracted by the principle of sufficiency and disregard residual inequalities: pragmatism. and i will suggest that this could explain shields’ focus on the injustice of insufficiency although he does not completely reject prioritarian and egalitarian views (provided that they include a sufficiency constraint). in other words, the aim of the next section is to provide a charitable interpretation of the reasons one might have to disregard some inequalities. it is an attempt to understand the appeal of sufficientarianism from an egalitarian perspective. 3. the pragmatic appeal of sufficientarianism what i will call here pragmatism about justice consists in endorsing a principle of justice in light of practical considerations such as its urgency, its achievability, or its action-guidingness12. let us examine these three 10 similarly, some luck egalitarians or libertarians might be affected by a selfentitlement bias giving them the impression that they deserve more than others. the risk of bias is not specific to sufficientarianism. 11 certainly, you do not need to have more than enough to defend upper-limit sufficientarianism, but you are less likely to hold this view if you are not above the threshold. 12 this kind of pragmatism differs from the one defended by elizabeth anderson and consisting in starting political philosophy from a diagnosis of the injustices in the real world (see anderson 2010: 3). 136 pierre-étienne vandamme leap 5 (2017) possibilities in turn. first, some might see situations of insufficiency or deprivation as an urgency to be solved13. hence, they might consider it preferable to focus on that than on debates about what an implausible equal society would look like. the pragmatism, here, consists in selecting the focus of one’s theory in light of what is the most politically important or urgent. in shields’ case, given that he does not seem to have a strong preference or a firm view in the debate between equality and priority above the threshold, this consideration of urgency might explain the choice to defend a partial conception of justice and leave the remaining question open. in particular, if it is true that there is this discontinuity in our reasons to benefit people once everyone has enough, as he argues, it becomes even more legitimate to focus on the urgency of insufficiency. this duty appears as more stringent14, and as having priority. second, some might think that their fellow citizens are probably more willing to accept the principle of sufficiency – which is in line with the human right to a decent standard of living – than a more demanding15 and more controversial ideal of equality. or they might think that it would already be something to reach sufficiency for all, that it is already utopian enough. they would thus prefer the principle of sufficiency for its relative political achievability. this kind of pragmatism is often called “non-ideal theory”, or “realism”. it rejects the kind of idealist or utopian theorizing that “does not represent an ideal of political life achievable under even the most favorable circumstances” (galston 2010: 387). ian shapiro, whose view of justice as non-domination is sufficientarian, can be taken as an example of such attitude, as he criticizes many theories of justice for being politically irrelevant (shapiro 2016: 11-12). such reasoning might play a conscious or unconscious role in one’s choice to focus on sufficiency. shields himself recognizes, without developing further, the advantages of sufficientarianism in light of non-ideal theory’s willingness to set “interim goals that can be achieved” (2016: 199). third, one might be led away from luck and outcome egalitarianism because they are not action-guiding enough. several luck egalitarians, for example, insist that levelling down might sometimes be required by justice, 13 see for example nathanson 2005: 373, although he argues that decency is even more urgent than sufficiency and should therefore be the criterion of economic justice. 14 shields actually gives an important role to this notion of stringency in his discussion of global justice (shields 2016: 177; harb and a xelsen 2017). 15 note that although most sufficiency principles are less demanding in terms of redistributions than their egalitarian alternatives, a responsibility insensitive principle of sufficiency (especially with a high threshold) might be very demanding as it would require frequent transfers of resources to the imprudent, for example (see gosseries 2011: 486-487). 137 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold but they press to add that other considerations will militate against levelling down in most cases. in so doing, they can appeal to value pluralism and downplay the importance of justice, which they may consider as an important value among other important values such as community and collective well-being for example (see temkin 2000: 155; cohen 2008: 7; 2011: 231; lippert-rasmussen 2015). yet if they do this, one risk is to lose the action-guiding force of the principle of justice (meijers and vandamme, 2018). in order to know how to act so as to make the world better, we would then need to take into account not only what justice requires, but also other values we care about16. hence, those who want to maintain the policy-guiding role of the concept of justice have pragmatic reasons to reject the principles of luck and outcome equality. the principle of sufficiency becomes more attractive, in this respect, because it does guide action. if a person suffers from deprivation, she must be helped, no matter how this happened and what other values we care about. furthermore, the principle of sufficiency avoids most of the counter-intuitive implications plaguing more egalitarian principles when they are (mistakenly) interpreted as action-guiding principles (see frankfurt 2015).17 shields actually seems to endorse the view that principles of justice should directly guide action, which appears in his affirmation that if a principle “had little significance in terms of policy implications […] then it could not have an extensive role in our thought” (shields 2016: 10-11). this might seem uncontroversial, but it is actually not obvious if one considers g. a. cohen’s distinction between fundamental principles of justice and rules of regulation, the latter only including non-moral considerations such as efficiency, achievability and others in order to directly guide action (cohen 2008). in the latter view, principles of justice do not by themselves have policy implications, but only when they are associated with the relevant facts and additional values. what shields seems to be looking for is a clear rule of regulation, and this pragmatic motivation might partly explain his non-selection of luck or outcome equality as the primary or secondary principle of justice. this would not make these alternative 16 unless there are no other values at stake. but if justice is reduced to comparative fairness, this will not often occur. most of the time, policies with distributive effects also have aggregative (or relational) effects. taxation is probably the best example. you cannot just focus on its distributive dimension. 17 one should nevertheless note that if one is concerned with levelling down, as is the case with frankfurt, the principle of sufficiency may not be the most attractive. many people will agree that sufficiency for all cannot be pursued at any cost. if, for example, bringing a single person to the sufficiency threshold has a huge cost, and for the same price you could bring an incredible amount of people further away from the threshold, many people will consider it counter-intuitive to opt for the former option. hence, the principle of priority might appear more attractive – or leximin egalitarianism, not considered by frankfurt (gosseries 2011: 468). 138 pierre-étienne vandamme leap 5 (2017) principles unjust, but merely inappropriate for shields’ purposes, which is a very different conclusion. hence, there is a variety of pragmatic reasons for focusing on the injustice of insufficiency. these reasons do not by themselves justify moral indifference towards residual inequalities, but they help us understand why one might want to take an agnostic position and leave this issue aside, as shields does. 4. discussion let us take stock. shields argues that there is a discontinuity in our reasons to benefit people once they have enough (1). his rejection of upper-limit sufficientarianism seems to indicate that he is not indifferent towards inequalities above the sufficiency threshold, but adopts an agnostic position (2). his choice to focus exclusively on the injustice of insufficiency, while leaving open the question of residual inequalities could be motivated by pragmatic reasons (3). 1) if the shift thesis is correct (which it is not the aim of this paper to assess18), then the principle of sufficiency should become part of any plausible conception of justice. securing sufficiency for all should be the priority. yet the very idea of a discontinuity in the rate of change of the marginal weight of our reasons to benefit people, as opposed to upper-limit sufficientarianism, entails that sufficiency cannot be enough. shields’ view of justice stands in need of a complement. 2) agnosticism is a perfectly legitimate philosophical stance. it has been part of the philosophical wisdom for centuries to recognize our inability to answer some questions. and if it is pragmatism that leads you to sufficientarianism, you might legitimately want to leave aside the trickiest philosophical questions to focus on urgent injustices. you might also (mistakenly) think that we will never have to practically address the question of residual inequalities, because the battle to achieve sufficiency for all will already take centuries. yet if one enters the philosophical debate about justice, the question is necessarily raised: why not more equality? and in addition to this, a lot of services we benefit from in aff luent societies would be above most sufficiency thresholds and yet raise issues of justice19. hence, the question matters both theoretically and practically. this being said, i agree that it matters less, politically, than defending sufficiency for all. 18 see nielsen 2017 for a more critical view. 19 i thank a xel gosseries for this suggestion. 139 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold however, as long as one remains agnostic about these inequalities, one cannot defend a complete theory of justice; only a partial one, which is also legitimate. a partial theory of justice points towards a specific kind of injustice, without the ambition to provide a full picture of a just society. feminism, for example, can be interpreted as a partial theory of justice, laying the emphasis on the diversity of injustices suffered by women. but most feminist views of justice are (or can be) integrated into a broader framework20, not always explicit, which can be egalitarian, sufficientarian, utilitarian or other. in the same vein, sufficientarianism advocating for the positive thesis but not the negative one is a partial view of justice, laying the emphasis on the injustice of deprivation, or insufficiency21 (and possibly its effects on social relations). what is particularly interesting in shields-like accounts of sufficientarianism is that they open the door to reconciliation between (usually) competing views of justice (see also casal 2007 and gosseries 2011). one could endorse two principles – sufficiency and outcome or luck equality – as a matter of justice, and sufficiency-constrained prioritarianism or leximin as a rule of regulation allowing departures from justice for efficiency reasons. redefined as a partial view of justice, the sufficiency principle will be more difficult to attack and might come to be recognized as an essential component of any attractive complete theory of justice, as shields hopes. nevertheless, shields’ argument will probably not convince those who are morally indifferent to residual inequalities. the reason is that it renounces to argue in favor of sufficientarianism as a complete and distinctive theory of justice, superior to its egalitarian, prioritarian and other competitors. in a sense, what shields does amounts to admitting that there are no good reasons to put forward in favor of the negative thesis, or upper-limit sufficientarianism, or the idea that, once everyone has enough, there are no more requirements of justice. 3) many people include pragmatic considerations in their reasoning about justice, without necessarily realizing or acknowledging it. hence, they might be tempted to deny it and affirm that they have principled reasons to defend the view they are attracted to. choosing a principle of justice for pragmatic reasons raises several questions, already much discussed in the debate about ideal vs non-ideal 20 the contemporary emphasis on intersectionality (crenshaw 1991), or the idea that women are at the intersection of diverse group affiliations and identities, and hence diverse claims of justice, is an attempt to relocate feminism into a broader picture of justice. 21 as shields (2016: 27) argues, “deprivation” might point to an excessively low threshold of sufficiency. 140 pierre-étienne vandamme leap 5 (2017) theory (see among others estlund 2014). hence i shall limit myself here to one comment. being pragmatic is as such not only legitimate but desirable. nevertheless, by including pragmatic considerations in one’s conception of justice, one runs the risk of making discussions about justice more confused22, because justice becomes relative to the author or speaker’s appreciation of what is achievable or useful, for example. as there will likely never be a consensus on what is and what is not achievable or useful, there is no common ground to discuss justice, which is highly problematic both from the viewpoint of a community of scientific research and from the perspective of a democratic community searching for common political principles. hence, before aiming at agreeing on common principles of justice, we should first try to reach agreement on the concept of justice: in this concept, do we include pragmatic considerations or not? and it might prove easier to agree on a principle of justice leaving aside pragmatic considerations. most objections to luck egalitarianism, for example, are practical. if it was not expected to have disincentivizing effects, disrespectful implications or difficulties of implementation, few people would still object to it. in contrast, the appreciation of what is feasible depends a great deal on one’s optimism, knowledge of the relevant facts, or appreciation of human nature. of course, these pragmatic considerations would inevitably reenter the debate at a later stage, but separating the tasks might reduce confusion. cohen’s distinction between fundamental principles of justice and rules of regulation helps avoiding some debates and confusions about the practicality of different theories of justice. from this perspective, defending a fundamental principle of justice does not commit you to all its implications. the principle does not in itself imply anything about how one ought to act all things considered. and justice is not the only thing that matters: you might care about justice and efficiency, and political pragmatism, without mixing all these considerations in an allencompassing principle. accepting such distinctions might make many disagreements between egalitarians, prioritarians and sufficientarians disappear. they could then work together towards establishing appropriate rules of regulation in different contexts. yet the logic of academic research, giving a high premium to apparent originality, or the capacity to distinguish one’s view from the others’, does not foster agreement between competing 22 this risk is probably more important when pragmatic considerations are hidden than when they are explicitly endorsed as in anderson (2010)’s pragmatism or sangiovanni (2008)’s practice-dependence. one important criticism of ideal theorizing is that unless it completely abstracts from facts as cohen’s (2008) does, it runs the risk of hiding pragmatic or context-dependent considerations. i thank david a xelsen for bringing this issue to my attention. 141 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold views of justice. casal and shields have made one step in a good direction by suggesting that sufficiency can be compatible with equality or priority. the next step could be to recognize the complementarity between egalitarian principles and efficiency-concerned principles such as priority or leximin, the former being fitter as fundamental principles of justice, the latter as rules of regulation. bibliography anderson, e., 2010: the imperative of integration, princeton: princeton university press. axelsen, d. and nielsen, l., 2015: “sufficiency as freedom from duress”, the journal of political philosophy 23: 406-426. casal, p., 2007: “why sufficiency is not enough”, ethics 117: 296-326. cohen, g. a., 2008: rescuing justice and equality, cambridge (mass.): harvard university press. cohen, g. a., 2011: on the currency of egalitarian justice, and other essays in political philosophy, princeton: princeton university press. crenshaw, k., 1991: “mapping the margins: intersectionality, identity politics, and violence against women of color”, stanford law review 43: 1241-1299. crisp, r., 2003: “equality, priority, and compassion”, ethics 113: 745 763. dworkin, r., 1981: “what is equality? part 2: equality of resources”, philosophy & public affairs 10: 283-345. estlund, d., 2014: “utopophobia”, philosophy & public affairs 42: 113-134. frankfurt, h., 2015: on inequality, princeton: princeton university press. galston, w., 2010: “realism in political theory”, european journal of political theory 9: 385-411. gosseries, a., 2011: “qu’est-ce que le suffisantisme ?”, philosophiques 38 : 465-491. harb, s. and axelsen, d. 2018: “getting to a just enough world”, law, ethics and philosophy 5. lippert-rasmussen, k., 2015: luck egalitarianism, london: bloomsbury. meijers, t. and vandamme, p.-e., 2018: “equality, value pluralism and relevance: is luck egalitarianism in one way good but not all things considered?”, critical review of social and political philosophy. https://doi.org/10.1080/1369 8230.2018.1438804 nathanson, s., 2005: “equality, sufficiency, decency: three criteria of economic justice”, journal of philosophical research 30: 367-377. nielsen, l. 2017: “shielding sufficientarianism from shields’ shift”, law, ethics and philosophy 5. sangiovanni, a., 2008: “justice and the priority of politics to morality”, the journal of political philosophy 16: 137-164. shapiro, i., 2016: politics against domination, harvard: harvard university press. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. temkin, l., 2000: “equality, priority, and the levelling down objection”, in the ideal of equality, eds m. clayton and a. williams, macmillan: 126-161. temkin, l., 2017: “equality as comparative fairness”, journal of applied philosophy 34: 43-60. https://doi.org/10.1080/13698230.2018.1438804 https://doi.org/10.1080/13698230.2018.1438804 leap 5 (2017) freeing up time robe rt e . g oodi n australian national university abstract increasing people's control over how they spend their time is a worthy ambition. but there is only so much we will be able to do in that regard. it is important to conceptualize discretionary time in a measurable way in order to appreciate both the potential and the limits of standard policies designed to do that. keywords: discretionary time; free time; temporal autonomy 1. putting things into perspective it is sometimes said that time is the most equally distributed resource in the world. everyone, every where has exactly 24 hours in their day – no more, no less. but that is a cruel joke in all sorts of ways. perhaps the most important is this. some people live longer than others. while everyone has only the same 24 hours in the day for as long as they live, some people have many more cumulative hours in their lifetimes. and given what we now know about the “social determinants of health”, there is clearly something we can do about that, even apart from finding miracle cures for nasty diseases (wilkinson and marmot 2003; who 2008; wilkinson and pickett 2009). equalizing people's other resources would clearly help equalize their hours, from a whole-life perspective. here is another way that the equality of clock-time is a cruel joke. some people own other people’s time (in relations of slavery) or rent it (via the employment relationship). slave owners and employers gain, and slaves and employees lose, control over time. slavery has been every where (officially) abolished. but until we overcome the necessity for the vast majority of people to rent their time to employers simply in order to survive, there will be gross inequality in the amount of time over which different people have control.1 universal basic income, paid at a rate that would 1 in pre-industrial societies (thompson 1967), and in post-productivist ones (goodin 2001), people have more control over their time. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 4 38 robert e. goodin leap 5 (2017) make abstaining from paid employment a viable option, would solve that problem – but while important experiments with that are underway, full implementation of that on a scale anything like adequate to that task is a long way off (widerquist et al. 2013; van parijs and vanderborght 2017).2 a third way the seeming equality of clock-time is a cruel joke has to do with differential access to technology. from a time-use perspective, the greatest boon to women’s lives was arguably the introduction of the electric washing machine (gershuny and robinson 1988; gershuny 2000: 67). technological innovations allow us to accomplish the same tasks in less time. those with access to those technologies are temporally advantaged; those without it are temporally handicapped. that is another source of temporal inequalities, whatever the apparent equality of clock-time might suggest. finally, there are the temporal inequalities that arise from people’s own life choices. those choices are not, in the first instance any way, choices about how to use their time – they are instead choices about other things that have temporal implications (appreciated or not, at the time of making the choice). in discretionary time my coauthors and i (semi)jokingly concluded that, “to maximize temporal autonomy and discretionary time, people should: • marry but never have children; • if they do have children, never divorce; and • maybe consider moving to sweden” (goodin et al. 2008: 263). of those three, the first two are much the most important. caring for children is hugely time-consuming, particularly as a lone parent. no one who wishes the species to persist (or even just their pension to be paid) would wish people not to have children. but gross temporal inequalities arise between people who do and do not (or cannot) procreate, and the capacity of public policy to mitigate those disparities is strictly limited. those are hard facts about temporal autonomy and inequality, against which this discussion must be set. if you really want to be a temporal egalitarian, or if you really want to maximize people's control over the way they use their time, there are many more important things to be talking about than conventionally cluster under the heading of “time use” or “work-life balance” policies. the focus of discussion here will inevitably be on what contributions 2 of course basic income in any amount would reduce, if not eliminate, the time people have to spend in paid labor to meet their basic needs – and more so for those on low wage rates who would otherwise have to work longer hours to earn the same amount. freeing up time 39 leap 5 (2017) of a more limited sort public policy might make to people's discretionary control over the way they use their time, and the benefits they derive from so doing (the “swedish” point, above). but let us go into that discussion with our eyes wide open to the strictly limited scope of that discussion. were we serious about temporal autonomy and its equality, and had we power to change the world in more radical ways, there would be other far more important priorities. 2. what temporal autonomy is not julie rose (2016) is right to focus her book on “free time”. strictly speaking, that is a misnomer in terms of the standard time-use coding conventions.3 but it is nonetheless clear what rose (2016: 4) wants, which is that we be guaranteed “hours for what we will”. that is “discretionary time” in our book of that title (goodin et al. 2008). it is the time over which one has discretionary control, the time that is left over after discharging all of life’s necessities in various dimensions. that is the time over which one enjoys “temporal autonomy”.4 there are two important things to notice about discretionary time, right from the start. the first is that people will often choose to spend some (yea, much) of it doing more-than-is-strictly-necessary in those very same dimensions. if the poverty line defines a minimum necessary income, then the time it takes you to earn a poverty-level income at your wage rate is your “necessary time in paid labor”. but, quite reasonably, most of us are not content with a poverty level income, and we spend much more time in paid labor than strictly required just to earn just a poverty-level income. ditto cooking and cleaning and caring for the kids. it is perfectly reasonable (indeed, wholly laudatory) that people should spend more of their time in each of those activities, too, than is minimally necessary. the point is merely that, when people spend more time in those activities than strictly is necessary, that should be seen as a choice of how to allocate their discretionary time. it would be a huge mistake to think that people are 3 in standard time-use terminolog y, “free time” is time not actually spent in necessary activities of life (paid labor, unpaid household labor, personal care) (un 2005: 193). but however “necessary” the activities (sleeping, etc.) may themselves be, people can – and typically do (more on which below) – spend far more time than strictly necessary engaged in them. hence what time-use researchers conventionally call “free time” might better be dubbed “spare time” (goodin et al. 2008: 51-2; rose 2016: 59). “leisure time” is time spent in specific leisure activities (sport, watching television, or whatever). not all free (spare) time is spent in any of those specific leisure activities. 4 although, as i shall go on to argue, “temporal autonomy” involves other considerations as well, including those of when you do what, and how much control you have over how you discharge those tasks. 40 robert e. goodin leap 5 (2017) enjoying discretionary time only when they are engaging in what would conventionally be called “leisure activities” (playing sports, or going to the cinema, or whatever). the second crucial thing to note is that “free” or “discretionary time” speaks to the value of “temporal autonomy”. that is not conceptually distinct from the “equality of temporal autonomy”.5 whether or not what maximizes temporal autonomy also equalizes it across society as a whole is purely an empirical question. as it happens, it seems that households that practice temporally inegalitarian divisions of labor also have (across the household taken as a whole) less discretionary time as well.6 but that is purely a contingent matter, an empirical truth rather than an analytic one. 3. empirics matter rose eschews empirical measures of discretionary time. indeed, her philosophically preferred conceptualization of “free time” in terms of how much time it takes each individual to meet “basic needs” in his or her own very particular circumstances would almost certainly defy any attempt at systematic empirical operationalization (2016: 55-7). rose (2016: 57) concedes as much when weakening her recommendation as i shall discuss shortly. in discretionary time, we employ a “social benchmark” operationalization modelled on the standard conceptualization of the poverty line (goodin et al. 2008: 34-53). as such, ours is a socially relative measure. rose (2016: 55) complains that that fact renders it “potentially responsive to spurious social factors” – “individuals ... might, due to competitive pressures or other social norms, spend either more time or less time than is objectively necessary” in any given activity. true, but the standard measure of "poverty" (as having less than half the median equivalent income among people in your country [atkinson 1998]) is relative in just the same way and for good reason (townsend 1979). rose (2016: 55) further complains that our measure takes no account of the extra time disabled people may need to perform the same tasks as others. but neither, of 5 w hile rose (2016: 128-34) officially leaves the choice of distributive rule open, when she calls for everyone to have a “fair share of free time” it is clear that that would be a more egalitarian distribution than at present. here and in what follows, you can substitute for “egalitarian” any of those other distributive rules that rose envisages and the same basic point would remain. 6 across the eight countries studied in goodin et al. (2008: 229), an “equal temporal contribution” division of household labor gives a household an hour or two more discretionary time on average than inegalitarian “male breadwinner” or “most-efficient breadwinner” divisions of household labor. freeing up time 41 leap 5 (2017) course, do conventional poverty measures take any account of the extra money that disabled people need to perform the same tasks as others. so we are in good company, and i shall go on to argue for good reason. conceding the empirical inscrutability of her philosophically preferred conceptualization of free time, rose (2016: 57) proposes for the purposes of a public standard of justice a measure of free time that is only “moderately tailored to relevant individual circumstances”7 by that she means it should take into account, not how much time it would take any particular actual individual to perform a necessary task, but rather how long “is objectively necessary for individuals in a set of relevant circumstances”, such as a particular class of disability. given a suitable data set, a “social benchmark” akin to ours in discretionary time could indeed be constructed for people with each specific class of disability. however, notice that that measure itself would elide individual differences among persons within the same broad disability class, in just the same way (merely to a lesser extent) that rose complains about in our original measure of discretionary time. furthermore, that added granularity would come at a cost. public policy inevitably, and from a rule-of-law perspective rightly, operates through a system of rules that are general in form (goodin 1995: ch. 1). for policy purposes, special needs such as those of the disabled are better seen as “exceptional circumstances” to be addressed separately, perhaps sometimes even on a purely case-by-case basis. likewise when compiling social statistics to inform policy, it is better to employ whatever indicators best ref lect the situation of the general population as a whole. that is what should inform general policy. it would be quite wrong to let general social policy, or social statistics either, be unduly driven by the need to accommodate the very special circumstances of some small and very special (however sympathetic) subgroups of the population. the advantage of using the “social benchmark” standard that we developed in discretionary time is that it allows us to calibrate relative effects of different social circumstances and policy interventions on people's temporal autonomy. using that measure, it becomes clear just how great are the temporal inequalities between single parents and others – and just how great those are likely to remain even with swedish-quality support and workplace accommodation. here is the crucial calculation. in the us, people in childless dualearner households have around 94 hours per week of discretionary time, 7 as rose (2016: 46-7; cf. 87) acknowledges, in order for it to play a role in a public theory of justice, we need a concept of free time such "that it is possible to reliably and verifiably know whether an individual possesses" a given amount of it or not. 42 robert e. goodin leap 5 (2017) compared to 51 hours of discretionary time for us single parents. in sweden, the figure is 95 hours per week for childless dual-earners but 70 hours a week for single parents (goodin et al. 2008: 64). clearly, single parents have massively more temporal autonomy in sweden than in the us. equally clearly, they are still massively worse off than childless dualearners, even in sweden. that is simply to say that there is only so much that even the very best social policy interventions can do in this realm. 4. reducing versus redistributing time in necessary tasks as my earlier allusion to the electric washing machine indicates, technological innovations can sometimes reduce the total number of hours that anyone has to spend in necessary tasks of life.8 an electric washing machine yields equally clean clothes with far fewer temporal inputs. telecommuting – working from home via the internet – cuts out time that would otherwise be required to travel to work. and so on. just occasionally, time-use policies designed to improve the work-life balance work in similar fashion. much more commonly, they simply redistribute the necessary tasks. child care is a prime example. social policymakers reduce (in some places much more than in others) the time pressure on parents through a suite of taxes-and-transfers and child care subsidies, in effect “buying them out” of necessary time in child care (goodin et al. 2008: 177-96). but these policies do little to reduce society's total amount of time spent on child care 9 the kids still have to be taken care of by someone. what these policies primarily do is redistribute child care time from one person (the parent) to another (the employed child carer), in the process transforming the one's “necessary time in unpaid household labor” into someone else's "time in paid labor". make no mistake: that may be a very good thing in all sorts of ways. assuming the parents are glad for the extra time and the child carer is glad for the extra money, it can be a mutually beneficial trade much to be welcomed – at least if the child carer gets paid a decent, non-exploitative wage. socially, too, there may be something to be said for sharing around responsibility for the care of society's children. but let us see it clearly for what it principally is: essentially a redistribution 8 rose (2016: 128) alludes, in similar spirit, to variability in “how much time a society [as a whole] must devote” to necessary tasks. 9 except insofar as they increase multi-tasking, with childcare workers minding more children at the same time. freeing up time 43 leap 5 (2017) rather than a genuine reduction of temporal burdens across the society as a whole.10 statisticians quip that if all married men divorced their wives and hired them back as housekeepers the national income would double (clark 1958). let us not fall for a similar sleight of hand, here, mistaking a change in coding categories for a real overall reduction. 5. time shifting and harmonization much the same can be said about rose's (2016: 112-26) proffered “workplace accommodation” policies for easing the temporal burdens on parents. insofar as that merely amounts to letting parents attend to child-related duties during working hours, and making up that lost time to their employers at some other time, parents would experience no net gain in free time as a result. they would gain more discretionary control over when they do what they have to do – and of course that is a genuinely important dimension of temporal autonomy in its own right. but that is not to be confused with giving parents their “fair share of free time”, as rose often puts it. time-shifting leaves the sum-total of one's temporal commitments completely unchanged. discretionary control over when to do what one has to do is important in all sorts of ways. it is the difference between working on a production line and “being one's own boss”. it is the difference between working to a “roster” and being perpetually “on call”. it is crucial for being reliably able to coordinate time to share with partners and friends. flexitime works fine for that, when you are just trying to coordinate with one or a few others. it works less well when there are many others with whom you are trying to coordinate, particularly for different purposes. rose (2016: 99-101) advocates sunday closing legislation on the grounds that they are a means of orchestrating “shared free time” across the entire society. rose describes a common period of free time across the entire society as being necessary to ensure “freedom of association”. associations are affinity groups. rose (2016: 101) mentions, as examples, associations among people united in a political cause, a religious practice, a family or a social network. here, we are talking about people getting together with 10 note that with paid child care of any form, someone has to spend time in paid labor to pay for it as well as someone paid for the purpose having to spend time taking care of the children. (funding child care through progressive taxes minimizes the former factor but hardly eliminates it.) the sum of those two factors will almost certainly exceed the time that would have been necessary if the children were cared for through unpaid household labor. 44 robert e. goodin leap 5 (2017) others with whom they antecedently know they have something in common. even more important might be the way in which a period of common free time might facilitate people unintentionally bumping into others with whom they have no prior acquaintance and nothing knowingly in common. extreme social segmentation, combined with the hyperpolarization that it breeds, is bad for a society. there is surely a strong case to be made for “random sorting”, and for a common period of free time across the entire society to facilitate that – just as in earlier periods there was a case to be made for public parks as places that people otherwise segregated by class and ever so many other dimensions of social difference could brush up against one another and, with luck, come to see one another as fellows (sunstein 2001: 23-50). as that example suggests, however, a period of common free time is not enough to ensure social mixing – common public spaces are required as well. 6. autonomy in (and not just over) time use if we care about people's autonomous control over their time, then we should (as i have said) care about their autonomous control over when they do what they have to do, as well as over how much time they spend doing it. a concern with people's autonomous control over their time should also lead us to care about how much control they have over what they are doing, whether they are engaging in that activity out of choice or necessity. that is true across the range of possible uses of their time. people need to spend a certain amount of time (and typically choose to spend still more) cooking and grooming and raising their kids. autonomy is served by their having a choice whether or not to spend extra time in those ways. but autonomy is also served by their having more than just one choice (or any small number of choices) in what to cook, how to groom and how to raise their kids. that is one of the standard things said in praise of liberal societies in general. something analogous is importantly true as regards time spent in paid labor. across the eight countries we studied, people of prime working age spend on average around 38 hours in paid labor, around half of that out of choice and half out of necessity (goodin et al. 2008: 88). if we care about people's autonomy, we should surely care not merely about their autonomy in choosing whether, when and how long to work – important though those choices obviously are. we should also care about the degree of autonomy that people are able to exercise in doing the work that they do (muirhead 2004). opportunities to exercise autonomous choice within the workplace freeing up time 45 leap 5 (2017) are as important as opportunities to exercise autonomy in how much time to spend at work. 7. welfare is something else yet again finally, recall that autonomy is one thing, welfare another. the two may be contingently connected. indeed, they typically are. having a choice enables you to get what you want, making you (subjectively, any way) better off in consequence. however strongly that contingent connection, however, autonomy and welfare are nowise identical. time and discretionary control over it is a resource. however, how much “good” one derives from that resource depends on how one uses that resource. poverty researchers say the same thing about money: a miser with a lot of money in the bank is resource-rich, even if (because he refuses to spend any of it) he is welfare-poor (ringen 1988). ensuring that people have adequate (or equal) resources – whether of free time or other sorts – can be a socially important goal in and of itself. it enhances their autonomy. it equalizes their opportunities. but we should not fool ourselves into thinking that ensuring adequate or even equal temporal autonomy to everyone will necessarily lead to equality of welfare, to equality in the quality of their lives. bibliography atkinson, a.b., 1998: poverty in europe, oxford: blackwell. clark, c., 1958: “the economics of housework”, bulletin of the oxford institute of statistics 20: 205-11. gershuny, j., 2000: changing times, oxford: oxford university press. gershuny, j. and j.p. robinson, 1988: “historical changes in the household division of labor”, demography, 25: 537-52. goodin, r.e., 1995: utilitarianism as a public philosophy, cambridge: cambridge university press. — 2001: “work and welfare: toward a post-productivist welfare state”, british journal of political science 31: 13-40. goodin, r.e., j.m. rice, a. parpo and l. eriksson, 2008: discretionary time: a new measure of freedom, cambridge: cambridge university press. muirhead, r., 2004: just work, cambridge: harvard university press. ringen, s., 1988: “direct and indirect measures of poverty”, journal of social policy 17: 351-65. rose, j.l. 2016: free time, princeton: princeton university press. sunstein, c., 2001: republic.com, princeton: princeton university press. 46 robert e. goodin leap 5 (2017) thompson, e.p., 1967: “time, work discipline and industrial capitalism”, past & present 38: 56-97. townsend, p., 1979: poverty in the united kingdom, harmondsworth: penguin. united nations (un), department of economic and social affairs, statistics division, 2005: guide to producing statistics on time use, new york: united nations. van parijs, p. and y. vanderborght, 2017: basic income, cambridge: harvard university press. widerquist, k., j.a. noguera, y. vanderborght and j. de wispelaere, eds, 2013: basic income, malden: wiley blackwell. wilkinson, r. and m. marmot, eds, 2003: social determinants of health: the solid facts, 2nd edition, copenhagen: who. wilkinson, r.g. and k. pickett, 2009: the spirit level: why more equal societies almost always do better, harmondsworth: penguin. world health organisation (who), 2008: closing the gap in a generation: health equity through action on the social determinants of health, final report of the commission on social determinants of health, geneva: who. 32 issn 2341-1465 leap 2 (2014 ): 32-57 firms, states, and democracy: a qualified defense of the parallel case argument* íñigo gonzález-ricoy universitat de barcelona abstract the paper discusses the structure, applications, and plausibility of the muchused parallel-case argument for workplace democracy. the argument rests on an analogy between firms and states according to which the justification of democracy in the state implies its justification in the workplace. the contribution of the paper is threefold. first, the argument is illustrated by applying it to two usual objections to workplace democracy, namely, that employees lack the expertise required to run a firm and that only capital suppliers should have a say over the governance of the firm. second, the structure of the argument is unfolded. third, two salient similarities between firms and states regarding their internal and external effects and the standing of their members are addressed in order to asses the potential and limits of the argument, as well as three relevant differences regarding the voluntariness of their membership, the narrowness of their goals, and the stiffness of the competition they face. after considering these similarities and differences, the paper contends that the the parallel-case argument provides a sound reason in favor of democracy in the workplace —a reason, however, that needs to be importantly qualified and that is only pro tanto. keywords: firms, states, parallel-case argument, workplace democracy. * previous versions of the paper were presented at icade and at the chaire hoover d’éthique économique et sociale at the université de louvain. i am grateful to these audiences, and to audiences in barcelona, london, madrid and princeton, for the central concern of the paper was persistently raised by them. for comments, i am also grateful to borja barragué, jahel queralt, two anonymous referees for this journal and especially to andrew williams. the usual disclaimer applies. funding was provided by the arc project 09/14-018 on ‘sustainability’ (french speaking community of belgium) and the catalan agency for management of university and research grants. firms, states, and democracy 33 leap 2 (2014) 1. introduction over the last decades democracy has rapidly expanded worldwide. while in 1946 only 20 out of 71 independent states were democratic, the number increased to 48 in 1989, to 77 in 1994, and to 92 in 2009 (marshall and cole 2009: 10-11). the expansion of democracy in the state, however, has not gone hand-in-hand with a parallel expansion of democracy in other realms, such as the workplace. 1 rather the contrary. the number of cooperatives may have decreased over the last decades. 2 and attempts to extend the german system of co-determination have either been blocked —as in the case of the fifth directive drafted by the european community in the 1970s— or failed altogether —as in the case of the bullock report in the uk (gold 2005; 2010). further, once a battle cry among workers and a central research topic in industrial relations, labor economics, and political philosophy (christie 1984: 112-128), since the 1980s workplace democracy has attracted a declining interest among scholars, political parties, and workers alike. yet, the recent resilience of co-operatives to the great recession has strengthened their presence in the world economy, and has aroused the interest in this and other forms of workplace democracy once again (birchall and ketilson 2009; lansbury 2009; birchall 2013). some recent philosophical work on economic and workplace democracy has also contributed to the debate (hsieh 2008; schaff 2012; perry 2014; anderson, forthcoming; landemore and ferreras, unpublished; see also the essays in gosseries and ponthiere 2008; and o’neill and williamson 2012: part ii). among those who have championed the idea, some have called into question the consistency between the widespread commitment to democracy in the state and the skepticism with which its extension to the workplace is nowadays received. indeed, it has been argued that firms’ decisions influence workers’ lives as much as governments’ decisions; that managers have as much power over workers as public officials have over citizens; or that large companies influence the society as much as the state does. 3 from this point of view, nondemocratic firms have sometimes been depicted as autocratic institutions within which the economy is centrally planned, freedom of movement and speech is heavily constrained, and failure to obey can result in instant exile. 4 1. democracy is minimally defined throughout the paper as a form of collective decisionmaking that gives a binding say to all the affected and/or subjected individuals on a roughly equal basis. 2. for some evidence in the us farming context, see united states department of agriculture (2004). 3. for references, see section 4, in which these arguments are discussed. 4. noam chomsky (1998: 19) has expressed this view as follows: “what kind of freedom is there inside a corporation? they’re totalitarian institutions —you take orders from above and maybe give them to people below you. there’s about as much freedom as under stalinism”. 34 íñigo gonzález-ricoy leap 2 (2014) however, there may be good reasons against democracy in the workplace that do not apply to the state, and the converse may also be true. indeed, it has been often claimed that firms and states are too different for the analogy between them to work. for example, it has been argued that firms are voluntary associations while states are not, that firms are for-profit while states are not, and that firms are meritocratic while states are not. 5 the goal of this paper is to analyze the structure, applications, and limits of the analogy between states and firms that is often used to argue for workplace democracy, i.e. what joshua cohen (1989) has labeled as the parallel-case argument for workplace democracy. 6 according to this argument, firms and states have a number of similarities that make any argument against workplace democracy plausible either in both realms or in neither realm. in this paper i will advance a qualified defense of the parallel-case argument. as i shall argue, firms and states are analogous regarding two salient features (their internal effects and the exercise of power within them). in addition, i will address a number of potential differences between them (regarding the voluntariness of their membership, the narrowness of their goals, and the toughness of the competition they face) that may block the analogy on which the argument is based. i will contend that, while relevant, these differences are often overdrawn, for they are of degree, not of kind. i will conclude that the parallel-case argument provides a sound, yet qualified and non-decisive, basis in favor of workplace democracy. the paper is divided into five further sections. section 2 briefly defines workplace democracy and illustrates the parallel-case argument by applying it to two common arguments against workplace democracy. section 3 unfolds the structure of the argument. section 4 discusses two salient analogies, while section 5 tackles three potential differences between firms and states. a conclusion closes the paper. 2. the parallel-case argument at work this section has two goals. it firstly introduces the definition of workplace democracy that will be used throughout the paper. it then illustrates the parallel-case argument by applying it to two influential arguments against workplace democracy. (those who are familiar with these issues may want to directly turn to section 3). workplace democracy is defined as follows: 5. for references, see section 5, in which these arguments are discussed. 6. the argument has been most recently employed by schaff (2012), and assessed by landemore and ferreras (unpublished). the classice references defending it are walzer (1983) and dahl (1985). for a detailed critique, see lópez-guerra (2008). firms, states, and democracy 35 leap 2 (2014) workplace democracy: a form of managerial organization in which workers have control rights over the management of the firm. workplace democracy has developed into many different forms since its nineteenth-century origins, including robert owen’s cooperative experiments, the israeli kibbutzim, the german co-determination system, and the us employee stock ownership plans (dow 2003; hansmann 2000; wilkinson et al., 2010: part iii). the above definition is, thus, a fairly minimal and inclusive one. even though it rules out forms of participation that are limited to employee information, communication, and/or consultation, it leaves open a large number of issues regarding the goals, procedures, and boundary conditions of workplace democracy. it also leaves open the relationship between ownership and control rights. hence, under this definition workers are not required to have a share in the ownership of the firm in order to be granted control rights. they may be granted control rights either qua owners or qua workers. the best-known instance of the first alternative is co-operativism, in which workers —and only workers— have equal control rights and supply capital, e.g. via debt contracting or by drawing upon their own savings. 7 co-determination, on the other hand, provides the closest instance of the second alternative, in which workers are granted control rights without making any equity investment in the firm. 8 many arguments have been advanced in favor of these and other forms of workplace democracy. 9 unlike other arguments, the appeal of the parallel-case argument is that, by tracing a tight analogy between firms and states, it moves the debate on the desirability of workplace democracy to the political realm, in which the desirability of democracy is taken for granted. in addition, since some of the arguments that are used nowadays against workplace democracy are very similar to arguments that were once used against democracy in the state yet are now seen as unacceptable and anachronistic, the parallel-case argument suggests that we may be using such arguments uncritically. 7. however, as elster (1989) recalls, only rarely we find cooperatives so-defined, for nonworking owners, non-owning workers, and unequal distribution of shares are common. 8. the best-known case of co-determination is the german system (dow 2003: chapter 4; fitzroy and kraft 2005). in force since 1976, it makes compulsory for all limited liability firms with over 2,000 workers to have a supervisory board with ample powers (e.g. the approval of the annual budget or the ratification of important investments) in which both shareholders and workers are represented on a “near-parity” basis (because exclusively the shareholders elect the chairman of the board, who has a tie-breaking vote). for a theoretical model of codetermination with a more equal distribution of control rights among shareholders and employees, see ferreras 2012. 9. for overviews of recent normative debates, see dow 2003: chapter 2; hsieh 2008, and gonzález-ricoy 2010. 36 íñigo gonzález-ricoy leap 2 (2014) in order to illustrate this, let us assume for a moment that the argument is sound, and briefly apply it to two usual arguments against workplace democracy, namely, that employees often lack the expertise required to run a firm (call it the epistemic argument) and that only shareholders should have control rights for they are the only suppliers of capital (call it the argument from capital supply). ( just to be clear, in this section i will not assess the merits of the parallel-case argument, something that will only be done in the next section. i only show how the argument could be used if it were sound.) 2.1. the epistemic argument firms are complex institutions that operate in constantly changing economic environments. their management involves decisions about investment policies, production engineering, contracting, compensation, and budgetary planning, among many other technical and complex issues. why, then, should workers be granted a say in their governance when they often lack the expertise required to make informed decisions about such issues? as an executive commented, “what? and let the monkeys run the zoo!” (quoted in christie 1984: 115). according to the epistemic argument, (a1) complex institutions should not be governed by those who lack the expertise to govern them sufficiently well (i.e. to at least some specific level of competency). (a2) firms are complex institutions and workers lack the expertise to govern them sufficiently well. therefore, (a3) firms should not be governed by their workers. however, consistently extended, (a1) allows for an analogous criticism of democracy in the state. put simply, (a4) states are also complex institutions and not all citizens have the political expertise required to govern them sufficiently well. therefore, (a5) states should not be governed by all their citizens. as we shall see below in section 3, it is possible to resist (a5) by claiming that (a1) applies differently to firms and states due to certain relevant differences between them. for example, efficiency may be crucial in the firm yet not in the state and, accordingly, expertise may be crucial in governing the firm yet firms, states, and democracy 37 leap 2 (2014) not in governing the state. since the goal of this subsection is just to illustrate how the parallel-case argument could be employed if it were sound, let us assume that (a1) applies equally to both domains. two possible reactions follow to (a5). on the one hand, it is possible to accept (a1)-(a5). this was common until not so long ago. for instance, in defending the restoration of suffrage restrictions in france right after the thermidorian coup of 1794, boissy d’anglas (1795) famously stated that “we must be governed by the best, and the best are the more educated”. jason brennan (2011) has recently argued similarly. however, on the other hand, it is possible to deny that it is permissible to disenfranchise some group of voters regardless of how competently they cast their vote, thus rejecting (a5), which most of us would nowadays do. now, from the latter option it follows that, if (a2) is true, then (a6) (a1) should be rejected, i.e. expertise should not be a necessary condition for the governance of complex institutions. it may be further replied that (a1)-(a5) is too radical an argument, for some degree of insulation of expertise from democratic control may not be at odds with political equality, as the insulation of central banks and constitutional courts from parliamentary decision-making in most democracies proves. this is surely a controversial argument, since it might be argued that the insulation of expertise from democratic control does pose a constraint on political equality, even though such constraint may be justified for reasons other than political equality. however, for present purposes, it is irrelevant whether the argument is sound or not. for, even if it were, it would also apply to firms, given that certain tasks can also be insulated from workers’ control in democratic firms. jeffrey moriarty (2007: 344) has made the following claim along those lines: “it would be just as unwise to allow employees to elect their firm’s chief financial officer as it would be to allow citizens to elect their country’s chairman of the federal reserve board”. the parallel-case argument does not imply that democratic firms ought to include this sort of insulation. it only shows that the scope and limits of democracy and the precise mechanisms of accountability that are to be used are as up for grabs in democratic firms as they are in democratic states. as walzer (1983: 302) points out, “in a developed economy, as in a developed polity, different decisions are made by different groups of people at different levels of society. the division of power in both cases is only in part a matter of principle; it is also a matter of circumstance and convenience”. 38 íñigo gonzález-ricoy leap 2 (2014) 2.2. the argument from capital supply the parallel-case argument can be similarly applied to the argument against workplace democracy from capital supply, according to which workers should not be granted control rights over the governance of the firm because they supply labor but not capital. workers can always choose to work for democratic firms, take over their own firm in case it goes bankrupt, or try to get a majority of its voting shares. as nozick (1974: 250) put it, “persons may form their own democratically-run cooperative firms. it is open to any wealthy radical or group of workers to buy an existing factory or establish a new one, and to institute their favorite microindustrial scheme; for example, worker-controlled, democratically-run firms”. in capitalist firms, however, shareholders supply capital. accordingly, only they should govern the firm. in short, according to the argument from capital supply, (b1) only those who supply capital should govern the firm. (b2) workers supply labor but not capital to the firm. therefore, (b3) workers should not govern the firm. before turning to the parallel-case argument against (b3), the following caveat is required. even if we accepted that only shareholders should have control rights over the governance of the firm, it might be argued that workplace democracy need not trump such rights, for it need not be compulsory. true, some (for example, cohen 1989) have argued for an inalienable right to workplace democracy. yet it might be argued that workplace democracy can be implemented gradually and voluntarily, by means of providing legal advice, tax benefits, or direct subsidies to democratic firms, rather than, say, through expropriation or prohibition of non-democratic ones (see bowles and gintis 1996: 66). now, even when workplace democracy is not compulsory, a rationale is still required to justify why the state should promote democratic firms at the expense of non-democratic ones. to be sure, there is a notable difference between using state coercion to ban non-democratic firms, on the one hand, and using its public resources to promote democratic firms at the expense of non-democratic ones. however, in both cases public means are used to benefit one managerial option at the expense of the other. hence, the argument from capital supply still poses a potential threat to the justification of a non-mandatory-yet-publiclypromoted workplace democracy. 10 10. i am grateful to joseph mazor for pressing me to clarify this. firms, states, and democracy 39 leap 2 (2014) let us now go back to premise (b1), according to which supply of capital implies exclusive control rights over the governance of the firm. as in the case of (a1), consistently extended, (b1) leads to a similar criticism in the political realm. the following one: (b4) not all citizens contribute equally to the revenue of the state, if at all. therefore, (b5) not all citizens should govern the state. again, assume that firms and states are similarly enough for (b1) to apply to both realms. if so, we are again faced with two options. on the one hand, we can accept (b5). this has been a usual way to argue for property and tax qualifications for voting throughout history. john jay’s “favorite maxim”, according to which “those who own the country ought to govern it”, largely expressed what was common sense until nineteenth —and twentieth— century extensions of the franchise ( jay, 1833: 70). few would accept (b5) nowadays though. now, if we reject (b5), then it follows that (b6) premise (b2) should also be rejected, i.e. supply of capital should not be a necessary condition to govern the firm. 3. the structure of the parallel-case argument as we have just seen, by tracing a close analogy between firms and states, the parallel-case argument pushes the debate on the desirability of democracy in the workplace to the political realm, in which democracy is the default normative position. further, since some of the arguments that are used nowadays against democracy in the workplace, such as the epistemic argument and the argument from capital supply, closely resemble arguments that were once used against democracy in the state yet few would accept nowadays, the argument suggests that we may be using such arguments uncritically. in this section i unfold the structure of the argument. robert dahl (1985: 111) provides the best-known account of the parallelcase argument, according to which “if democracy is justified in governing the state, then it must also be justified in governing economic enterprises; and to say that it is not justified in governing economic enterprises is to imply 40 íñigo gonzález-ricoy leap 2 (2014) that it is not justified in governing the state”. of course, the second sentence is redundant. it is just a different yet logically equivalent way to express the material conditional stated in the previous sentence, namely, that parallel-case argument: if democracy is justified in governing the state, then it is justified in governing economic enterprises. further, even though dahl formulates it in merely conditional terms, his discussion of the pca favors a biconditional conclusion. as lópez-guerra (2008: 15) points out, it would be certainly awkward if dahl agreed that democracy could be justified in the workplace yet not in the state, as mere conditionality implies. even though the previous definition of the argument is enough for the goals of this paper, the following modified version of it follows: strong parallel-case argument: democracy is justified in governing the state if and only if it is justified in governing economic enterprises. what links the antecedent and the consequent is that economic enterprises and states are taken to be analogous in some morally relevant sense. the parallel-case argument is thus an analogical argument. it refers to some similarities between two objects or systems of objects —namely, firms and states— in support of the conclusion that some further similarity exists (see bartha 2010: chapter 1). it unfolds as follows: (c1) economic enterprises are similar to the state regarding certain features. (c2) such features are individually sufficient to justify democracy in governing the state. therefore, (c3) such features are individually sufficient to justify democracy in governing economic enterprises. for this version of the argument to avoid being invalid, at least one further condition needs to obtain. in addition to their similarity regarding certain features that are sufficient to justify democracy in the state, firms and states ought to be similar regarding the absence of a number of aspects that may block the justification of democracy in either realm. for example, it may be the case that being subject to certain form of power by public officials is sufficient to justify democracy in the state, and that managers exercise the same sort of power in the firm. however, it may also be the case that democracy is inappropriate to govern firms because of the stiff competition they face in the market, while it is not to govern the state because states firms, states, and democracy 41 leap 2 (2014) do not face such competition in the international sphere, and that this difference is sufficiently strong to override the similarity regarding the sort of power exercised in both spheres. in the next section i will consider two potentially relevant similarities between firms and states —regarding their effects and regarding the standing of their members. in the next one, i will turn to three potentially defeating differences between states and economic enterprises. before turning to these similarities and differences, a caveat is nonetheless in order. 11 the plausibility of the conclusions drawn from the argument depends on the moral relevance of the similarities and differences under consideration for the justification of democracy in either realm. hence, it might be argued that the features considered below in this section —even when similarly present in firms and states— are irrelevant for the justification of workplace democracy because different governance schemes (notably, workplace democracy and political democracy) ought to be assessed according different moral criteria. an argument of this type has been advanced by lópez-guerra (2008), who concedes that firms and states might be similar regarding one of the features that will be considered below, namely the exercise of power within them. yet, he argues, economic justice, and not the exercise of power, should be the criterion employed in assessing the organization of the firm. accordingly, the parallel-case argument fails because it overlooks the possibility that certain features that are morally relevant for the assessment of some governance schemes may be irrelevant —or not relevant enough to override some further differences that are morally more relevant— when assessing other schemes. two replies can be advanced. the first one is that lópez-guerra’s argument is compatible with the argument presented in this paper. the reason for this is that here i assume a pluralistic view of the values that are morally relevant to the assessment of democracy. hence, as it will become apparent immediately below, my goal is not to assess if the features that i consider below are morally relevant for the justification of democracy. i make the normative assumption that they are, and that they need to be balanced against each other (something that i do not attempt to do here either). my goal here is rather to analyze if such features are similarly present in firms and states. if the normative assumption turned out to be wrong, then the conclusions drawn from the present analysis would have to be recon sidered. the second reply is that, even if we accepted lópez-guerra’s argument, the parallel-case argument could still hold. lópez-guerra seems to believe that, if we prove that the exercise of power is not a relevant moral criterion 11. i am grateful to a referee for this journal for pressing me to introduce this caveat. 42 íñigo gonzález-ricoy leap 2 (2014) (or not relevant enough to override some other criteria), we then also prove that the argument is invalid. but this is because he explicitly assumes that the parallel between firms and states has to be based on the exercise of power. to be sure, this has been the main basis in the existing literature, in which it has been assumed that democracy should be equally applied to firms and states because the same sort of power is exercised in both realms. however, there is no reason why the parallel-case argument could not be based on the similarity between firms and states regarding some other moral criteria (for example, how profoundly the decisions made by firms and states affect workers and citizens, respectively). and, once we accept this, it may be the case that firms and states are similar enough regarding these further criteria to make the argument work. 4. similarities firms and states are similar in a number of ways. 12 however, not all the features that firms and states share are equally suitable to be included in this category. these should be limited to those features that may satisfy premise (c2), i.e. those features that may be sufficient for the justification of democracy in the state. now, different normative theories of democracy will provide different accounts of which precise features count as sufficient in justifying democracy in the state. for instance, pure instrumentalist theories will consider only process-independent features, such as welfare maximization or the protection of fundamental rights, while noninstrumentalist theories will look at process-related features, such as the exercise of power by public officials. in the remainder of this subsection i will consider two similarities that have dominated recent debates and that are plausible candidates to justify democracy in the state. more specifically, i will briefly consider, first, the external and internal effects of firms and states and, second, the power exercised by managers and public officials. 4.1. effects let us begin with one of the several principles by which democracy has been justified in the state. according to the principle of all-affected interests, all which interests are affected by a decision ought to have a say in that 12. here i refer to evaluative similarities, i.e. similarities in the values relevant to their assessment, rather than to non-evaluative similarities (e.g. they both are ways of distributing decision-making powers between individuals). firms, states, and democracy 43 leap 2 (2014) decision. 13 since the goal of this paper is not to consider which principles may justify democracy in the state but to assess whether such principles apply equally to firms and states, let us assume that the principle of allaffected interests is sufficient to justify democracy in the state. in considering whether it applies equally to both realms, we need to look at those individuals that are affected by decisions made by firms and by states and the extent to which their effects are similarly pervasive. we can distinguish between two sorts of effects —namely, internal effects (i.e. effects on individuals who are members of the two sort of institutions under consideration) and external ones (i.e. effects on outsiders). even though external effects turn out to be irrelevant for the issue at hand, let me briefly show why before turning to internal ones. it has been often argued that firms’ decisions have a pervasive influence beyond the limits of the firm, both social and political. 14 further, it has been claimed that such influence is as pervasive as the influence of states —if not more— in the case of large companies. for instance, in 1999, general motors’ annual revenue was larger than the revenue of the netherlands, exxon mobil’s revenue larger than spain’s, daimlerchrysler’s revenue larger than canada’s, and so on (chowla 2005: 3). as such, large companies’ social and political influence often resembles, if not exceeds, that of states. however, this analogy is irrelevant for the issue at hand for at least two reasons. 15 first, assuming that the analogy holds, it holds only —or to a much greater extent— for big businesses. the influence of small and medium businesses, by contrast, is not comparable to the influence of states. second, even assuming that it holds for all firms, it does not have a bearing on the justification of democracy, neither within the state nor within firms. under the principle of all-affected interests, all stakeholders, and not only workers, would have to be granted a say over firms’ decisions. similarly, aliens who are affected by the externalities of the state, and not only citizens, would have to be granted a say over its decisions. accordingly, stakeholder democracy and global democracy would obtain, rather than democracy within the firm and within the state. consider now the more interesting case of internal effects. it can be argued that decisions made by managers affect workers as much as decisions made by public officials and elected officials affect citizens. on the one hand, firms’ decisions can affect workers and their families directly 13. for a discussion and defense of the principle, see goodin (2007). for a criticism, see saunders (2012). 14. as néron (2010: 336) has put it, “[firms] control vast human, organizational, and financial resources, and labor; they influence national governments and local communities; and they support (directly and indirectly) everything from education to the arts and sports”. 15. i am grateful to two referees for this journal for pressing me to clarify this. 44 íñigo gonzález-ricoy leap 2 (2014) through day-to-day commands or the setting up of the working conditions. for example, in europe almost as many employees die on average due to fatal accidents in the workplace as citizens die due to intentional homicide. 16 on the other hand, firms’ decisions can affect workers indirectly, as a side effect of strategic decisions such as production planning or relocation. the relevance of these internal effects is enhanced by two further facts. first, workers spend one third of their adult lives in their workplaces, probably more time than anywhere else. second, given that work is a central source of self-esteem in modern economies, these effects do not have a merely instrumental importance to workers. they are also intrinsically important. 17 in short, internal effects of firms’ decisions provide —assuming that the principle of all-affected interests suffices to justify democracy in the state— a robust candidate to ground the parallel-case argument. 4.2. standing in defining the similarities between firms and states, most uses of the parallel-case argument have not focused on the influence of firms’ decisions in contrast with the influence of states. rather, they have focused on workers’ standing in relation to firms as analogous to citizens’ standing in relation to the state and, notably, on the power exercised by managers and public officials. 18 this is a feature that is often seen, at least in the state, as sufficient to justify granting control rights to those over whom such power is exercised (and, again, i will assume that this is the case). accordingly, it is not very surprising that this version of the argument has been dominant. it is not very controversial that employees are subject to the power of their employers. in contrast to self-employment, in which workers exchange the product of their labor in the market, rather than their labor force, the very point of the employment relationship is the subordination of the worker to the command of the employer. in large firms, managers rather than owners exercise command on behalf of the latter in the daily running of the firm. managers, thus, have power over employees because they have the ability to make the latter perform actions that they would not otherwise perform. what is controversial, then, is not so much whether employers and managers have power over employees. it is clear that they do. and almost as matter of definition, since managers’ ability to issue directives to which 16. in the eu there were 2.5 fatal accidents per 100,000 persons employed in 2008 and 3.5 intentional homicides per 100,000 inhabitants in 2011. see eurostat (2012: 190) and united nations office on drugs and crime homicide statistics, at http://www.unodc.org/unodc/en/ data-and-analysis/homicide.html (accessed july 6, 2013). 17. on normative issues related to work and self-esteem, see schwartz (1982), arneson (1992), and moriarty (2009). 18. dahl (1985) is the classic reference relying on the power exercised within the firm. firms, states, and democracy 45 leap 2 (2014) employees have to conform is a core feature of the employment relationship. what is controversial is whether such power is similar to the power exercised by elected representatives and officials in the state. there are three potential differences between firms and states that might call into question that they are. the first potential difference is that the power exercised by employers is more heavily constrained than the power exercised by elected officials. this could be the case because employers and employees sign a labor contract at the outset of the relationship that clearly specifies the terms under which the relationship will be conducted. by contrast, citizens and elected governments do not sign any such contract. true, in democratic countries citizens elect their representatives. but the latter enjoy ample discretion once they have been elected. they are not subject by binding instructions from the former, or by their own party manifesto. (it might be argued that party manifestos are contracts, but this is at most metaphorical because, unlike labor contracts, they are not legally binding). accordingly, while employers’ exercise of power is heavily constrained (by the employment contract), the exercise of power by elected officials is not. however, this difference is overdrawn. neither the discretion of elected officials is completely unconstrained, nor is the discretion of managers completely constrained. in the state, elected officials are legally constrained by vertical and horizontal forms of accountability. first, they are subject to regular elections, in which they need to be reelected. this poses a de facto constraint on the extent to which they can deviate from their electoral promises and party manifestos while in office. second, their power is legally constrained by the constitution and the checks and balances of the other branches of the state. managers in firms, on the other hand, enjoy ample discretionary powers beyond the terms of their employment contracts because such contracts turn out to be incomplete when they are applied to concrete cases and unforeseeable contingencies. since it would be impossible or prohibitively costly to anticipate every detail and contingency at the outset of such contract, and since some flexibility is desirable to adequately address such contingencies, employers are unavoidably granted ample discretion to issue commands. 19 a second potential difference is that —unlike citizens in non-democratic states, who do not have a say over decisions imposed upon them by public officials— employees in non-democratic firms do have a say over decisions imposed upon them. this is because they can elect the public officials who regulate the exercise of power in the workplace, and who decide, for that matter, whether the workplace should be democratized or not. once 19. i fully develop this argument in gonzález-ricoy (2014: 244-248). 46 íñigo gonzález-ricoy leap 2 (2014) employees get their say in more general elections and are thus able to shape how corporations should operate, it may be argued, the case for democracy in the workplace becomes much weaker than the case for democracy in the state. this, however, does not make the power exercised by non-democratic managers of firms operating in democratic countries irrelevant. to see why, consider the case of a country in which democracy applies at the state level yet not at the municipal level. i take it that the fact that citizens can elect public officials at the state level does not make the power exercised by public officials at the municipal level irrelevant, even if the latter have to exercise their power within the democratic limits imposed by the former, just as it does not make the case for municipal democracy irrelevant. analogously, the fact that workers have a say at the political level certainly makes a difference for the issue at hand, since it constrains the power that managers can exercise upon them. however, it does not make such power innocuous as far as managers enjoy some discretion (something that, as pointed out before, is intrinsic to the employment relationship), and it does not make the case for democracy in the workplace completely irrelevant as a result. a third potential difference is that the power exercised in the firm is more easily avoidable than the power exercised by public officials. as arneson (1993: 139) has argued, employees can “generally escape the reach of ... unwanted policies by quitting one’s job and taking another”. citizens, by contrast, cannot leave their country and enter another one so easily, if at all. the sort of power to which employees and citizens are subjected is, thus, very different. this is an important potential difference that might block the analogy, and it has been extensively discussed in the relevant literature. for now, however, let us put it aside, for it will be discussed in some detail immediately below in section 5.1. 5. differences in the previous section i have argued that the similarities between firms and states regarding their internal effects, as well as their similarities with regard to the exercise of power within them, are good candidates to ground the parallel-case argument. assume that this is correct —or that some further similarities between firms and states exist, and that such similarities are, other things being equal, sufficient to favor democracy both in the state and the firm. even if that is the case, however, these similarities only provide pro tanto reasons in favor of workplace democracy. further differences between the firm and the state may end up overriding them, thus blocking the justification of workplace democracy on balance. in this subsection i will focus on three potential differences. first, firms are voluntary associations while states are not. second, firms have well-defined purposes while states firms, states, and democracy 47 leap 2 (2014) are open-ended. third, firms face stiff competition by other firms while states do not face a similar competition by other states. 5.1. voluntariness the potential difference that has dominated the debates about the parallel case is that firms are voluntary associations while states are not. as arneson (1993: 139) claims, “the most significant disanalogy between states and firms is voluntariness”. the reason for this, according to arneson and others (narveson 1992; see also dahl 1985; mayer 2000; hsieh 2008; cordelli, unpublished), is that workers are entitled to leave economic enterprises at will, while leaving the state may be impossible or very costly. two problems with how this debate has proceeded are (i) that the notion of voluntariness is rarely made explicit in full and (ii) that it is unclear whether the lack of exit rights necessarily entails that an association is involuntary (which most of the literature about the parallel-case argument assumes). here i will not attempt to clarify these two problems. rather, i will assume, following the relevant literature, that exit rights and the ability to exercise them without incurring excessive costs are necessary to deem an association voluntary. when the members of an association lack exit rights, or the costs of exercising them are unbearable (say, because of the absence of acceptable alternatives), then their agreement cannot be deemed fully voluntary. 20 in what follows, i will accordingly limit myself to discussing the potential differences between firms and states with this regard. the basic reason why exit rights are deemed so crucial for voluntariness is that, when the members of an association are entitled to leave it without incurring excessive costs, by remaining inside of it they are taken to consent to the terms of the association. from this standpoint, firms might have been involuntary associations in nineteenth-century england, when master and servant acts were in force and employees were criminally prosecuted for quitting their jobs. and involuntariness may sometimes persist nowadays in monopsonistic labor markets, or in markets of forced labor. 21 however, in free, competitive, and fully clearing labor markets, so the argument often goes, firms are voluntary associations because employees are entitled to 20. notice, however, that the sort of involuntariness that results from the lack of exit rights is different from the sort of involuntariness that would render a contract nonbinding, as scanlon (2000: 245) suggests. the mere absence of exit rights does not exempt the parties, thus, from their duty to honor their agreements. 21. according to the ilo’s forced labour convention no. 29, forced labor is all work or service that is exacted from any person under the threat of a penalty and for which the person has not offered herself voluntarily. 48 íñigo gonzález-ricoy leap 2 (2014) quit at will. 22 by contrast, states are involuntary because exit is impossible or prohibitively costly. two important implications follow. the first one has to do with the analogy between firms and states regarding their internal effects and the exercise of power within them. while citizens can hardly escape such effects as well as the exercise of power by public officials, employees can generally avoid them by terminating their employment contracts. further, employees can use such freedom as an implicit yet ever-present threat against their employers. as a result, the latter may well ex ante modify their behavior so as to incorporate the interests of their employees, thus minimizing the possibility of such freedom being exercised, thus reducing the employee turnover rate. this is not to say that freedom to exit completely rules out employers’ power over their employees, or that the latter are not affected by the decisions of the former any longer. rather, it means that employees are affected and subjected by such decisions very differently, and to a lesser extent, from how citizens are. the second implication follows from the first one. as i have argued in the previous section, the parallel-case argument can be grounded on the internal effects and the power exercised within firms and states being similar. now, if they are not —because, unlike states, firms are voluntary associations, which members are entitled to join and leave at will— then the argument for workplace democracy based on the analogy turns out to be blocked. as bowles and gintis (1993: 97) put it, “if the capitalist economy is a sphere of voluntary private interactions, what is there to democratize?” jan narveson (1992: 53-54) nicely summarizes these two implications: “if a firm doesn’t like the way you do your job, can it send men with guns who will put you in prison if you don’t do it the way the boss says? ... it is fundamental to politics that political association is not essentially voluntary ... once a gathering is plainly voluntary, then there simply is no case for imposing “democratic” structures and procedures on it.” however, this contrast between firms and states is overdrawn. even though it is generally more costly to leave one’s country than to leave one’s job, the difference is one of degree, not of kind, for leaving one’s country is, at least formally, as possible as leaving one’s job. true, leaving one’s country is very costly. it includes serious obstacles such as closed borders, linguistic 22. as a referee for this journal has suggested, markets might not need to fully clear for entry and exit from firms to be voluntary, provided that workers are sufficiently protected from unemployment, e.g. through employment benefits or a basic income. i have considered this alternative argument for the voluntariness of firms in gonzález-ricoy (2014: section 3). here, however, i limit the analysis to the stronger argument according to which, even in the absence of such protection, entry and exit from firms in free and competitive markets is voluntary. firms, states, and democracy 49 leap 2 (2014) barriers, and travel expenses, in addition to the fact that moving from one country to another usually implies changing jobs, while one can change jobs without changing countries. however, leaving one’s job does not go without sacrifice either. briefly consider the following reasons. 23 first, imperfect labor markets have involuntary unemployment, which makes it costly for employees to quit provided that they would not be able to find another job easily. 24 second, even if labor markets cleared, there are additional exit costs that can lock-in employees, including the following four: (i) investment costs in developing firm-specific human capital; (ii) integration costs in the network of co-workers, customers, etc.; (iii) searching and transition costs from one job to another; (iv) psychological costs in quitting work altogether provided that work is a relevant source of self-esteem in modern societies. third, in addition to these costs, freedom to exit, even when costless, may not be sufficient for voluntariness when the alternatives are not acceptable. to see why, consider the following case: 25 a is an employee who toils in a humiliating job and wishes to change jobs. for a, leaving her present job is both available and costless. as the labor market fully clears, a has numerous job alternatives available. however, all these alternatives are as humiliating as her present job. eventually, a decides not to quit and stays at her present job. is a’s decision fully voluntary? i take it that most of us would respond in the negative (even though, as i said above in note 20, not in a sense that would render a’s labor contract nonbinding), which shows that freedom to exit does not always suffice for voluntariness. when the range of options available to us is not acceptable, then formal exit rights, which a in the case above holds, do not suffice for voluntariness. in short, leaving one’s job may be less costly than leaving one’s country. however, this is a difference of degree, not of kind, for leaving one’s job also has important costs. in addition, when acceptable alternatives are absent, freedom to exit, even when costless, does not suffice for voluntariness. accordingly, any conclusion on the justification of democracy in the workplace drawn from the parallel-case argument would be less compelling than the corresponding justification of democracy in the state. yet it would not be forceless. 23. i have developed these reasons in more detail in gonzález-ricoy (2014: 239-241). 24. shapiro and stiglitz (1984) have shown that, under conditions of imperfect information, this is also the case in perfectly competitive markets, which need a sufficiently large unemployment rate to remain competitive. 25. serena olsaretti (1998: 71) advances a similar example. 50 íñigo gonzález-ricoy leap 2 (2014) consider now two objections. 26 first, it might be argued that the mentioned costs, as well as the circumstances in which exit rights may be insufficient for involuntariness, vary enormously across employees and firms. for example, employees who possess scarce and valuable skills may bear lower costs if they quit than employees who lack such skills. however, these differences are also present in the state, in which exit costs are also very unevenly distributed across citizens and different states. hence, some citizens might find it more costly to leave their country than others, and some countries may make it more costly for their citizens to leave than others. accordingly, the analogy between firms and states regarding these differences holds and if democracy is justified in the state despite these differences, then it follows that it is justified in firms as well. second, even if democracy may be favored both in the state and in the workplace due to their similarly profound and unavoidable effects on citizens and workers, respectively, it may be objected that this argument can be blocked by appealing to the idea of freedom of economic association. workers, it may be argued, have a right to freedom of economic association that empowers them to bind themselves to agree to obey commands of a non-democratic firm, and they have this power even if their set of valuable alternatives is very limited. i raise two points in response. first, as joshua cohen (1989: 48) has claimed in response to a similar objection, while it may be valuable to be able to choose the economic activity in which one engages as well as the parties with whom one associates, there may not be any fundamental interest protected by the liberty to sell labor for a wage and to be subjected to undemocratic command in the workplace instead of, say, working as a member of a co-operative. second, even if we assume that freedom of economic association does entail a right to work for nondemocratic firms, this freedom does not necessarily override workers’ right to workplace democracy. even though these two rights may sometimes conflict with each other, in the sort of economy envisaged by most proponents of workplace democracy —in which workplace democracy (unlike, say, mandatory schooling) is a right that can be alienated— it is not entirely implausible that both rights coexist. 27 26. i am grateful to a referee for this journal and to andrew williams for raising these objections. 27. according to bowles and gintis (1996: 66), for example, “to argue against mandatory workplace democracy is to critique a straw man and to elide the fundamental issue, which concerns whether policies promoting workplace democracies are justified in the interest of giving workers the opportunity to participate in these forms of governance”. firms, states, and democracy 51 leap 2 (2014) 5.2. narrowness of purposes consider now a further yet related difference, namely, that firms are justified in having well-defined purposes, e.g. to maximize profits, while states ought to be open-ended, as phillips and margolis (1999) have argued. a reason for this is that, unlike firms, states are not voluntary associations. firms are justified in having narrow purposes their employees can always leave if they disagree with such purposes. states, by contrast, have to remain open-ended because their citizens cannot leave them easily if they disagree. hence, while it is acceptable for a firm to have certain narrow goals (say, produce and sell copies of the bible), it is unacceptable for the state to do so. an implication of this difference for the issue at hand is the following. when the goals of an organization are well defined and disagreement about them among its members is not very profound, the need for a collective decision-making procedure, democratic or otherwise, to set the goals that ought to be pursued is also weaker. 28 when, by contrast, goals are subject to more profound disagreements, the need for a decision-making procedure to handle such disagreements is stronger. it thus follows that if states are open-ended and have plural goals while firms have narrow purposes, then the case for democratic procedures in the state is stronger than the case for democratic procedures in the firm. there are good reasons, however, to resist this clear-cut distinction. firstly, according to phillips and margolis, purpose narrowness is allowed in firms and open-endedness is required in the state due to the fact that the former are voluntary organizations while the latter are not. however, as we have seen in the previous section, this difference is overdrawn, for exit from firms is often costly and the decision to stay, thus, not always fully voluntary (at least under the definition of voluntariness used before, which requires that meaningful exit rights are available and that does not necessarily render employment contracts nonbinding). now, if firms are not fully voluntary associations, then the case for purpose narrowness becomes weaker and the difference between firms and states regarding the narrowness of their goals becomes less clear-cut. there are further reasons to call into question that purpose narrowness should be allowed in firms and open-endedness should be required in the state. on the one hand, it is certainly the case that some libertarians have argued not only that making profits is perfectly respectable for economic enterprises, but also that it should be their only goal (typically, friedman 28. as przeworski (2006: 312) has put it, democracy presupposes, as a necessary condition, that “interests or values are in conflict. if they were not, if interests were harmonious or values were unanimously shared, anyone’s decisions would be accepted by all, so that anyone could be a benevolent dictator”. a similar argument can be found in waldron (1999) and valentini (2012). 52 íñigo gonzález-ricoy leap 2 (2014) 1970). however, this position has not gone without challenge, not least by corporate social responsibility approaches and stakeholder theorists. indeed, it is widely assumed nowadays that firms should have a diversity of goals, social and otherwise, other than maximizing profits. on the other hand, the requirement of open-endedness in the state can also be called into question. today, it is widely accepted that states have to comply with a number of narrow goals that constrain their sovereignty, including the fulfillment of human rights and the responsibility to protect their population. 29 in short, neither firms ought to have narrow purposes, nor the state ought to be completely open-ended. of course, this does not imply that firms and states ought to have similar goals (just as different firms have different goals). it rather implies that the difference between firms and states regarding the narrowness of their goals is less clear-cut than it is sometimes argued and that, given that firms should also have plural purposes, the argument for ruling out the use of democratic procedures in their governance turns out to be less compelling. 5.3. toughness and efficiency jeffrey moriarty (2005) has advanced a further difference that may have a bearing on the assessment of the parallel-case argument, namely, the tougher environment that firms face in the market compared to states in the international realm. in free-market economies, firms face stiff competition from other firms that attempt to drive them out from the market. they face continuous and rapid changes due to the appearance of new technologies and products, changes in consumers’ preferences, the introduction of new legislation, periodical economic downturns that make them likely to disappear, and so on. indeed, the us census bureau reports that the one-year failure rate for firms started in 2004 is 23.6 percent and the fiveyear failure rate for firms started in 2000 is 49.3 percent (headd 2010). by contrast, states face a less tough environment. they are much more resilient to changing circumstances, and their downfall is rare or at least rarer than in the case of firms. two relevant implications follow from this difference. first, moriarty claims that managers in firms should be granted extensive powers to face stiff competition in the market, as well as the ability to exercise them fast, that public officials need not have or not to the same extent. in times of economic downturn, he reckons, managers may need to be able to cut employees’ pay, give shareholders smaller returns, or renegotiate contracts with suppliers, provided that some minimal constraints (e.g. safety conditions) are respected. 29. a classic contemporary defense of human rights as constraints on state sovereignty is rawls (1999). firms, states, and democracy 53 leap 2 (2014) public officials, by contrast, need not have this sort of power, or not to the same degree. the environment they face is less tough, and dissolution of the state less likely to ever happen. second, even though this is a point that moriarty does not make, it may also be claimed that stiff competition and the constant threat of downfall make efficiency, in terms of the ratio of output to input, more important in the firm than in the state. the bearing of these two implications on the parallel-case argument is that both the need for extensive prerogatives and the crucial importance of efficiency may conflict with democratic decision-making, which may be too slow to adapt to changing environments, and may be less efficient than other decision-making arrangements. 30 accordingly, since the need for extensive prerogatives and the importance of efficiency due to stiff competition is greater in the firm than in the state, democratic decision-making may be less suitable in the former than in the latter. these differences, in turn, may block the parallel-case argument for democracy in the workplace or, at least, make any conclusion drawn from other similarities that firms and states may share less compelling. this is an important argument for, as the figures above suggest, firms certainly face stiffer competition than states. three replies can be advanced, though. first, governments also face tough circumstances, and the availability of emergency powers and the importance of efficiency may also be crucial in the governance of the state. as moriarty acknowledges, the difference between firms and states in this regard is one of degree, not of kind. 31 second, as it has been argued above, democracy in the workplace is not at odds with delegation of extensive prerogatives to managers, with the only difference that managers in democratic firms are appointed by workers rather than, or along with, shareholders, and accountable to them. third, it has been much discussed whether democracy in the workplace diminishes or improves efficiency. 32 this issue largely exceeds the scope of this paper. however, it may be too quick to assume that efficiency is at odds with democracy, either in the workplace or in the state. there are good theoretical and empirical grounds to believe that the contrary may be the 30. classic references on the inefficiency of democratic firms are jensen and meckling (1979) and alchian and demsetz (1972). 31. as andrew williams has suggested to me, it may be argued that competition is not only a fact but also a desirable fact in the economic domain, given the benefits of creative destruction. the same, however, may not be true in the political domain, since the social costs of political bankruptcy are so much higher. while this may entail that the difference is ultimately of kind, i leave it open whether the difference holds, for it implies a moral assessment of the benefits of competition that, regarding the economic domain, is highly contested to say the least. 32. some have argued that the fact that democratic firms are marginal shows that democratic firms are not efficient, for otherwise they would be created voluntarily. see jensen and meckling (1979). elster (1989) has replied that they could be marginal due to endogenous preference formation, adverse selection, discrimination, and externalities. 54 íñigo gonzález-ricoy leap 2 (2014) case, at least under certain circumstances (see bowles and gintis 1993; parks et al., 2004; levin 2006; for overviews of the debates, see dow 2003; hansmann 2000). in short, the difference in toughness that firms and states face is one of degree. it should not be overdrawn when assessing the limits to the parallel between firms and states. in addition, the difference might turn out not to have much bearing on the parallel-case argument, first, because democratic firms are consistent with the sort of powers that tough market competition may require and, second, because, they may not be inefficient in their operation. 6. conclusions if the features upon which the analogy between firms and states is based turn out to be sufficient to justify democracy in the state, then the parallelcase argument provides a plausible reason in favor of democracy in the workplace —a reason, however, that needs to be importantly qualified, i conclude, for a number of reasons. first, while the paper has shown that firms and states are similar regarding their internal effects and the power exercised within them, it has not attempted to demonstrate that these features are morally sufficient to justify democracy in the state. second, the paper has shown that there are a number of morally relevant differences that could override, or at least undermine, the similarities upon which the analogy between firms and states is based —even though it has also shown that these differences are often overdrawn, for they are of degree, not of kind. third, further differences that have not been considered here may further undermine the analogy between firms and states, thus blocking the parallel-case argument in favor of workplace democracy. in short, the case for democracy in the workplace, when drawn from the analogy between firms and states, and provided that democracy is justified in the state, is plausible. yet 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supply and service cooperative historical statistics, washington, dc: usda, rural business, cooperative service. valentini, l., 2013: “justice, disagreement and democracy”, british journal of political science 43: 177-199. waldron, j., 1999: law and disagreement, oxford: oxford university press. walzer, m., 1983: spheres of justice, new york: basic books. wilkinson et al., eds., 2010: the oxford handbook of participation in organizations, oxford: oxford university press. leap 5 (2017) shielding sufficientarianism from the shift1 l a s se n i e l se n university of southern denmark abstract this paper discusses liam shields’ sufficientarianism and especially his very innovative construction of the shift thesis: that above the relevant threshold there is a significant change in our reasons to benefit people further. the paper argues that, despite its clear advantages, shields’ view still faces some general problems. first, that it says too little about how different types of reasons to benefit someone should be weighed against each other. second, and more importantly, that shields does not provide satisfactory reasons for why we need the shift in the first place. the paper argues that given the value assumptions that sufficientarians normally adhere to, the upper limit version remains a more promising alternative. keywords: shields; sufficientarianism; pluralism; the shift thesis liam shields’ development of the sufficiency view – the view that justice is concerned with securing enough for everyone – is among the most promising outlines for a theory of distributive justice in contemporary political philosophy. shields’ rewritings of the sufficiency principle have, since their origin in 2012, gained much attention and many philosophers and political theorists have found them to improve the general outlook of sufficientarianism. although shields speaks into a field of great complexity, the key contribution is utterly simple. in a nutshell, shields’ main point of argument is that sufficientarianism need not imply that we should ignore inequalities once everyone has “enough”. instead, he argues, sufficiency implies merely that there is a significant shift in our reasons to benefit people further. this development has now – true to shields’ own wording – become known as “the shift thesis” (2016; 2012). the shift thesis effectively offers a very appealing sufficientarian reply 1 for useful comments on earlier versions of this paper, i thank a xel gosseries, david a xelsen, anca gheaus, danielle zwarthoed, pierre-etienne vandamme, chris mills, liam shields, and two anonymous reviewers. d oi : 10. 310 0 9/l e a p. 2017.v 5.12 shielding sufficientarianism from the shift 143 leap 5 (2017) to the critics’ concern about how justice applies to situations where inequalities persist but where no one is below the threshold. thus, the advantages of shields’ sufficientarianism are obvious. however, the view is not without its limitations. in this paper, i raise some critical questions for shields’ sufficientarianism and i defend the “upper limit” sufficiency view as a more promising framework. the paper proceeds as follows. section 1 lays out sufficientarianism generically. section 2 presents liam shields’ amendment to this view in the form of his shift thesis. section 3 raises some critical questions for shields’ version of the sufficiency view that i believe he needs to answer. section 4 defends upper limit sufficientarianism as a more plausible version of sufficientarianism than shields’ account. section 5 concludes. 1. sufficientarianism sufficientarians care about individual people’s absolute standing. they do not care about people’s relative standing unless it affects their absolute standing (axelsen and nielsen 2015). here i have no space to unfold this idea, but one plausible way to understand it is to say that sufficientarians use a threshold constraint to discriminate between relevant and irrelevant individual demands of justice (segall 2016; hirose 2016)– e.g. similar to scanlon’s objective criterion for distinguishing between urgent and nonurgent preferences (1975). without distinguishing between different theoretical specifications within the sufficientarian literature, we can assume the following generic principle (adopted from nielsen 2017): the generic sufficiency view justice is concerned with eliminating absolute deficiencies rather than inequalities this generic formulation captures the driving moral statement of any specified sufficiency view , and although critics are sceptical, many find it intuitively plausible.2 however, despite the merits of the generic view, sufficientarians might need to say more about how to set the threshold in order to render the sufficiency view theoretically plausible. this is because all sufficiency 2 see among others frankfurt (1987), crisp (2003), raz (1986: 240); benbaji (2005) huseby (2010). 144 lasse nielsen leap 5 (2017) views – including the generic view – imply that there exists, at least in theory, a threshold point above which inequalities are irrelevant (or significantly less relevant) to justice. thus, for example, sufficiency views, even when very generic, are always vulnerable to objections stressing the intuitive dissatisfaction with the implication that above some threshold t, the inequality between the super-rich and those who barely have enough would not be a concern of justice (casal 2007). but identifying the threshold is a delicate matter, and critics of the sufficiency view believe sufficientarians face a theoretical dilemma on this issue. if defining a relatively high threshold, such as in terms of welfare satisfaction or contentment, the sufficiency view undervalues the urgency found in the substance of absolute deficiency. that is, if our sufficiency view allows not being perfectly content to be an absolute deficiency, we have certainly undervalued the importance of being released of deficiencies such as hunger, deprivation, suffering, etc. any reasonable sufficiency view needs to underline the special importance of addressing the latter deficiencies rather than the former. on the other hand, setting a very low threshold – e.g. set at the level of basic needs fulfilment – makes the sufficiency view vulnerable to being ignorant of even quite significant inequalities above this threshold. the difference between the super-rich and people who barely have their basic needs met is simply not, on any reasonable interpretation of justice, irrelevant. thus, the sufficiency view seems faced with this troublesome dilemma in f leshing out a relevant and plausible threshold level. 2. shieldian sufficientarianism liam shields smoothly solves the above dilemma. he proposes to exchange the strong negative thesis with what he calls “the shift thesis”, stating that “once people have secured enough there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further” (2016: 30). although this interpretation of the view does not f lesh out a much specified threshold definition, it does in an important way render the sufficiency view more plausible. what it does, effectively, is to resolve the dilemma by allowing for a more modest threshold level – set at some non-specified level of resources – than would otherwise have been acceptable, since the shift thesis enables sufficientarianism to object to inequalities above the threshold. this softens the hard inegalitarian implications of sufficientarianism while still remaining loyal to the central driving intuition of the generic sufficiency view. we can get a better grasp of what the shift thesis involves in figure 2.2, shielding sufficientarianism from the shift 145 leap 5 (2017) which shields presents to illustrate what he calls non-uniform prioritarianism (2016: 32). figure 2.2. non-uniform prioritarianism figure 2.2 displays how non-uniform prioritarianism involves a significant change in our moral reasons to benefit people further, once they reach a certain welfare level (here this level is 2). this captures the shift that shields builds his sufficientarianism upon. non-uniform prioritarianism is different from uniform prioritarianism because the former claims that there is a central change in terms of the relationship between how well off people are and the moral importance of benefitting them. this change, shields convincingly argues, can only be explained in reference to the shift thesis. thus, although non-uniform prioritarians can entail a wide range of other distributive principles, they must rely on some sufficiency principle, because they appeal to the shift. this perspective grounds a much wider relevance of sufficiency principles than normally assumed, because it identifies a very intuitively plausible and common idea – that there are changes in the rate of reasons to benefit people depending on their level of welfare – as a specifically sufficientarian idea. and even more importantly, the appeal to the shift thesis does take much of the edge off the most widely shared criticism of sufficientarianism, namely that it is implausible to accept that inequalities above the threshold level are irrelevant to justice. thus, the prospects of grounding the sufficiency view upon the synthesis of the positive thesis and the shift 146 lasse nielsen leap 5 (2017) thesis is promising and fully justifies shields’ status as among the leading contributors to the development of sufficientarian theory. 3. some general problems with the shift although the advantages of the shift thesis are clear enough, there are still some questions that need to be addressed. the shift thesis is generic and ecumenical in its outline, and although this is of course not in itself a problem, it blurs our perception of what happens after the shift. shields seems to imply that the shift thesis could be compatible with sets of moral reasons that refer to the value of fairness above the threshold (2016: 35). but this raises the question of what the relationship is between the sufficiency-reason and other moral reasons. shields’ central idea seems to be that once our sufficiency-reason – that is, our reason to benefit a person that stems from this person being below the absolute threshold-level of welfare – stops being salient, because the person is pushed above the threshold, we will turn to the best alternative reason to benefit further. fairness concerns, such as distributive egalitarianism or responsibility, seem likely candidates. but that gives the impression that the shift is not accurately depicted as a bend on the otherwise nicely linear (prioritarian) graph of the development of our moral reasoning. rather, it seems that we should think of it as two separate lines. one line, the sufficiency-reason, representing our very strong commitment to bring people above the threshold, and then a separate line, representing our other moral concerns, that so to speak “take over” once we reach the absolute threshold. this is shown in figure 2.2* below. in figure 2.2*, the shift is depicted as the intersection between the red line, representing our sufficiency-reason to benefit people which is based on their (below-threshold) level of welfare, and the blue dotted line, which represents whatever weaker moral reasons we are left with once the stronger moral reasons becomes non-salient. if 2.2* is a fair illustration of the shift, and i believe it is actually more precise than shields’ own from figure 2.2, then it raises the question of how these two sets of moral reasons relate to each other. in other words, how should we interpret the relationship between the two lines in figure 2.2*? shielding sufficientarianism from the shift 147 leap 5 (2017) figure 2.2* the shift thesis as plural sets of reasoning it seems then, that to make the shields framework plausible, one would have to decide on a reasonable relationship between the sufficiency-reason and other reasons. first, one possibility is to say that the sufficiency-reason should only take some priority over other moral concerns, but in general be weighed against our alternative set of reasons. that is, if fairness is a relevant moral reason, then this reason ought to be given some weight in our moral deliberation. that is, our decision to help person i rather than person ii to reach the threshold depends not only on their level of welfare but also on the interaction of other moral reasons – say responsibilitysensitive fairness – on the sufficiency-reason. for example, we might say that if person i and ii are faring equally badly (both below threshold at level 1,5), but differ in terms of exercise of responsibility, then responsibility sensitivity tie-breaks our moral deliberation in favour of priority to the prudent. that is, under resource scarcity, we should give priority to helping the prudent over helping the imprudent. but then we might also say that although being worse off than others below the threshold takes more presence in our calculation than responsibility sensitivity, then large differences in responsibility could outweigh the priority given from level of welfare, so that even if persons i and ii are unequally badly off (e.g. i at 1; ii at 1,5), then the difference in their exercise of responsibility could be significant enough as to alter our immediate priority. finally, it could also very likely imply that under given circumstances, where we have very weighty responsibility-sensitive reasons to benefit person i who is above the threshold (e.g. at level 3), these reasons could potentially outweigh our 148 lasse nielsen leap 5 (2017) reason to help person ii (et level 1,5) reach the threshold. this seems like a possible way to embrace value pluralism much in line with standard luck egalitarianism (temkin 2003; lippert-rasmussen 2016), but it seems a very unlikely sufficientarian strategy. this is because it downplays the work of the positive thesis (at least in theory) to a miniscule degree, although this is so centrally carrying the sufficiency intuition. this leaves the shift thesis shifty3 because it makes the sufficiency-reason – stemming from the strong appeal of the positive thesis – merely one among a number of moral considerations. shields might of course decide that the sufficiency-reason should take absolute priority over other moral concerns. this is the standard sufficientarian move. and this, i should stress, is what i believe he ought to say. but there are two problems involved for shields in taking this path. first, if fairness (or another egalitarian concern) is fully outweighed by the sufficiency-reason below the threshold, but takes the lead above the threshold, once our sufficiency-reason becomes non-salient, then shields’ sufficientarianism is not distinctive from pluralist telic egalitarianism such as temkin’s comparative fairness egalitarianism (2003; 2017). shields might of course just say that this is because, on his account, temkin is a sufficientarian, but this seems strange because the dispute between sufficientarians and egalitarians is not about accurate labelling but about the value of distributive equality. hence, if that is the case, it seems more correct to withhold that shields is no sufficientarian. second, if shields gives absolute priority to the sufficiency reason, then his synthesis of the positive thesis with the shift thesis makes his view vulnerable to the same objection he presents against upper limit sufficientarianism, which he contrasts himself to. to see how shields’ view departs from upper limit sufficientarianism let me employ an example, also borrowed from shields (2016: 23). table 2.3 upper limit sufficientarianism i ii iii i v v v i a 1,000 1,000 1,000 1,000 1,000 3 b 5 5 5 5 5 5 c 5 5 280 5 5 4 3 i am indebted to jens thaysen for this catchy, although admittedly slightly tacky, punchline. shielding sufficientarianism from the shift 149 leap 5 (2017) table 2.3 shows three different hypothetical scenarios (a, b, and c) entailing very different distributional shares for different groups or persons (e.g. in a given society). as shields rightly points out, upper limit sufficientarianism would prefer b to both a and c (which headcount sufficientarianism would as well), when the threshold is set at 5. this contrasts it with weighted prioritarianism, which would rank the scenarios a, c, b (from best to worst). shields favours the weighted prioritarian reply on intuitive grounds, and if this was not the case, it would be unclear on what grounds he would dismiss upper limit sufficientarianism in the first place. but if the shift thesis is to be understood to entail absolute priority to our moral reason to benefit people who are below the threshold, then shieldian sufficientarianism – synthesising the positive thesis with the shift thesis – gives the same ranking as upper limit sufficientarianism. that is, it would favour b over both a and c, when the threshold is at 5. this is surely no embarrassment. maximin and leximin prioritarian views would also prefer b over a and c, as would telic egalitarianism. that is, on further ref lection, it is not at all obvious that our intuitions about this case work in favour of weighted prioritarianism or shields’ own account, and against the other theoretical standpoints. in fact, in section 4 defend upper limit sufficientarianism against this intuitive strike. my point here is merely to highlight that if shields wishes to stick with the weighted prioritarian view in this case – and therefore rank a, c, b (from best to worst) – then he is left with giving away the sufficientarian commitment to the strong priority of the positive thesis. 4. defending the upper limit this section defends upper limit sufficientarianism. as suggested in section ii, the sufficiency view could be understood in a negative form, as a generic principle saying that, justice is concerned with eliminating absolute deficiencies rather than inequalities. if this principle is accurate, then justice would be fulfilled once absolute deficiencies are eliminated, regardless of whether inequalities still persist beyond this point. this adheres to the ranking b over a and c in table 2.3 (when the threshold is 5), because only in b are deficiencies eliminated. as mentioned, this is the same guidance as maxmin and leximin prioritarianism as well as egalitarianism, so it need not be counterintuitive, but as shields mentions, upper limit sufficientarianism also gives counterintuitive guidance in cases where everyone has secured enough (2016: 23). to see this, we can take a look at table 2.3* 150 lasse nielsen leap 5 (2017) table 2.3 upper limit sufficientarianism (w ith no one below the threshold) i ii iii i v v v i a 1,000 1,000 1,000 1,000 1,000 5 b 5 5 5 5 5 5 c 5 5 280 5 5 5 table 2.3* is similar to table 2.3 except that the worse off in a and in c are now lifted to the threshold level (at 5). thus, no one is below the threshold level and, moreover, the worst off in a and in c are just as well off as the best off in b. in other words, in economic terms, a dominates b and c; and c dominates b, so that moving from b to c; and from c to a would be pareto-efficient moves. however, upper limit sufficientarianism would be unable to prefer a over b (or c over b), simply because everyone is above the threshold, and because upper limit sufficientarianism accepts the “upper limit claim” that “no distributive principles apply to benefits among those who have secured enough” (2016: 22). it is not that it necessarily needs to prefer b, but the problem is that it cannot in itself capture that we should not be satisfied with b, although dominantly better alternatives a and c exist. this clearly seems to put a stark challenge against upper limit sufficientarianism; but one that shields’ shift thesis can enable us to tackle. on my account, there is nothing wrong with the guidance of upper limit sufficientarianism even in this extreme scenario. in fact, on further ref lection it is not even clear that our intuition works to count against it. the central problem with the illustration of upper limit sufficientarianism above is that it gets lost in what i call the illusion of numbers against sufficientarianism.4 the illusion of numbers against sufficientarianism assumes that the difference between how well different people are doing is meaningfully captured by the numerical distance between larger and smaller numbers. but sufficientarianism properly understood should reject this assumption. the remainder of this section explains why and thereby argues against the illusion of numbers against sufficientarianism. to see how shields’ illustration of upper limit sufficientarianism gets lost in the illusion of numbers against sufficientarianism, let’s consider the content of the example in table 2.3*; which, you will recall, is a hard case against upper limit sufficientarianism. in table 2.3*, the threshold is set at 4 i adopt this from nielsen (unpublished paper). shielding sufficientarianism from the shift 151 leap 5 (2017) welfare level 5. since the figure “5” alone does not in itself tell us a lot about why we choose that level rather than any other as the relevant threshold, we assume that it is the content (of resources, opportunities and welfare) that this figure stands for that constitutes the relevant cut-off point. following shields’ example, let’s say that “those who pay the top rate of income tax have enough after tax” (2016: 22), and therefore let’s assume that these people are at level 5. what that must mean is that they have sufficient resources and opportunities for their welfare level to be considered a “5”. this seems intuitively appealing. these people have a stable monthly income; they lead autonomous lives; they can afford decent or very decent housing; they have access to decent social insurance; they have a stable health together with a health care system that is prepared to assist them if they fall ill; they are also mentally healthy; their offspring face good social opportunities and have access to good quality education etc. all these things are tacitly put them into the figure “5”. the problem arises because if all these welfare goods are contained in the number “5”, then what can possibly be the content of the number “1000”? in instance, it follows that, if the threshold (5) contains all the above mentioned welfare goods, then the best-off (at 1000) have all the same times two-hundred. or, more accurately, they would have the welfare level that you gain from having all these goods times two-hundred. but that is not only hard to grasp, but simply meaningless. you could of course imagine a case in which everyone has all the before mentioned welfare goods and then still some have 200 times as much money as others, but then the inequality in question is solely expressed in material resources, and this is useless because “money” alone is very rarely the currency that critics of sufficiency would employ. for one thing, it is evident that very rich people could be worse off than less rich people in other value-metrics. the illusion of numbers against sufficientarianism stems from the fact that numerical comparisons are simplistically scalar and potentially infinite, whereas real life comparisons are not only more complex than that, but also simply incompatible with that way of making interpersonal comparisons. upper limit sufficientarians reject the simple numerical comparison assumption on which these comparisons are made. they are not concerned with numbers. their only concern is deficiency. they care about eliminating material deficiency such as hunger, deprivation, illness, suffering etc., and they care about social deficiency such as oppression, dominance, discrimination etc. (frankfurt 1987; raz 1986). upper limit sufficientarians reject the simple numerical comparison assumption in favour of another assumption; namely, that there is an absolute level of wellbeing (broadly conceived), above which additional resources will not benefit 152 lasse nielsen leap 5 (2017) people further in any way relevant to justice, regardless of the strength of people’s personal desire to possess more resources. on that assumption, it seems that there is nothing wrong with perceiving b as incomparable with a and c. but from that assumption, we can derive a rather interesting and strong claim about the nature of the value of distributive goods, which is controversial, but which i think we have good reasons to accept. we can say that, no distributive good (or bundle of goods), that is relevant to justice, can have a comparable value if given to people below the threshold than if given to people above that threshold (nielsen 2016). this claim is incompatible with the simple numerical comparison assumption, because it implies that the difference between 996 and 1000 is incomparable to the distance between 1 and 5, although these distances are clearly comparable in a numerical sense captured by the mathematical fact that 4 equals 4. but translated into what these numbers stand for in terms of real goods and their value, it is far from implausible to accept it. four loaves of bread is of course equivalent to four loaves of bread, but the value of that bundle of goods surely hinges on whether one faces an absolute deficiency in food supplies. 5. conclusion l ia m sh ields’ w r it i ngs have su rely had a g reat i mpact on t he t heor i z i ng w it h i n d ist r ibut ive just ice. a nd a lt houg h t h is is on ly for good rea sons, i n t h is paper i have a rg ued t hat h is ma i n cont r ibut ion, consist i ng i n t he of fer i ng of t he sh i f t t hesis a s a n a lter nat ive to t he negat ive t hesis, is a n u n necessa r y detou r for su f f icienta r ia ns. in fact, adopt i ng t he sh i f t t hesis need lessly leaves su f f icienta r ia n ism open to a nu mber of cr it ica l quest ions, because t he a lter nat ive i n sta nd i ng up for upper l i m it su f f icienta r ia n ism seems much less t heoret ica l ly t roublesome. i conclude t hat where t he sh i f t t hesis leaves su f f icienta r ia n ism “sh i f t y ”, t he upper l i m it seems to do good enoug h for su f f icienta r ia n ism to ma i nta i n it s st rong potent ia l for bei ng t he lead i ng idea l of d ist r ibut ive just ice. bibliography axelsen, d. and nielsen, l., 2015. “sufficiency as freedom from duress”, journal of political philosophy 23: 406-426. benbaji, y. 2005, “the doctrine of sufficiency: a defence,” utilitas 17: 310-32. casal, p. 2007, “why sufficiency is not enough,” ethics 117: 296-326. crisp, r. 2003, “equality, priority, and compassion,” ethics 113: 745-63. shielding sufficientarianism from the shift 153 leap 5 (2017) frankfurt, h. 1987, “equality as a moral ideal,” ethics 98: 21-43. hirose, i., 2016, “axiological sufficientarianism”, in what is enough? sufficiency, justice, and health, c. fourie and a. rid (eds.), 51-68, oxford: oxford university press. huseby, r. 2010, “sufficiency: restated and defended,” journal of political philosophy 18: 178-97. lippert-rasmussen, k., 2016. luck egalitarianism, london: bloomsbury. nielsen, l., 2016. “sufficiency grounded as sufficiently free: a reply to shlomi segall”, journal of applied philosophy 33: 202-216. nielsen, l., 2017. “what is our real concern with real inequality?” policy studies journal, early online view (doi: 10.1111/psj.12205). nielsen, l., unpublished paper. ”the illusion of numbers against sufficientarianism”. raz, j., 1986, the morality of freedom, oxford: oxford university press. scanlon, t.m., 1975, “preference and urgency”, the journal of philosophy 72: 655-669. segall, s., 2016, “what is the point of sufficiency?”, journal of applied philosophy 33: 36-52. shields, l., 2012, “the prospects for sufficientarianism”, utilitas 24: 101-117. shields, l., 2016. just enough: sufficiency as a demand of justice, edinburgh: edinburg university press. temkin, l., 2003, ”equality, priority, or what?”, economics and philosophy 19: 61-87 temkin, l., 2017, “equality as comparative fairness”, journal of applied philosophy 34: 43-60. leap, 1 (2013) what’s so shameful about shameful revelations?* joanna firth university of oxford abstract jonathan wolff, amongst others, has criticised luck egalitarian theories of distributive justice because these theories require untalented citizens to reveal their lack of talent to the state. he believes that, even in an ideal egalitarian society, this would cause citizens to feel ashamed. having to reveal facts that one considers shameful undermines one’s self-respect. the state should treat its citizens with respect and, thus, it ought not to treat them in ways that undermine their self-respect. in this paper, i argue that this shameful revelations allegation is false. in an ideal egalitarian society, people would believe that a person’s natural marketable talents are an inappropriate basis on which to measure her value. emotions typically have a cognitive structure: one of the constitutive components of each particular emotion is a particular type of belief. shame is felt when one believes that one does not possess some quality that one believes one needs to have in order to have value. so, since citizens of an ideal egalitarian society will not believe that a person’s value depends on her natural marketable talents, they will not feel ashamed of being untalented. this is good news. luck egalitarian theories require citizens to reveal their untalentedness because it is necessary in order to achieve fairness in the distribution of resources and/or welfare. wolff’s allegation therefore implies that fairness and respect will conflict in an ideal egalitarian society. but, if i am correct, we may be able to achieve both these values. keywords: ideal luck egalitarianism, democratic egalitarianism, shameful revelation. * for comments and discussion i would like to thank hugh lazenby, emily mcternan, david miller, rebecca reilly-cooper, zofia stemplowska, an anonymous referee, participants of the brave new world conference (manchester, 2009), and participants of the 7th pavia graduate conference in political philosophy (pavia, 2009). i am grateful to the ahrc for support whilst writing this paper. i reserve special thanks for jonathan quong. 32 joanna firth leap, 1 (2013) 1. introduction all egalitarians ought to take both fairness and respect seriously. egalitarian theories of distributive justice should, therefore, be sensitive to both these values. in ‘fairness, respect and the egalitarian ethos’ jonathan wolff argues that even in an ideal egalitarian society, that is, a society where the inhabitants embrace and are guided by the underlying principles that inform the way that society is governed, these two values are very likely to conflict (wolff 1998). many prominent recent theories of distributive justice have been focused solely on fairness, and his argument is intended as a criticism of them: if, even at the ideal level, we must sacrifice respect to achieve full fairness, we shouldn’t seek full fairness and we should spend less time theorising about it. wolff’s claim that fairness and respect are very likely to conflict has considerable prima facie plausibility and is well known. further it has received explicit endorsement by some political theorists (e. g. hinton 2001: 73; lang 2009: 329)1 and is implicit in “what is the point of equality?”, elizabeth anderson’s famous polemic against fairness-focused theories (anderson 1999).2 wolff’s claim, however, is incorrect and in this paper i shall demonstrate why. but, before i do so, it is necessary to briefly rehearse wolff’s argument. the prominent fairness-orientated theories wolff has in mind are those that have come to be known as ‘luck egalitarian’ theories.3 wolff accepts the basic insight of luck egalitarianism (and its conception of fairness): if a person is responsible for having a less than equal share of resources and/or welfare, then this inequality is not unfair (wolff 1998: 97). to illustrate the insight, consider will kymlicka’s well-known depiction of it: the tennis player and the gardener.4 two single people of equal natural ability are each given a plot of land with equal potential. one person, the gardener, works hard and cultivates her land. the other person, the tennis player, idles around all day playing tennis. as a result, the gardener becomes rich and the tennis player becomes poor (kymlicka 2002: 72-3). the luck egalitarian view is that if we required the gardener to transfer some of her wealth to the tennis player, it would be unfair because the tennis player is responsible for his poverty and 1. richard arneson criticises wolff’s overall argument, but, unlike mine, his defence of luck egalitarianism does not reject the idea that revealing untalentedness must be shameful (see later in the introduction, arneson 2000). 2. anderson does not explicitly refer to wolff’s argument but she does believe that fairness and respect conflict. she asks her readers to imagine untalented citizens receiving letters with their state-benefit cheques. these letters explain to the untalented citizens that they are to receive extra state-benefits because their talents are unmarketable. then she writes ‘can a selfrespecting citizen fail to be insulted by such messages?’ (anderson 1999: 305, my emphasis). 3. wolff refers to them as ‘opportunity conceptions of equality’ (wolff 1998). i depart from his phrasing in order to follow common usage. 4. the insight is not kymlicka’s. it is ronald dworkin’s (2000). what’s so shameful about shameful revelations? 3333 leap, 1 (2013) the gardener for her wealth.5 conversely, luck egalitarians hold that inequalities in resources and/or welfare that people are not responsible for, that is, inequalities that arise out of brute luck, are unfair. so, for example, if i were born without legs and, in my society, being legless gives one the additional disadvantage of it being more difficult to acquire further resources and/or welfare, this would be unfair. additionally, luck egalitarianism would, other things equal, require that i be compensated by the state to mitigate for my disadvantage. in order to achieve a fair distribution, a luck egalitarian state would, therefore, need to collect information about how far each citizen is responsible for having the level of resources or welfare that they do. one piece of information that would be needed to find this out is the level of marketable natural talents (“talents” for short) that each individual has.6 this kind of data collection raises issues relating to privacy. however, even leaving these aside, wolff argues that this type of data collection makes luck egalitarianism problematic because it undermines respect. he says: consider... the case of someone who is unemployed at a time of low unemployment and no particular shortage of jobs. to qualify for [state] benefits this person will have to show that he or she does not have the opportunities that others have. but, by hypothesis, ...the failure, if there is one, is... the lack of talent or aptitude for the jobs that are available. to press a claim, then, one is required not merely to admit but to make out a convincing case that one is a failure, unable to gain employment even when there is no difficulty for others. but think how it must feel —how demeaning it must be— to have to admit to oneself and then convince others that one has not been able to secure a job, despite one’s best efforts, at a time when others appear to obtain employment with ease (wolff 1998: 114-115). wolff alleges that even in an ideal egalitarian society, having to reveal to oneself and the state that one is untalented would cause citizens to feel ashamed. following wolff, i shall call this the ‘shameful revelations’ allegation (wolff 1998: 109). causing citizens to feel ashamed in the process of granting them their distributive entitlements is not compatible with treating citizens with respect. so, if the shameful revelations allegation were true, then, there would indeed be a conflict between fairness and respect. in response to this 5. of course, if the tennis player were starving the gardener should give him some food. but it would, nonetheless, be unfair on the gardener to have to do this. 6. let’s assume that people are not responsible, in the relevant sense, for their natural talents. and, since the talents are defined in a market based way, being untalented poses a significant barrier to acquiring resources or welfare. 34 joanna firth leap, 1 (2013) conflict, wolff proposes that even at an ideal level, we have reason to prefer a system of unconditional state benefits over a luck egalitarian system. wolff makes several other (related) arguments in the paper. for example, he discusses two different ways in which having to reveal one’s untalentedness might undermine one’s self-respect in a non-ideal luck egalitarian society,7 notes some problems with using two person examples and points to the dangers of solely doing ideal theory. however, i put these to one side and focus on the following version of the shameful revelations allegation: even in an ideal egalitarian society, having to reveal to the state that one is untalented would cause citizens to feel ashamed. a luck egalitarian could respond to the shameful revelations allegation by simply accommodating its claim. she might say, without much ado, that, of course, luck egalitarianism should be limited in its application by other values (like respect) and no one ever thought otherwise (lippert-rasmussen 2009).8 there are two versions of this view: that luck egalitarian fairness and respect should be traded off against each other or that luck egalitarianism is conditionally sound, i.e. sound only if it is consistent with respect. alternatively a luck egalitarian might claim that the shameful revelations allegation provides welfare-based luck egalitarian reasons against the achievement of complete fairness in the distribution of resources. that is, if luck egalitarianism aims to equalise access to welfare, and collecting information about citizens’ talents will make them ashamed, then luck egalitarianism would not require this information to be collected (see e. g. arneson 2000: 177). however, neither of these responses really challenge wolff’s argument, since both responses accept his main contention —that there is a conflict between fairness and respect in a luck egalitarian society. the first type of response clearly grants this main point. that the second does so is less obvious but, in fact, it concedes the problem and pushes it back a level. if one claims that welfare-based luck egalitarian reasons would prohibit making people reveal their lack of talents, then there is still a conflict between fairness and respect it’s just that it’s been rebranded, in wolff’s terms, as “fairness conflicted against itself” and, it seems, respect has won (wolff 1998: 117-118).9 my argument does not take this concessive tack. i aim to refute the shameful revelations allegation itself and therefore show that the conflict wolff points to is not real. my basic argument is as follows: emotions have a 7. these are: (i) that to be asked to constantly justify one’s claims (including one’s claim to state benefits) could be insulting and demeaning because one might feel as though one is not trusted. and (ii) our experience of conditional state benefit schemes tells us that benefit recipients are often ‘treated with great rudeness’ (see wolff 1998: 108-9, 111 and 110 respectively). 8. g. a. cohen and zofia stemplowska each give this kind of pluralist response to different challenges to luck-egalitarianism (cohen 2008: 4; stemplowska 2008: 243). 9. i thank an anonymous referee for help with framing this paragraph. what’s so shameful about shameful revelations? 3�3� leap, 1 (2013) cognitive structure, that is, one of the constitutive components of each particular emotion is a particular type of belief. for example, one of the components of fear is the belief that danger is approaching or present. shame is felt when one believes that one does not possess some quality that one believes one needs to have in order to have value (in some deep, but not necessarily moral, sense of the word ‘value’). so, in order to be ashamed of being untalented, one must believe that one’s value depends on the natural marketable talents one possesses. as i said, wolff intends the shameful revelations allegation to apply to an ideal egalitarian society, where an ideal egalitarian society is defined as one where the inhabitants embrace and are guided by the underlying principles that inform the way that that society is governed.10 but believing that a person’s value, in any deep sense, depends on her marketable natural talents is highly inegalitarian (although admittedly in a different sense of the word to how it is used in the phrase ‘luck-egalitarian’). so it is my contention that in an ideal egalitarian society, people will not believe this and, therefore, will not be ashamed of being untalented. the shameful revelations allegation is false and we can, therefore, show that the conflict between fairness and respect is not real. in an ideal egalitarian society, the threat of people having to make shameful revelations will not provide a reason for us to have an unconditional state-benefit system. my paper will be structured as follows. section i will outline what beliefs the citizens of a society must hold in order for the society be an ideal egalitarian one. section ii will explain the cognitive structure of emotions and give a brief conceptual analysis of shame. section iii will provide a summary of my argument and give its conclusion. i will consider and reject possible objections to my argument in section iv. (namely worries arising from (i) the fact that some people in current society would say that marketable talents don’t add to a person’s value but would feel ashamed if they found out they were untalented and (ii) the fact that careers are important goods for many people). my paper only seeks to defend ideal luck egalitarianism from wolff’s 10. i should note that it is a little ambiguous whether by ‘an ideal egalitarian society’ wolff means one where the inhabitants embrace the underlying principles. but he does say: [a]n ethos is a set of underlying values, which... may be explicit or implicit, interpreted as a set of maxims, slogans, or principles, which are then applied in practice. as an idealization we can identify three levels: values, principles, and practice, all of which are part of the group’s ethos. typically the values and principles will be internalized by members of that group, and inform their behaviour’ (wolff 1998: 105 my emphasis). and, in any case, if this is not what he means by ‘ideal egalitarian society’, then his argument lacks bite. if someone were to say ‘in a society where people do not embrace egalitarian principles, people may well be ashamed at their lack of talents’, this would not be a damning criticism of luck egalitarian theories which are, for the most part, pitched at the ideal level as i’ve defined it. 36 joanna firth leap, 1 (2013) attack (i would like to be clear about this). however, whether a theory is successful or not at the ideal level affects its application and, in section v, i will conclude by briefly and tentatively considering the real-world policy implications of my argument. let me emphasise that in this paper i am discussing brute or natural talents, like physical abilities or raw intelligence rather than character-trait based talents like drive, ambition, or being hardworking. i limit my discussion in this way for three reasons. first, i am a compatibilist in the context of the free-will debate: crudely speaking, even though people do not choose their character traits, there is a sense in which they endorse them11 and i think this is a sufficient basis on which to hold them responsible for them.12 second, even if one thinks people are not responsible for their character-trait talents in the relevant sense and that in an ideal luck egalitarian society it is inevitable that people will be ashamed of, for example, being lazy or unambitious this would significantly reduce the force of the shameful revelations allegation. the idea that lazy and unambitious people would be ashamed of claiming state benefits is nowhere near as alarming as the idea that those with, for example, a learning disability would be. third, this is the meaning wolff has in mind.13 before getting into the meat of my argument, it is worth mentioning that wolff has recently published ‘fairness, respect and the egalitarian ethos revisited’ (wolff 2010).. in this paper, wolff explores some ways in which a person might be tested for untalentedness without shaming them or undermining their self-respect (e. g. by sensitive interviews combined with counselling). his main conclusion in the new paper is that: 11. consider, for example, the character traits of enjoying cookery, being hard working or even being lazy: there is a sense in which we feel accountable for these traits (perhaps they express some of our values). contrast this with brute facts about ourselves, such as being tall or having red hair: even if these features form part of our identity we don’t feel accountable for them. 12. there is a more nuanced sort of compatibilist view one can take whereby one thinks that say, it is appropriate to hold a person responsible for character traits in some sense (for example it is appropriate to blame him) but it is not appropriate to hold him responsible in the sense that one should refuse to compensate him for it. however, if one does hold this view and one thinks that it is likely that people will be ashamed of laziness even in an ideal luck egalitarian society, this is not that problematic (see main text), especially when viewed from the perspective of someone who already accepts that we can attach some kind of responsibility to unchosen character-traits. 13. we can see this because he distinguishes talents from hard work here: you may respect [a person] for their hard-work, or for their talents, or their devotion to their ageing parents... (wolff 1998: 109). and here: we are asked to imagine two people, equally talented, one of whom works hard gardening... (wolff 1998: 99). what’s so shameful about shameful revelations? 3�3� leap, 1 (2013) [t]hings are very likely to go badly wrong if we set out an ideal theory of equality and then attempt to implement it in the real world without a great deal of further thought about how it would actually impact on people, and the relations between them (wolff 2010: 349). i do not disagree with this conclusion but it is obvious and, as wolff himself says, ‘bland’ (wolff 2010: 349). further, the main idea of my paper (that in an ideal luck egalitarian society people would not be ashamed of being untalented) is not discussed in his new paper and the shameful revelations allegation is influential, important and interesting in its own right. for these reasons, unless otherwise stated, i will direct my arguments against the original paper. 2. egalitarian principles and the ideal egalitarian society there are different kinds of value that a person can have. one is the type of value that persons have just in virtue of being persons. another type of value is moral value, by which i mean, how morally praiseworthy a person is. i think both these types of value contribute to a person’s value and, importantly for our purposes, they contribute to her value in a deep and important sense. (i will refer to the kind of value a person has in a deep and important sense, as a person’s deep value and shall elaborate a bit as to what i mean by the phrase in section ii (ii)). an important question in this paper is whether an egalitarian of any stripe should accept the claim that a person’s value in any deep or important sense depends on her level of marketable natural talents. i claim she should not. she may accept that it is valuable for a person to be talented, that a person is more valuable in some trivial sense if she has more marketable natural talents. but accepting any more than this would entail that an able-bodied person is correct to say to a legless person, ‘look here legless person, i am more valuable than you, in a deep and important sense, because i can walk and you cannot’. but such a claim seems morally objectionable and unacceptably inegalitarian.14 so, i think that no egalitarian —indeed nobody— should accept that a person’s deep value hinges on her marketable natural talents. moreover, i think that most, if not all, egalitarians do not accept this. so i propose: 14. elizabeth anderson writes: [luck egalitarianism] makes the basis for citizens’ claims on one another the fact that some are inferior to others in the worth of their lives, talents, and personal qualities thus, its principles express contemptuous pity for those the state stamps as sadly inferior’ (anderson 1999: 298). has she forgotten that the value of a person and the marketable value of a person’s talents are not the same thing and that it is objectionable and inegalitarian to think otherwise? 38 joanna firth leap, 1 (2013) the irrelevance of talents principle (itp): a person’s deep value does not depend on her level of marketable natural talents. accepting the itp is not entailed by belief in the luck egalitarian principle (lep). (the lep is that it is unfair if people are disadvantaged in terms of welfare and/or resources because of things that they are not responsible for, not that people’s deep value is unaffected by their talents). but there is nothing to stop a person from believing in both the itp and the lep. and i suspect that many (but not all) luck egalitarians are motivated to accept the lep precisely because of something like the following thought process: differences in natural marketable talents are (i) arbitrary from a moral point of view, and therefore (ii) do not affect a person’s deep value and thus (iii) ought not to be a barrier to her accessing welfare and/or resources. there is some controversy to the issue. for example, those who accept moral luck may try to argue that deep value tracks certain skills (e. g. they could try to argue that a surgeon with twelve well functioning fingers is of more value). however, it is always open to a luck egalitarian to adopt the itp as a principle which she thinks should inform the ethos of an egalitarian society, even if it is not this principle that motivated her to become a luck egalitarian.15 moreover, rejecting the itp is somewhat unpalatable. i lack the space to engage in a fuller defence of the itp here, so i will simply take the more intuitive view, which i happen to endorse, as my springboard.16. following john rawls, i assume, uncontroversially, that in order for a society to be an ideal egalitarian society, its inhabitants must embrace and be guided by egalitarian principles (rawls 1999: 397). i include the itp as an egalitarian principle (although it is a different type of egalitarian principle to the lep). so i propose: 1. in an ideal egalitarian society, citizens will firmly embrace the itp. that is, they will not believe a person’s deep value depends on her level of marketable natural talents. wolff intends the shameful revelations allegation to apply at the ideal level. he says: ‘revealing that one is of low talent will be considered shameful, even in an ideal egalitarian society’(wolff 1998: 115 my emphasis). that is, he believes that people who embraced egalitarian principles would be ashamed of being untalented. but i find this puzzling. why would people be ashamed 15. wolff’s argument leaves the impression that the conflict between fairness and respect is nigh on inevitable (though he shies back from such strong language). thus even if a luck egalitarian adopts the itp as an additional, rather than internal, principle she can still challenge this assumption. 16. i thank zofia stemplowska for some of the material in this paragraph. what’s so shameful about shameful revelations? 3�3� leap, 1 (2013) of being untalented if they really believed that their talents don’t contribute to their value in any deep sense? in the rest of the paper i will argue that i am correct to be puzzled. if people believed in the itp firmly enough, they wouldn’t be ashamed of being untalented. in order to explain why not, i must say something about both the conceptual structure of emotions generally, and what shame is. 3. emotions and shame 3.1. the structure of emotions17 there is a high level of agreement amongst philosophers of emotion that in order for some feeling to be, conceptually speaking, an emotion it must contain a cognitive component, that is, it must contain a belief,18 and this belief must be appropriately connected to the emotion in question.19 let me say a few words to help explain this definition. our emotions are not just empty electrical impulses. for example, if someone ‘has just raped my child, my anger...is not just a mindless impulse. it involves a thought about the terrible damage my child has just suffered, and the wrongfulness of the offenders act’ (nussbaum 2004: 10). to illustrate how central the cognitive component is to the concept of emotion, imagine a woman who has a racing heart, is trembling, has light nausea, is red, narrows her eyes, bares her teeth and bangs her fist on the table. this description could be a description of an angry woman but, though less common, it could be someone having a seizure. unless we make reference to a cognitive element, namely the belief that she or someone else has been wronged, we cannot be sure that the thing under discussion is anger. you can’t capture all that there is to an emotion without referring to its component belief. this reveals that emotions contain beliefs.20 2. emotions contain a cognitive component. that is, emotions include an appropriate belief.21 i am not going to offer a detailed defence of 2: i shall just rely on the authority of the existing literature. i will, however, discuss one further issue relating 17. i thank rebecca reilly-cooper for guidance in navigating the philosophical literature on the structure of emotion. 18. there is debate concerning whether the cognitive element must be a belief as opposed to some other cognitive state (like a judgment, ‘seeing-as’, ‘alief’, or an ‘imagining’). but, for my purposes, it is unnecessary to get into these more fine-grained distinctions: i use the word ‘belief’ in a broad sense: simply to indicate a cognitive element. 19. see greenspan 1988; lyons 1980; nussbaum 2004; de sousa 1987. 20. in this paragraph i have borrowed examples and phrasing from nussbaum (2004: 27). 21. there are other features that a feeling must have to be an emotion (e. g. they must be directed towards some object or state of affairs) but these aren’t relevant to my paper. 40 joanna firth leap, 1 (2013) to 2 because it will be useful for a point i wish to make later. sometimes we have emotions that contain beliefs we profess not to have (nussbaum 2004: 11-12). consider the following example: mary adamantly declares that she believes her partner is not cheating on her, but she is, nonetheless, seized by fits of jealousy when he doesn’t come home from work on time. i think examples like these do have a cognitive explanation. i think that what’s going on in this example is that either mary pretends (to herself and/or others) that she doesn’t believe her boyfriend is cheating on her —given the trauma of a break-up, she has a strong incentive to keep up this pretence. or perhaps she keeps changing her mind as to what she believes. this shows us that people can have emotions that contain beliefs that they’re not that sure of, or that aren’t consistent with their other beliefs. but, the important point is that mary’s jealousy gives us reason to doubt her claim that she believes her boyfriend is faithful. it does not give us reason to think that emotions don’t contain cognitive elements. (one might be able to think of emotions, or feelings, which lack, or seem to lack, a belief. perhaps the fear associated with phobias is one such example. however, this is not the way we typically experience emotions and, thus, need not preoccupy us too much for the purpose of this paper. in any case, i use the word belief broadly (c.f. note xviii)). 3.2. shame i shall now outline what one needs to believe to be ashamed. when you feel shame, you are evaluating your personal qualities rather than simply an act you’ve performed. so, for example, if you were to spit on someone’s face, if you are ashamed of this, you do not just think ‘what i did was rude’ but rather ‘i am a rude person for doing that’. moreover, shame is felt when you believe that you do not possess a personal quality that is important to you. but, the fact that some personal quality is important to you is not enough to mean that you will be ashamed of not having it. it has to be important to you in a specific kind of way. simply failing to possess a quality that is important to you would normally occasion regret. but it need not occasion shame. for example, you can deeply desire to be able to sing beautifully without feeling ashamed of being a terrible singer. i think this is explained by the thought that shame is felt when one perceives oneself to lack a personal quality that one believes one ought to have. the sort of ‘ought’ i have in mind can be, but is wider than, the moral sort of ought. that is, it’s wider than the sort of failure that renders one a morally blameworthy or bad person. but the ‘ought’ in question must be one that is bound up with something the ashamed person takes to be a serious norm about how she should be (nussbaum 2004: 204). that is, she must think that the norm has a similar normative force to moral norms. if one thinks that one ought to possess a particular quality, in a way what’s so shameful about shameful revelations? 4�4� leap, 1 (2013) that is connected to one’s serious norms, then, in my terms, one thinks that failing to possess this quality would detract from one’s deep value. i thus propose that 3. in order to feel shame one must believe that one lacks a quality that one believes contributes to one’s deep value.22 therefore, 4. in order to be ashamed of being untalented, one must believe that marketable natural talents contribute to one’s deep value. it might be helpful to relate deep value and shame to stephen darwall’s distinction between recognition self-respect and appraisal self-respect (darwall 1977: 47-19). recognition self-respect is the sort of respect one should have for oneself solely in virtue of being a person, “a being with a will who acts for reasons” (for example, recognising that one is the sort of being that possess moral rights and duties). appraisal self-respect, according to darwall, is felt when one believes one lives up to the standards that it is appropriate for a person to live up to (so, for example, one can lose appraisal self-respect if one believes one is not living up to one’s moral duties). he classifies self-esteem as being felt when one possesses a quality that is desired but not connected to the properties that should give rise to recognition respect. it is tempting to say therefore that, according to my classification, one feels ashamed when one lacks appraisal-self respect (and possibly also recognition self-respect but i’ll put this to one side). however, using darwall’s definitions, this is a little too narrow: it is plausible to think (at least in contemporary society) that one does not need to be hard-working to be a person and that one does not have a moral duty to be hardworking and yet feel ashamed of being lazy. however, for this to be the case they must take hard-workingness to be a virtue of some kind, that is to have some serious normative weight rather than simply being a quality they would like to possess. this is why i argue that shame is tied to one’s perceived deep value rather than one’s personhood.23 someone might think i’m mistaken in saying that shame is bound up with serious norms, that is, with what gives a person value in a deep way. in ordinary language, people sometimes use the word ‘shame’ in connection with fairly trivial norms. but the type of shame wolff has in mind must be shame that’s connected to serious norms. if not, then the shame involved in 22. shame contains other types of belief, but these are not important for my paper. 23. accepting the itp is consistent with a person taking, for example, “being a good musician” as forming part of her deep value. it is inconsistent with her believing that the natural talents which help her to be a good musician form part of this deep value. 42 joanna firth leap, 1 (2013) the shameful revelations allegation would not be very painful and thus lose its bite. of course, if forcing ideal luck egalitarian citizens to reveal that their lack of talent will embarrass them severely, this is not good news for luck egalitarians. i do not view embarrassment as a (necessarily) lighter version of shame but, rather, as a similar but ultimately different emotion. it can be felt at a range of different intensities. but should luck egalitarians fear an embarrassing revelations allegation? probably not: embarrassment is typically connected to the thought that you have publically done something that is out of place, socially speaking: we feel embarrassed when we publically contravene social norms. by a social norm here, i don’t just mean something that is frequently done by members of the society. i mean something that is viewed as perfectly acceptable behaviour by members of the society (and, thus, some behaviours which are fairly unusual are not embarrassing). as such, the things we feel embarrassed about are highly dependent on contextual social norms. for example, many british people would be embarrassed (and painfully so) if someone walked in on them going to the toilet. but, in delhi, people habitually defecate on the street and it is hard to imagine that they are embarrassed by so-doing. in an ideal luck egalitarian society, revealing one’s lack of talents will not be socially out of place. it will be the norm: only untalented people will do it, but it will not be something that’s viewed as unacceptable, inferior or weird: it will be viewed as people claiming what they’re entitled to. further, though belief in the itp relates to serious norms and thus shame, rather than embarrassment, one’s beliefs about serious norms will surely have some effect on what one gets embarrassed about.24 thus it seems unlikely that embarrassment at lack of talents would persist in an ideal luck egalitarian society. further, there is no reason why a luck egalitarian state would need to force citizens to broadcast their untalentedness to the rest of the nation: one state official would do. and we all know that certain actions are much less embarrassing when performed in front of a contextually appropriate individual (think of a trip to the gynaecologist). my point here is not that genuine or deep embarrassment can’t be felt in front of one person or that it does not matter if it is only felt in front of one person. it is, rather, that when there is a contextually appropriate individual (or perhaps group), the experience is (for most people) much less embarrassing or not even embarrassing at all (and therefore much less painful or not painful at all). this is because of the fact that embarrassment is highly dependent on contextual social norms. minimal embarrassment does not pervasively corrode one’s self-respect 24. the itp is not merely an ‘officially recognised’ norm: it is one that is embraced by citizens (or else the society is not ideal). what’s so shameful about shameful revelations? 4343 leap, 1 (2013) —which is the issue at hand in this paper— and is, in my view, a price worth paying for fairness.25 i am not claiming that embarrassment at lack of talents would, without a shadow of a doubt, be completely eliminated from an ideal luck egalitarians society. however, it is clear that pervasive embarrassment at lack of talents should not be considered a certainty or even particularly likely in such a society. the vague possibility that people will be embarrassed at revealing their lack of talents in an ideal luck egalitarian society is not sufficient reason to dismiss luck egalitarianism. therefore, luck egalitarians need not fear an embarrassing revelations allegation. 4. summary my argument against the shameful revelations allegation thus takes the following form: 1. in an ideal egalitarian society, citizens will firmly embrace the itp. that is, they will not believe a person’s deep value depends on her level of marketable natural talents. 2. emotions contain a cognitive component. that is, emotions contain an appropriate belief. 3. in order to feel shame one must believe that one lacks a quality that one believes contributes to one’s deep value. therefore: 4. in order to be ashamed of being untalented, one must believe that marketable natural talents contribute to one’s deep value. so my conclusion is 5. since ideal egalitarian citizens will not believe that marketable natural talents contribute to a person’s deep value, they will not be ashamed of being untalented. 25. perhaps this kind of response could be deployed against the shameful, as opposed to embarrassing, revelations allegation, but i’m sceptical about the possibility. since shame is dependent on your beliefs about personal value rather than your beliefs about social norms, you could experience equal shame at revealing something you thought was shameful in front of a ‘contextually appropriate’ person as you could by revealing it in public (though, of course, the latter would undoubtedly be more unpleasant for other reasons, for example, you would probably experience humiliation). (support for this idea can be found in the claim commonly made in the literature that embarrassment and humiliation require an observer (or at least an imagined observer) whereas shame does not. it would be entirely normal to be ashamed about lying to your relative without even thinking about the view of a third party. but it would be utterly bizarre to, say, feel embarrassed about going to the loo without an (at least imaginary) observer). 44 joanna firth leap, 1 (2013) so revealing that one is untalented would not be shameful in an ideal egalitarian society. therefore being required to reveal this information to the state in order to claim one’s benefits would not undermine ideal egalitarian citizens’ self-respect. so the shameful revelations allegation does not mean that unconditional state welfare benefits would be needed in an ideal egalitarian society. this is good news: we may be able to achieve both respect and fairness in an ideal egalitarian society. 5. objections 5.1. us and them one might reasonably wonder whether it’s true that most people in our current society think that a person’s deep value depends on her talents. if they do not, then, since it’s nevertheless true that many people in our current society would be ashamed of admitting that they’re too untalented to get a job, this poses a problem for my argument: why would ideal egalitarian citizens be any different? if we asked citizens of our current society outright, ‘do you think a person’s value, in a deep sense, is determined by her talents?’ chances are that at least some of them would say ‘no’. however, i think there are grounds for thinking that many citizens of our current society do not believe in the itp, or at least not in a very full sense. as david miller warns, ‘when focusing on expressed beliefs, we risk picking up what might be called “sunday-best” beliefs, that is, the views that people think they ought to hold according to some imbibed theory, as opposed to the operational beliefs that would guide them in a practical situation’ (miller 1999: 61-62). i believe that there are strong indications that many current citizens do not fully endorse the itp. given the topic of the paper (and the fact that emotions contain a cognitive component), the most obvious thing to say is that the fact that current citizens are ashamed of being untalented shows that they do not fully embrace the itp. compare the case of mary: her jealousy makes us think she doesn’t fully believe that her partner is not unfaithful. there are other behaviours that indicate that we don’t currently deeply embrace the itp. for example, we commonly praise children by saying things like ‘what a clever girl!’, some people will look down their nose at you if don’t know, say, who composed eine kleine nachtmusik26 and some people think that being a talented footballer or musician makes you ‘cool’. 26. the fact that knowing who composed eine kleine nachtmusik doesn’t actually show that you’re intelligent doesn’t matter. some people (intellectual snobs) seem to think it does show this. what’s so shameful about shameful revelations? 4�4� leap, 1 (2013) so, given the presence of shame at lack of talents and these other behaviours in current society, it is false to say that (many) current citizens fully embrace the itp despite saying that they do. i’m not sure exactly how fully citizens must embrace the itp in order for us to be able to truthfully call the society an ideal egalitarian one. but i do not think that the level to which current citizens do is sufficient. so from the fact that current citizens feel ashamed at lacking talents, it doesn’t follow that ideal luck egalitarian citizens would. since we do not live in an ideal egalitarian society, this is unsurprising. nonetheless, one might think that the fact that people in our current society don’t firmly endorse the itp fails to solve the problem. what if there is a reason why current citizens don’t fully endorse the itp that would remain even in an egalitarian society? stated clearly this objection simply amounts to the charge that an ideal luck egalitarian society would be very difficult to achieve. (let’s call this the difficulty objection). but this objection is irrelevant: it has nothing to do with the question of whether people would feel ashamed of being untalented if an ideal egalitarian society were achieved. and, in any case, the fact that an ideal luck egalitarian society would be difficult to achieve is not really damaging to luck egalitarian theories because it’s not as though their proponents don’t know this. (of course, one could read the objection as being that ideal theory is not worth doing because it is impracticable or non-action guiding but this is a broader methodological objection to ideal theory more generally, and thus is beyond the scope of this paper). however, i will address a variant of the difficulty objection which states that an ideal society would be difficult to maintain because it would not be any easier for citizens of an egalitarian society to believe firmly in the itp than it is for citizens of our current society. i believe there is reason to doubt this idea: although people in our current society might express a belief in the itp, it could hardly be called a dominant ideal. that is, it does not, in any major way, guide our (institutional and other) practices, nor is it frequently mentioned in public discourse. however, this wouldn’t be the case in an ideal egalitarian society. it would be a dominant ideal: our institutional, and other, practices would be guided by it. it seems likely, therefore, that the topic would come up more in public discourse. it seems to me that if a particular ideal guides your society’s institutional, and other, practices and informs its public discourse, it will be much more likely that this ideal will gain greater prominence in one’s own conscious and unconscious beliefs. in other words, the features and background culture of an ideal egalitarian society should make it easier for its citizens to embrace the itp more fully. i don’t think this is controversial: the background features of a person’s society obviously influence her beliefs. 46 joanna firth leap, 1 (2013) it is also worth making explicit that the level of commitment to the itp that i demand is not as high as it might first appear, making it more feasible. first, i have only been asking ‘would ideal luck egalitarians endorse the itp in a full sense?’. i have not been asking ‘will all traces of any beliefs that contradict the itp be removed from the mind of ideal egalitarian citizens?’. this makes the depth of the endorsement of the itp required by ideal egalitarian citizens more feasible.27 second, in order for the shameful revelations allegation to be put to rest it is not necessary that we must be able to achieve a society where there is no possibility that even one single person might not firmly embrace the itp. it is only necessary that the general ethos of the society makes the great majority of untalented people embrace the itp. even if the shame of the few that do not is serious, expecting theories of justice to cater to peoples’ peccadilloes is setting too high a standard. 5.2. the importance of careers timothy hinton writes, it might be objected that wolff’s worry is too insignificant to be of concern to egalitarians. “after all”, someone might say, “in an egalitarian society, people would have quite different attitudes towards talents from those held by people in our societies. they would view the distribution of talent as being arbitrary from a moral point of view. and hence, untalented people would have no more reason to feel ashamed at having to admit their lack of talent than anyone here and now has to feel ashamed at being brown-eyed or dark-haired”. i do not find this reply persuasive because looks of this kind are too insignificant from a moral standpoint to be compared instructively to talents. people’s career aspirations are intimately related to their talents: one can only realistically entertain certain goals for oneself if one possesses the abilities needed to achieve them. yet having a successful or happy career is..., at least for many people, a crucial component of leading a decent life. these facts are unlikely to change under egalitarian conditions. hence, those who were unable to find work when there was plenty of it about would be unable to realize important human aspirations (hinton 2001: 76-77). the earlier wolff (1998: 115) paper also endorses a similar line. however, this line of objection fails. notice that hinton has switched the focus of the 27. it is not necessary for all traces of any beliefs that contradict the itp to be removed from citizens’ minds in order for shame at lack of talents to cease to be a problem. if one only rejects the itp in a very minimal way, then i doubt we need to be too concerned about any shame occasioned by this. (i assume the more marginal a belief is in one’s conscious or unconscious mind, the weaker any emotion that contains it). what’s so shameful about shameful revelations? 4�4� leap, 1 (2013) untalenteds’ distress28 from their untalentedness to their lack of a career. however, assuming a roughly similar market in both societies, people who are too untalented to get a job in a luck egalitarian society will also be too untalented to get a job in a society with unconditional welfare benefits. the fact that untalented people will not be able to fulfil the important human aspiration of getting a job is not a problem unique to luck egalitarianism: this fact does not, in itself, give us reason to prefer a system of unconditional state-benefits. but, one might still have worries: even assuming that the general argument of my paper is correct and citizens would not be ashamed of the brute fact that they’re untalented, would a luck egalitarian society cause untalented (and unemployed) citizens to feel any significant additional distress compared to a society with unconditional state-benefits? after all, in contrast to untalented citizens of a society with unconditional welfare benefits, untalented citizens of a luck egalitarian society are forced to know why they are unemployed. both wolff and hinton claim, therefore, that a system of unconditional state benefits is better for the (involuntarily) unemployed because it allows them to believe that they are unemployed through choice (hinton 2001: 77; wolff’s 1998: 114). i’ll allow that the sense of distress at not having a job is lessened if one believes that one is unemployed through choice.29 but wolff and hintons’ claim can only plausibly apply to citizens who have applied for no, or very few, jobs: the idea that people who are frequently applying for jobs and being rejected would believe that they were unemployed through choice is implausible. in a non-luck egalitarian society, citizens could blame their unemployment on factors other than their lack of talent (e. g. their prospective employers’ bad taste). but, this doesn’t show that they will be significantly less distressed than they would be in a luckegalitarian society. if one wants a job and can’t get one, then, since it is the job that one wants (and not the talents per se), one will be very disappointed whatever the reason for one’s lack of employment. yet an objector might persist: luck egalitarianism forces citizens to give up hope of getting a job in a much blunter way than a society with unconditional welfare benefits. (i assume that one is more likely to maintain the hope of getting a job if one blames it on external factors, like prospective employers’ bad taste, rather than on one’s own untalentedness). however, this isn’t necessarily a black mark for luck egalitarianism. an untalented luck egalitar28. i’m using the word ‘distress’ to allow for a broad range of negative emotions, feelings or moods that might be felt due to being unemployed. 29. although, if one is claiming state benefits and believes that one is unemployed through choice, this might involve believing that one is a ‘welfare-scrounger’, which is surely a potential source of shame for the untalented citizens and resentment and condemnation from other citizens. 48 joanna firth leap, 1 (2013) ian citizen could dwell, for the rest of her life, on the fact that she’s unlikely to get a job. or she could cut her losses and move on: paid employment is not our only meaningful occupation (think of, for example, studying, family raising and making music).30 in a system of unconditional welfare benefits on the other hand, an untalented citizen is more likely to be unaware that she’s unlikely to get a job. therefore, she may well apply for job after job and then face disappointment after disappointment as she is rejected each time. and, eventually, she will probably realise that she is unlikely to get a job anyway. there are clearly reasons to prefer the former situation, so it is far from settled that unconditional state-benefits are better for the untalented in an ideal egalitarian society. 6. what about the real world?31 because of the problems wolff sees in luck egalitarianism, he suggests that egalitarians have at least one reason to campaign for unconditional welfare schemes in real world politics (wolff 1998: 97).32 i fully accept wolff’s warning: given that in our current society citizens would be ashamed of revealing their lack of talent, we should be careful about campaigning for a conditional state benefits system. sometimes the best thing to do is to sacrifice a little fairness to maintain respect. but, when we do this, we must remember that fairness is sacrificed. we therefore have a reason to inquire as to whether we can find a better arrangement. in this paper, i have conceded that an ideal luck egalitarian society would be difficult to achieve. but something being difficult to achieve doesn’t, without further reflection, mean we shouldn’t try to achieve it —especially when what is at stake is, like fairness, important. if what i argue in this paper is correct, a promising way to proceed would be to change peoples’ beliefs so that they accept and value themselves (and others) for what they are, rather than just giving up on distributive fairness. we might be able to change peoples’ beliefs enough to make their shame shallow or we might be able to change some people’s beliefs completely. this proposal is not perfect, but, since we’re now talking about the real world, we already know that what we achieve won’t be perfect. the point i want to make, however, is that if we opt immediately for an unconditional state benefit system, we might miss an 30. wolff makes a similar point in the recent paper (2010: 345). he says that discreet meetings with state officials that focus on helping a person come to terms with her untalentedness and building up the talents she has might actually serve to increase self-respect. 31. i would like to note that the arguments of this section are broadly in harmony with the material in wolff’s new paper (2010: esp. 346-7). 32. though explicitly denies that an unconditional system is necessarily and all-thingsconsidered better in the new paper. what’s so shameful about shameful revelations? 4�4� leap, 1 (2013) opportunity to minimise the conflict between fairness and respect and so miss an opportunity to make the world more just. changing peoples’ attitudes towards talents might seem like a utopian dream (wolff 1998: 115), but it’s not as far fetched as one might think. first, history tells us that it is possible to reduce the level of deep-seated societal prejudices (look at the progress we’ve made with regard to sexism, racism, and homophobia). second, my evidence here is anecdotal but, one only needs to look at literature surrounding the disability rights movements to see that many of today’s disabled people are not ashamed of their disabilities or dependence and, despite their pain and frustration, see their lives as rich and meaningful.33 consider this passage from michael wenham’s autobiographical account of living with a motor neuron disorder: as adults living in 21st-century britain, we are invited to measure our value in economic terms. all of us get the message that we are valued for what we do, what we produce, what we contribute to society. unemployment is the ultimate negation of worth. in the full monty, the jobless miners make a great discovery: that they have a dignity, they’re worth something, even when they are stripped bare. being inexorably rendered incapable is like undergoing an enforced, prolonged and embarrassing striptease. i can contribute less and less. i cannot even help to lay the table for a meal. the astonishing effect, however, is this: as i do less and “just be” more, those nearest me, starting with my family, value me no less. indeed, since my self-esteem used to depend in part on what i did, i feel that i am valued more (wenham 2008, my emphasis). wenham is not alone. there are numerous disability rights activists out there campaigning for acceptance and respect, whose work is motivated by a deep conviction of the value of disabled persons.34 of course, not all disabled people are as strong and determined as these campaigners and i do not wish to downplay the internal difficulties (frustration, depression etc.) they face. but my point is simply this: we are not in an ideal egalitarian society now and many disabled individuals clearly view themselves as having equal value to 33. many physically disabled people can and do work now. indeed, many in the disability rights movement stress the abilities and employability of disabled people (consider the aptly named group ‘able-disabled’). however, in general, physically disabled people need more resources to facilitate this (for example, carers and specialist equipment). but the key point is that they’re not ashamed to campaign for these on the basis of the fact that they lack certain market-relevant talents. 34. to name a couple more examples: alison lapper, the british artist with no arms and shortened legs who frequently poses naked for photographs and describes a sculpture of herself naked and pregnant as ‘beautiful’ (see www.alisonlapper.com). baroness jane campbell of ‘not dead yet’ campaigns against euthanasia for only the terminally ill precisely because she believes that a life full of pain and dependence is a valuable life. �0 joanna firth leap, 1 (2013) able bodied people and are not ashamed of their disability. it is implausible and unduly pessimistic to assume that we cannot improve upon the levels of prejudice in our current society. it is, therefore, also unduly pessimistic to assume that we can’t increase the number of unashamed untalented people. we probably don’t need to achieve a totally ideal egalitarian society —that is, a society where every single member fully embraces the itp— to significantly increase the number of people who are not ashamed at their lack of talent. a society with a better balance of fairness and respect than a society with an unconditional benefits system is surely achievable. we should not give up on this goal. bibliography anderson, e., 1999: “what is the point of equality?”, ethics 109: 287-337. arneson, r., 2000: “egalitarian justice versus the right to privacy”, social philosophy and policy 17: 91-119. cohen, g. a., 2008: rescuing justice and equality, cambridge mass.: harvard university press. darwall, s., 1977: “two kinds of respect”, ethics 88: 36-49. dworkin, r., 2000: sovereign virtue: the theory and practice of equality, cambridge, mass.: harvard university press. greenspan, p., 1988: emotions and reasons: an inquiry into emotional justification, london: routledge. hinton, t., 2001: “must egalitarians choose between fairness and respect?’” philosophy and public affairs 30: 72-87. kymlicka, w., 2002: contemporary political philosophy: an introduction, oxford: oxford university press. lang, g., 2009: “luck egalitarianism, permissible inequalities, and moral hazard”, journal of moral philosophy 6: 317-338. lippert-rasmussen, k., 2009: “justice and bad luck’” the stanford encyclopedia of philosophy n. zalta (ed.), url = http://plato.stanford.edu/archives/fall2009/entries/justice-bad-luck/. lyons, w., 1980: emotion, cambridge: cambridge university press. nussbaum, m. 2004: hiding from humanity: disgust, shame and the law, princeton: princeton university press. miller, d., 1999. principles of social justice, cambridge, mass.: harvard university press. o’hear, a., 1976: “guilt and shame as moral concepts”, proceedings of the aristotelian society 77: 73-86. rawls, j., 1999: a theory of justice, cambridge mass.: harvard university press. de sousa, r., 1987: the rationality of emotion, cambridge, mass.: mit press stemplowska, z., 2008: “making justice sensitive to responsibility”, political studies 57: 237-259. swinburne, r., 1989: responsibility and atonement. oxford: oxford university press. wenham, m., 2008. “i don’t want the right to die”, the independent http://www.independent.co.uk/life-style/health-and-families/health-news/michael-wenham-idont-want-the-right-to-die-1061348.html. what’s so shameful about shameful revelations? ���� leap, 1 (2013) white, s., 2004: “what’s wrong with workfare?”, journal of applied philosophy 21: 271-284. williams, b., 1993: shame and necessity, california: university of california press. wolff, j., 1998: “fairness, respect, and the egalitarian ethos”, philosophy and public affairs 27: 97-122. — 2010: “fairness, respect and the egalitarian ethos revisited”, journal of ethics 14: 335-350. 01 davis.indd which moral requirements does constitutivism support? rya n w. dav is brigham young university abstract constitutivists about morality believe that necessary features of any action can also provide norms of moral assessment. this paper investigates what kind of moral requirements constitutivism might support. to narrow that question, i will consider one way of developing a constitutivist account of morality that purports to ground requirements to not interfere with others’ exercises of rational capacities, and to help them possess these capacities. this paper will claim that not interfering with others’ capacities is more important than helping them to possess those capacities. the weaker version of this thesis will be that in cases of conf lict, we should have a presumption favoring non-interference. the stronger version is that not interfering is always required, but helping is only sometimes required. if i am right, constitutivism might not only explain the moral significance of not interfering and of helping. it may also help explain long-standing intuitive asymmetries between the two. keywords: constitutivism; autonomy; agency; obligation; michael smith introduction constitutivists about some domain believe that elements in that domain have a feature (or features) that both constitute them as members of that domain, and also provide a standard of evaluation for them.1 the idea is that a complete description of the domain will also contain implicitly some prescriptive component as well, or at least the resources for drawing out a prescriptive component. constitutivism about morality is the view that an account of moral reasons or norms can be derived from facts about the nature of agency, or the status of being an agent. 1 recent examples include katsafanas (2011); alm (2011); walden (2012); bertea (2013); ferrero (2009); korsgaard (2009). my definition here is most closely related to the one proposed by katsafanas. which moral requirements does constitutivisim support? 9 leap 4 (2016) this paper will set aside arguments about the truth of constitutivism. it will instead ask: what moral requirements would constitutivism support? to narrow that question, i will consider one way of developing a constitutivist account of morality that purports to ground requirements to not interfere with others’ exercises of rational capacities, and to help them possess these capacities. this two-fold requirement has been philosophically popular since at least rawls (1996: 293; cohen 2008; shiffrin 2011). this paper will claim, internal to the constitutivist account i will sketch, that not interfering with others’ capacities is more important than helping them possess those capacities. the weaker version of this thesis will be that in cases of conf lict, we should have a presumption favoring noninterference. the stronger version of my thesis is that not interfering is always required, but helping is only sometimes required. if i am right, constitutivism might not only explain the moral significance of not interfering and of helping. it may also help explain long-standing intuitive asymmetries between the two. 1. from agency to moral requirement michael smith has recently (2011; 2012; 2013; 2015) developed a version of constitutivism about morality (cf. smith 1996). like other constitutivists, smith’s position is that moral requirements are included among constitutive standards of action. smith derives two high-altitude constitutive moral requirements: one prohibiting interference with “any rational agent’s exercise of his rational capacities”, and a second requiring actions that “make sure that agents have rational capacities to exercise” (smith 2011: 360). following smith, i will refer to these respectively as obligations to “not interfere” and to “help” (2013: 26). smith begins with the idea that there is some feature of action that also provides standards of assessment for actions. for smith, the important concept is that of “agent”, which picks out a “goodness-fixing kind” (2013: 17). a kind is “goodness-fixing” if grasping the concept involves also grasping standards for assessing instances of the concept as better or worse. following judith jarvis thomson (2008: 21-22), smith gives “toaster”, “burglar”, and “tennis player” as examples (2013: 18). according to smith, “a good agent is someone who has and exercises, to a high degree, the capacity to know the world in which he lives and to realize his final desires in it” (2013: 18). smith inherits these criteria from what he calls the “standard story of action”, according to which a movement counts as an action if it is produced by a belief and a desire that combine in the right 10 ryan w. davis leap 4 (2016) kind of way (hume 1740; davison 1963). smith thinks the standard story is appealing in its parsimony and explanatory power, but i will not worry about the reasons for accepting it here. instead, i will be interested only in the standard story’s consequences for the content of moral requirements. the standard story makes it obvious why constitutive standards of assessment apply for belief: an agent with false beliefs is failing to exercise the capacity to know the world. the standard story also makes it obvious that we can assess the rationality of action: an agent whose actions fail to realize the agent’s final desires is also failing to exercise a constitutively agential capacity. what is not obvious on the standard story is how any constitutive feature of action could help to explain moral requirements. instead, it might appear that accepting the standard story will undermine our confidence that any rational requirements are also moral requirements. the standard story allows for rational criticism of beliefs, and also of desires that depend for their existence on beliefs. for example, if i desire to walk to central square as a means of getting ice cream, my desire to go to central square depends for its existence on my belief that ice cream can be had there. (following smith, i will call these extrinsic desires.)2 if, as the standard story seems to suggest, the only attitudes amenable to rational assessment are beliefs and extrinsic desires, then final desires cannot be assessed. if final desires cannot be rationally assessed, then no final desire could be irrational. and in fact, smith points out that proponents of the standard story have long accepted that final desires could not be rationally criticized (hume 1740; williams 1981; 1995). however, if we also believe that some final desires can be contrary to morality, and that moral obligations give us reasons, then some final desires are contrary to reason. so, the standard story apparently conf licts with our other beliefs about morality. smith’s revision is to suggest that the standard story provides tools for assessing not only beliefs and extrinsic desires, but final desires as well. the standards of assessment for final desires, it turns out, are also the basis for moral requirements. in this way, smith is a constitutivist about moral requirements. understanding how smith’s argument works will be important to thinking about its consequences for the content of moral requirements, so i will brief ly outline its steps. call an agent “ideal” when that agent is the maximally good member of the kind of which it is an instance. if good agents exercise, to a high degree, capacities to know the world and realize their final desires within it, then the ideal agent will exercise these capacities fully and robustly. the 2 for other uses of “extrinsic”, see korsgaard (1996) and langton (2007). which moral requirements does constitutivisim support? 11 leap 4 (2016) question is what to do about cases in which exercising one capacity undermines the exercise of the other. smith imagines an agent who finally desires to believe <p>. if this agent is maximally ideal, then the agent must be able to exercise the capacity for desire realization robustly, across a variety of circumstances. but if the agent robustly realizes the desire to believe <p>, then the agent will realize this desire in circumstances that include those in which the available evidence tells against <p>. this case shows that exercising the capacity to realize one’s final desires may conf lict with exercising the capacity to know the world. as smith points out, “an ideal agent thus turns out to be one whose psychology, by its very nature, displays lots of tension and disunity, as a higher score along one dimension comes at the cost of a lower score along another” (2013: 22). what are the choices for a defender of the standard view? one might hold that an ideal agent would maximize either belief acquisition or desire realization, or that there is some composite in which the ideal agent would have the highest aggregate “score” possible—even if this meant having a very dis-unified and incoherent psychology. smith finds all of these options unappealing, and concludes that we should take one of them only if there is no available way of adding mental states to the ideal agent so as to make that agent’s psychology more coherent. fortunately, it is very plausible that there are mental states that render the ideal agent’s psychology more coherent. suppose the agent had a final desire to not now interfere with the exercise of their belief-forming capacities. provided this desire exceeded the desire to now believe <p> in strength, the agent would then not face a dilemma. because the agent’s psychology would be more coherent with this additional desire than without it, we can infer that the desire would be part of the ideal agent’s psychology. what is interesting is that this suggests that the standard story can not only say something about what beliefs and extrinsic desires the ideal agent would have, but can also say something about what final desires the ideal agent would have. in particular, the ideal agent would have what smith calls “coherenceinducing desires”. although this shows that one apparent implication of the standard story was mistaken, it does not yet show how the standard story could ground constitutive moral requirements. smith next considers an agent who finally desires to believe <p> in the future. this desire sets up the same incoherence in the agent’s future psychology as the analogous desire creates in the agent’s present psychology. because this makes the agent’s psychology less robustly coherent, smith concludes that a desire to believe <p> in the future makes the agent’s psychology less ideal in the present. so, coherence-inducing desires will also include desires to organize the agent’s 12 ryan w. davis leap 4 (2016) psychology in the maximally coherent way in the future. not only should the agent desire not to interfere with the future exercise of their rational capacities, they should also have desires (now and in the future) to bring it about that the agent possessed these capacities (smith 2011: 356). as with other constitutivist projects, grounding moral requirements must involve making the shift from a temporally extended concern with the self to a concern with other agents. smith offers a couple of different considerations for how this move might be made. first, he suggests that if agents are to fully and robustly possess rational capacities now and in the future, they will have to count on other agents to not interfere with their use of these capacities, and also to help them possess these capacities. part of having an ideal psychology—and recall this is using only the resources from the standard story—is to then have a concern for the rational capacities of others. smith writes: “[i]f an agent is to robustly and fully exercise the capacity to believe for reasons, then he also has to be able to rely on the non-interference of other rational agents, assuming that there are such agents…[t]his too is grounded in the reasonableness of his supposing that all rational agents, if they are robustly to have and fully exercise their own capacities to believe for reasons, must desire not to interfere with other rational agents exercises of their capacities. for to suppose that rational agents do not extend their concern for non-interference to other rational agents in this way is to imagine that they make an arbitrary distinction between their reliance on themselves and their reliance on others—despite the fact that all of those on whom they must rely, insofar as they exercise their capacity to believe for reasons, have the very same interests in the non-interference of others as they have in themselves” (2011: 357). smith has another argument for the same generalizing move to other agents. the reasons to want to maintain the functioning of one’s rational capacities remain in place even if the agent undergoes changes during the course of exercising a rational capacity, such that the changes do not preserve the agent’s personal identity (smith, 2012: 323-327). the move from self to other agents has long been controversial for constitutivists. one potential concern with the account developed here is how it could capture the type of universality that we characteristically regard as characteristic of morality. why, that is, would an ideal agent want to help and not interfere with all other rational agents, as opposed to merely that subset who happened to be around her, and could affect her capacities?3 3 i’m grateful to a referee for pressing me to think about this question. which moral requirements does constitutivisim support? 13 leap 4 (2016) the crucial idea in the account presented here is that, given the similarity between other agents and oneself, it would be arbitrary to hold the relevant desires with respect to oneself and not to others, and it would be similarly arbitrary to desire to help and not interfere with some other agents, but not with other agents.4 extending the relevant concern to all agents is a matter of being “fully consistent, treating like cases alike” (smith, 2015: 192).5 in any case, once we grant that ideal agents finally desire to not interfere with and to help other agents, then we can quickly see that they have reasons to do the same. to rehearse: because the concept of an agent is “goodness-fixing”, agents are evaluated as better or worse, depending in part on the extent to which they fulfill their final desires. the concept of a reason can then be analyzed in terms of what is desirable relative to the agent, which in turn is given by the desires of the idealized version of the agent (smith 2015: 188-189; 2013). these reasons, for smith, ground the fundamental moral requirements—not interfering and helping. smith, again: “in virtue of the fact that every agent’s fully rational counterpart has these desires, every agent has the same reasons for action, and these reasons for action, i hereby conjecture, are reasons to do what agents are morally obligated to do. agents are morally obliged not to interfere with any rational agent’s exercise of his rational capacities, and they are also morally obliged to do what they can to make sure agents have rational capacities to exercise” (2011: 359-360). if smith’s account succeeds, it would show that moral obligations can be derived using only the resources of a descriptive explanation of agency. this would be a remarkable achievement. more, it would show that the constitutive moral requirements were extensionally very similar to our ordinary moral beliefs. among other things, it would show that our moral obligations are non-welfarist, agent-relative, and deontological. nonwelfarist: because moral reasons concern the presence and exercise of rational capacities, not well-being. agent-relative: because the desires of the ideal agents, which ground the relevant reasons, are to help and to not 4 compare a set of agents who are concerned only with the rational capacities of others in their vicinity, and a set of agents who are concerned with all rational agents. let us assume that it is, in principle, possible that one’s rational capacities could come to depend on the actions of any other rational agent. if this is true, then the first class of agents will not possess their rational capacities as robustly as the second class of agents. given that robustness is a feature of the ideal agent, those agents who are concerned with the rational capacities of all other agents are more ideal. 5 the issue deserves more attention than i can provide here, but further investigating this question would divert the essay from its intention of setting aside whether constitutivism is correct, and focusing on the content of its resulting requirements. 14 ryan w. davis leap 4 (2016) interfere, rather than to bring about the maximization of helping among all agents, or the minimization of interference. this also explains why the requirements are also deontological, in the sense that they cannot be reduced to agent-neutral values.6 to borrow david velleman’s (2009) phrase, it would vindicate at least a “kinda kantian” normative ethics. 2. conflicting requirements suppose we accept the requirements to not interfere and to help. how would these requirements guide our action? although many obligations we intuitively accept involve some combination of not interfering and helping, accepting these two general requirements recreates the possibility for conf lict that the standard story created for rational requirements. problem cases will be those in which acting to help counts as interfering, and refraining from interfering counts as failing to help. individuals may use their rational capacities at a given time in a way that will undermine those capacities in the future. this possibility creates along with it the prospect of tension between the two fundamental moral requirements. for example, consider an individual’s decision to use potentially rational-capacity impairing drugs. if i withhold from interfering with the agent’s exercise of their capacity to realize their desires, then i will be failing to help secure the conditions under which their capacities to realize their desires or to know the world will be effective in the future. moreover, this tension between a moral concern for the exercise of the capacities, and the capacities themselves, is likely to arise often.7 if the moral requirement to not interfere with people could be compromised anytime they act in ways that undermine their future use of their rational capacities, then smith’s constitutivism might not deliver a morality as consonant with our intuitions as he might have hoped. as jessica flanigan writes: “sleeping aids, roller coasters, alcohol, standing on one’s head during yoga class, falling in love, and falling out of love can all be seriously incapacitating in their own way, but no one would ever say that 6 they are not deontological in a much stronger sense, in which the deontic facts could not be reduced to any evaluative facts. cf. smith (2009). 7 as a referee points out, an ideal agent would have a dominant desire to not impair their rational capacities, and so would not make this choice. i acknowledge as much; it is important that the case i describe here could not arise among ideal agents. below, i will address this issue by considering conf licts of this sort that could arise among ideal agents, and then extending the concern to non-ideal agents. for now, my aim is just to motivate the case for actual agents who try to live by the helping and non-interfering requirements. which moral requirements does constitutivisim support? 15 leap 4 (2016) interference on behalf of the would-be incapacitated is justified” (flanigan unpublished: 3; cf. flanigan 2012). although all of the above cases involve taking some action that undermines one’s rational capacities, we can also imagine conf lict cases in which an agent has a desire to not act in a way that would develop rational capacities. i am told that my capacity to know the world would be much improved if only i would learn some econometrics. however, i have a very strong desire to not spend any summers studying econometrics. thus i remain at my middling state of being able to know the world, because i privilege my exercise of my capacity to achieve my desires. again, helping my development of my rational capacity could only come at the price of interfering with its exercise.8 there is no problem with thinking that we have conf licting reasons for action, because the presence of a reason does not imply that there are no countervailing reasons. whether agents can be subject to conf licting obligations is more controversial. the presence of an obligation typically indicates that the obligated agent might be blamed if they fail to act on the obligation, and they have no excuse (cf. darwall forthcoming). perhaps incompatible obligations merely indicate that an agent could be blamed no matter which action is chosen, but this might sit in tension with our ordinary practice of blaming—which supposes that the blamed agent could have acted so as to avoid being blamed.9 nevertheless, many philosophers have developed strategies for allowing inconsistent obligations (horty 2003; goble 2009; nair 2014). it is beyond the scope of this essay to address this general matter, so i will set it aside in order to focus on whether there is a special problem with conf licting obligations for smith’s constitutivist account. to proceed, compare the psychology of an ideal agent who was subject to conf licting obligations with an ideal agent who was not subject to conflicting obligations. would one psychology be more coherent than the other? i suspect there are several ways in which an ideal agent’s psychology would be rendered less coherent by conf licting obligations. suppose the agent intended to comply with all of their obligations. then the agent would have intentions that were not jointly realizable. allowing that intention must involve at least the belief that one may do as one intends, the presence of incompatible intentions would imply that the agent had conf licting beliefs, 8 smith emphasizes that possible ideal agents may know a wide variety of different things, and have a wide variety of different final desires. 9 bart streumer (2007) defends the claim that “it cannot be the case that a person ought to perform an action if this person cannot perform the action.” even if this is not true for “oughts” generally, it may still be true for all-things-considered moral obligations. cf. graham (2011: 367-378). 16 ryan w. davis leap 4 (2016) and was therefore incoherent.10 alternatively, the agent might intend to comply with only some of their obligations. partial compliance threatens other kinds of incoherence. in one case, the agent might decide arbitrarily which obligations to fulfill. of course, choosing purely arbitrarily which obligations to fulfill will likely produce diachronically sub-optimal results. let us grant the possibility of deontic inconsistency. an agent who chooses arbitrarily which obligations to fulfill may well end up satisfying fewer obligations overall, relative to an agent who chooses current actions with an eye toward being able to better fulfill obligations in the future. so an arbitrary selection strategy will not be used by an ideal agent.11 next consider an agent who determines which obligations to fulfill so as to maximize the total number of satisfied obligations. this strategy looks roughly analogous to the “highest aggregate score” strategy mentioned earlier to describe a more basic level of agential functioning. again, this is intuitively incorrect. philosophers who accept deontic inconsistency still allow that some obligations are more important than others, a fact obscured by simple aggregation. the constitutivist picture can support this intuition. the highest aggregate score model was previously rejected, since it accepts a bundle of incompatible desires as constituting the ideal psychology. a more ideal psychology would not take such “dysfunction” to be a feature of the ideal (smith 2012: 314). as we have seen, a more ideal psychology would include dominant, coherence-inducing desires. likewise, compare the psychology of an agent who simply maximized obligation satisfaction with an agent whose psychology included elements that provided reasons to prioritize some obligations and not others. for considerations analogous to the earlier case, the latter psychology would be more coherent, and so also more ideal. the last option would suggest that an ideal agent would choose which obligations to fulfill on the basis of reasons. yet, how could there be reasons on the basis of which to make such a choice? to say that i am obligated to do something suggests that i have decisive reason to do it, or at least that i have sufficient reason to do it. if i have sufficient reason to perform either of two incompatible obligations, then on what could i deliberate between them? if there are reasons to deliberate on, then it seems that i may not have sufficient reason to do one of the things i am obligated to do after all. that would deny what i am taking as a conceptual truth about obligation. one possibility here is to think that there are “enticing reasons” to 10 cf. bratman (2009). also on the irrationality of incompatible intentions, see liberman and schroeder (2016: 110). 11 this conclusion is consistent with smith’s rejection of arbitrary discrimination, in other areas—for example, among other agents. cf. smith (2011: 357). which moral requirements does constitutivisim support? 17 leap 4 (2016) discriminate among obligations, where an enticing reason to perform some action does not undermine the sufficiency of the reasons supporting an alternative.12 another possibility is to distinguish between an agent’s being obligated, simpliciter, and an agent’s being obligated, all-thingsconsidered.13 in either case, there will be a further question about how an ideal agent would prioritize obligations. to sum up, the obligations to help and to not interfere can come into conf lict. on the constitutivist picture, such conf licts can be characterized in terms of incoherence in the psychology of ideal agent. one way of managing this incoherence is to deny one of the obligations in question; a second is to allow conf licting obligations, but locate some further considerations to establish priority; a third is to locate some further considerations to establish what the ideal agent is all-things-considered obligated to do. for any of the three, further attention to the ideal agent’s psychology is demanded. it is tempting to think that we might appeal to the agent-relativity of the requirements to help and to not interfere in order to explain away any conf lict in obligations (smith 2011: 361; 2015: 192; 2003). the ideal agent is concerned about that agent’s own compliance with the two requirements, not with maximizing compliance generally. in some well-known cases, an apparent dilemma between competing obligations can be dissolved by appealing to agent-relativity. for example, if an agent is concerned only with her own non-killing of other agents, and not the reduction of killing overall, she might refrain from killing an innocent, even it will bring about that some other killing of an innocent occurs. agent-relativity can thereby support a distinction between “doing” and “allowing”, which might be thought to bear on dilemmas between helping and not interfering. although i will not explore this matter in detail, i do not regard this direction as promising. no such solution is likely to be in the offing, because agents have agent-relative reason both to not interfere and to help. the agent has a reason to avoid interfering, but the agent also has an agent-relative reason to bring it about that helping is produced through their own efforts. agentrelativity cannot offer any traction in choosing between apparently conf licting obligations. another strategy might be to think about cases of resolving conf lict within a single agent, and then try to generalize this to the case of moral obligations toward another agent. and in fact, it is plausible that the tension 12 a referee provided this suggestion, which i had not previously considered. see, for example, dancy (2004). 13 thus allowing for different obligations to have different weights, as favored by liberman and schroeder (2016). 18 ryan w. davis leap 4 (2016) between helping and not interfering would arise within a single agent. consider again the dangerous drug case. an ideal agent might have any first-order desire, and so might desire to take capacity-damaging drugs. however, the ideal agent would also have a coherence-inducing desire to avoid interfering with the agent’s future use of belief-forming and desirerealizing capacities. to achieve coherence, the latter desire would have to be dominant, and so the ideal agent would never have a dominant desire to take the drugs in the first place. this shows that in interactions between ideal agents, one agent will never have to consider whether to help or not interfere with another agent in this kind of case, since the ideal organization of the patient’s psychology will prevent the conf lict from arising. notice, however, that this conclusion does nothing to help the ideal agent who has to interact with non-ideal agents. there is no assurance that a non-ideal agent will have the relevant coherence inducing dominant desires, and so there is no assurance that non-ideal agents will not act in ways that threaten their rational capacities. thus, if an ideal agent is interacting with a non-ideal patient, the patient may well decide to take a capacity-impairing drug. in this case, the ideal agent will be forced to prioritize either helping or not interfering. if the ideal agent helps (by interfering so as to stop the non-ideal agent from taking the drug), the ideal agent will be failing to comply with the obligation to not interfere. likewise, helping can only be achieved through interference. although the tension might not happen to arise for residents of the kingdom of ends, the actual world seldom affords such morally propitious conditions (cf. korsgaard 1996; schapiro 2003). there is no reason this kind of case could not arise within smith’s constitutivist system. although smith formulates the view initially within a community of ideal agents interacting with each other, he explicitly allows that ideal agents have reason to abide the moral requirements with respect to non-ideal as well as ideal fellow agents (smith 2015: 191; 2012: 329). for simplicity it may help to begin with a conf lict case that could arise within even ideal agents. smith poses a helpful case: an ideal agent is suffering from an incurable, degenerative disease, but it so happens that forming the false belief that one is getting better actually does delay the progress of the disease, thereby preserving the patient’s deliberative capacities in the future. the patient has a drug that, if taken, will cause the formation of the helpful false belief. because the agent is ideal, there is a coherence-inducing desire to not interfere with one’s rational capacities in the present, which provides a reason against taking the drug. likewise, there is another coherence-inducing desire to help one’s rational capacities in the future, which counts in favor of taking the drug. because the conf lict is between two coherence-inducing desires, it won’t do to say that the which moral requirements does constitutivisim support? 19 leap 4 (2016) coherence-inducing desire is dominant. smith recommends resolving this conf lict “in a principled way, specifically by reference to the relative strengths that these desires have to have vis-à-vis each other simply in virtue of being the desires of an ideal agent” (smith 2012: 319). as i understand it, the relative strengths that the desires “have to have” are fixed by facts about what would maximize the agent’s satisfaction of final desires, and knowing the world, given the agent’s circumstances in the present and in the future.14 in other words, the agent would have a relatively stronger desire to take the drug if doing so would overall promote the agent’s final desires’ satisfaction and knowledge of the world better than not taking the drug. this way of resolving the case is principled in that it appeals to the agent’s success qua agent across time, rather than to our own intuitions about whether or not taking the drug is rational. what remains to be shown, i suggest, is how to carry out analogous reasoning between two different ideal agents, and then between an ideal agent and a non-ideal agent. both the aspirations of smith’s constitutivism, as well as our everyday moral situation, call for extending the theory to cases like these. 3. prioritizing requirements recall that so far, the constitutivist strategy has given us the following principles. non-interference: it is impermissible to interfere with any rational agent’s exercise of his capacities. help: it is morally required to do what one can to make sure that agents have rational capacities to exercise. the last section canvassed the constitutivist view to look for additional resources for resolving conf licts among these principles. the following are relevant. first, agents with more coherent psychologies are, ceteris paribus, more ideal than those with less coherent psychologies. second, if an ideal agent must decide between either not helping or interfering with their future self, the agent will act so as to maintain the ideality of her future self’s psychology. third, ideal agents will act to maximize their knowledge of the world and satisfaction of final desires. now we can deploy a similar strategy in the two-person case. if one 14 i am persuaded of this interpretation by a referee. i am not confident that the ideal agent would be one who maximally achieves intrinsic desire satisfaction and knowledge of the world, since this standard sounds similar to the (rejected) “highest aggregate score” criterion, discussed above. all the same, it is a better interpretation than denying there are any facts fixing the desires’ relative strengths. 20 ryan w. davis leap 4 (2016) ideal agent must choose between helping and not interfering with another ideal agent, the agent should act so as to maximize the patient’s knowing the world, and fulfilling final desires. further, the acting agent should act to bring about that the patient’s psychology is as ideal as possible, and so, as coherent as possible. so we can add a further principle: coherence: if one must either not help or interfere with another agent, one should do whichever would be supported by the most coherent rendering of that agent’s psychology. imagine one ideal agent must choose between helping or not interfering with a second ideal agent. suppose an agent [a] is deciding whether to take a helpful drug that would cause a to form a false belief. some other agent [b] must choose between interfering with a’s choice and not interfering. if a is an ideal agent, it is—according to the last section—possible that a will choose either option. let us suppose, given the facts about a’s circumstances, that a chooses not to take the drug. in this case, it would not make sense for a to also want b to interfere with a’s choice. the reasons for a’s wanting b to interfere with a’s choice would also, by hypothesis, count in favor of a’s not making the choice that a made in the first place. so if a were to then prefer that b interfere with a’s choice, a’s psycholog y would not be ideally coherent. so, a has most reason to want b to not interfere with a’s choice in the case of conf lict. next, suppose that b were committed already to some combination of helping and not interfering with a. if b had these commitments, it would not be coherent for b to then make decisions about whether to help or not interfere that disregarded what a had most reason to want. if b were to do that, then b would be both committed to acting in ways that were sensitive to a’s reasons to want a’s rational capacities to be helped and not interfered with, but insensitive to a’s reasons about how helping and not interfering should be prioritized. this combination of responsiveness and nonresponsiveness would, i think, impose a tension within b’s psychology. so in the case of two ideal agents, we can infer how one would prioritize helping and not interfering with respect to the other. the acting agent would honor the priorities of the agent in the role of patient, whatever those priorities might be. this inference can be further refined. given variation in the circumstances, a may decide to take the drug that will interfere with a’s capacities in the present, but will do so in a way that helps a’s future capacities. or, given other circumstances, a may decide against taking the drug. so a may prioritize either helping or not interfering with respect to future a. however, given a has an ideal psychology, b’s response will be to which moral requirements does constitutivisim support? 21 leap 4 (2016) not interfere with a. if a interferes with a’s future self, or if a decides to help a’s future self, b will not interfere in either case. a question arises when we consider the case of an ideal agent confronting a choice of whether to prioritize helping or not interfering with respect to a non-ideal agent. recall from above that ideal agents may well encounter other agents who are non-ideal in a variety of ways. if a is a non-ideal agent, then a may opt to not take the helpful drug, notwithstanding that under the circumstances, a would do better as an agent if a did take the drug. a’s psychology is not coherent. but if it were coherent, then a would want to take the drug. in this case, it seems that b, an ideal agent, should interfere with a to bring about that a takes the drug. although this may be correct about the case of the helpful drug, cases more enriched with realistic detail may reveal relevant, complicating considerations. consider again the case of my refusal to study econometrics. an onlooker, persuaded by my social scientifically inclined friends, decides that it would be good for my rational capacities to enroll me in a remedial summer economics class without my consent. although enrolling me would—by hypothesis—help cultivate my capacity to form correct beliefs about the world, it would also interfere with my autonomy. which should the observer privilege? according to coherence, my friend should investigate the relative strengths of my desires as part of an investigation of which value would better (that is, more coherently) resolve the internal tensions within my psychology. by hypothesis, if i cannot be persuaded to the take the class by non-interfering methods, then it is probably unlikely that the class will improve my capacities enough to justify the trade-offs with my end-setting and desire-satisfying capacities. i will just resent the infringement on my liberty, lack interest to study effectively, and so on. in other words, the same features of my psychology that make it non-ideal may render the helpful action ineffectual. an ideal agent would also be responsive to this non-ideality, and so would have reason to defer to my refusal, non-ideal though it might be. maybe this case seems too easy. recall the would-be recreational drug user. this person has an end of using drugs that might damage their rational capacities in the future. should an onlooker interfere in the drug user’s life for the good of their future rational capacities? this case may seem more challenging—and indeed, a number of philosophers side with the preservation of rational capacities, even by way of state coercion if necessary (freeman 1999; de marneffe 2003; but compare koppelman 2006). while i allow that this outcome cannot be ruled out according to coherence, there is some reason to privilege non-interference. to see why, imagine the best scenario for the would-be paternalist: the drug user 22 ryan w. davis leap 4 (2016) judges that he should use the drug, but this judgment is—in coherentist terms—mistaken. we can add detail for the convenience of seeing the case at higher resolution. suppose the drug user wants to go to school and study a technical subject, he admires people who resist temptation, he wants to set an example of “clean” living for his younger siblings, and he wants to preserve his cherished memories of his youth. a dominant desire to take the drug does not cohere with these other attitudes. my suggestion is that even if the drug user is in this sense mistaken, it does not follow that the would-be paternalist should interfere. this is because the drug user’s own judgment must now be included as a member of the elements of his psychology, and that judgment tells in favor of taking the drug. even if the drug user’s original judgment was mistaken, its mental genealogy does not make it any less a part of the drug user’s psychology. further, the drug user is likely to make additional plans based on that judgment, forming intentions and policies that cohere with it. after adopting these plans, the drug user’s other attitudes may naturally shift in ways that cohere better with the judgment in favor of taking the drug (cf. velleman 2006; 2008). the preceding claim is about human psychology, but in principle my suggestion does not rely on any psychological conjecture. it only requires that an ideal agent’s judgments about what to do will affect the content of their subsequent attitudes such that those attitudes will tend to cohere with the judgment. this alone, i think, is enough to at least tip the scales in the direction of deference to the agent’s choice. if this is right, then coherence supports another principle for deciding how to reconcile the original two. deference: one should not, ceteris paribus, interfere with an agent for the sake of promoting their rational capacities. again, the ceteris paribus clause makes deference defeasible. here it will help to distinguish between the agent’s local and global coherence.15 the drug user’s judgment may create a series of attitudes that cohere with that judgment, but these attitudes will likely include only a part of the total set of his desires and beliefs. however, the drug user’s taking the drug may contribute to thwarting the agent’s completely unrelated desires, and may undermine the correctness of unrelated beliefs. thus, the drug user’s judgment in favor of taking the drug may be locally coherent, but—with respect to the total set of the agent’s attitudes—globally incoherent. the extent to which deference is generalizable depends on how significantly considerations of local coherence impinge on an agent’s global coherence. in the case of the drug user, local coherence of attitudes that fit with the drug user’s plan are outweighed by its global incoherence. in other cases, 15 i’m grateful to an anonymous referee for this suggestion. which moral requirements does constitutivisim support? 23 leap 4 (2016) the opposite may be true. imagine an agent who irrationally decides to embark on a career to which he is not well suited. this decision is nonideal; it will, in expectation, realize the agent’s ex ante desires less well than other career options. however, the agent not only strongly desires to embark on this career, but thereby adopts a whole series of related desires, beliefs, and plans. the agent might form other final desires to develop the skills necessary for the career, may form plans to receive training for the career, and might intend to move to different parts of the country to facilitate the career. as the set of relevantly connected attitudes expands, it becomes more likely that the local coherence with the agent’s initial judgment will affect what is globally coherent for that agent. if this line of reasoning is correct, we should expect that deference will apply more often in cases in which an agent has formed many desires and beliefs around a given judgment, and less often in cases where a judgment is at odds with an agent’s other desires and plans. to a considerable extent, this fits with our intuitions about when we ought to respect a person’s suboptimal choices. choices that are more central to a person’s beliefs, which ref lect “deep commitments” or “personal integrity”, are plausible candidates for respect, whereas choices less connected to other attitudes are correspondingly more plausible candidates for paternalism (williams 1973). in fact (although i cannot pursue this conjecture here), the constitutivist program followed here might provide one way of explaining the normative significance of such locutions. on this view, a choice would be “deeper” or more associated with an agent’s “integrity” if it impinges to a greater degree than other choices on an agent’s global coherence. 4. the priority of non-interference so far i have tried to show that constitutivism, at least in the form presented here, tips the scales of moral obligation slightly in favor of deference to individual choice. it tends toward what rawls called the “priority of liberty” (rawls 1999: 214-220). i regard shoring up this presumption as sufficient to satisfy the original aim of this paper. nevertheless, in this section i hope to find support for a stronger version of the thesis. recall that smith’s argument moves from the premise that agents must desire to not interfere and to help to the conclusion that they are morally required to not interfere and to help. the argument is something like this: 1. ideal agents have dominant desires to help and to not interfere. 2. if ideal agents have dominant desires to φ, then their real-world counterparts have decisive reason to φ. 24 ryan w. davis leap 4 (2016) 3. obligations are grounded in decisive reasons. 4. so, agents are obligated to help and to not interfere. there are several questions we could ask about how the desires to help and to not interfere could ground moral obligations. first, one might ask how morality got into the story at all. for none of the previous desires that smith considered, including coherence-inducing dominant desires, did he infer that their corresponding reasons were moral reasons. i take it that smith simply infers the moral character of the reasons to not interfere and to help from their extensional similarity to our ordinary judgments about the content of moral reasons. he writes: “the striking similarity of these acts to those that we ordinarily take to be morally required is, the constitutivist insists, manifest. the only reasonable conclusion to draw is that every agent isn’t just rationally required to help and not interfere, but that, at the most fundamental level, every agent is morally required to help and not interfere as well” (smith 2013: 26). smith may not have much at stake in whether this inference to moral requirements holds. in a passage cited earlier he describes it as his “conjecture”, and here he recommends it as a kind of obviously reasonable conclusion. granting that we have moral reasons to not interfere and to help, i am less sure that it follows that these are requirements. i am also less sure that this inference follows from smith’s constitutivist account. to begin with the former, we ordinarily accept that we have many moral reasons that we are not required to act on, even in the absence of strong opposing reasons. if we take for granted a basic moral category of supererogation (or even something like imperfect duties), then there are likely many moral reasons that do not yield a requirement to perform any particular action (driver 1992; darwall 2006; wolf 2009; harman 2016). moreover, it would be strange if we were morally required to act in ways that promoted the development or acquisition of others’ rational capacities. it does not fit with our intuitions that we have obligations to ensure that other people (at least, other adults) go to class, or refrain from taking drugs, or avoid falling in love—notwithstanding that these all correspond to ways of ensuring various capacities for knowing the world. these concerns form part of a larger worry, which is that a set of moral requirements to “help” would ask more from us than a commonsense morality supposes. there are—to put it mildly—many people in the world whose rational capacities are not fully and robustly realized (caplan 2007). doing what we could to help them would likely require living very which moral requirements does constitutivisim support? 25 leap 4 (2016) differently than we now live, but this is at odds with our current practice of moral praise and blame. we do not resent people who fail to dedicate themselves to helping in the same way that we resent those who stand us up for lunch. this echoes the standard “overdemandingness” worry prevalent in the moral philosophical literature (railton 2003; herman 2001; sin 2010; noggle 2009; igneski 2006; jamieson 2005). but within the constitutivist framework underwriting this discussion, we can more precisely frame why the worry poses a theoretical problem. the issue is not merely that the demands are intuitively too demanding. rather, the issue is that such demands would predictably disorder an agent’s psychology. if we were to dedicate ourselves to helping (in smith’s technical sense), it would likely take so much time as to compromise our pursuit of our other final desires and cultivation of rational capacities. perhaps if we had significantly restricted sets of final desires, or final desires that happened to cohere with a rigorous program of helping, then they would not conf lict with an obligation to help. recall, however, that an ideal agent can have a great variety of final desires. it is not plausible to assume that such incoherence-creating conf licts could be avoided. nor will it help to insist that the ideal agent’s final desire to help will be a dominant (coherence-inducing) desire. as noted above, there will likely be many candidates for helping, requiring a kind of triage in deciding where to help. choices must also be made about how much to trade off helping others with other dominant-desire supported ends, including not interfering with one’s future self, and helping one’s future self. in short, treating the moral reasons to help as requirement-grounding creates much possible incoherence in an agent’s psychology. but was there a good theoretical basis for treating reasons in this way to begin with? consider again the single agent whose idealized psychology happens to finally desire to believe <p>. that desire conf licted with another desire that the ideal agent turned out to have—a desire to not interfere with their capacity for belief. imagine leaving it an open question, for any given case of such conf lict, which desire happened to be stronger. if that question had been left unsettled, there might have been cases in which the desire to believe <p> prevailed, such as when the importance of believing on the evidence seemed relatively low. that state of affairs would have f louted a rational requirement on belief, which is that beliefs must still be apportioned to the evidence even when the content of the belief is unimportant (kelly 2002). revisiting this case shows how to locate the emergence of the rational requirement. here, the requirement on belief is not given by any comparison of the strength of the desires that bear on how to believe. instead, the 26 ryan w. davis leap 4 (2016) theory produced a model that extensionally resembled the rational norms on belief by positing an additional mental state—a coherence-inducing desire—and then ensuring that this desire would always be dominant. in the remainder of this section, i will brief ly sketch how conf licts among dominant desires might be managed within the ideal psychology. to be ideal, an agent must satisfy as many of their dominant desires as possible. however not all dominant desires can ground requirements. note that incoherence only arises with respect to helping, but not with respect to not interfering. any agent may maximally satisfy the requirement to not interfere with other agents’ exercises of their rational capacities. all you need to do is nothing at all. some philosophers have tried to deny that it is possible to avoid interfering with other agents (pogge 2002). i will not argue against this view here, but i do not agree (cf. risse 2005). while i will not try to specify what counts as non-interference here, i am sympathetic to the hypothesis that a great many human endeavors can succeed at not interfering in the relevant sense.16 if not interfering is uniformly possible in a way that helping is not, then not interfering can always be required, while helping cannot. with that distinction in hand, we can say something about the traditional asymmetry between negative and positive duties. very generally, negative duties (which forbid actions) seem morally more stringent than positive duties (which require actions) (for example, foot 1977; thomson 2008). the constitutivist account helps to explain the difference. because helping requires action while not interfering does not require action, the asymmetry between the moral status of helping (sometimes required) and the moral status of not interfering (always required) fits the asymmetry between negative and positive duties. now the question is: how can we add a mental state to the psychology of an ideal agent in order to fix the terms of when helping is a moral requirement? we could try to say that the ideal agent would maximize helping overall, or maximize instances of that agent’s own helping actions. these would also threaten incoherence, given that they would predictably interfere with the agent’s dominant desires to develop rational capacities and not interfere with the agent’s own exercises of those capacities. but this fact may give a clue to discerning when helping others could be required. perhaps if an act of helping would not conf lict with any of the agent’s dominant desires with respect to the agent’s future self or with respect to other agents, then it could also be promoted to the status of a requirement (ebels-duggan 2009). the ideal agent might have some 16 see ripstein (2009) on the difference between interfering with a person, and changing the circumstances of their choice. which moral requirements does constitutivisim support? 27 leap 4 (2016) additional mental state that facilitates this coherence. for example, an ideal agent might be required to perform those helping actions that he had promised or otherwise committed to perform. beyond this, the ideal agent would intend to act on some combination of desires to help others, and desires to help and exercise the agent’s own capacities. how could we ensure that a requirement to help some given agent would not conf lict with any of an ideal agent’s other dominant desire supported ends? there may be a variety of ways to achieve this result, but one suggestion is to expect that dominant desires to not interfere will be especially weighty, relative to dominant desires to help. although the details of how such a weighting might be developed will have to be left aside for now, the general contour of this idea fits with many first order intuitions, as well as widely accepted theoretical commitments. for example, it conforms with an intuition mentioned earlier: the fact that another could be helped by our action is generally not sufficient to require our action. it also fits with the diversely motivated theoretical commitment that there is “a clear sense in which [morality’s] fundamental prohibitions (its ‘thou shalt nots’) are more strict than its fundamental exhortations (its ‘thou shalts.’)” (graham 2011: 377). for now, all i want to suggest is that “helping” and “not interfering” can both be correct principles, provided that we see the limits of the requirements they together create. 5. conclusion this essay takes constitutivism about morality for granted. suppose that moral requirements are grounded in what is constitutive of agency. what would that tell us about the content of moral requirements? michael smith answers that it would reveal that helping ensure that other agents have rational capacities, and not interfering with the exercise of those capacities, are the fundamental moral requirements. the problem is that these requirements can conf lict. that news is not too bad, though, because smith’s entire constitutivist project is worked out in terms of resolving conf licts in an agent’s psychology. using similar strategies, this paper has argued that the potential for conf lict can be solved. the weaker thesis of this paper is that there is reason to defer to the agent’s choice in deciding between helping and not-interfering, and so we should have what rawls called a “presumption of liberty.” the stronger thesis is that notinterfering is always required, but helping is only required sometimes. one interesting upshot of these claims is that, if correct, they can contribute to explaining other aspects of our moral practice, such as the asymmetry between doing and allowing. another interesting upshot is that it will turn 28 ryan w. davis leap 4 (2016) out that immanuel kant—at least on one reading—was right about how we are obligated to other persons.17 put in a mundane way, my essay has tried to make one modification to one existing version of constitutivism. but put in a more dramatic way, the proposal of this essay shares the aspiration of constitutivist theories since their start—to vindicate the truth of enlightenment liberalism. if the amendment offered here is right (along with, i suppose, all of the foregoing theory as well), then we are rationally required 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of moral philosophy 8: 45-67. streumer, b., 2007: “reasons and impossibility”, philosophical studies 136: 351-384. thomson, j.j., 2008: “turning the trolley”, philosophy & public affairs 36: 359-374. thomson, j.j., 2008: normativity, chicago: open court press. velleman, d., 2006: self to self, cambridge: cambridge university press. —2008: “a theory of value”, ethics 118: 410-436. —2009: how we get along, cambridge: cambridge university press. walden, k., 2012: “laws of nature, laws of freedom, and the social construction of morality”, in russ shafer-landau (ed.) oxford studies in metaethics vii: 37-79. williams, b., 1973: “a critique of utilitarianism”, in consequentialism: for and against, 77-150, cambridge: cambridge university press. —1981: “internal and external reasons”, in moral luck, 101-113, cambridge: cambridge university press. —1995: “internal reasons and the obscurity of blame”, in making sense of humanity, 35-45, cambridge: cambridge university press. which moral requirements does constitutivisim support? 31 leap 4 (2016) wolf, s., 2009: “moral obligation and social commands”, in metaphysics and the good: themes from the philosophy of robert merrihew adams, 343-367, eds. s. newlands and l.m. jorgensen, oxford: oxford university press. leap 6 (2018) symposium on the philosophy of social and economic human rights guest edited by julio montero the philosophy of social and economic human rights julio montero national research council of argentina the essays included in this volume are the result of a series of workshops organized by the united kingdom-latin america network for political philosophy (uklappn). the network is sponsored by the british academy of the united kingdom and brings together academics from argentina, brazil, chile, colombia, costa rica, mexico, spain and the united kingdom, who work in the field of contemporary political philosophy. as the title suggests, the main topic the volume addresses has to do with the nature, justification and implementation of socioeconomic human rights. the normative relevance of socioeconomic human rights cannot be overlooked. according to the world bank, 736 million people are situated below the poverty line of usd 1,90 per day and many of them die every year due to poverty-related causes (world bank 2015). severe poverty is thus one the most serious threats to human dignity of our time and the aim of socioeconomic human rights is precisely to conquer that threat. international human rights law proclaims a wide array of socioeconomic rights, including rights to nutritious food, shelter, medical care, housing, education and social security (un 1966). in the academic literature, there is some consensus that the fulfillment of these rights is essential if we want individuals to f lourish as human persons. the reasonable assumption underpinning this view is that someone who is starving, illiterate or seriously ill becomes materially unable to make a valuable use of her freedoms and to lead a distinctively human life. so if we think that individuals have a fundamental right to develop their agency, we have decisive moral reasons to care about the satisfaction of their socioeconomic needs. in spite of this consensus, there are also deep controversies about the normative justification of socioeconomic human rights. some think that they are not genuine human rights because they are not universal: individuals can only claim them against modern political institutions and they would have no clear addresses in alternative scenarios. instead, other authors insist that the list of socioeconomic rights proclaimed by current instruments is too demanding. in their opinion, people may have a human d oi : 10. 310 0 9/l e a p. 2018.v6.03 leap 6 (2018) the philosophy of social and economic human rights 59 leap 6 (2018) right to the resources they need for subsistence but they should not be recognized rights to the highest attainable standard of physical and mental health, free higher education, maternity leave or periodic holidays with pay (un 1966). international instruments may have gone too far by placing societies under extremely burdensome or even unfeasible obligations. finally, some liberal theorists argue that socioeconomic rights are secondary and less important than other categories of rights. from a legal point of view, socioeconomic human rights enjoy the same status as civil and political ones. as the 1993 vienna declaration sustains, all human rights are indivisible, interdependent and equally important (un 1993). in consequence, governments cannot pick and choose; they have a strict legal obligation to satisfy all our human rights at once. however, there are a number of crucial theoretical issues that must be urgently addressed if we want socioeconomic human rights to live up to their aspirations. fundamentally, this is because international instruments provide no clear guidelines as to what states must do in order to honor their responsibilities in this respect. the 1966 international covenant on economic, social and cultural rights defines its party’s obligations in the following terms: “each state party to the present covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively, the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures” (un 1966, article 2). the evident problem with this key article is that the idea of progressive realization up to the maximum of available resources is extremely opaque. what are the resources available to a state? does this clause only refer to its annual budget or it also includes all the resources governments could potentially collect through more progressive fiscal schemes and the full use of their natural resources? in practice, this vague language became a major obstacle for the effective realization of socioeconomic human rights as it makes almost impossible to decide when states have done enough to honor their commitments under the covenant. in a number of additional documents, the un committee on economic, social and cultural rights tried to specify the extent of states’ obligations. in its general comment 3 (1991), it establishes the existence of a “minimum core obligation” to ensure the satisfaction minimum essential levels of 60 julio montero leap 6 (2018) each of the rights: “thus, for example, a state party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the covenant. if the covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être” (#10). nevertheless, the notion of a “minimum core” is once more presented as dependent on the availability of resources: “by the same token, it must be noted that any assessment as to whether a state has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned” (#10). finally, the committee’s analysis of the clause of “progressive realization” is considerably abstract and offers no operative orientation as to how to make sense of such requirement: “it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the covenant and in the context of the full use of the maximum available resources” (#9). unfortunately, the committee never spells out what may count as a legitimate reason to postpone the satisfaction of socioeconomic rights or to justify the adoption of retrogressive measures. in the specialized literature there is also an intense ongoing debate about the judicial enforcement of socioeconomic rights. many authors argue that courts lack the legitimacy and the technical expertise required to make decisions about the allocation of scarce resources. their claim is that socioeconomic human rights are not rights in the technical sense; they should rather be regarded as non-justiciable standards that governments must observe when designing their public policies and economic plans. in recent years courts have developed some interesting strategies to deal with the difficulties that motivate these objections. in its inf luential sentence government of the republic of south africa vs. grootboom and others, the supreme court of south africa sustained that the housing program implemented by the local government of cape town was unsatisfactory (constitutional court of south africa 2000). its main the philosophy of social and economic human rights 61 leap 6 (2018) argument was that while the government was investing a significant amount of resources in the program, the plan included no special measures to address the situation of those people who lacked even a precarious shelter for their families. two aspects of the sentence make it particularly interesting. first, the court recognizes that resources are limited and that judges have no authority to make decisions about their allocation. second, the sentence does not order the government to provide any particular individual with immediate access to housing, but simply insists that the executive should develop an alternative program that incorporates its recommendations. the grootboom sentence is certainly innovative. it shows that courts have some promissory resources to enforce the satisfaction of socioeconomic rights without invading the competences of democratic institutions. yet, many critics object that the strategy adopted by the court was too weak both because it established no clear standards for policy makers and because it failed to provide immediate relief to thousands of people living in miserable conditions. as we see, socioeconomic human rights raise a number of questions of critical import for human rights theory and practice: what concrete measures must nations undertake to fulfill the socioeconomic rights of their inhabitants? when can a state legitimately claim that it is promoting their satisfaction up the maximum of its available resources? to what extent can their effective implementation be monitored by courts and what specific judicial techniques should they apply when supervising the conduct of governments? can courts force elected functionaries to advance certain public policies instead of the plans supported by the people through electoral processes? do they have the authority and skills to supervise the social programs chosen by democratic governments? the essays in this volume explore some of these issues from a philosophical perspective. mariano garreta leclercq argues against the constitutionalization and judicial implementation of socioeconomic human rights. in his view, when courts or expert committees unilaterally implement complex economic plans that are not approved through democratic mechanisms, they undermine the autonomy of the citizenry. this conclusion is backed by three general assumptions. the first one claims that there are deep controversies about the kinds of policies that could maximize the satisfaction of socioeconomic rights; the second one asserts that if those policies go wrong they could impose significant costs on the population and may even have a negative impact on the satisfaction of the essential needs of thousands of individuals; and the third assumption claims that treating persons as fully autonomous agents implies refraining 62 julio montero leap 6 (2018) from imposing risks on them, unless the potential victims have freely agreed to undertake those risks. as a result, it is up to the people to decide what concrete measures to implement in order to bring about the satisfaction of socioeconomic human rights. the essays by eduardo rivera lópez and saladin mackled-garcía investigate the normative structure of socioeconomic rights and human rights in general. eduardo rivera lópez claims that socioeconomic rights differ from classical liberal rights in a relevant aspect. the normative core of liberal rights is composed by “deontological constraints” not to treat people in certain ways. in this sense, the government cannot infringe the freedom of expression of an individual just by arguing that this will maximize the overall satisfaction of that same right. by contrast, socioeconomic rights are sensitive to aggregative considerations: governments may legitimately refuse to satisfy my right to an adequate diet if this implies that more people will have access to nutritious food in the immediate future. according to the author, this conceptual asymmetry between liberty rights and socioeconomic rights has important implications in terms of their enforcement by courts. in essence, while judges can protect individuals from discriminatory policies or order that some particular individuals be granted access to certain goods or services, they should refrain from sanctioning or recommending the implementation of specific public policies aimed at maximizing the overall fulfillment of socioeconomic rights. in turn, saladin meckled-garcía sustains that all categories of human rights involve two distinct kinds of obligations: “decisive obligations” and “weighting obligations”. decisive obligations are obligations not to take certain considerations into account when we decide how to treat an individual. so governments have a decisive obligation not to curtail people’s access to certain public services or freedoms based on their gender, religion or ethnic origin. on the other hand, weighting obligations are obligations to give a fair weight to the needs and interests of separate persons. for example, when deciding what to do in order to promote my right to medical care, the government must balance my interest in enjoying that service versus the interests of other members of society in not paying higher taxes. the conclusion of the paper is that because human rights cannot be reduced to purely decisive obligations but also involve weighting ones, then any plausible account of human rights must include concrete principles as to how burdens and benefits must be distributed among members of a human community. otherwise, the view would be seriously incomplete as it would fail to guide the action of political institutions. finally, leticia morales develops an original argument in favor of the philosophy of social and economic human rights 63 leap 6 (2018) adopting a universal basic income scheme that allows people to satisfy their most essential needs. her main ambition is to show that this kind of policy is valuable and morally mandatory not because it promotes the freedom of individuals, but because it improves the legitimacy of democratic institutions. the reasonable assumption that underlies this claim is that poverty constitutes a major obstacle to political participation and seriously discourages it. as a result, the implementation of a basic income scheme is not only a plausible strategy to advance the fulfillment of socioeconomic rights; it is also an integral component of a well-ordered democratic society. in sum, the essays in this volume offer a comprehensive introduction to the philosophy of socioeconomic human rights and try to come up with concrete answers to some of the most important questions they raise. our hope is that these contributions will stimulate the debate about their nature and precise implications and ultimately contribute to their universal realization. bibliography constitutional court of south africa, 2000: government of the republic of south africa and others v grootboom and others (cct11/00) [2000] zacc 19; 2001 (1) sa 46; 2000 (11) bclr 1169 (4 october 2000), url = <http://w w w.saflii.org/za/ cases/zacc/2000/19.html>. un, 1993: vienna declaration and programme of action, url = <https://w w w. ohchr.org/en/professionalinterest/pages/vienna.aspx>. un, 1966: international covenant on economic, social and cultural rights, url = <https://w w w.ohchr.org/en/professionalinterest/pages/cescr.aspx>. world bank, 2015: “poverty overview”, url = <https://w w w.worldbank.org/en/ topic/poverty/overview>. un committee on economic, social and cultural rights, 1991 general comment 3: the nature of states parties obligations, ur l = <ht t ps ://tbinternet.ohchr.org/layouts/treat ybodyexterna l/tbsearch. aspx?lang= en&treatyid =9&doctypeid =11>. http://www.saflii.org/za/cases/zacc/2000/19.html http://www.saflii.org/za/cases/zacc/2000/19.html https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx https://www.worldbank.org/en/topic/poverty/overview https://www.worldbank.org/en/topic/poverty/overview https://tbinternet.ohchr.org/_layouts/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypeid=11 https://tbinternet.ohchr.org/_layouts/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypeid=11 _goback leap 5 (2017) free time and economic class luc a s sta nc z y k harvard university abstract in her book, free time, julie rose argues that all citizens must be understood to have a claim to a fair share of free time. in the first part of this essay, i outline rose’s theory of free time and explain why her discussion should be regarded as an important advance on existing thinking about the requirements of liberal egalitarian justice. in the second part of the essay, i argue that ref lection on rose’s conception of free time will force liberal egalitarians to confront some potentially troubling philosophical questions. these questions can be brought out by asking, first, how much free time people from different economic classes in fact have according to rose’s conception, and, second, how much free time people belonging to different economic classes should have according to this conception. ref lecting on these questions, i argue that the idea that all citizens have a claim to a fair share of free time does not support giving seemingly harried yet already wealthy professionals the benefit of more f lexible work schedules, generous caregiver leave, or more humane overtime rules. the reason is that such people must be judged to already have their fair shares of free time. this fact is an indication of a significant economic class divide, which liberal egalitarians must now somehow take into account. keywords: free time; leisure; work; distributive justice; freedom; aff luence; class 1. introduction many people today complain about being overworked. according to julie rose, the harried professionals, working parents, and others who make this complaint may well have a point. in her new book, free time, rose argues that, in a liberal society, citizens have a claim to more than merely the standard package of formal opportunities and liberal rights. in addition, every adult citizen should be understood to have a claim to a fair share of free time. moreover, to ensure that everyone gets his or her fair share, it is not enough to attend to the distribution of income and wealth. after all, even a generous d oi : 10. 310 0 9/l e a p. 2017.v 5.0 6 free time and economic class 63 leap 5 (2017) wage subsidy will do a “time poor” single parent little good if she will be fired summarily for refusing overtime work. similarly, a disabled person might be able to earn plenty of money working thirty-five hour weeks, yet his special needs may take up the rest of his waking hours unless he is able to find reliable in-home help. accordingly, to ensure that each and every person gets a fair share of discretionary “hours for what we will,” the state must attend to the distribution of free time as well. more precisely, if everyone’s fair share of free time is, say, eight hours per day, then, according to rose, public policy must ensure the following four things (rose 2016: 135). first, it must ensure that each person can actually meet his basic needs in sixteen hours per day. second, it must make it so that each person can choose to spend no more than sixteen hours per day doing the things objectively required to meet his basic needs. third, it must ensure that each person is normally able to meet his basic needs in no more than sixteen hours per day while working in the occupation of his choice. finally, public policy must ensure that some of the free time that each person has each week is not merely uninterrupted but also shared with a substantial number of others. otherwise, argues rose, the freedom of association and cognate basic liberties of citizenship will threaten to become substantially less valuable to citizens or, at the limit, will be rendered worthless. in defense of these claims, rose puts forward a new conception of free time as a distinct object of distributive justice. in the first part of this essay, i will outline rose’s theory of free time and explain why her discussion constitutes a major advance on existing thinking. in the second part of the essay, i will argue that reflection on rose’s conception will force liberal egalitarians to confront some potentially explosive philosophical questions. these questions can be brought out by asking, first, how much free time people from different economic classes in fact have according to rose’s conception, and, second, how much free time people belonging to different economic classes should have according to this conception. i will argue that asking these two questions will swiftly open up a pandora’s box in the liberal theory of social justice. what is at stake, at bottom, is how liberal philosophers, and other people committed to freedom and equality, should think about the persistence of class in modern society. it is a credit to rose’s book that its pioneering discussion of free time will help to return this important matter to the foreground. 2. rose’s theory of free time the central claim of rose’s book is that people have a claim to a fair share of free time. the reason, at bottom, is that people need free time in order to make meaningful use of their formal liberties and opportunities. for 64 lucas stanczyk leap 5 (2017) example, if you have to work five days a week from morning till night as well as on weekends just to pay the rent and avoid eviction, then many of the most important liberties of citizenship will for this reason be rendered worthless to you. forced to be at work at all hours on pain of losing your job, falling behind on the rent, and getting kicked out by your landlord, you will have little use for the freedom to engage in protest and peaceful assembly, to join a political or social organization, or to make other uses of the freedoms of speech, conscience, and association. more generally, in order to make effective use of the numerous legal freedoms you have as a citizen to pursue your personal projects whether alone or with others, you need not just the money but also the time away from work that is required to make some meaningful headway on your goals. it is no use signing up for a course in spanish, for example, if there is simply no way you will be able to free up the time to attend the nightly classes and do the homework. the same goes for all of your other personal projects, from trivial to all-important, just as long you cannot advance these projects while you find yourself stuck at work. yet surely, argues rose, if it is of central importance to give everyone a range of formal rights and freedoms, then it must be centrally important that everyone be afforded the time to make some meaningful use of these freedoms as well. accordingly, we ought to recognize that, as a matter of liberal justice, people have a claim to a fair share of free time. w hile the basic point may be straightforward, rose argues persuasively that its significance for how we should think about distributive justice has been widely overlooked. the reason is that political theorists and economists alike have tended to conceive of free time as the inverse of the hours that people choose to spend in paid work. owing in part to the grip of this standard view, it has been widely assumed that there is no need for the state to attend to the distribution of free time in order to secure distributive justice. instead, the state’s proper role is said to be to maintain a system of fair wages, using familiar mechanisms such as taxes and transfers. then, if a person wants more free time than he currently has, he can always choose to work fewer hours and earn less. the problem with this reasoning, argues rose, is that the all-purpose resources of free time and income are not perfectly substitutable. this is true for at least three different reasons. the first is that labor markets are generally imperfect. at the prevailing hourly wage rates, many people would prefer to work fewer hours for a proportionately smaller take-home income. however, for various economic and non-economic reasons, most employers refuse to hire people part-time, and they routinely threaten to fire employees who do not show up for the full “nine-to-five.” as a result, free time and economic class 65 leap 5 (2017) a substantial number of people find themselves in a condition that economists call over-employed, that is to say, willing to give up some proportional amount of their income for additional free time yet unable to do so without losing most or all of their labor incomes altogether. second, there are some things that a person must do, such as being hooked up for hours to a dialysis machine, that require her presence and are therefore bound to consume her free time, regardless of whether she is provided with more income. in general, activities that are necessary to satisf y our basic biological needs – such as eating, sleeping, and exercising – are like this, and the minimum amount of time that must be spent on these activities in order to stay alive and healthy varies from person to person. therefore, even when everyone has identical access to the exact same income, it will not normally be true that everyone is in a position to enjoy the same or even an adequate amount of free time, nor that giving people with unusually time-consuming bodily needs more money will always solve the problem. sometimes, in order to have a minute to herself, what a person needs above all is someone’s help – and yet there is no guarantee that the requisite form of assistance will always be for hire. finally, there is an even more basic reason why, from the point of view of most able adult citizens, income and free time are not perfectly substitutable. namely, in societies like ours, the average person will eventually be allowed to go hungry and homeless unless she works for money, and therefore spending some of her waking hours earning a minimum income – at least enough to pay for the essentials – is something that the average person normally has to do, on pain of serious deprivation. therefore, it is not true that for any level of income and any level of free time, a person can always straightforwardly increase her free time by quitting her job and earning less income. on the contrary, if she quits her reasonably well-paid job today, she may have to work even longer at some other, crummier job tomorrow. moreover, because people differ dramatically in their qualifications and hourly earning potential, the time that different people must spend earning a minimally adequate income will likewise dramatically differ. consequently, they will have different amounts of time left over to spend with their children, educate themselves, run for public office, and so on. accordingly, as long as people are not required to enjoy identical earning potentials on other grounds of distributive justice, different people are bound to have access to different amounts of free time, and a question will arise as to whether social institutions have really provided each person with his or her fair share. in her book, rose argues that to appreciate these and other points, we 66 lucas stanczyk leap 5 (2017) need to stop conceiving of free time as the chosen inverse of paid labor time. instead, the free time that a person has on any given day is better understood as twenty-four hours minus the number of hours she must spend doing whatever is necessary to meet her basic needs, on pain of failing to satisfy her basic needs. in other words, the core of the politically relevant notion of free time is opposition to an idea of compulsion or necessity. a person’s free time is whatever time she is not compelled to spend doing things to meet her bodily, financial, and other basic needs, or the basic needs of her dependents – and hence time that is available for other purposes. according to rose, it is free time in this distinct sense, of “time for what we will,” that should be recognized and treated as a distinct object of distributive justice. for without adequate free time in this sense, our formal liberties would end up being largely worthless to us. now, rose suggests that ref lection on her conception of free time provides a justification for extending familiar types of labor market and working-time regulation (rose 2016: 135-45). for example, a generous minimum wage law can help to ensure that no one needs to work multiple jobs for a combined sixty hours a week simply to make the most basic ends meet. to the extent that a generous minimum wage law has this effect, it can be understood as a central means not only of giving the least well-paid workers more income and wealth, but also of giving each such worker (more of ) his fair share of free time. similarly, overtime regulations that prohibit employers from firing employees who refuse to work back-to-back shifts can be understood as a means of ensuring that each person is able to work no more than a set number of hours per day or per week, while still retaining access to an income sufficient to meet his basic needs, and thereby freeing him to take up other pursuits. hence overtime regulations, too, look to be a tool that is normally essential to ensure that everyone will have access to his or her fair share of free time. in addition, rose suggests that laws requiring companies to provide caregiver leave and f lexible work schedules will normally be required to ensure that people with parental and other caregiving duties will be able to enjoy their fair share of free time as well. finally, rose argues that there may even be a case for requiring most businesses to shut down on sundays. otherwise, people whose employers require them to work on weekends are likely to lack a substantial amount of free time that is shared with, and can thus be coordinated and enjoyed with, a substantial number of others, including friends, neighbors, co-religionists and other possible associates. it turns out, however, that none of these general laws and regulations are recommended by ref lection on rose’s conception of free time. instead, humane overtime regulations, mandatory caregiver leave, f lexible work free time and economic class 67 leap 5 (2017) schedules, and sunday closing laws are plausibly necessary to give the least well-paid workers their fair shares of free time. however, such rules are far from necessary to liberate the seemingly harried aff luent professionals who complain more than others about their impossible work hours. on the contrary, just in case some of the least well-paid workers today can be said to lack their fair shares of free time as well as their fair shares of income, this condition will normally imply that many aff luent professionals should be constrained to work longer rather than shorter hours. in short, if we take seriously rose’s idea of free time as a distinct object of distributive justice, then providing seemingly harried aff luent professionals with the benefit of more humane overtime regulations, f lexible work schedules, caregiver leave, and sunday closing laws will turn out to be at cross-purposes with securing a just distribution of free time, and therefore with distributive justice more broadly. 3. wealthy people already have their fair shares of free time according to rose, how much free time a person has depends on how long she must personally work to have the benefit of an income that is sufficient to pay for the essentials. on this conception, then, a person’s free time evidently depends not only on the extent of her income-producing and salable wealth, but also on her maximum earning potential from labor, as well as on which of her ongoing expenses are to be regarded as essential or nonnegotiable. imagine, then, a “house-rich” but “cash-poor” interior designer, who was once and might still be a well-paid corporate law yer, with a large mortgage on an expensive house that is only half-way paid off, working long hours to save for residential college tuition for her three young sons. if it is not essential to have multiple guest bedrooms, work in a particular creative occupation, or spend half a million dollars on three times four years of residential college tuition, then the seemingly harried, single-parent interior designer will count as already having more than her fair share of free time. after all, she can ask her children to go to the local community college, sell the oversized house and multiple non-entry level cars, and perhaps even quit working altogether in her forties and live indefinitely off her savings, albeit on a much more modest consumption schedule than she and her children have enjoyed thus far. alternatively, if she really does prefer to spend more than her accumulated wealth sustainably allows, she can return to earning much more per hour by practicing corporate law. from the point of view of the vast majority of workers today, these fallback options are nothing if not enviable. 68 lucas stanczyk leap 5 (2017) presumably, then, we should not say that the interior designer and her children would be deprived of the essentials just in case she gave up working fifty hour weeks in her existing niche occupation. however, if we admit this much concerning what she does and does not have to do to maintain a basic level of functioning for herself and for her children, then entire classes of seemingly overworked professionals will turn out not to need any new overtime regulations, parental leave policies, or f lexible work schedules in order to enjoy their fair shares of free time.1after all, it will often be possible for college-educated and aff luent professionals to transition to a noticeably less time-consuming role or occupation, sell some of their real and financial assets, reduce their expenses, or commit to some combination of these courses of action, without ever seriously risking the non-satisfaction of their basic needs or the basic needs of their dependents. indeed, to the extent that they already possess substantial housing and financial wealth, by cutting out some of their non-essential expenses and “down-sizing” to a modest rental apartment in a less prime location, they may well never have to work for money again. now, it seems reasonable to say that anyone in this enviable situation already has her fair share of free time. where millions of others must work forty or more hours a week just to pay the rent and buy their clothing and food, a person with a fancy house in good repair and, say, an additional half a million dollars to her name does not have to work any where near the number of hours that she actually works, and, in truth, in order to enjoy a modest but steady income from accumulated property, she may no longer have to work at all. presumably, then, it is not the case that public policy should enable such a person to maintain her existing class position at even less cost in time to herself, or what comes to the same thing, enable her to take even more time off from what would otherwise be tax-revenue generating employment at the public’s expense. certainly, this is not what rose’s theory of free time would seem to recommend. after all, for rose the free time that any given aff luent professional has is not to be understood as the inverse of the time that she actually spends working a paid job. instead, the free time that a person has is the inverse of the time that she strictly has to work in order to meet her basic bodily and financial needs. so, if an already rich person without any 1 there may of course be other reasons (for example, reasons of economic efficiency or political strateg y) to include aff luent professionals in a generally applicable working-time policy. however, if what i have said about the interior designer is correct so far, then a general policy will not be necessary to give aff luent professionals their fair shares of free time. this is one of the main points that i will go on to elaborate in the text. free time and economic class 69 leap 5 (2017) unusual bodily needs could choose to live comfortably off her existing wealth, yet chooses to spend all of her waking hours getting even richer through lucrative paid work, then the enormous amount of time that she spends at the office for this purpose should not be thought to “detract from [her] free time, for it is still available to devote to any other end” (rose 2016: 42). on the contrary, it is precisely because she already has so much more wealth than other people that she must be understood to have far more free time as well: “to see this distinction, consider two individuals who spend all of their time engaged in the same types of activities for the same amounts of time: each spends twelve hours per day working for pay, eight hours sleeping, one hour eating, and so forth. the first is a wealthy heiress who could easily support herself with her investment income, though she actually chooses to spend a significant portion of her time working as a model. she is not contractually bound to work such long hours; every morning she receives a call from her agent asking if she would like to work that day and for how many hours, and she suffers no penalty if she chooses not to work. the second is a day laborer with no personal wealth who can command only low wages and so must work long hours to earn enough money just to get by. she is also not legally committed to working a certain number of hours: each day she is hired by a different person on an hourly basis for her day’s work. though both the heiress and the day laborer engage in the same number of hours of paid work, it is implausible to contend that both thereby have the same amount of free time. they both can choose, strictly speaking, whether or not to work on a given day, but the heiress’s paid work is discretionary in a way that the day laborer’s is not: the day laborer must work in order to attain a basic level of functioning, while the heiress need not... even though the heiress does happen to spend her time engaged in paid work, the time she devotes to paid work is still available to her to pursue other ends if she so chooses. if, one day, she wishes to go to the beach instead of working, she possesses the free time to do so...” (rose 2016: 42-43). the reason that the heiress must be judged to have an unequaled amount of free time – even if she chooses to work sixty hour weeks and is therefore not “leisured” in that sense – is that the heiress but not the average worker is always “free not to devote her time to work,” because she is free to quit working without risking homelessness or the non-satisfaction of any other basic need. in other words, precisely because she owns an extraordinary amount of wealth – enough to live comfortably even without 70 lucas stanczyk leap 5 (2017) having to work – she must for this reason be judged to have an extraordinary amount of free time as well. in rose’s theory, this conclusion is simply a consequence of the way that free time has been defined. however, in this regard, the wealthy heiress who chooses to work long hours as a fashion model is just like any other aff luent professional who has come into the possession of class-altering financial assets. just like the wealthy heiress, the former corporate law yer with a net worth of a million dollars is free to devote far less than fifty hours a week to paid work as an interior designer, without ever seriously risking having to sleep rough or facing material deprivation of any comparable kind. indeed, the truth is that, like the heiress, the former corporate law yer is already free to stop doing paid work altogether. for she already has enough wealth to maintain a comfortable life even if she quits her job and spends all of her weekdays at the beach instead. however, if this is correct, then neither overtime regulations nor any sort of f lexible working-time policy will be required to ensure that professionals who have managed to accumulate a liberating amount of wealth will be able to enjoy their fair shares of free time. for the very fact that they have accumulated enough wealth to live comfortably even without working entails that they already also enjoy an unparalleled amount of free time. why, then, should aff luent professionals be thought to have a claim in fairness to be provided with even more? neither of the answers that a liberal egalitarian might give seem plausible in this context. on the one hand, it will be implausible to say that wealthy professionals currently lack an adequate amount of free time. for, unlike the vast majority of workers, who really do have to work five days a week just to make ends meet, professionals who have a house and, say, half a million dollars in retirement accounts are already free to spend the entirety of their weekdays doing pretty much whatever they like. like the heiress, most of them simply choose to use their free time to continue working and accumulating more wealth. on the other hand, it would be even more implausible to say that aff luent professionals lack their fair shares of free time because, while they each enjoy a fully adequate amount, they systematically have less of it than other workers have. for, as we have already seen above, this description is in fact the opposite of the truth. precisely because they have been allowed to accumulate much more wealth, aff luent professionals must be understood free time and economic class 71 leap 5 (2017) to enjoy a much larger share of free time than almost anyone else.2 accordingly, it is hard to see why any new laws would be required to give aff luent professionals their fair share of free time. 4. a universal flexible work policy would be strongly regressive i take it that for some readers this will not be a welcome result. suppose, then, that in determining how long a given affluent professional must work to satisfy her basic needs, we deliberately disregard the types of facts outlined above. for example, suppose we say, with rose (2016: 90-92), that each person is entitled to a fair share of free time in the occupation of her choice, so that if an interior designer with a middling full-time income could instead run a much more lucrative law practice part-time, this is to be regarded as irrelevant to the question of how many hours per month it is objectively necessary for her to be employed in order to pay her mortgage and cover all of her other bills. similarly, suppose that we disregard the fact that she could sell one of her luxury cars and relocate to a much less expensive house, as well as the fact that she is among the one in seven americans who was fortunate enough to inherit the equivalent of the median lifetime labor earnings of the bottom half of all workers3 – and that she could easily use some of this nest egg to cover the equivalent of the average family’s monthly housing and other expenses, without spending any time at all in paid work. if we disregard these types of facts, then even the most asset-rich and privileged professionals may well turn out not to have access to their fair shares of free time, just as long as the bosses in their chosen professions expect them to be at the office at all hours (because they pay them so handsomely for it). against the background of such deliberate informational restrictions, however, the requirement that public policy must continually guarantee each person a fair share of free time will now turn out to be strongly economically regressive. for consider. if investment banks, elite law firms, and similar employers are ordered to give their highest-paid employees generous paid parental and 2 again, assuming no unusually time-consuming bodily needs, this conclusion follows straightforwardly from rose’s conception of free time. on this conception, a person’s free time on any given day is simply twenty-four hours minus the number of hours that she has to work to be able to buy food, adequate shelter, and to meet all of her other basic bodily and financial needs. so, if someone already has enough wealth to live comfortably even without having to work, then, as long as she does not have unusually time-consuming bodily needs, she must be understood to have much more free time than the average person currently has. 3 72 lucas stanczyk leap 5 (2017) caregiver leave, then, not being able to squeeze their costliest employees as much as before, the corporate profits of these employers are sure to erode, and, therefore, also the tax base for downwardly redistributive transfers, including wage subsidies for much poorer service-sector workers. moreover, even if an exception is made for such elite employers, requiring them to guarantee only unpaid leave to their highest-paid employees, then the tax base is still likely to shrink. for when richly-paid yet harried professionals are guaranteed not to be fired for taking ample unpaid time off, we can expect that many will choose to spend fewer days and months in paid work, thereby generating that much less salary income that can be taxed by the state. and yet, with less tax revenue available for general government spending and redistributive programs, either some of the state’s spending will have to be cut or other – less well-paid – people will have to continue to work at least as much, if not more, than they currently do. in short, we have arrived at a dilemma. on the one hand, there is reason to affirm that each and every person has a claim to some substantial amount of free time. presumably, then, affluent professionals who work for absurdly demanding bosses should be understood to have a claim to more humane overtime regulations, more flexible work schedules, and so on. however, in order to count such people as having to work at all (let alone as being forced to continue working at their current jobs), we must deliberately disregard not merely their spending habits but their existing housing and financial wealth. and yet if we decide to disregard their wealth, and if we then go on to provide (even) affluent professionals with more free time in the occupations of their choice, then the aim of continuously guaranteeing each person some reasonable amount of free time will turn out to be strongly economically regressive. for when harried corporate lawyers and investment bankers are suddenly rendered safe from being fired for refusing to work on weekends, many of these exceptionally well-paid professionals will undoubtedly choose to work less and thereby reduce the redistributive tax base. as a result, less revenue will be available to subsidize the wages – and therefore also the free-time – of workers who have decidedly less of both. on the other hand, if we try to avoid this outcome by acknowledging a person’s wealth in the course of assessing what she does and does not have to do to meet her basic needs, then it will turn out that many highly-paid yet seemingly harried professionals will not need any new type of working-time regulations in order to count as enjoying a truly extraordinary amount of free time. the reason is that many of these people are already wealthy enough not to have to work anywhere near as long as they do. indeed, many educated and affluent professionals could henceforth work strictly parttime at more or less any minimum wage job, and could even drop out of the free time and economic class 73 leap 5 (2017) paid labor force altogether for years at a time, without ever seriously risking the non-satisfaction of their own or their dependents’ basic needs. these are time-use possibilities that the vast majority of service-sector workers today can only dream of. hence it seems that, if only we consider the time-use possibilities afforded by their wealth, many affluent professionals will have to be regarded as already having been blessed with a truly extraordinary amount of free time. however, if that is the case then it is difficult to see why, from the point of fairness, such persons should be entitled to even more free time at what will then be others’ expense. 5. conclusion as i have already hinted, the dilemma described in this essay emanates from a deeper question facing not merely rose but also other egalitarian liberals. namely, in a liberal society, the distribution of wealth and income is also a principal basis for distributing free time. people who are penniless are typically expected to work long hours in order to survive, whereas people who inherit or accumulate substantial wealth are free to spend their days however they like. as a result, the wealthy generally enjoy both more wealth as well as more free time. in a liberal society, are there other ways that freedom itself is tied up with economic class? this is the deeper question that rises to the surface on a close reading of rose’s free time. bibliography piketty, t. 2014: capital in the twenty-first century, cambridge: harvard university press. rose, j. 2016: free time, princeton: princeton university press. leap 5 (2017) free time, freedom, and fairness1 j e ppe von pl at z university of richmond abstract julie rose argues that free time is a proper concern of distributive justice and that all citizens have a legitimate claim to a fair share of free time. her argument relies on the effective freedoms principle, which says that all citizens have a legitimate claim to a fair share of the resources required to exercise their formal liberties and opportunities. rose argues that free time is one such resource, which entails that all citizens have a legitimate claim to a fair share of free time. i argue that rose’s argument does not establish a claim to a fair share of free time, at least not if we understand fairness to mean something more than that all should receive their due. i also suggest an extension of rose’s argument that yields the conclusion that all citizens have a legitimate claim to a cooperatively fair share of free time. keywords: time, justice, freedom, rights, fairness, work “in capitalist society, free time is produced for one class by the conversion of the whole lifetime of the masses into labourtime.” (marx 1976: 667) 1. introduction in free time, julie rose argues that “justice requires that all citizens have a fair share of free time” (2016: 4; see also 1, 5, 17, 63, 68, 73, 85, 92, 128). rose defines free time as “time beyond that which is objectively necessary for one to spend on one’s own basic needs, or the basic needs of one’s dependents” (2016: 58). accordingly, justice requires that all citizens have a fair share of time to spend on pursuits other than these basic needs. this thesis might appear uncontroversial, but, as rose notes (2016: 1, 3, 17-18, 90), most contemporary theories of justice do not include any principles concerning the distribution of free time. moreover, if sound, her argument 1 i am grateful to tom parr, two anonymous reviewers, and lauren mcgillicuddy for helpful written comments on an earlier version of this essay. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 5 48 jeppe von platz leap 5 (2017) warrants a complaint of justice against most societies, for few societies seem to secure a fair share of free time for all. rose’s argument starts with the effective freedoms principle, which rose states as follows (2016: 66-7; see also 4, 73, 74, 101, 111, 128-30): “citizens have legitimate claims to a fair share of the resources generally required to exercise their formal liberties and opportunities”. rose takes this principle as a given, since it is endorsed by “nearly all theories of distributive justice” (2016: 66; also 90). liberals tend to use this principle to defend conclusions about material conditions, but rose argues (2016: chapters 3 and 4) that free time is generally required to exercise formal liberties and opportunities. to illustrate, think of the political rights of democratic citizenship: rights to form, join, and leave political parties, to voice one’s opinion in political matters, to participate in elections, and so on. exercising these rights takes time – time to discern the nature of political questions, the positions of the candidates, what justice and efficiency requires, and to vote on election days (rose 2016: 73-74). in general, it takes time to exercise many of the formal liberties that liberals argue all citizens should enjoy; so, by the effective freedoms principle, justice requires that all have a fair share of free time. here is the argument in overview: 1. all citizens have a legitimate claim to a fair share of the resources generally required to exercise their formal liberties and opportunities. (= the effective freedoms principle.). 2. free time is a resource generally required to exercise one’s formal liberties and opportunities. 3. therefore, all citizens have a legitimate claim to a fair share of free time. rose’s argument offers an important corrective to a theoretical neglect of a real and practical dispute. free time is a subject of justice; it has been neglected by political philosophy, and all citizens have a claim to free time. moreover, since time has played a central role in the struggle between capital and labor, the theoretical neglect of free time, and time more generally, is remarkable. the history of the working class is as much a history of the struggle for time – for shorter and reasonably organized work-weeks, pay for overtime, lunchbreaks, sick-days, holidays, vacation, varieties of paid and unpaid leaves – as for fair wages and workplace safety.2 this struggle for time continues. however, i have some concerns about rose’s argument. rose relies on the 2 for example, the 1891 erfurt program of the german social democratic party demands an eight-hour workday, limitations on night-work, and uninterrupted rest periods of at least 36 hours once per week (e.g. sundays off work). free time, freedom, and fairness 49 leap 5 (2017) effective freedoms principle to establish the conclusion that all citizens have a legitimate claim to a fair share of free time. but i doubt that the effective freedoms principle can get her this conclusion, at least not if we understand “fair share” in terms of cooperative fairness. i also worry that rose’s reliance on the effective freedoms principle leads her to miss an opportunity for thinking about free time as an issue of justice which is theoretically appealing, true to the historical (and continuing) struggles for time, and can support the sort of claims to a cooperatively fair share of free time that the effective freedoms principle does not deliver. my argument begins with a few distinctions. first, i distinguish between two parts of economic justice, which i call enabling and distributive justice. the former requires that all citizens are enabled to participate as free and equal in social cooperation, the latter that the distribution of the benefits and burdens of cooperation is fair. second, there is the already indicated ambiguity in the notion of fairness. fairness can be understood as the somewhat vacuous requirement that the resources useful for pursuing conceptions of the good in general (so-called all-purpose means) should be fairly distributed. but it can also be understood in terms of the more specific notion of cooperative fairness, where it says that cooperators have a claim to receive a fair share of the benefits, and to carry only a fair share of the burdens, of their cooperation. third, there is an ambiguity in the effective freedoms principle which leads to two different arguments that free time is a concern of economic justice. free time is of concern to justice, both because free time is necessary for exercising basic liberties and because free time is an all-purpose means.3 this duality is mirrored in two different readings of the effective freedoms principle and these, in turn, issue different requirement of justice with respect to free time. on one reading, the effective freedoms principle is tied to the basic liberties. on another reading, the effective freedoms principle is tied to the ability to freely pursue one’s interests. rose does not have to choose between these meanings, for she shows that free time is a resource in both senses. however, i argue that the effective freedoms principle is best understood as tied to basic liberties, and that, thus understood, the claims of justice it supports are not claims to fair shares of free time, but rather sufficientarian claims to adequate amounts of free time. the indicated ambiguities are not particular to rose’s argument, nor do they by themselves produce fallacies or nasty dilemmas. but resolving them 3 “[f]ree time is required both to exercise many of one’s fundamental freedoms and to pursue one’s con-ception of the good, whatever it may be” (rose 2016: 71). 50 jeppe von platz leap 5 (2017) will, i hope, bring more clarity to the (in my opinion, limited) purchase of the effective freedoms principle. it will also allow me to suggest a way to extend rose’s argument so that it supports the conclusion that all citizens have a claim to a cooperatively fair share of free time. 2. economic justice: enabling and distributive if we accept the rawlsian idea that we should think about the principles of economic justice as the basic rules of cooperation between free and equal citizens, the principles of justice can then be applied to draw distinctions between different resources (or primary goods) according to how they are related to the social cooperation governed by these principles. in the rawlsian framework, these all-purpose means include basic liberties, opportunities, wealth and income, and the social bases of self-respect. some of these resources (the basic liberties and the resources required to exercise them) are of interest to economic justice because they enable citizens to participate as free and equal in the system of social cooperation. other resources are of interest to ensure the ongoing fairness of the distribution of opportunities to pursue one’s goals, benefits, and burdens of cooperation. the general notion of all-purpose means can thus be disaggregated into three ways in which resources are of interest to economic justice: first, as basic rights and liberties necessary for citizens to develop and exercise the moral powers engaged in social cooperation. second, as the material (and temporal) background conditions for citizens to actually enjoy these rights and liberties to the sufficient degree. third, as the inputs and outputs (burdens and benefits) of the productive and distributive processes of social cooperation. of course, the same resource can appear in multiple categories. thus, wealth will appear both as the second and third sorts of resource, since some wealth is necessary to exercise one’s basic rights and wealth is an output of social cooperation. this way of thinking about how resources are significant for justice also indicates a division of the subject of economic justice – a division that i believe is general to those liberal egalitarian theories of justice that should share rose’s commitments, and which turn out to be helpful for my discussion of her argument. this is the division between the enabling and free time, freedom, and fairness 51 leap 5 (2017) the distributive parts of economic justice.4 enabling justice is concerned with empowering all citizens to be free and equal participants in social cooperation. distributive justice is about how we should distribute the burdens and benefits of social cooperation taking place among citizens thus empowered. enabling justice requires that all members have access to the rights and means sufficient to participate in social cooperation as free and equal. distributive justice requires that citizens carry at most a fair share of the burdens and receive at least a fair share of the benefits of social cooperation. in terms of the three kinds of resources identified above, we can say that enabling justice is concerned with the first two kinds; distributive justice with the third kind. in rawls’s theory of justice, the first principle of justice expresses the requirements of enabling justice, the second principle expresses the requirements of distributive justice. enabling justice is sufficientarian. the aim is to ensure that all citizens are empowered to cooperate, which means they should all enjoy access to the basic liberties and the means sufficient to exercise these. distributive justice could be, but typically is not sufficientarian, for the claims it supports are to fair relative shares of burdens and benefits. 3. two notions of fairness the general requirement of economic justice is that we should seek a just (we might say, fair) distribution of all-purpose means. rose shows that free time is an all-purpose means and so should be fairly distributed. however, notice that little is revealed by saying that these resources should be fairly distributed. this general notion of fairness says little more than that these resources are proper subjects of economic justice, so that all should receive their due of these. it is the role of the principles of economic justice to specif y what a fair distribution of these resources would look like. we find a more interesting notion of fairness when it is defined in terms of cooperation, so that the basic norm is that the rules that govern cooperation must secure each cooperator’s claim to a fair share of the benefits and burdens of their cooperation. to be clear, here are the two notions of fairness:5 4 these two parts do not exhaust the subject of justice, but they are the main parts of what i call economic justice, that is, the principles that should guide the design of institutions that define and regulate social cooperation. 5 there are, of course, many others. 52 jeppe von platz leap 5 (2017) non-cooperative fairness: we can talk about fairness as the general notion governing the distribution of all-purpose means in general. the norm is that all-purpose means should be fairly distributed. cooperative fairness: we can talk about fairness in terms of the claims of cooperators to the benefits and burdens of their cooperation. here the norm is that all cooperators receive at least a fair share of the benefits, and carry no more than a fair share of the burdens, of cooperation. the distinction applies in other contexts as well. if we are served with a pie, then all should receive their fair share of it (non-cooperative fairness). if we bake the pie together, each has a claim to a fair share of it (cooperative fairness). but the distinction has particular relevance for economic justice, for theories of economic justice can be divided into those that theorize economic justice in terms of cooperative fairness and those that do not. the non-cooperative notion of fairness is pre-theoretical and vacuous. to say that justice requires that all receive their fair share in this sense is to say that all should receive their due – a statement that, if not analytical, is so generic that any and all theories of justice could include it. libertarians, classical liberals, socialists, rawlsians, and social democrats could all agree to this principle, while disagreeing about what it means. the cooperative notion of fairness is the general norm of what i called distributive justice above. it presents us with a stronger and more interesting notion of fairness. one indication of its relative strength is that right-liberal and libertarian theories of justice would not accept it as norm of economic justice, since they reject the idea that we should think of society as a system of social cooperation (e.g. hayek 1978; nozick 1974: chapter 7). and it is more interesting, since the notion ties fairness directly to the claims that cooperators can make on each other as cooperators, which invites more demanding norms of reciprocity and the idea that departures from an equal distribution must be reasonably acceptable to those who have less (since all come into the cooperative relationship as free and equal and thus with an initially equal claim to the benefits and burdens of cooperation). to further illustrate the distinction, it might be helpful to think again in terms of rawls’s theory of justice. the general question is what a fair distribution of all-purpose means would look like (using the noncooperative notion of fairness). the two principles of justice answer this question. however, this answer involves the cooperative notion of fairness, namely the claim to a fair share of benefits and burdens that each cooperator has as cooperator. while this cooperative notion of fairness is free time, freedom, and fairness 53 leap 5 (2017) more specific in terms of content than the first, it also needs further specification. in rawls’s theory this further specificity is provided by the second principle of justice. other theories might offer different principles to specify cooperative fairness, but the notion itself restricts the domain of available answers. with this distinction in mind, we can see that rose’s conclusion that all citizens have a claim to a fair share of free time is ambiguous between the weaker conclusion that free time should be fairly distributed where fairness is used in the non-cooperative, untheorized, and less demanding sense; and the stronger conclusion that free time is subject to the norms of cooperative fairness. in the following two sections i argue that rose’s arguments from the effective freedoms principle can support only the weaker of these two conclusions. in section 5 i sketch an argument that leads to the stronger conclusion. 4. two readings of the effective freedoms principle corresponding to the two senses in which free time is a resource, we can distinguish between two readings of the effective freedoms principle: general liberty reading: all citizens should receive a fair share of all-purpose means useful for freely pursuing their conception of the good, whatever it may be. basic liberties reading: all citizens have a legitimate claim to the resources adequate to exercise their basic liberties. both of these are at work in rose’s argument; the first, when she treats free time as an all-purpose means; the second, when she treats it as required for the exercise of basic liberties. it seems clear that the first reading of the effective freedoms principle simply restates the general requirement of non-cooperative fairness that all-purpose means should be fairly distributed, which means that nearly all theories of justice can include it. the second reading of the principle has more bite, and it seems that right-liberals and libertarians would reject it. this need not concern rose, for the principle has a secure place in any liberal egalitarian theory of justice of the sort which rose argues should concur with her conclusions. rose shows that free time is necessary for various basic liberties, including freedom of occupation, basic political rights, and freedom of association (2016: 91, 73-4, chapter 5). these arguments successfully establish that all citizens have a claim to the sufficient measure of free time required to exercise these liberties. 54 jeppe von platz leap 5 (2017) though rose uses both readings of the effective freedoms principle, this is a strength of her argument, rather than a problem, for it shows that free time is a subject of justice in two distinct senses: in general, as an allpurpose means, and in particular, as a condition of the exercise of basic liberties. the problem, rather, is that neither of these senses supports the stronger conclusion that free time is a subject of cooperative fairness, which means that her conclusion – that all citizens have a claim to a fair share of free time – is true only if we take fairness in the non-cooperative and vacuous sense. at least, so i argue in the following section. 5. free time as subject of enabling justice to give some substance to my worry, it will be helpful to look at the place of the effective freedoms principle in rawls’s theory of justice.6 looking at rawls also offers further explanation for why enabling justice is sufficientarian. rawls repeatedly says that something like the effective freedoms principle defines membership in the family of liberal theories of justice. rawls defines liberalism as those theories of justice that affirm the basic rights and liberties familiar from liberal democratic regimes, give special priority to these rights and liberties, and secure for all citizens “adequate all-purpose means to make effective use of their liberties and opportunities” (1996: 6; see also lix; rawls 2008: 12; rawls 2001: 141). in this sense he affirms the effective freedoms principle. yet the effective freedoms principle is not a distinct principle alongside the two principles of justice as fairness, and rawls appears to think it is covered by what he says with respect to the enabling conditions of the first principle of justice, the principle of equal basic liberties. the first principle itself does not affirm or contain the effective freedoms principle, but in political liberalism, rawls writes that the first principle should be understood as working within a setting where citizens’ basic needs are met, “at least insofar as their being met is necessary for citizens to be able to understand and to be able to fruitfully exercise those rights and liberties” (1996: 7). thus, rawls employs the effective freedoms principle in the second, basic liberties reading identified above. and as such, the principle issues the sufficientarian requirement that basic needs are met, where needs are understood as the preconditions for exercising the basic rights and liberties. accordingly, it is not the case that citizens have a legitimate claim to a fair share of the resources required for 6 rose (2016: 67, 70) mentions rawls as exemplary endorser of the effective freedoms principle. free time, freedom, and fairness 55 leap 5 (2017) exercising their basic liberties; rather, they have a legitimate claim to the amount of those resources adequate to exercise their basic liberties. by the distinction drawn earlier, the effective freedoms principle thus serves as a principle of enabling rather than of distributive justice. the role of the effective freedoms principle in rawls’s theory illustrates how it serves as a principle of enabling justice, and can be satisfied whether or not citizens receive a cooperatively fair share of resources. as a principle of enabling justice, the principle carries a target and cutoff point for the resources it covers – once all citizens have enough of those resources to exercise their basic liberties, it issues no further requirements. to summarize, once we have the distinction between enabling and distributive justice in hand, and once we have distinguished between noncooperative and cooperative fairness, and once we have clarified the two readings of the effective freedoms principle, we can say that: first, if we use the general liberty reading of the effective freedoms principle, then the principle says little more than that all-purpose means should be fairly distributed, where fairness is used in the non-cooperative, pre-theoretical, vacuous sense. in this employment, the effective freedoms principle does support the conclusion that free time should be fairly distributed, but not in the strong sense of cooperative fairness. second, if we use the basic liberty reading of the effective freedoms principle, then the principle is a principle of enabling justice. as such, it issues strong requirements of justice with respect to free time, namely, that all must enjoy access to free time sufficient to enjoy their basic liberties. however, this requirement does not support claims to fair shares, merely to adequate amounts. so, third, neither of the two readings of the effective freedoms principle can be used to establish the conclusion that the distribution of free time is a subject of the cooperative norms of fairness of distributive justice. so, fourth, rose’s argument has not established that all citizens have a claim to a fair share of free time, if we understand fairness in the stronger sense of cooperative fairness. rose’s main conclusion that free time is a subject of justice stands untouched by my argument. indeed, she has shown that the distribution of free time should be fair, if we understand fairness in the general, pre-theoretical, non-cooperative sense that people should receive their due share of free time. moreover, as rose makes clear (2016: 128-3), she 56 jeppe von platz leap 5 (2017) does not claim that her argument determines which principle should govern the distribution of free time, so she can leave that matter to be settled by the various theories of justice in light of their respective interpretations of fairness. however, by relying on the effective freedoms principle, rose’s argument misses an opportunity for developing free time as a subject of what i have called distributive justice and thus as subject to the stronger norms of cooperative fairness. in the following section i offer a suggestion to extend rose’s argument and make free time a subject of norms of cooperative fairness; thereby offering a way to reach the conclusion that all citizens have a legitimate claim to a fair share of free time, in the stronger, cooperative sense of a fair share. however, first, i want to acknowledge two complications that deserve mention, though they do not change my conclusion. first, even as subjects of enabling justice, some resources are rivalrous goods: the amount of them needed to exercise a basic liberty depends on what others have. this makes it harder to determine what the adequate amount is, but it does not change the nature of the claim, which is to an adequate amount; thus, there is a threshold at which the claim of enabling justice to that resource is fully satisfied (even if this threshold varies with what others have). this point generalizes to other sufficientarian claims of justice; even if the resource covered by the sufficientarian guarantee is a rivalrous good, the nature of the claim still has the sufficientarian characteristics of adequacy, cutoff-points, and non-relativity (even if the absolute amount one has a claim to is a function of what others have, it is still not a claim to a relative share, but to enough to pass the threshold, which may depend on what others have). the second complication is that some (if not most) resources are subjects of both enabling and distributive justice. again, take money as an example. on one hand, money is needed to exercise basic liberties, so all citizens have a legitimate claim of enabling justice to enough income and wealth to exercise their basic liberties. on the other hand, money serves as both an input and an output of the system of cooperation (and translates smoothly into many of the benefits and burdens of cooperation), so the distribution of income and wealth also is a proper subject of distributive justice, meaning that all citizens have a legitimate claim to a cooperatively fair share of income and wealth. below, we shall see that free time also is a subject of justice in both senses. free time, freedom, and fairness 57 leap 5 (2017) 6. free time as a subject of distributive justice it is, i think, hard for an argument that relies on the effective freedoms principle to deliver norms of cooperative fairness. here i suggest a way in which rose’s argument could be extended to distributive justice and issue the more demanding norms of cooperative fairness that rule that domain. for i do think that time and free time are proper subjects also of distributive (rather than only enabling) justice, and that norms of cooperative fairness apply to the distribution of free time. but to see this, we have to think outside the scope of the effective freedoms principle. let us return to time and free time as resources. as rose identifies it (2016: 46), a resource that could plausibly be the subject of a claim of justice must be “generally required to pursue any conception of the good,” and it must be practically possible to know and verify whether individuals possess the resource. i suggested earlier that this general notion can be disaggregated into three sorts of resources: basic liberties, the means needed to exercise these to the sufficient degree, and the inputs and outputs of social cooperation. the basic liberties reading of the effective freedoms principle deals with the second of these; norms of cooperative fairness deal with the third. rose shows that free time is an all-purpose means required for the exercise of basic liberties. i argue that free time is also a resource in the third sense, which makes it subject to the norms of cooperative fairness. why do we have social cooperation in the first place? one straight forward answer is that through social cooperation we get better access to all the good things of life: security, transportation, comfortable shelter, food, potable f luids, peace, freedom, stability, the pursuit and dissemination of knowledge, cultural enrichments, innovation and the development of technologies, health-care, comforts in old age; the list goes on and on. a host of things that human beings care about are available only in society and through social cooperation. there are, of course, inputs and outputs to the processes by which these many goods and advantages are produced and distributed: resources are both consumed and created by these processes. one way to think about distributive justice (the right way, i think) is that we need principles to guide the distribution of both inputs and outputs – the sharing of the burdens and benefits of social cooperation. time is one of the inputs to this process of social cooperation, and free time is one of the outputs. even with every advance of modern technology, what we produce requires the investment of time alongside other inputs such as natural resources and knowledge. the time thus spent is work (in a 58 jeppe von platz leap 5 (2017) broad sense); burdensome, but productive.7 (this expands the concept of work to include currently uncompensated care-work and uncompensated artistic endeavors that truly enrich society). for in exchange for the collective time spent working, we get not only all the good products of our work, but our collective work also frees up time itself – the division of labor and the productive nature of social cooperation and the progress that we make when we cooperate all make it so that we do not have to work every waking hour to satisfy our basic needs or the basic needs of our dependents. (some still do, and if they must, maybe that is unjust for the reasons rose lists, and because they do not receive a cooperatively fair share of free time). if we didn’t live in society and cooperate, we would spend nearly all our time trying to survive; living in society, we sometimes are released from the imperatives of basic needs and have time to do what we want. free time is, of course, intangible and usually not traded as a separate commodity, but the same could be said for the other main social goods: freedom, security, and access to knowledge and cultural enrichments. the norms of cooperative fairness say that the distribution of the benefits and burdens of social cooperation should be distributed in a manner that is fair to all cooperating parties. since time is a factor of production and free time one of the products, it follows that all cooperating citizens have a claim to contribute no more than their fair share of time, that is, to work no more than their fair part, and to receive no less than their fair share of free time. they can, of course, choose to keep working in their free time, insofar as they want to exchange their free-time resource for other resources. it is hard to say much more in the abstract about what cooperatively fair shares of benefits and burdens are. but we can say that time and free time are proper subjects of distributive justice and the norms of cooperative fairness appropriate to it. and that, in turn, allows us to say that the requirements of justice with respect to time are open-ended rather than sufficientarian (there is no target and cutoff point), that inequalities of free time need justification, that relative shares of free time matter, that the struggle for a fair distribution of work time and free time continues beyond the point where all citizens have enough time to exercise their basic liberties, and that it looks like a problem of justice when some must work a lot and others work little; when some have just enough free time, while others can choose a life of leisure. if marx was right (cf. opening quote), the problem is not merely that the working class has insufficient free time, but 7 of course, not all work is equally burdensome and perhaps some work is not burdensome at all. but for the purposes of distributive justice, it makes sense to assume, so that sentence reads "it makes sense to assume that work is normally burdensome." free time, freedom, and fairness 59 leap 5 (2017) that a capitalist society tends to suffer from an unfair distribution of work time and free time. thus, time is a subject of justice in two ways and citizens have at least two distinct claims of justice when it comes to free time. first, as rose persuasively argues, free time is a subject of enabling justice. as such, free time is covered by the effective freedoms principle and all citizens have a claim to an amount of free time sufficient to exercise their basic rights. second, as sketched in this section, work time and free time are subjects of the norms of cooperative fairness that govern distributive justice. as such, all citizens have a claim to use no more than a fair share of time at work, and to receive no less than their fair share of free time in return for their work. the history of the working class struggle for time is based on both of these claims of justice. but i believe that in capitalist economies, the tendency is for the capitalists to receive more than their fair share of free time, and to provide less than their fair share of time as a factor of production. the leisure class have their good times at the expense of the hard times of the working class. and that is unfair, not because the working classes do not have enough time to exercise their basic liberties – if that is the case, it is unjust in another sense – but because this exhibits an unfair distribution of the burdens and benefits of cooperation. when the working classes keep fighting for shorter and more reasonably structured work weeks, paid vacation, and so on, they have not and need not couch their demands in terms of basic needs, for they can make their claims in terms of cooperative fairness; of carrying only their fair share of the burden and receiving their fair share of the benefits of the productive processes of society. by contrast with claims based on the effective freedoms principle (or similar principles of enabling justice), cooperative fairness justifies claims to fair shares on an ongoing basis even after all basic needs have been met. the struggle between capital and labor does not end once basic needs are met (or the effective freedoms principle is satisfied); the struggle for fairness remains. 7. conclusion rose argues that the effective freedoms principle supports a claim for all citizens to a fair share of free time. i have argued that the effective freedoms principle is ambiguous between two readings, each of which supports a distinct argument with respect to free time. on the first reading, the effective freedoms principle restates the general idea that all-purpose means should be fairly distributed. since free time is such an all-purpose means, it should be fairly distributed. on the second reading the principle 60 jeppe von platz leap 5 (2017) requires that all citizens have access to the resources required to exercise their basic liberties. since some measure of free time is required to exercise basic liberties, all citizens should enjoy access to this measure of free time. both arguments are sound; rose has successfully established that free time is a proper subject of justice. however, neither of the arguments establishes that all citizens have a legitimate claim to a fair share of free time – at least not if we understand fairness in the stronger sense of cooperative fairness. for the first argument establishes that all citizens should receive a fair share, but employs the general, non-cooperative, and vacuous notion of fairness. the second argument does not establish a claim to a fair share, but a claim to the amount adequate to exercise the basic liberties. i also suggested a way in which rose’s argument can be extended to establish the stronger conclusion that free time is a subject of cooperative fairness, though to do so we have move beyond the effective freedoms principle. for, i argued, time and free time are real concerns of distributive (as opposed to enabling) justice, and as such are subjects of norms of cooperative fairness. time spent working is one of the inputs and burdens of the cooperative processes by which we create the social goods, and free time is one of the outputs and benefits made available through social cooperation. thus, all citizens have a claim to contribute no more than a fair share of their time in the form of work, and to receive no less than a fair share of free time. these requirements of distributive justice are not sufficientarian, have no target or cut-off point of adequacy, and thus support claims to a just distribution of work time and free time beyond the point where all have sufficient free time to exercise their basic liberties. when it comes to time as a concern of justice, i believe this concern with time as a subject of cooperative fairness is as important as the concerns rose establishes. moreover, i’m inclined to think that this concern for time as a subject of cooperative fairness is needed to make sense of the ongoing struggles over time between labor and capital. that struggle will not and should not end once citizens have enough free time to exercise their basic rights, for an adequate amount for all is consistent with distributive injustice bibliography hayek, f.a.v., 1978: law, legislation, and liberty, volume 2: the mirage of social justice, chica-go: chicago university press. marx, k., 1976 [1867]: capital: critique of political economy, volume 1, london, uk: penguin classics. free time, freedom, and fairness 61 leap 5 (2017) nozick, r., 1974: anarchy, state, and utopia, new york, ny: basic books. rawls, j., 1999: a theory of justice, revised edition, cambridge, ma: harvard university press. — 2005: political liberalism – expanded edition, new york: columbia university press. — 2001: the law of peoples: with “the idea of public reason revisited”, cambridge, ma: harvard university press. — 2008: lectures on the history of political philosophy, ed. s. freeman, cambridge, ma: harvard university press. rose, j., 2016: free time, princeton: princeton university press. leap 5 (2017) sufficient autonomy and satiable reasons1 robe rt h use by university of oslo abstract in this paper, i examine liam shields’ principle of sufficient autonomy. this principle is in many ways interesting and plausible, but it is also in some important respects inadequately specified. in particular, i argue that a) the role of satiable reasons should be clarified, b) the relation to the conditions of freedom should be made more explicit, and c) the threshold for sufficient autonomy should be specified. keywords: autonomy; conditions of freedom; satiability; shift sufficientarianism; sufficientarianism 1. introduction in his recent book just enough, liam shields presents a novel form of sufficientarianism, which he calls shift-sufficientarianism. most sufficientarian theories accept what paula casal (2007: 317) has termed the positive and the negative theses.2 according to the positive thesis, there is a level of benefits such that it is especially important, from the point of view of distributive justice, that people reach it. according to the negative thesis, further questions of distributive justice do not arise above this level. the negative thesis is controversial,3 and shields sides with critics who hold that it is implausible (arneson 2005; casal 2007; shields 2016). he therefore discards the negative thesis and claims that sufficientarians can make do with a combination of the positive thesis and the shift thesis: 1 an earlier version of this paper was presented at the nordic network in political theory in stockholm in 2017. i am grateful to the participants at that event, as well as to the guest editors, and two anonymous reviewers for this journal, for many helpful comments and suggestions. 2 see for instance a xelsen and nielsen (2015), benbaji (2005, 2006), crisp (2003), frankfurt (1987), huseby (2010, 2012), nielsen (2016). 3 the extent to which it is controversial depends on where the threshold is set. the lower the threshold, the more controversial the thesis. d oi : 10. 310 0 9/l e a p. 2017.v 5.13 sufficient autonomy and satiable reasons 155 leap 5 (2017) “once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further” (2016: 30).4 the main advantage of this proposal is that it saves sufficientarians from having to claim that benefits and distribution above the threshold are completely irrelevant. rather, benefits to the sufficiently well off matter somewhat, but benefits to those below the threshold matter disproportionately more. this view is in some respects similar to prioritarianism. however, it differs from prioritarianism in that the moral value of benefits does not decrease continuously the better off the recipient is.5 rather, there is a break, or a shift, at the sufficiency threshold.6 from the formulation of the shift thesis (2016: 30), one gets the impression that when distributing some good g it is especially important that people get a sufficient amount of g and that, beyond this, it might still be valuable, though less so, to provide people with further g. on this understanding, the reasons we have for supplying g do not change, but the weight of these reasons diminishes. however, it appears that shields also thinks that the reasons can change altogether at the threshold (2016: 30). on this understanding, it is still important that people receive sufficient g, but after that, further provisions of g, if valuable, are valuable in light of some reason other than the value of g. for instance, g, above the threshold, might lead to the realization of some other good, w. i assume, however, that there will still be a discontinuity in the rate of change of the marginal weight in the cases where the reasons as such change. otherwise, the shift thesis would not apply to this latter version.7 my aim in this paper is to examine the most specific proposal for a shift sufficientarian principle made by shields, namely the principle of sufficient autonomy. in my view, this principle is in important respects not sufficiently specified. however, since i am in general sympathetic to the suggestion of a principle of sufficient autonomy, my criticisms are largely calls for clarification and further development of the view. 4 the shift thesis was first presented in shields (2012: 108). 5 see for instance holtug (2010: 133). 6 gustaf arrhenius has suggested that prioritarianism really is characterized by many small shifts, and that shields’ theory, with only one shift, is a minimal form of prioritarianism. this seems plausible to me, but i will nevertheless treat it as a version of sufficientarianism here. 7 shields also holds that the shift could come about as a result of conf lict between reasons (2016: 39). i leave this alternative aside here 156 robert huseby leap 5 (2017) 2. satiability and the principle of sufficient autonomy shields cashes out the shift in terms of satiable reasons, based on raz’ concept of satiable principles. “satiable principles are marked by one feature: the demands the principles impose can be perfectly met. when they are completely met then whatever may happen and whatever might have happened the principles cannot be, nor could they have been, satisfied to a higher degree” (raz 1986: 235f, cited in shields 2016: 36). shields further writes: “our reasons to benefit people change when they are no longer deficient in the relevant respect. there may be strong claims for benefits beyond the application of that reason, we need not be upper limit sufficientarians, but such claims must be made using a different profile of reasons. this alters our all things considered reasons to benefit people further” (2016: 37). shields oscillates, as noted, between suggesting that (only) the weight of the reasons change, and that the reasons themselves (also) change. nonetheless, in the elaboration of the principle of sufficient autonomy, shields for the most part writes as if the reasons change altogether. according to this principle, “…we have weight y, non-instrumental, non-egalitarian reasons to secure sufficient autonomy to secure the social conditions of freedom” (2016: 53).8 even though satiability is not incorporated explicitly into this formulation, it is clear that the principle is intended to be satiable (see 2016: 45, 50, 57). 3. is the principle of sufficient autonomy satiable? despite shields’ intentions, it is unclear whether the principle of sufficient autonomy really is satiable. note that there are two ways of understanding satiability in this context. first, we could think of satiability as applied directly to autonomy (or to whatever value a principle is intended to promote). on this view, autonomy is a satiable concept if one can be fully autonomous. this understanding is indicated by shields when he writes that “[o]ur reasons to benefit people change when they are no longer deficient in the relevant respect (2016: 37; see also 2012: 118)”. he further illustrates sufficiency with reference to “enough sleep”, and “enough 8 i return to the social conditions of freedom below sufficient autonomy and satiable reasons 157 leap 5 (2017) petrol” (2106: 29), and satiability with reference to “enough money for a bus ticket” (2016: 36). these examples suggest that satiability refers to the value that we should have a sufficient amount of. alternatively, satiability might refer to the principle of sufficiency itself (2016: 64). sufficiency is straightforwardly a satiable principle, since enough is enough. utilitarianism is not satiable, because there can always be more utility. on this view, sufficient autonomy does not (necessarily) demand full autonomy, but autonomy to some degree that is deemed sufficient for some other reason. since it is not perfectly clear to me which of these views shields holds, i will discuss both. i discuss the former in this section, and the latter (more indirectly) in the two subsequent sections. according to shields, “[a]utonomy is the ideal of living one’s life in accordance with one’s own authentic judgments” (2016: 47). autonomy, moreover, is characterized both by the absence of external pressure or constraints, such as threats, coercion or brainwashing, as well as the presence of options and powers of deliberation. both aspects are needed for people to be autonomous (2016: 47f ). however, shields also writes: “to f lesh this out we can say that sufficient autonomy has three conditions. one has secured sufficient autonomy when (1) one is wellinformed, (2) one can give reasons for one’s views, and (3) one has a disposition to exchange reasons and participate in a public deliberative process with others” (2016: 53). i focus nevertheless on freedom from coercion, options, and deliberative powers in the following, as these seem more central to the concept of autonomy. after all, one can meet the three f leshed-out conditions above without having any options, and without being free from external constraints. i take it, moreover, that being well-informed, and having the ability to give reasons for one’s views can plausibly be subsumed under deliberative powers. consider now the different aspects of autonomy in terms of (the first understanding of ) satiability. the first, freedom from coercion, does admittedly seem satiable. one can presumably be perfectly free from external pressures and constraints. the second aspect is less clearly satiable. one can always have more options to choose from and one can always gain better powers of deliberation. thus, there is a sense in which one can never be fully autonomous, and one’s claim for autonomy cannot be perfectly sated. an obvious rejoinder is that there will still be some level at which even more (trivial) options, and even more finely developed powers of deliberation, makes no difference for any practical purposes. perhaps one 158 robert huseby leap 5 (2017) already has all the options one could possibly want, and perhaps one is able to rank all these options (and their combinations) perfectly on an ordinal scale. adding options one does not want, or gaining the ability to rank the options and their combinations cardinally, makes no difference, let us assume, to how one leads one’s life. in such cases, i agree that autonomy is sated, for practical purposes. however, if autonomy is satiable, even if only in this practical sense, another question arises. now it is not clear that further increasing autonomy above the sufficiency level will contribute to people’s welfare, or anything else for that matter. if satiable in this way, satiability occurs at such a high level that there does not seem to be any further reason, egalitarian or otherwise, to provide people with even more autonomy. the principle of sufficient autonomy now looks like an upper limit sufficiency principle that conforms to the negative thesis. one could imagine, though, that a person who is, for practical purposes, perfectly autonomous, can still benefit from more of the stuff that constitutes autonomy, for reasons not to do with autonomy. for instance, a person might get a thrill from gaining access to even more trivial options, even though none of these additional options will be chosen. or, the person might enjoy even better deliberative powers, for the feeling of being superclever.9 however, if so, i am inclined to think that what is provided is not more autonomy as such, but more options or more deliberative powers. to illustrate, suppose you are perfectly nourished. there are, for all practical purposes, no way for you to be even more nourished. suppose however, that more vitamin d (unrealistically) might provide you with a nice tan. if so, providing you with more vitamin d, does not in that case provide you with more nourishment, it gives you more vitamin d (and a tan). it seems then, that if the principle of sufficient autonomy is satiable (with respect to autonomy), it is likely to be so at such a high level that it is hard to detect a relevant shift. consider now the alternative understanding of satiability. perhaps there is a level of autonomy that is sufficient, regardless of whether or not it is equivalent to full or perfect autonomy. the reasons for promoting someone’s autonomy, then, are sated when they reach this level. this might be perfectly reasonable, but the level would have to be specified. as will become clear below, it is hard to find such a specification in shields’ treatment of sufficient autonomy. let me note, at any rate, that the first kind of satiability has an obvious advantage: it is very useful for defining a threshold. sufficientarianism is sometimes criticized for the alleged 9 i am grateful to david a xelsen for raising this point. sufficient autonomy and satiable reasons 159 leap 5 (2017) arbitrariness of the threshold(s). the first notion of satiability might help meet this objection. 4. the social condiitons of freedom as noted, shields ties the ideal of autonomy to the social conditions for freedom in society. however, the link between these two concepts is not entirely clear: “the principle of sufficient autonomy, supported by the sufficientarian reason we have to live under the social conditions of freedom, can be stated thus: we have weighty, non-instrumental, non-egalitarian reasons to secure sufficient autonomy to secure the social conditions of freedom. the conditions of freedom are those conditions under which one’s beliefs and actions can be considered freely taken” (2016: 54). the last sentence of the quote indicates that the social conditions of freedom are those conditions under which autonomy is possible (or likely, or certain). both the conditions of freedom and the principle of autonomy, moreover, appear to be sufficientarian concepts, but the former supports the latter. shields suggests, moreover, that the social conditions for freedom ought to be such that they are sufficient, as opposed to merely necessary, for the development of sufficient autonomy (see also 2016: 45, 48, 53, 54). however, the first sentence seems to indicate the opposite; that autonomy is a condition for the social conditions of freedom. it could be the case that autonomy and the social conditions of freedom are interdependent in a way that vindicates both views. however, it seems to me more plausible to say that autonomy presupposes certain societal conditions for its realization, than to say that the social conditions for freedom presupposes autonomy for its realization. shields points to a proper education, an ethos marked by toleration, and reliable information as parts of the conditions of freedom (2016: 53). these factors are more plausibly seen as conditions for the development of autonomy, than the other way around. however, even if we accept this, there is a further option. there are formulations that suggest that autonomy is itself (the whole or a part of ) the social conditions of freedom: “…i set out and provide an initial defence of the account of autonomy that constitutes the conditions of freedom” (2016: 46). further: “one reason for promoting individual autonomy is our interest in the conditions of freedom. it is a weighty, non-egalitarian reason that is satiable with respect to autonomy, at least” (2016: 57). the last quote gives the impression that autonomy is one (satiable) part of what constitutes the 160 robert huseby leap 5 (2017) conditions of freedom (see also 2016: 57, 58, 60) i confess to being unable to determine whether the social conditions of freedom are to be understood as those conditions that are (necessary and) sufficient for the realization of sufficient autonomy, or whether sufficient autonomy constitutes (or is a condition for) the social conditions for freedom. however, the question is important for how we interpret the principle of sufficient autonomy as a satiable sufficientarian principle. the reason is that if autonomy is a part of what constitutes the conditions of freedom (or if it is a condition of freedom in itself ), then it could be the case that autonomy can be sated with respect to the conditions of freedom. sufficient autonomy just is autonomy sufficient for the realization of (sufficient) conditions of freedom. however, in my view, this interpretation squares badly with shields’ presentation of the principle, according to which there are supposed to be weighty, non-instrumental, satiable reasons to provide peoples with sufficient autonomy (2016: 45). there might be ways to interpret autonomy as non-instrumentally valuable even if it is a constitutive part of the conditions of freedom. but this is not stated explicitly, and would require further elaboration and specification. 5. the sufficieny threshold in this section, i consider the way shields specifies the threshold for sufficient autonomy (regardless of how satiability is understood, and on the assumption that the threshold is not determined in light of the demands of the conditions of freedom). note first that there are several formulations concerning this threshold in the book, and that not all of them point in the same direction. however, what is perfectly clear is that shields assumes that there is a level at which we can say that a person has sufficient autonomy, and that there might, because of the shift that occurs at this level, be further reasons to promote the autonomy of those who already have sufficient autonomy (2016: 54). shields offers an example of the importance of sufficient autonomy with reference to the information needed to assess the risks associated with buying a house. “if we do not know the risk, but we know how to find out about it, we might think that we choose freely … if we are well informed enough to become well informed about the other relevant decisions we make, then our reasons to become more and more well informed thereafter may be very different” (2106: 53). sufficient autonomy and satiable reasons 161 leap 5 (2017) the latter part of the quote, obviously, indicates a shift. however, it is not clear how this works. suppose i face a risk. i do not know the risk exactly, but i do know how to calculate it (or as shields suggests, i have the contact details of a surveyor that can help me assess the risk). in this situation, i am not as autonomous as i can be. but i am free to become as autonomous as i can be (with regards to this particular decision). it is up to me whether to pick up the phone or start punching numbers into the calculator. something similar can be said about the “well-informed enough to become well-informed” part of the quote. the shift, on the view suggested here, is located at the level at which we are sufficiently autonomous to choose to become fully autonomous. this might be plausible, but it seems that this amounts to a view of sufficiency that is, in a relevant sense, an upper limit view, of the sort shields aims to avoid. one might say, of course, in line with the shift thesis, that the reasons to promote a person’s autonomy above the level at which it is up to the person herself to become fully autonomous, change. but more likely, they disappear. for all practical purposes, one is fully autonomous when one has direct access to becoming fully autonomous. it makes no sense to benefit a person, in terms of autonomy, because she has not decided to punch the numbers, place the call, or perhaps consult the relevant literature. there is no longer a recognizable distributive issue to be addressed. another view is suggested by the following: “only once an agent is autonomous can we fully respect his or her answer to the question ‘do you want to enhance your autonomy?’ we owe them autonomy sufficient for making these kinds of choices freely as part of justice” (2016: 56). while it is certainly true that people should be (at least) sufficiently autonomous to know whether they want to become more autonomous, it is unlikely that people are sufficiently autonomous from the point of view of justice, at this exact level. the reason is that this level might be quite low, at least along some relevant dimensions. for instance, people who are severely oppressed, and have very few options, may well be more than sufficiently autonomous for us to respect their wish to become more autonomous. the alternative is clearly disrespectful. notice that the level of autonomy that shields points to here might (or might not) mark a relevant shift, but not a shift that signifies sufficient autonomy.10 further, shields claims that “sufficient autonomy is the level of deliberative competence that enables us to have assurance from an external point of view that we 10 for a similar suggestion, though in more convoluted terms, see shields (2016: 57). 162 robert huseby leap 5 (2017) choose for ourselves. this kind of autonomy requires us to be capable of deliberating with others about the reasons that support our conception of the good. we may have weighty reasons to secure more autonomy…” (2016: 64). the first part of the quote points to one intuitively important and plausible aspect of autonomy, namely self-rule. however, it is unclear what level exactly it refers to. what does it take to be sure that a person chooses for herself? and what aspects of autonomy is it that can be further promoted, but for different reasons? it is unclear what level of freedom from constraints and access to options, for instance, are also required, since these aspects are not mentioned. the notion of choosing for oneself, then, does not point to a clearly discernible level of sufficient autonomy. in other passages, shields suggests that ambition, and our conceptions of the good may inf luence the level of autonomy that we want, but that the level of sufficient autonomy is independent of such ambitions and conceptions (2016: 65). a similar view is suggested in the case of agnes and bernadette (see 2016: 70f ). bernadette supposedly has sufficient autonomy, because the reasons we might have to promote her autonomy further are instrumental with regards her welfare, and not non-instrumental with regards to her autonomy. on shields’ description, she has “many options”, the “ability to make mediumand long-term plans, can usually spot contradictions in her own judgments and can remedy them”, “makes reasoned assessments of various ways of life, and is not being denied information about the costs and benefits of her choices” (2016: 70). this arguably offers some substance, but it is still not clear enough. i will not detail all the ways in which these different elements are less than perfectly specific. however, i think it is worth pointing out that the subsequent claim that our reasons to boost bernadette’s autonomy further is dependent on whether or not it can contribute to her well-being, suggests a fairly high level of autonomy (2016: 71). the reason is that the level at which more autonomy does not have non-instrumental value sufficient for speaking in favor of further promotion by itself, appears to be high. it would be good, of course, to know how high. 6. concluding remarks the principle of sufficient autonomy might turn out to be a valuable and plausible principle. however, at present, i think that the principle needs further specification when it comes to the understanding of satiability, the relation to the conditions of freedom, and the location of the threshold. in sufficient autonomy and satiable reasons 163 leap 5 (2017) closing, i would like to add a fourth call for clarification: the principle of sufficient autonomy is clearly only one among several principles of justice. shields suggests that there might be many others, and that not all of them need to be sufficientarian. however, in the book, it is hard to get a clear view of the larger picture. it would be interesting to learn more about how these different principles relate to each other and form a coherent general theory of distributive justice. bibliography arneson, r., 2005: “distributive justice and basic capability equality: ‘good enough’ is not good enough,” in capabilities equality: basic issues and problems, ed. a. kaufman, 17-43, london: routledge. axelsen, d. and l. nielsen., 2015: “sufficiency as freedom from duress,” the journal of political philosophy 23: 406-426. benbaji, y., 2005: “the doctrine of sufficiency: a defence,” utilitas 17: 310-332. benbaji, y., 2006: “sufficiency or priority?” european journal of philosophy 14: 327-348. casal, p., 2007: “why sufficiency is not enough,” ethics 117: 296-336. crisp, r., 2003: “equality, priority, and compassion,” ethics 113: 745-763. frankfurt, h., 1987: “equality as a moral ideal,” ethics 98: 21-43. holtug, n., 2010: persons, interests, and justice, oxford: oxford university press. huseby, r, 2010: “sufficiency – restated and defended.” the journal of political philosophy 18: 178-197. huseby, r., 2012: “sufficiency and population ethics,” ethical perspectives 19: 187-206. nielsen, l., 2016: “sufficiency grounded as sufficiently free: a reply to shlomi segall,” journal of applied philosophy 33: 202-216. raz, j., 1986: the morality of freedom, oxford: oxford university press. shields, l., 2012: “the prospects for sufficientarianism,” utilitas 24: 101-117. — 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education da n i e l l e z wa rt hoe d université catholique de louvain abstract this essay discusses two contributions of the principle of sufficient autonomy to educational justice. in just enough, liam shields criticizes instrumental accounts of autonomy. according to these accounts, autonomy is valuable insofar as it contributes to well-being. shields argues that instrumental arguments fail to support mandatory autonomy education in all cases, while his non-instrumental principle of sufficient autonomy does support this. this essay develops a version of the instrumental argument and argues this version can do the work of supporting mandatory autonomy education. another contribution of the principle of sufficient autonomy is the requirement of talents discovery. according to shields, the requirement of talents discovery renders rawls’s principle of fair equality of opportunity more plausible, since one’s chances of accessing a given economic position depend on one’s opportunities to discover one’s innate talents. this essay argues that rawlsian fair equality of opportunity does not have the same implications as the principle of sufficient autonomy as to which types of talents should be discovered and to what extent. keywords: autonomy, education, liberalism, talents, equality of opportunity 1. introduction sufficientarianism is a doctrine that affirms that what matters is whether individuals have enough of the relevant goods. in his book just enough: sufficiency as a demand for justice, liam shields develops an alternative original account of sufficientarianism. according to this account, once the threshold is secured, there could be further moral requirements. however, the nature and weight of the reasons to secure and reallocate the relevant goods changes after individuals have reached the threshold (shields, 2016: 30). d oi : 10. 310 0 9/l e a p. 2017.v 5.15 176 danielle zwarthoed leap 5 (2017) in chapter 3, shields states and defends the principle of sufficient autonomy: “principle of sufficient autonomy: we have weighty, non-instrumental, non-egalitarian, satiable reasons to secure enough autonomy for everyone to enjoy the social conditions of freedom, the conditions under which we freely form and revise our conception of the good life.” (shields, 2016, 53) a person has sufficient autonomy if (1) she is well-informed, meaning that she can establish third-person assurance of the freedom (not the truth) of her beliefs; (2) she is capable of giving reasons for her views; (3) she is disposed to exchange reasons and to participate in public reasoning activities with others (shields, 2016: 53, 84). the fourth chapter of just enough is devoted to showing the contributions of the principle of sufficient autonomy to debates about education. this essay discusses two of these contributions. first, shields argues that instrumental arguments for autonomy-supporting education fail to support mandatory autonomy education in all cases; his non-instrumental argument does support this. this essay develops a version of the instrumental argument and argues this version can do the work of supporting mandatory autonomy education as well as the principle of sufficient autonomy, and perhaps even better (section 2). second, shields argues that the principle of sufficient autonomy implies a requirement of talents discovery. according to shields, the requirement of talents discovery renders rawls’s principle of fair equality of opportunity more plausible, since one’s chances of accessing a given economic position depend on one’s opportunities to discover one’s innate talents. in section 3, i shall argue that rawlsian fair equality of opportunity does not have exactly the same implications as the principle of sufficient autonomy as to which types of talents should be discovered and to what extent. 2. instrumental and non-instrumental arguments for mandatory autonomy education the justification of the principle of sufficient autonomy appeals to noninstrumental reasons to promote autonomy. the chapter entitled “sufficiency and education” argues that the principle of sufficient autonomy provides a more decisive reason to support mandatory autonomy education than instrumental arguments for autonomy. a concrete issue at stake is that parents of conservative religious communities may oppose certain forms of autonomy-promoting education. they fear that mandatory 177 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education autonomy education will turn their children away from the core beliefs, values and behaviors endorsed by their communities. they could (and do) appeal to religious freedom or parental rights to justify their position. from a perspective centered on children’s interests, the main worry is that mandatory autonomy education could jeopardize the long-term well-being of child-members of conservative communities. autonomy education may estrange these children from their family and community. this would make it impossible for them to meaningfully sustain important familial and social relationships. they would also be deprived of the important contribution of cultural affiliation to one’s sense of identity and capacity for wholehearted commitments. according to shields, the principle of sufficient autonomy succeeds in showing that securing a certain level of autonomy outweighs these countervailing considerations, while instrumental accounts of the value of autonomy do not (shields, 2016: 90). the instrumental argument for autonomy education affirms that autonomy is good because it leads to something else, namely well-being or f lourishing. it derives the value of autonomy education from the good of well-being. worries with the instrumental argument arise from the contingent character of the connection between autonomy and well-being (shields, 2016: 72). such worries need not arise if the value of autonomy is not derivative. note this does not necessarily mean concerns with the well-being of children should disappear. valuing autonomy non-instrumentally does not preclude shields from valuing well-being non-instrumentally. if so, the case of child-members of conservative communities will require him to balance autonomy against well-being. this balancing reasoning might lead to practical conclusions similar to those reached by “instrumentalists”. to strengthen the case for the non-instrumental argument, it seems we need to know why the intrinsic value of autonomy is superior to the value of well-being. while the case for the non-instrumental account might not be as strong as expected, the case for the instrumental one could be stronger than shields assumes. a closer examination of the connection between autonomy and well-being shows that the instrumental argument provides little support to those who want to withdraw child-members of conservative communities from autonomy education. how detrimental we think autonomy education is to these children depends on the nature and the importance of the connection between autonomy and well-being, on one hand, and (as shields himself puts it) on the conception of well-being we assume, on the other hand (shields, 2016: 93). 178 danielle zwarthoed leap 5 (2017) the instrumental argument affirms autonomy leads causally to wellbeing. the causal connection between autonomy and well-being can be understood in at least two ways (schinkel, 2010: 100): (a) autonomy may/is likely contribute to individual well-being. (b) autonomy is necessary for individual well-being. shields’s argument must assume version (a) of the instrumental argument since version (b) would also succeed in convincing those who are concerned with children’s well-being that autonomy education should be mandatory. could it be the case that autonomy is necessary for individual well-being? drawing on raz’s ref lections, as well as on the philosophical works they have inf luenced (e.g. brighouse, 2005; raz, 1986; wall, 1998; white, 2006), i would like to examine two ways in which an adequate level of autonomy might be necessary to live well. autonomy is unlikely to be necessary to achieve some conceptions of well-being such as those based on hedonistic and actual preference satisfaction. it is possible to experience pleasure or to satisfy one’s actual preferences without being autonomous. this is emphasized by shields’s discussions of happiness pills and cheap tastes inculcation (shields, 2016: 74-76).1 what is wrong with these examples is that people by-pass the autonomous deliberative process involved in forming and realizing their conception of the good life. raz’s partly subjective conception of well-being (raz, 1986: 288–312) is not vulnerable to counterexamples like the happiness pill. according to raz, a person’s well-being depends, first, on her capacity to meet basic biological needs and, second, on the successful pursuit of her current and future goals. the content of these goals does not matter so long as they are independently valued by the person herself. this means attempts to improve the life of someone else by making her achieve a good she does not and will not see as her goal will fail. suppose mary’s mother tries to secure her daughter’s future well-being by preventing her from studying history, a subject mary is passionate about. mary’s mother believes history is a poor choice of major because she does not see the point of spending one’s life neck-deep in dusty archives to write unreadable books. she pushes mary to study communication instead, a seemingly more fun major. unless mary revises her judgment on the merits of a history major, her mother’s attempt to make her happy will be unsuccessful. however, success in pursuing a goal, regardless of its objective value, does not suffice to secure a person’s well-being. a person’s well-being also 1 note that the cheapness itself is not problematic for autonomy. w hat is problematic is that they have been inculcated in a non-autonomous way. see zwarthoed (2015) 179 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education depends on the value of the goals she pursues. we evaluate goals, we have reasons to pursue them, and some reasons are better than others. a person has a goal, properly speaking, only if her reasons for having it are valid. failing to achieve a goal which is actually supported by no valid reason is a “blessing in disguise” (raz, 1986: 301). suppose mary is genuinely interested in history, but decides to study philosophy instead because she believes a philosophy degree is more likely to improve her job prospects. now, suppose also that mary’s belief turns out to be false. history graduates are actually more popular with employers. if this is the case, mary does not have, in a normatively relevant sense, the goal to become a philosophy graduate. of course, it is a psychological fact that she has the desire to study philosophy (since she ignores her reason for having this goal is not valid). but, properly speaking, she does not have the goal to study philosophy because studying philosophy will not contribute to the success of her life. if she is not admitted to a philosophy program, this failure might contribute to her well-being unbeknownst to her. since there are no reasons to value worthless cheap tastes or a life determined by a happiness pill, raz’s conception of well-being avoids shields’s objections to welfarism. now, having goals does not suffice to live well; one must also succeed in pursuing them. a person’s goals provide her with action reasons, reasons that speak in favor of performing certain actions. others cannot reach a person’s goals for her: actively pursuing the goals that constitute one’s life is constitutive of living well. this does not mean the good life must be athletic or hyperactive. a f lourishing life can certainly consist of modest pursuits. what matters is that the person achieves these goals herself, lives her life herself and from the inside. according to raz, these goals need not be acquired in an autonomous way (raz, 1986: 290–291) and one can live well without being autonomous. yet i submit that a minimal degree of autonomy is, in fact, necessary to secure the dependency of a person’s goals on reasons. it is true that a person may acquire goals she has valid reasons to value through nonautonomous processes such as habituation, early socialization, and so on. in fact, most of our goals are acquired this way. furthermore, the successful pursuit of some possibly attractive goals, such as ballet performance, requires the child to commit to cultivate her talents from an early age, before she is fully autonomous (arneson and shapiro, 1996: 392). however, being equipped with the deliberative capacities that partly constitute autonomy enables people to avoid at least two potential obstacles in the process of assessing the validity of the reasons one has to have certain goals. the first obstacle is: i cannot make sure the reasons i have to pursue goals are independently valid if i do not possess the skills and 180 danielle zwarthoed leap 5 (2017) knowledge needed to critically assess, or reassess, their validity. without a minimal degree of autonomy, i cannot make sure the goals i pursue are based on valid reasons, and therefore i cannot make sure these goals will contribute to my well-being. as arneson and shapiro put it, we do not want to choose life plans we just believe are valuable, but we do want to choose those which truly are valuable. insofar as truly valuable life plans are those which resist critical ref lection, autonomy is a good instrument to verify whether our life plans are truly valuable (arneson and shapiro, 1996: 399). the second obstacle is: even if i am well-equipped with the cognitive abilities needed to assess the independent values of my goals, i might not be able to want my reasons to be true reasons. i might be rationalizing my choices rather than honestly ref lecting on them. i might be deceiving myself about my real reasons. self-deception is seriously damaging to wellbeing because it breaks the connection between goals and reasons. rationality and intelligence do not protect us from self-deception. but the capacity for autonomy does. one of the crucial dimensions of autonomy is authenticity (shields, 2016: 59). authenticity involves being able to ref lect critically upon one’s major goals and to revise them so that they cohere with one’s ref lectively constituted higher-order commitments and conception of oneself. by definition, authenticity requires being honest with oneself and one’s reasons, even when the truth is uncomfortable. the capacity for minimal autonomy is thus necessary to have genuine wholehearted commitments to goals that constitute our well-being. when society has to decide whether to authorize parents to withdraw children from autonomy-promoting subjects or schools, controversial assumptions regarding the superiority of a secular way of life are not necessary (arneson and shapiro, 1996: 401). they might even be detrimental to children’s wellbeing, since they could amount to unsuccessful attempts to make these children live well by pushing them into ways of life they do not endorse. but society can assume that autonomy-promoting education makes it more likely that future adults will choose the goals that are truly better for them without falling into the trap of self-deception. the first way in which a minimal degree of autonomy is necessary to live well is by securing the dependency of our goals on valid reasons, insofar as the capacity for autonomy equips us with the skills, knowledge, and disposition to avoid errors and self-deception. the second way appeals to raz’s well-known contextual argument for the special value of autonomy in modern societies. if this argument is valid, a higher degree of autonomy might be needed to achieve well-being in these societies. our well-being depends on our successful pursuit of goals we have valid reasons to commit to. but we create these goals out of something. our goals are based on 181 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education existing social forms. social forms refer to existing shared beliefs, cultures, imaginations, practices, behaviors, and so on (raz, 1986: 307–312). our pursuits and activities are to a large extent socially defined. this does not mean we should align with existing social conventions. it means the meaning, significance and sometimes the very possibility of some comprehensive goals depend on existing social forms. as shields puts it, autonomy involves certain social conditions (shields, 2016: 48). the social conditions, and more broadly, the social forms of modern democratic societies constitute an autonomy-supporting environment. modern autonomy-supporting environments are characterized by fast-changing technology and economic circumstances, geographical and social mobility, value pluralism, secularization and a commitment to human rights (wall, 1998: 166–167). in such environments, people need the capacity for autonomy in order to f lourish (raz, 1986: 391). this is not just because autonomy enhances our ability to cope with changes. this is because this environment makes it extremely difficult, requiring almost complete isolation, to lead successful lives non-autonomously. at this point, one could argue that this argument does not apply to child-members of isolated conservative communities. their social environment differs from the characteristic circumstances of modern societies. the range of comprehensive goals available to them is not based on autonomy-supportive social forms. furthermore, insofar as well-being depends on the successful pursuit of socially defined goals and activities, autonomy education might render them ill-equipped to succeed in the pursuits available to them. the objection would hold if these communities were entirely isolated from the “external world”. in those specific circumstances, instrumentalists must grant that a relatively high degree of autonomy is unnecessary to live well (a minimal degree of autonomy might remain necessary to secure the dependency of goals on valid reasons). however, most of the communities which currently want to withdraw their children from mandatory autonomy education are not fully isolated. they interact with non-members at various levels. existing political and social institutions structure interactions among members and between members and non-members. members pay taxes and consume public goods. as the sheer existence of the wisconsin v. yoder case makes it clear, member of these communities rely on the same judicial system as non-members to protect their rights. some produce goods they sell to non-members and buy consumer goods produced outside of the community. some read newspapers and watch 182 danielle zwarthoed leap 5 (2017) television programs infused with the background, autonomy-supporting culture. as a result, even when they are able to protect their culture, the presence and inf luence of the broader autonomy-supporting context unavoidably alter the social forms that prevail in these communities. they also alter the very nature of the opportunities these communities provide to their members. the significance of pursuing the project to live in a traditional community differs greatly in a traditional society from one in which one can freely revise her goals. the very nature and value of these choices depend on whether they exist in an autonomy-supporting environment or not. in concrete terms, the option to stay in the amish community or to become a nun does not have the same significance in an autonomy-supporting society and in a traditional society. in modern societies, this option unavoidably involves a choice, if only because background institutions provide exit options.2 and this choice requires exercising deliberative capacities. an autonomy-supporting environment reshapes the very conditions attached to these seemingly non-autonomous pursuits. it transforms them into autonomous choices. since childmembers of conservative communities will be confronted with these sorts of choices, their future well-being requires the capacity for autonomy too. therefore, in our modern circumstances, this version of the instrumental argument for autonomy helps us to reach the conclusion shields wants to reach, that is, that autonomy education should be mandatory. before closing the discussion, a few critical remarks on mandatory autonomy education might be helpful to refine the debate. liam shields does not only argue that autonomy education should be mandatory. he also suggests it should be delivered by the state: “the state cannot refuse to get involved with education and simply allow private individuals to provide for it. to do so would be to allow educational provision to be distributed in a particular way that may fail to recognise citizens’ rightful claims.” (shields, 2016, 85) additional philosophical work might be needed to make the move from the claim that autonomy education should be mandatory to the following claims: first, the state should be responsible for delivering autonomy education; second, the state should be authorized to use its coercive power to make sure all children are enrolled in state-provided autonomy education. i have no space to discuss these issues in detail, but i would like to point out a couple of questions. if shields thinks states should deliver 2 note some communities make efforts to inculcate beliefs and mindsets that prevent their members from seriously giving consideration to the exit option. sociologist donald kraybill suggests amish education is designed in such a way that the “agenda of ideas” is “controlled”, thereby preventing children from envisaging a life outside of the community. (kraybill, 2001: 176–177) 183 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education autonomy education because they are the most able agent for this purpose, something could be said about why other educational agents, and especially parents, are more likely than the state to fail to render children sufficiently autonomous (especially in less than ideal states). if shields thinks states should provide autonomy education because they are the only agent which has the legitimate power to “force” children to get such education, the theory of legitimate authority with which his sufficientarianism needs to coordinate should be developed further. 3. sufficient autonomy, fair equality of opportunity, and the requirement of talents discovery let us now move to the requirement of talents discovery. sufficient autonomy is related to talents discovery in the following way. educating for autonomy requires agents to be well informed about the options available to them. being informed about options involves being informed about one’s interests and talents. therefore, according to shields, “everyone should be given opportunities sufficient to discover their talents and interests insofar as this constitutes our freedom as sufficiently autonomous agents” (shields, 2016, 100). the array of opportunities to discover one’s talents should be sufficiently broad and varied. shields argues that, by requiring talents discovery, the principle of sufficient autonomy renders rawls’s principle of fair equality of opportunity more plausible and should thus supplement it (shields, 2016: 100–105). according to the rawlsian principle, social and economic positions should be opened to all under fair equality of opportunity, meaning that those with equivalent talents and the same degree of willingness to use these talents should have equal chances of access to the same offices and positions, regardless of gender, race or social background. the principle must include undeveloped talents and not just to the subset of talents that have been actually developed. otherwise, the principle would validate background unjust inequalities (shields, 2016: 102). but giving productive jobs to those who couldn’t have developed the appropriate skills due to unjust circumstances wouldn’t benefit society in general, and the least well off in particular. therefore, justice requires the educational system to provide prospective citizens with the opportunity to discover and develop their talents. but it would be excessively costly to attempt to discover all possible talents. hence the requirement of talents discovery usefully supplements the rawlsian principle by providing a criterion to define the 184 danielle zwarthoed leap 5 (2017) extent to which opportunities for talent discovery should be broad and varied. it is true that the principle of fair equality of opportunity would be implausible if it did not require the educational system to help children to identify and develop the relevant talents. however, the requirement of talents discovery fits into the principle of equality of opportunity only if their implications regarding the kinds of talents and the extent to which they must be developed converge. this doesn’t seem to be the case. the two principles are not necessarily concerned with the same talents. the principle of sufficient autonomy pertains to the talents one needs to adequately develop a conception of the good life (shields, 2016: 99) and to participate in collective deliberations (shields, 2016: 98). fair equality of opportunity pertains to the talents which enable people to be economically and socially productive in a way that can be beneficial to the least fortunate (rawls, 1999: 87). of course, some talents, such as good verbal skills, have polyvalent functions. and, to some extent, marketable talents are instrumental to secure the capacity to adequately develop a conception of the good life. but others, such as the capacity for spiritual experiences, are less likely to be valuable in the job market. and talents that are valuable on the job market, such as combativeness, are not particularly well-suited to developing a conception of the good life or participating in collective deliberations. of course, the fact that the implications of sufficient autonomy and equality of opportunities are not co-extensive does not undermine the inherent plausibility of shields’s principle of talents discovery. but it puts into question his claim that the requirement of talents discovery implied by sufficient autonomy fits in well with other demands, such as the demands of fair equality of opportunities. the problem is not just that the range of talents each principle is concerned with is different. the problem is that educational resources are finite. when a society decides which talents the educational system should attempt to reveal in priority, it has to adjudicate between the demands of sufficient autonomy and the demands of equality of opportunity. the implications of sufficient autonomy in terms of talents discovery may conf lict with equality of opportunities at another level. in the sufficientarian educational system shields envisions, the least advantaged children would only enjoy a sufficiently varied array of opportunities for talents discovery, while their more advantaged counterparts could, in addition, benefit from exposure to a much broader set of disciplines, experiences, and activities. their chances to discover a talent that matches job market demands well are therefore higher. or suppose the requirement 185 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education of talents discovery is not only sufficientarian in terms of the variety of talents children should be able to try to develop, but also in terms of the extent to which they could develop these talents. then, the sufficientarian version of the requirement of talents discovery runs the risk of putting some children at a disadvantage in another way. imagine the sufficientarian version of the requirement of talents discovery requires schools to provide those who are naturally good at mathematics with the opportunity to develop the level of mathematical skills corresponding to a secondary school degree. the students who would be granted this opportunity and no more will be unable to compete to become actuaries, accountants or financial analysts (which are well-paid jobs). this is not compatible with fair equality of opportunity. the policy of talents discovery required by fair equality of opportunities must take into account the effects of competitive and comparative contexts on children’s economic and social prospects. the source of the problem is that talents are goods with positional aspects. their value in competitive contexts depends on how much of the same goods other competitors have (brighouse and swift, 2006). despite its inherent plausibility, shields’ sufficientarian view of talents discovery might actually hinder fair equality of opportunity rather than reinforce it. shields addresses the problem of positional disadvantages in his discussion of anderson’s adequacy principle of educational justice (shields, 2016: 110–114). he suggests that the shift-based approach of sufficientarianism he advocates is better equipped than anderson’s own version of upper limit sufficientarianism. to recall, upper limit sufficientarianism states that, once people have enough, there is no further reason to benefit them. shift-based sufficientarianism states that, once people have enough, the nature and weight of reasons to benefit them change. anderson’s view entails that, once educational adequacy is secured, there is no further reason to redistribute educational opportunities. shields’s view entails that, once the principle of sufficient autonomy is secured, there may be further reasons to redistribute educational opportunities. shields could thus respond to the egalitarian critic that, once sufficient opportunities for talents discovery are secured, his theory of justice can recognize there are additional valid moral reasons to limit rich children’s opportunities for talents discovery in competitive contexts. if my understanding of the implications of shift-based sufficientarianism for educational justice is correct, shields’s view of educational justice may plausibly conciliate two conf licting considerations that structure the debate about educational justice, namely, positional disadvantages and leveling down. still, this does not show the principle of sufficient autonomy 186 danielle zwarthoed leap 5 (2017) itself adequately defines the requirements of fair equality of opportunities in terms of talents discovery. it only shows that a shift-based understanding of sufficientarianism can supplement the principle of sufficient autonomy with an egalitarian principle of fair equality of opportunities. in terms of talents discovery, this means once opportunities for the discovery of a sufficiently broad and varied array of talents have been secured, educational justice can seek to achieve an equal distribution of remaining opportunities for talents discovery. then, a worry remains. if the demands of sufficient autonomy require a lot of educational resources, little will be left over to enable schools to equalize the economic and social opportunities of children. recall that, according to shields, the ingredients of sufficient autonomy are: (1) being well-informed, that is, being able to establish third-person assurance of the freedom of one’s beliefs; (2) being able to give reasons for one’s views; (3) being disposed to exchange reasons and to participate in public reasoning activities with others. it seems to me the educational policies needed to secure sufficient autonomy as shields conceives it would especially focus on helping children to reach a high level of cognitive and critical thinking skills, a level most of the people shaped by our educational systems do not have reached. in the just educational system shields envisions, important investments in the cultivation of critical thinking skills would have priority over investments in policies aiming at securing equality of opportunity such as the implementation of a school map (when and where it works) or reforms aiming at helping disadvantaged students to access to and succeed in higher education. the inf luence of parental background on children’s future opportunities would remain decisive. therefore, the extent to which the principle of sufficient autonomy is compatible with fair equality of opportunities seems limited. one might think the conclusion of this discussion is that egalitarian views of educational justice are superior to sufficientarian ones. but this needs not be true, even for those who share the intuition that an educational system that fails to mitigate the effects of social background on children’s social and economic prospects is problematic. the problem does not necessarily originate from sufficiency in itself. it originates from the fact that shields’ account of autonomy is not rich enough. the ideal of autonomy is not limited to critical thinking skills and deliberative capacities. it also concerns social and economic conditions as well as the kind of relationships people have with each other. a richer account of autonomy may account for the problem of positional goods by enabling us to stress how people’s relative position in the distribution of certain goods may affect important dimensions of freedom and autonomy. some capability-based and freedom-based understandings of the sufficiency threshold can address 187 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education the issue of positional goods insofar as absolute value of certain capabilities and freedoms depends upon people’s relative place in the distribution of certain goods (axelsen and nielsen, 2015, 419–420). 4. conclusion this essay has engaged with two of the contributions the principle of sufficient autonomy to educational justice. it has argued that instrumental views of the value of autonomy can provide decisive reasons to support mandatory autonomy education. it has also argued that the implications of rawlsian fair equality of opportunity regarding talents discovery differ from the implications of sufficient autonomy. insofar as educational resources are scarce, sufficient autonomy and equality of opportunity are potentially conf licting educational aims. however, a richer account of autonomy could incorporate the aim of securing equality of opportunity through education by stressing how such equality contributes to economic, social and relational dimensions of autonomy. the general conclusion is that liam shields’s autonomy-based sufficientarian view is promising, but his account of autonomy and of the way it relates to well-being may need further refinements to successfully address the two classical problems of philosophy of education we have brief ly discussed in this essay.3 bibliography arneson, r.j., shapiro, i., 1996: "democratic autonomy and religious freedom: a critique of wisconsin v. yoder", nomos 38: 365–411. axelsen, d.v., nielsen, l., 2015. "sufficiency as freedom from duress", journal of political philosophy. 23: 406–426. brighouse, h., 2005. on education. routledge. brighouse, h., swift, a., 2006: "equality, priority, and positional goods", ethics 116: 471–497. kraybill, d.b., 2001: the riddle of amish culture, revised edition. ed. john hopkins university press. rawls, j., 1999: a theory of justice, 2nd edition. ed. oxford university press. raz, j., 1986: the morality of freedom, oxford university press, oxford : new york. 3 the comments and ideas discussed in this paper have been presented at a book workshop organized by the hoover chair of economic and social ethics (université catholique de louvain). i thank liam shields for the insightful response and comments he gave on this occasion. these ideas owe a lot to several discussions i had with harry brighouse on these topics and i am grateful to him. finally, i wish to thank david v. a xelsen and two anonymous reviewers for their helpful criticisms and comments on an earlier draft. all errors are my own. 188 danielle zwarthoed leap 5 (2017) schinkel, a., 2010: "compulsory autonomy-promoting education", educational theory 60: 97–116. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh university press. wall, s., 1998: liberalism, perfectionism and restraint, cambridge university press. white, j., 2006: "autonomy, human flourishing and the curriculum", journal of philosophy of education 40: 381–390. zwarthoed, d., 2015: "cheap preferences and intergenerational justice", revue de philosophie économique 16: 69–101. leap 5 (2017) entitlement and free time1 ros a t e r l a z z o kansas state university abstract in this paper, i use the framework developed by julie rose in free time to offer an initial analysis of another under-theorized resource that liberal egalitarian states might owe their citizens: that is, the sense of moral entitlement to make use of their basic liberties. first, i suggest that this sense of moral entitlement, like free time, might be necessary for the effective use of those basic liberties. next, i suggest that this sense of moral entitlement (again, like free time) might be the kind of all-purpose good that satisfies publicity and feasibility criteria. together, this suggests that a sense of moral entitlement to make use of basic liberties is the kind of resource that is appropriate for distribution by a liberal egalitarian state, and that such states indeed owe their citizens. keywords: effective freedom; free time; moral entitlement; resource in her excellent book free time, julie rose offers an extensive analysis of the under-theorized resource of free time. in it, she argues for two main conclusions: first, that free time has the requisite features to count as a distributable resource within a liberal egalitarian theory of justice; and second, that liberal egalitarian states have an obligation to fairly distribute free time to citizens, on the grounds that free time is necessary to guarantee the effective use of the other basic liberties. while rose’s substantive discussion of free time is clearly her book’s most significant contribution to political philosophy, i focus here on another of its valuable features: the way in which her argument serves as both a model for exploring other under-theorized resources that liberal states owe their citizens, and a reminder of the importance of developing comprehensive accounts of these other resources. in this paper, i use rose’s strategy, along with the structure of her argument and insights from her broader discussion, to run a parallel 1 for helpful comments, i am grateful to timothy fowler, jonathan herington, tom parr, chad van schoelandt, and the editor and an anonymous referee for this journal. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 8 92 rosa terlazzo leap 5 (2017) argument that justice might also require the fair distribution among citizens of a sense of moral entitlement to make use of one’s basic liberties. in a paper of this length, however, i can only offer a rough and initial argument, noting only in passing where points are controversial or require further development. like free time and justice, giving a full account of the relationship between justice and a sense of moral entitlement would require a book-length treatment. 1. free time, a sense of moral entitlement, and effective use of the basic liberties like rose i take it for granted that liberal egalitarians must be committed to ensuring the effective use of the freedoms and opportunities they distribute among citizens (2016: 69-73). w hile different liberal egalitarians may specif y the principle differently, i will use the following general formulation: effective freedoms principle: the liberal egalitarian state has an obligation to ensure citizens the effective rather than merely formal use of some centrally important set of freedoms. use of this principle requires three clarifications. first, the distinction between effective and formal freedom. w hile formal freedom guarantees absence of certain kinds of interference in a given arena, effective freedom guarantees that one can in fact achieve the freedom’s object. that is, effective freedom requires access to whatever resources are needed to exercise it. so while a person has formal freedom of movement insofar as the law prevents others from physically restraining her, she does not have effective freedom of movement unless she has either the internal abilities or external assistive technologies to move herself from place to place. second, note that the principle requires that liberal egalitarian states must guarantee their citizens freedoms only within some centrally important set, the members of which will depend upon the liberal egalitarianism in question. for instance, while a version of comprehensive liberalism might guarantee the effective use of a set of freedoms that it takes to be especially metaphysically valuable, a version of political liberalism might guarantee a set of freedoms centrally important to the roles of citizenship. third and finally, notice that while liberal egalitarian states have this obligation to citizens, it may in some cases be defeasible. cases of defeasibility will once again depend on the species of liberal egalitarianism concerned, but the following cases should be illustrative: effective freedoms may be inappropriate for some entitlement and free time 93 leap 5 (2017) citizens given their capacities (as with children and certain political freedoms); they may be forfeited (as with the criminal who gives up her right to freedom, or the spendthrift who wantonly and repeatedly squanders the resources necessary to exercise another freedom); or their provision may conf lict with some other central commitment of the liberal egalitarian state (as in a case in which one citizen’s effective use of her religious freedom would require state provision of immense resources that would violate the state’s principle of just distribution.) given the effective freedoms principle, rose argues that the state owes citizens a certain quantity of free time. in rose’s words, “an absence of free time constitutes a lack of means in the same way as a lack of income and wealth, and the lack of either renders one less able to take advantage of one’s formal liberties and opportunities” (2016: 73). consider classically guaranteed liberal-egalitarian freedoms: freedom of association, freedom to vote, freedom to hold political office, etc. in order for these rights to be more than formal, one must have both money and time. to run for office, educate oneself about candidates’ platforms, or associate with one’s fellows, one must have time that is not consumed by finding the basic resources to care for one’s own or one’s dependents’ basic needs. so while the person washing dishes 100 hours per week just to make ends meet may have these formal liberties, he will be unable to exercise them in practice. contrast this person with the highly-paid psychologist who could support herself by working 20 hours per week but chooses to work 100 because she values great wealth. w hile her work also leaves little excess time for exercising her liberties, rose argues that she has the effective option to exercise them in a way that her counterpart does not.2 accordingly, while citizens may choose not to use their free time to exercise their basic liberties, rose argues that a government that guarantees the effective use of basic liberties must guarantee that citizens have sufficient free time to exercise them after meeting their basic needs. note that rose’s project is to show that time – like money – is merely necessary for the effective use of one’s freedoms. but the following examples suggest that time and money together are not always sufficient to effectively guarantee persons the freedoms to which they are politically entitled. first, consider irma, an aff luent housewife who believes that a woman’s place is in the family. w hile she could easily afford childcare, a paid cleaning service, or private education, she believes that it would be morally wrong of her to allow her children or home to be cared for by others. accordingly, she rarely associates with those outside of her family 2 see the distinction between free and necessary time: rose (2016: 40-43). 94 rosa terlazzo leap 5 (2017) even when she might like to, does not engage in politics, etc. second, consider harvey, who is part of a reclusive religious community. w hile harvey lives a comfortable life with much time for leisure, he believes that engaging with politics is sinful. there is an important sense, i argue, in which both irma and harvey lack effective freedom to exercise their basic liberties. w hile each is aware of their politically-guaranteed freedoms and has the time and monetary resources to exercise them, neither feels morally entitled to do so. the point is not merely that irma and harvey refrain from exercising their rights, since most of us refrain at many points from exercising them. the point is rather that both harvey and irma take there to be a categorical, substantive obstacle to their exercising some of their most basic politically-guaranteed rights. to be sure, the obstacle in question is internal – each recognizes that no external party or lack of resources prevents them from exercising those rights. but each, given their central commitments, also recognizes that exercising those rights is not an option that is substantively available to them. and note that we cannot say that the obstacle does not exist, simply because neither irma nor harvey has the aim of exercising those freedoms. an inaccessible building does not stop being effectively inaccessible to a person who uses a wheelchair simply because she does not want to enter it. like the wheelchair user, harvey and irma do not just take themselves to be in a position where they do not choose to exercise their freedom. rather, by their own lights, each cannot. the wheelchair user’s obstacle is the building’s lack of ramps. for irma and harvey, the obstacle is the belief and the concomitant feeling that they are not morally entitled to exercise those freedoms. w hile neither irma nor harvey may be bothered by this obstacle, given the desires they actually have, it remains the case that each one’s lack of a sense of their own moral entitlement to exercise their basic liberties remains a substantive obstacle to that exercise. my claim, then, is that an absence of this sense of moral entitlement, like an absence of free time, compromises the effective use of one’s basic freedoms. given the effective freedoms principle, this claim in turn suggests that liberal egalitarian states have an obligation to remove this obstacle. but here we must be careful. by virtue of their liberalism, liberal egalitarian states also have a commitment to some degree of neutrality between conceptions of the good. different versions of liberalism will again conceive of this commitment to neutrality differently, but all should agree that within at least some range, the state should not favor some lives citizens might choose over others. comprehensive liberals will likely draw this sphere of neutrality fairly narrowly, limiting it to entitlement and free time 95 leap 5 (2017) valuable, autonomously-chosen lives (i.e. raz 1986). political liberals, alternatively, will likely include any of those lives that recognize political values and respect the rights of all citizens (i.e. rawls 1993). but note that as described irma and harvey’s commitments could both fit at least into the political liberal’s sphere of neutrality, and might even fit into the comprehensive liberal’s. so if my claim about a sense of moral entitlement and effective freedom is correct, we are left here with a conf lict between the effective freedoms principle and a liberal commitment to neutrality. given the length and focus of this paper, i cannot attempt to fully adjudicate this conf lict. indeed, there is a history of serious objections to the removal of internal obstacles to freedom that dates back at least to isaiah berlin (1969). but remember, my aim here is modest: i simply aim to use rose’s framework to give an initial account of whether some other good – that is, a sense of moral entitlement – might, like free time, both prove necessary to guarantee effective freedom of basic liberties, and meet the criteria for being a resource distributable by a liberal egalitarian state. w hether or not – and indeed how – this obstacle ought to be removed, i hope to have at least motivated the idea that it constitutes a real obstacle to the effective use of one’s basic liberties. accordingly, i will turn shortly to the criteria for resources appropriate for distribution by a liberal egalitarian state. nevertheless, while i cannot fully adjudicate the conf lict here, let me at least brief ly suggest how a liberal aiming to balance effective freedom and neutrality might move forward. imagine that irma and harvey developed their comprehensive doctrines quite differently: while irma adopted hers as an adult after a period in which she felt morally entitled to exercise her basic liberties, harvey adopted his without having considered or been exposed to alternatives, as a result of growing up in a relatively homogenous community. one plausible method for balancing commitments to effective freedoms and neutrality is to treat these cases very differently. w hile irma experienced a period in which she took there to be no obstacle to the exercise of her basic liberties, harvey never experienced a similar period of effective freedom. furthermore, even if irma currently views her moral commitments as closed to revision, the fact that they have already undergone a significant change means that she has a first-hand understanding of the way in which commitments might change with time and new experience. so even if irma and harvey’s comprehensive doctrines both compromise their effective freedom to exercise basic liberties in the moment, irma’s one-time possession of a sense of moral entitlement to exercise them leaves her better-placed to experience effective freedom again in the future. w hile fostering an early 96 rosa terlazzo leap 5 (2017) sense of moral entitlement does not then guarantee effective freedom to exercise basic liberties throughout the course of a lifetime, it both allows citizens to adopt a wide variety of comprehensive doctrines in adulthood, and makes more provisional the internal obstacles to effective freedom that those doctrines might include. 2. a sense of moral entitlement as a resource as i said, rose’s strategy in free time is to show that free time is both necessary for the effective use of persons’ basic liberties, and meets the criteria for being a resource that a liberal egalitarian government can distribute among its citizens. if a sense of moral entitlement, like time, is necessary for the effective use of one’s basic liberties, then we should now turn to the question of whether it meets the criteria for counting as a resource in a liberal egalitarian state. before we do so, however, we should further specify what we mean by a sense of moral entitlement. while the examples of irma and harvey motivated the idea that a lack of a sense of moral entitlement can compromise the effective use of one’s basic liberties, there are two distinct but related senses of entitlement that could do so. while i won’t take a stand here on which is better suited to serve as a resource distributed by a liberal egalitarian state, distinguishing between the two will clarify the discussion that follows. first, one could believe that they are directly morally entitled to exercise their basic liberties.3 if persons take themselves to be entitled in this way, and also have sufficient time and monetary resources, then they plausibly have effective use of their formallyguaranteed liberties. but second, one could believe that one is morally entitled to change her conception of the good if appropriate reasons present themselves. imagine that harvey never took himself to be directly morally entitled to the exercise of his political liberties – but that, at some relevant point in his development, he did take himself to be morally entitled to adopt other conceptions of the good, including those according to which he would be morally entitled to make use of his political liberties. although harvey never felt morally entitled to use the particular goods to which he was politically entitled, he was open to considering reasons to do otherwise, 3 note that many liberals will hold that the value of basic liberties derives at least in part from the role they play in allowing citizens to live the lives that they themselves take to be valuable. insofar as other goods (like wealth, income, education, healthcare, etc.) that a liberal state is obligated to fairly distribute to citizens derive their value from the same source, we may want to expand our sense of moral entitlement to include moral entitlement to make use of these other goods as well. however, this further point cannot be addressed here. entitlement and free time 97 leap 5 (2017) and to changing his view if those reasons proved compelling. while it can be difficult to determine when a person is genuinely open to considering reasons that conf lict with their conception of the good, when that bar has been met they plausibly have effective use of their formally-guaranteed basic liberties – as least as long as they also maintain the time and the money to make use of them. now let’s turn to rose’s framework for determining whether a good counts as a resource to which the citizens of a liberal egalitarian state have a claim. in order for citizens to have such a claim, it must first be the case that it is appropriate for a liberal egalitarian state to distribute the good in question, given liberal egalitarianism’s distinctive commitments. it must second be the case that the good in question can be effectively and justly allocated, given the nature of the good. 2.1 is a sense of moral entitlement an all-purpose good? i accept rose’s standard formulation of liberal egalitarianism’s two distinctive commitments: the liberal commitment to individual freedom of choice, and the egalitarian commitment to ensuring some degree of equality in the distribution of society’s benefits (2016: 23). but these principles stand in some tension, since individuals freely choosing life paths will likely end up with shares of goods that are different in both size and kind. for instance, if my idea of a good life involves world travel while my neighbor’s involves investment in real estate, we will likely end up with very different shares of exciting stories and vacation properties. accordingly, i also accept along with rose the standard liberal egalitarian position that states should be concerned with the distribution of allpurpose goods that individuals can use to advance their conceptions of the good, rather than the specific goods that their conceptions of the good direct them to attain. in her words, “specific goods are the particular goods that one requires to pursue one’s particular conception of the good, whereas resources are all-purpose means that one generally requires to pursue one’s conception of the good, whatever it may be” (2016: 27, original emphasis). a yacht, then, counts as a specific good that might feature prominently in some good lives but have no place in others, while wealth and income count as all-purpose goods because they can equally be used to acquire yachts, leisure time, the ability to support beloved charities, or the specific goods that have a central place in other lives. if the state distributes resources which anyone can use to advance their own idea of a good life, then each citizen can see how her interests are served by that distribution – while if it distributes specific goods valued by only some individuals, then those who do not value those goods have cause for complaint. 98 rosa terlazzo leap 5 (2017) so the first test for a sense of moral entitlement is to determine whether it is an all-purpose good. on the face of it, it does not seem to be. at least, it is clearly not required to pursue all conceptions of the good, no matter what those conceptions may be. given that both harvey and irma have conceptions of the good that can be pursued without exercising at least some of their basic liberties, they also have conceptions of the good that can be effectively pursued without a sense that one is morally entitled to directly pursue those liberties. and while some persons may take the ability to change one’s conception of the good to be central to any substantively good life, many more will not – and this large remainder can therefore effectively pursue their conceptions of the good without a sense that they are morally entitled to change them. but we should not be too quick to judge from this that a sense of moral entitlement is not an all-purpose good. even wealth and income are not required to pursue literally any conception of the good, whatever that conception may be. consider the person who takes the good life to be a life of prayer in which one has no possessions and eats only what they are freely given by others.4 since wealth, income, and the basic liberties themselves are the canonical all-purpose goods, we therefore need a different account of what it means to be an all-purpose good. while i don’t aim here to defend one account as correct, each of the following three possibilities is both a plausible account of all-purpose goods, and plausibly counts a sense of moral entitlement as an all-purpose good. first, a good might be all-purpose if it is useful for advancing a broad range of conceptions of the good. this is plausibly what is suggested by rose’s specification that all-purpose goods are those means that are “generally” required to pursue conceptions of the good, whatever they may be. while there may be a few exceptions, advancement of almost all conceptions of the good will benefit from these means. and although it may be possible to advance the majority of conceptions of the good without a sense that one is morally entitled to change that conception of the good, it is much harder to identify conceptions of the good that can be effectively advanced without a sense that one is morally entitled to take advantage of one’s basic liberties. and this is because the value of a basic liberty for a conception of the good is generally understood to be instrumental. for many of us, political participation or free speech is not an intrinsically valuable part of a good life. instead, both allow us to express what we take to be good, or to defend our way of life when it is under attack. but liberties cannot benefit our conceptions of the good in this way unless we exercise 4 for further argument that primary goods are not plausibly means that one wants whatever else they want, see nelson (2008). entitlement and free time 99 leap 5 (2017) them – and one is much less likely to actually exercise a liberty that one does not take oneself to be morally entitled to exercise. so since basic liberties will themselves be instrumentally valuable for advancing a broad range of conceptions of the good, the sense of moral entitlement to exercise them will be as well. second, a good might count as all-purpose if it is required for developing or protecting the moral powers and interests associated with citizenship. this suggestion aligns with john rawls’s proposal that what is taken to be valuable for citizens relates to the higher-order interests they are taken to have as citizens – including, famously, the capacity for a sense of justice and the capacity to hold and revise a conception of the good.5 if we take these to be the relevant interests of citizens, then citizens obviously have an interest in a sense of moral entitlement to change their conception of the good. the ability to do so is central to the second moral power, and it once again frustrates both a capacity and its development when a person feels unentitled to exercise and thereby strengthen that capacity. similarly, a sense of moral entitlement to directly exercise one’s basic liberties plausibly supports the second moral power, because the exercise of those liberties themselves supports that power by allowing citizens to try out and investigate new ways of life that might lead them to adopt new conceptions of the good. third, a good might count as all-purpose if it is closely tied to some other value that grounds liberalism’s commitments to equality and neutrality. take, for instance, alan patten’s claim that the value of both equality and neutrality depend on the more fundamental liberal value of self-determination (2012). if self-determination is at bottom what matters for liberal states, then other resources should be distributed to the extent that they further that value. and a sense of moral entitlement to change one’s conception of the good certainly does so. if one feels perpetually bound to one’s conception of the good even when compelling reasons to modify it arise, then one plausibly becomes a prisoner to that conception of the good rather than a self-determining individual. similarly, the basic liberties generally distributed by liberal states very plausibly provide persons with essential freedoms and means to live their lives as they see fit – but they once again do so instrumentally, and their instrumental benefit again generally only accrues if one feels entitled to make use of them when the need for them arises. 5 see also gina schouten’s (2017) argument that protection of the two moral powers often in fact demands substantive progressive interventions on the part of liberal egalitarian states – up to and including preserving a live option for all citizens to engage in genderegalitarian division of household labor. 100 rosa terlazzo leap 5 (2017) while this discussion by no means exhausts the ways in which we could understand all-purpose goods, each is plausible – and each gives us a plausible reason to think that the sense of moral entitlement with which we are concerned is the kind of thing that ought to count as an all-purpose good. 2.2 can entitlement be effectively and justly allocated? in order to count as a resource using rose’s criteria, an all-purpose good must also be the kind of thing that satisfies the following publicity and feasibility criteria (2016: 46): publicity criterion: it must be possible for an outside party to reliably and verifiably know whether and to what extent an individual possesses a given resource. feasibility criterion: it must be possible for the outside party to obtain relevant knowledge and distribute the good non-invasively and efficiently. the publicity criterion applies because in order for justice to be done, citizens must be able to see that it has been done. if a resource is not the kind of thing that can reliably be measured, then citizens cannot know whether a just distribution has been achieved. and the feasibility criterion applies because efficiency and privacy matter alongside publicity. if enormous resources must be expended to monitor or fairly distribute a good, or if that monitoring and distribution comes at the cost of citizens’ reasonable expectation of privacy, then these considerations count heavily against treating that good as a resource that a just state ought to distribute. to illustrate, consider health. while health is required to pursue almost any conception of the good, it is not always possible to adequately judge relative shares of health. this is so both because different definitions of health better capture the health level of different individuals, and because health is not a free-f loating concept that makes sense without reference to the state of a population. further, in order to monitor and inf luence the distribution of health among citizens even according to some stipulated definition, the state would need to engage in frequent and highly intrusive testing and treatment of individuals. health, then, will not count as a resource on rose’s criteria. but note that a nearby good – that is, healthcare – can still count. since healthcare is required to protect health when it fails, and since failing health threatens the ability to pursue almost any conception of the good, healthcare is what samuel arnold calls a entitlement and free time 101 leap 5 (2017) “second-order all-purpose [good]” (2012: 97).6 a second-order all-purpose good is one that is “instrumental to the possession of entities or attributes that are themselves all-purpose [goods]”. and the second-order allpurpose good of healthcare satisfies publicity and feasibility criteria. regarding publicity, it is possible to know both what coverage citizens have for which medical conditions, and whether citizens live within appropriate proximity to medical establishments. and regarding feasibility, that information can be collected and the good can be provided both noninvasively and efficiently. by providing universal healthcare or enforcing an individual mandate, states can both ensure the provision of care and non-invasively and efficiently gather information about what coverage individuals have; and by determining a citizen’s address and whether relevant public transportation is available, states can non-invasively and efficiently gather information about whether citizens can effectively seek treatment.7 we must determine, then, whether a sense of entitlement satisfies the publicity and feasibility criteria. first, consider publicity. it is highly likely that there is no fully verifiable and reliable way for third parties even in theory to accurately determine and compare persons’ comparative shares of a sense of moral entitlement. citizens may understand their degrees of entitlement very differently, and even when they report the same rating, the scales that they use may be incommensurable. and turning to feasibility, even if these obstacles could be overcome, making such comparisons in practice would require extensive and invasive questioning of persons, as well as timeand resource-intensive calculations to determine citizens’ relative scores. two different responses might be made by proponents of treating a sense of moral entitlement as a resource. the first is to identify a secondorder all-purpose good associated with the sense of moral entitlement. this approach follows rawls’ precedent of including “the social bases of self-respect” rather than self-respect itself in his list of primary goods (1999). if a particular set of social conditions roots and reliably fosters the relevant sense of moral entitlement, and that set of social conditions passes the publicity and feasibility conditions, then we could count that set of social conditions as our resource. while it is in large part an empirical matter whether some set of conditions roots and reliably fosters a sense of moral entitlement, it seems prima facie likely that the conjunction of some 6 w hile arnold calls such goods all-purpose “resources” i call them goods and – with rose – reserve the term resource for goods that meet all of our criteria. 7 to be sure, there are many important social determinants of health, of which healthcare is only one. i leave open the question of whether these other determinants satisf y the publicity and feasibility criteria. 102 rosa terlazzo leap 5 (2017) standard of formal education and broad exposure to persons living diverse lives would do so. the more that one enjoys close connections with those living diverse lives, and comes to appreciate their reasons for holding different conceptions of the good, the more likely they will be to see as morally legitimate the choice to hold another conception of the good or to make use of the resources and liberties used by one’s peers. and a third party can certainly verifiably and reliably determine whether citizens are enrolled in these kinds of education and live in diverse communities. gathering this information should also be relatively efficient and noninvasive, since it will primarily require consulting census data and curricular data that are already collected. and states clearly have at their disposal resources for effectively determining curricular standards and encouraging diverse neighborhoods. the other response is to reject the move to second-order all-purpose goods on the grounds of the type of resource that a sense of moral entitlement is. here rose’s treatment of free time is once again illuminating. as rose argues, the appropriate distributive principle may vary from resource to resource, depending on each resource’s nature (2016: 85ff ). take rose’s comparison of inequalities in time and material wealth. inequalities in either domain can be problematic from the point of view of justice, because either can lead to social inequalities between citizens. but there are two reasons to think that inequalities in wealth are more worrisome than inequalities in free time. first, there is a natural limit to inequalities in free time that does not hold in the case of wealth (2016: 87). while the potential difference between the wealthiest and poorest subject is virtually limitless, inequalities between the most time-rich and timepoor citizens can vary by at most a few hours in a given day. after all, some kinds of self-maintenance simply cannot be outsourced.8 so to the extent that equality of resource directly translates into social inequality, inequalities of time simply allow for a lower degree of inequality. second, material wealth can be more efficiently converted into other kinds of basic goods than can time (2016: 88). for instance, a person with a comparatively large share of free time can use that time to undertake additional paid work or petition her lawmakers, thereby gaining additional income or political inf luence. but she must do so in real time, and cannot readily trade her free time with others who will advance these ends for her. however, a person with a comparatively large share of wealth can readily trade that wealth for a great variety of other goods: for the consumer goods that signal social class, for the elite education that cements one’s children’s 8 w hile these differences could compound over a lifetime, the degree of inequality possible for time could never approach the degree of inequality possible for wealth. entitlement and free time 103 leap 5 (2017) high social position, or for the political inf luence that lobbyists and large campaign contributions can buy. both of these differences suggest that a sufficiency principle might effectively protect social equality in the case of time but not wealth. while either can be used to attain a set of additional goods that negatively impact social equality, time is converted into these additional goods much less efficiently, and the limits on the time that one can have to convert are furthermore much stricter. with regards to distributive principles, a sense of moral entitlement to use one’s basic liberties seems to be more like free time than like money. while persons might have stronger and weaker senses of moral entitlement, our focus here is on the effect of a sense of moral entitlement on the effective use of one’s basic liberties. and this effect is plausibly binary: one may exercise one’s basic liberties hesitantly or enthusiastically, but what matters for advancing one’s plan of life is that one does in fact exercise them when the situation calls for it. beyond the threshold that allows one to exercise one’s basic liberties, having a stronger sense of moral entitlement to do so does not seem to make a person substantially better able to exercise them than her fellow citizens. what does this mean for the appropriate distributive principle for our sense of moral entitlement? remember that sufficiency was meant to be a more plausible distributive principle for time than for money on the grounds that unchecked inequalities in money allow greater corresponding inequalities between citizens. if one does not become substantially better able to exercise her basic liberties the more morally entitled she feels to do so, then sufficiency is also a plausible distributive principle for our sense of moral entitlement. determining whether this seemingly plausible claim holds would require space for further defense. but if it held, then a focus on sufficiency should make both the publicit y and the feasibilit y criteria easier to satisf y. first, consider publicity. unlike determining comparative shares, determining sufficiency would no longer imply comparing persons' relative levels of the sense of moral entitlement, or the conceptual and practical problems that come with it. instead, it would simply require determining whether each person takes herself to be able to choose to exercise her basic liberties if reasons to do so arise – and this can be determined through simple self-reporting. and if we diffuse the tension between the effective freedoms principle and a commitment to liberal neutrality in the way suggested above, then a concern with sufficiency would also make the feasibility criterion easier to satisfy. if we aimed to ensure only a sufficient sense of moral entitlement during early life, then the relatively undemanding self-reporting required to determine sufficiency could be built into public education at regular intervals without 104 rosa terlazzo leap 5 (2017) great cost. and if we were concerned with a threshold level of a sense of entitlement rather than a comparative level, then public education could aim to bring all students past the line without worrying that some will progress significantly further than others. 3. conclusion as noted at the outset, the argument offered here is initial and cursory, and many objections and important subtleties have by necessity been passed over.9 but i hope that the discussion so far has served my modest aim: to begin to show us how we might extend rose’s helpful framework to offer a treatment of other under-explored or under-theorized resources that a liberal egalitarian state owes its citizens. i hope that it has also encouraged readers to believe that a sense of moral entitlement to exercise one’s basic liberties is one such resource worth exploring – and if so, then i hope that rose’s framework can serve to illuminate a longer (perhaps also booklength) treatment of that resource in the future. bibliography arnold, s., 2012: “the difference principle at work”, journal of political philosophy 20: 94-118. berlin, i., 1969: “two concepts of liberty”, in four essays on liberty, oxford: oxford university press. nelson, e., 2008: “from primary goods to capabilities: distributive justice and the problem of neutrality”, political theory 36: 93-122. patten, a., 2012: “liberal neutrality: a reinterpretation and defense”, journal of political philosophy 20: 249-272. rawls, j., 1993: political liberalism, new york: columbia university press. — 1999: a theory of justice: revised edition, cambridge, mass: the belknap press of harvard university press. raz, j., 1986: the morality of freedom, oxford: clarendon press. rose, j.l., 2016: free time, princeton: princeton university press. schouten, g., 2017: “citizenship, reciprocity, and the gendered division of labor: a stability argument for gender egalitarian political interventions”, politics, philosophy & economics 16: 174-209. 9 in particular, i take it that a fuller treatment of the relationship between selfrespect and entitlement is warranted, as the two goods may overlap depending on our account of each. brief ly, insofar as rawls’s discussion of self-respect focuses on the extent to which citizens see themselves as capable of carrying out conceptions of the good that they take to be worthwhile, i believe that we need either a broader account of the importance of self-respect or a separate discussion of entitlement to do justice to entitlement as a resource. either way, more work remains to be done. guelke & sorell.indd violations of privacy and law: the case of stalking1 john guel k e university of warwick tom sor e l l university of warwick abstract this paper seeks to identify the distinctive moral wrong of stalking and argues that this wrong is serious enough to criminalize. we draw on psychological literature about stalking, distinguishing types of stalkers, their pathologies, and victims. the victimology is the basis for claims about what is wrong with stalking. close attention to the experiences of victims often reveals an obsessive preoccupation with the stalker and what he will do next. the kind of harm this does is best understood in relation to the value of privacy and conventionally protected zones of privacy. we compare anti-stalking laws in different jurisdictions, claiming that they all fail in some way to capture the distinctive privacy violation that stalking involves. further ref lection on the seriousness of the invasion of privacy it represents suggests that it is a deeply personal wrong. indeed, it is usually more serious than obtrusive surveillance by states, precisely because it is more personal. where state surveillance genuinely is as intrusive as stalking, it tends to adopt the tactics of the stalker, imposing its presence on the activist victim at every turn. power dynamics —whether rooted in the power of the state or the violence of a stalker —may exacerbate violations of privacy, but the wrong is distinct from violence, threats of violence and other aggression. nor is stalking a simple expression of a difference in power between stalker and victim, such as a difference due to gender. 1 the authors would like to thank victor tadros and chris nathan, who commented on an earlier draft. they would also like to thank two anonymous referees whose many suggestions greatly improved the paper. guelke & sorell.indd 32 27/4/17 9:02 violations of privacy and law: the case of stalking 33 leap 4 (2016) keywords: stalking; privacy; ethics; criminalization; psychology; law 1. introduction stalking consists of one person’s keeping track of, and trying to make frequent contact with, another person, who is the subject of the first person’s obsessive thoughts. the contact can take place in physical space or on the internet. although there are cases in which the object of obsessive thoughts is unaware of the attentions of the stalker, these are unusual and will be ignored in what follows. some stalkers target high-profile political figures and think of their own behavior in patriotic or party political terms: these cases, too, will be disregarded. also to be set aside are cases in which the context for the stalking is some pedagogical or clinical relationship which takes on sexual or romantic significance even if it involves no actual sex. we shall focus instead on what the psychological literature identifies as standard: cases where the basis of the stalking is some temporarily disrupted, defunct, or even imaginary romantic relationship between stalker and target. two questions will be considered in what follows. (1) what, if anything, makes stalking wrong? and (2) if stalking is wrong, is it so seriously wrong that it should be criminalized? our answer to (2) is ‘yes’, and the serious wrong involved can be summarized by saying that prolonged stalking often results in a sort of psychological take-over of its target.2 the obsessive character of the stalker’s pursuit can end up being ref lected in an obsessive, anxious preoccupation with the “presence” of the stalker on the part of the victim, whether or not that presence is physical. this anxious preoccupation often pervades the stalking target’s waking life, and undermines her capacity to deliberate, choose, and plan. this undermining is the harm that a properly formulated law against stalking should address. the stalker imposes his presence typically by following the victim, by penetrating her home, and by disrupting her normal work and social relations. this presence is not always eliminated when the stalker is made the subject of a restraining order or put in prison. victims of stalking suffer from anxiety, insomnia, greatly disrupted work lives, and loss of confidence. the effects of common or garden harassment can be similar, but they are often tied to a context —a workspace or a shared communal housing space —which does not pervade the victim’s life, and which can be escaped or left. in stalking at its worst, the anxiety resulting from it is relatively inescapable and debilitating. it breaches most of a person’s private space, 2 see meloy (1998: ch.9), mullen and pathé (2002: 273-318, esp. 296ff ) guelke & sorell.indd 33 27/4/17 9:02 34 john guelke & tom sorell leap 4 (2016) including a person’s inner sanctum: the space in which she deliberates and makes choices without external inf luences. because conventions governing private space, including the space to choose and deliberate without interference, are intimately connected with autonomy, it is hard to separate violations of privacy from attacks on autonomy. we emphasize violations of privacy, because, as it will emerge, we identify the psychological space for deliberation and choice as the most basic of three zones of privacy created by familiar informal conventions governing privacy. moreover, we argue that in law, policy, and public discussion, the violation of privacy involved in stalking is incorrectly minimized, especially when compared to the intrusiveness of state surveillance. according to us, many forms of state surveillance are less invasive than stalking. the rest of this paper is divided into five sections. in section 2, we draw on some of the psychological literature about stalking, distinguishing types of stalkers and their pathologies. we also discuss victims. it is the victimology of stalking that is the basis for claims about what is wrong with stalking and why it ought to be criminalized. even when stalker and stalking victim are prior acquaintances who are not trying to revive or kindle romance, there is a thread running through the experiences of victims, and that is the obsessive preoccupation with the stalker and what he will do next. the kind of harm this does is best understood in relation to the value of privacy and conventionally protected zones of privacy (section 3). in section 4 we distinguish stalking from harassment in general and consider laws which fail to ref lect the distinction between the two offenses. we compare anti-stalking laws in different jurisdictions, claiming that they all fail in some way to capture the distinctive privacy violation it involves. section 5 considers the role of broader power dynamics and a feminist skepticism about the value of private spaces. section 6 contrasts the invasiveness of stalking with the invasiveness of state surveillance. 2. stalkers and their victims it is rare to be stalked by a stranger.3 most stalkers are men who are known to their typically female victims.4 stalkers are often former sexual partners with whom the victim no longer wants a relationship, or else rejected 3 though the uk government recently proposed new legislation in part addressing this kind of stalking http://w w w.bbc.co.uk/news/uk-35010544. 4 for an overview of typical offenders also see baum (2009); and for an overview of both typical offenders and victims see mullen (2009). the strongly gendered character of the typical stalking case is discussed in section 5 below. guelke & sorell.indd 34 27/4/17 9:02 violations of privacy and law: the case of stalking 35 leap 4 (2016) suitors with whom at most non-sexual intimacy was achieved. these two kinds of stalkers, together with work-related colleagues, people met through professional relationships, and neighbors form the category commonly referred to as ‘prior acquaintance’ stalkers. in virtually all studies, whatever the recruitment method or sample size, ‘prior acquaintance’ stalkers account for the majority, sometimes close to 80 percent, of cases (pathe and mullen 2002: 289ff.). prior acquaintance stalkers can include ex-spouses who when living with the stalking victim were highly controlling and suspicious, and for whom stalking is a way of resuming that controlling role.5 these men might have been batterers of the women they once lived with and later stalked.6 other stalkers are the non-battering former partners of stalking targets from whom they have been divorced.7 still other stalkers are socially incompetent or isolated people who make frequent contact with the stalking victim as a form of communication of romantic feelings. stalkers of this kind deludedly hope that frequent contact will make the stalking victim reciprocate these feelings. these stalkers do not necessarily strike the victim as frightening or a likely source of violence. much more rare is the classic erotomanic type, usually a woman, who suffers from the delusion that a higher-status man whom she has never met is in love with her. many stalkers —at least in the samples that have been associated with empirical studies in several countries —have criminal records and psychiatric histories, including histories of addiction to drugs and alcohol, but have better than average education (hall 2007: 124-31). to the extent that they have been assessed psychologically, a significant number have experienced unwanted separation from parental figures or other adult providers of care or love in their early childhood (meloy 2007: ch. 3). there is also a weak association between stalking and being a foreigner or cultural outsider.8 5 indeed, kurt (1995: 221) claims that “some stalking behavior represents a form of domestic violence”. 6 see, for example, logan and walker (2009) for an argument that stalking by partners is particularly likely to be particularly harmful and often begins while the relationship is still intact. it is also worth noting a study by weller et al. (2012) indicating that both the public and police were less likely to regard scenarios involving stalking behavior by someone previously known to the victim as a case of stalking than they were when the same behavior was carried out by a stranger. 7 for an overview of sexual abuse —a category in which the authors include stalking —directed by women against men, see cook and hodo (2013).. 8 in one of the formative legal cases that inspired stalking legislation in the usa — tarasoff v. regents of the university of california (1976) —prosenjit poddar, a bengali graduate student at berkeley in the late 1960s, developed an obsessive attachment to a fellow student, tania tarasoff, who was probably the only american woman to befriend him while he pursued his studies in the usa. he misinterpreted some of her behavior as a sign of guelke & sorell.indd 35 27/4/17 9:02 36 john guelke & tom sorell leap 4 (2016) the most severe stalking behavior —the most persistent, the most likely to involve violence, obtrusive following, surveillance at home, and frequent telephone contact —is associated with highly controlling ex-partners. such stalkers sometimes seek to re-establish a cohabiting relationship, but they can also try to prevent the formation of new relationships by expartners. where children are involved and they have visitation rights, stalkers of this kind often have a range of pretexts for maintaining contact with an unwilling ex-partner, and it is particularly difficult for the victim to extricate herself. stalkers in this category often exhibit the symptoms of anti-social personality disorders (aspd).9 related personality disorders —borderline10 personality disorder, histrionic11 and narcissistic12 personality disorders —are also associated with violent stalking and may co-exist with or be confused with aspd.13 in borderline personality disorder there are frequent changes of mood and threats of suicide as well as signs of paranoia. again, “individuals create a sense of the importance or depth of the relationship that is not consistent with their partner’s attachment” (meloy 2007: 74). this same delusion of depth is associated with histrionic personality disorder. “individuals become uncomfortable if they are not the center of attention” and “often use their physical appearance, usually eroticized, to create attention” (ibid). as for narcissistic disorder, this is associated with a pathological need for admiration and is sometimes thought to run through the whole romantic interest, and appeared not to be able to bear her eventual emphatic rejection of him. although his obsession with tarasoff was known not only to his friends but to clinical psychologists treating him, an attempt to talk to her alone at home ended in his stabbing her to death when she ran away. the claim that his relationship with tarasoff was partly clouded by cultural misunderstanding and by the stresses of coping with american graduate studies is highly plausible (meyers 1998). 9 see for example meloy (2007: 73) who writes that these may include “failure to conform to social norms regarding behaviors, deceitfulness, lying, use of aliases, impulsivity, history of physical violence, reckless disregard for safety, irresponsibility and lack of remorse. ...perpetrators present a false image of themselves regarding their life history, experiences and interest in the stalking victim. they have a unique sense of which women are vulnerable and prey on their weaknesses. such female victims many times have a history of involvement with aspd men. domestic violence is a prominent theme during the relationship. w hen a break-up occurs, the stalker may attempt to intimidate the victim through telephonic and written threats, stalking and physical confrontation of their victims. many times these individuals are violent toward their victims”. 10 “a pattern of instability in personal relationships, self-image, and affects, and marked impulsivity” (american psychiatric association 2013: 645,663-666) 11 “a pattern of excessive emotionality and attention seeking” (ibid 645, 667-669). 12 “a pattern of grandiosity, need for admiration, and lack of empathy” (ibid 645, 669-672). 13 “a pattern of disregard for, and violation of, the rights of others” (ibid 645, 659-663). guelke & sorell.indd 36 27/4/17 9:02 violations of privacy and law: the case of stalking 37 leap 4 (2016) variety of stalker profiles (ibid). unlike some of the more serious psychiatric conditions,14 personality disorders do not necessarily rise to the threshold required for legal incompetence, and so stalkers suffering from them can be held responsible for what they do by courts and the police. their behavior is also subject to moral assessment, since in many cases stalkers can form coherent (if malicious) intentions, reason about the consequences of their actions, be sensitive to the presence of witnesses, and can steer clear of legal borderlines they must not cross if they are to escape prosecution and imprisonment. at the core of the moral wrong in prior acquaintance stalking is not assault or intimidation, serious as those wrongs are. it is the presumption of intimacy or the coercion of intimacy, if that latter notion is not selfcontradictory. intimate relations between two people involve willing companionship, including self-exposure on quite a large scale. this exposure proceeds on the assumption of more than trust: it usually involves mutual love. a false presumption of intimacy is a kind of preemption of the other person’s exercise of will in self-exposure or in willing participation in intimate behavior, such as sex or sharing confidences that would be damaging if made public. the invasion is not necessarily greater when intimacy has never been entered into than when it has been entered into and then been withdrawn. for it may be a requirement of morally defensible romantic intimacy of any kind that, once it has been offered and reciprocated, either party can withdraw it at will. such withdrawals are sometimes unreasonable, but they are always permitted; otherwise intimacy is forced and therefore defective. in aspd cases the withdrawal of intimacy is very often entirely reasonable, prompted as it is by physical violence or psychological oppression. but even if it were not; even if one party suddenly found the other physically repulsive for no good reason; that would not make continued intimacy morally compulsory: intimacy is never morally compulsory.15 care-giving might be; or continued cooperation in joint projects. but this might co-exist with a significant degree of withdrawal, sufficient for ending intimacy. 14 see for example american psychiatric association (2013). 15 see for example the argument of andrei marmor: “intimacy involves considerable costs, such as responsibilities and the need to care for the other. when those responsibilities and willingness to care are voluntarily undertaken, they foster good relationships. but when they are imposed involuntarily, especially on a large scale, the results might be quite oppressive. we can only operate in the complex societies we live in if we are allowed to deal with others at arm’s length, keeping some distance. the need to keep some distance is partly physical—we often feel very uncomfortable being too close to strangers—but it is also, perhaps primarily, social; closeness to another typically involves expectations and responsibilities that one should, by and large, only undertake voluntarily” (marmor 2015: 9). guelke & sorell.indd 37 27/4/17 9:02 38 john guelke & tom sorell leap 4 (2016) for at least some, stalking is the attempt to regain lost intimacy, or an attempt to win a so far withheld intimacy, by a show of emotional intensity and persistence. in the eyes of the stalker this persistence and intensity deserve a positive, intimate response —deserve a declaration of love, say, or an invitation to cohabit, or a marriage proposal. when the persistence or intensity is met instead with a clear rejection, or with fear or confusion, the stalking can begin to be motivated by anger and start to aim at revenge for the pain of rejection. it is at this point that the prior acquaintance stalker often invades personal space —either physical, such as the subject’s home, or psychological. some stalkers invade this space in order to acquire the sort of proximity to the victim that real intimacy would have afforded, and that is mostly likely to help the stalker impress himself on the victim’s consciousness. the stalker wishes to be the central object of the victim’s romantic preoccupations but engineers, as a second best, a kind of top billing in her anxious preoccupations. in a culture such as ours in which behavior that is traditionally expressive of deep intimacy, such as sex, can be part of very short-lived, casual relationships, the scope for confusion about what is serious or deep or genuine intimacy, or what can lead to genuine intimacy, is probably considerable. presumably the ‘intimacy’ of the one-night stand is at some distance from fully-f ledged intimacy, yet in some cases it may hold the promise of fully-f ledged intimacy, or be interpreted that way, possibly incorrectly. by contrast, ‘prior intimates’ who have been married and started a family are in a morally different case from one-night stands. although marriages involving parenthood are not bound to involve genuine intimacy, they can and usually do, even when they end in divorce or separation. and again, both marriage and one-time sexual involvement are different from prior acquaintance in its sexually unconsummated forms, where one of the parties has, or formerly had, romantic aspirations. the moral distinctions between these cases track the genuineness and depth of intimacy, where a criterion of genuineness is whether the intimacy is willing and mutual and relatively sustained. the deeper the genuine intimacy once achieved, the less presumptuous, other things being equal, is the attempt to regain it non-violently or non-oppressively. the divorced person who does nothing more than send an annual love letter to his expartner for more than 30 years does not count as a stalker, but his behavior probably belongs on a spectrum that includes stalking.16 16 curiously, a deep invasion of physical and psychological space can occur in cases of stalking that are not obviously romantically inspired. here the wrongness can seem as great or greater, violence apart, than in cases so far considered, since romantic intimacy is never offered, and so never withdrawn, by the victim. the stalking victim starts out by being professionally related to the stalker, and the supposed departure from that relationship by guelke & sorell.indd 38 27/4/17 9:02 violations of privacy and law: the case of stalking 39 leap 4 (2016) 3. stalking as a violation of privacy is there anything that ties together the invasiveness of the whole range of stalking behavior? the short answer is that all stalking involves persistent invasions of privacy. the successful stalker goes beyond simple invasions of privacy to mount a kind of occupation of the mind. this kind of intrusion is more significant than any other kind of incursion into this or any other zone of privacy, whether by perfunctory or even moderately prolonged uninvited observation.17 we now enlarge brief ly on zones of privacy and the relations between them. we think there are at least three such zones. the first two include the naked human body and the home space, that is, the physical space —often a room or set of rooms or a building —which provides a customary default location for a given agent, and where others are permitted only at the agent’s invitation. the home space in our sense —in the sense of default location of an agent to which he or she controls access —is more austerely conceived than home space in the sense of the site of traditional marital or family relations.18 familiar and very widely observed conventions restrict public displays —displays outside the home space —of the nude human body, or of sex. further conventions restrict the observation or surveillance by outsiders of activities in the home space. surveillance that violates the home space can be motivated by the wish to exploit the connection between the privacy the stalking victim is often largely or wholly a figment of the stalker’s imagination. two welldocumented cases start in student-teacher relationships. the first involves an academic, robert fine, who was physically stalked by an ex-student (see fine 1997). the other is a much more recent, possibly still on-going, case of cyberstalking, also involving an exstudent and the poet and novelist james lasdun (see lasdun 2013). both cases depart from the standard pattern of a woman stalked by a man previously known to them, but they reproduce the severe psychological disturbance that stalking seems to bring with it. 17 w hile privacy may be invaded without constituting an act of stalking, all stalking behavior involves an invasion of privacy. historically the privacy literature can be divided between that concerned with physical intrusions, informational privacy, and that concerned with the conditions of autonomous life. for example allen (1998) distinguishes privacy in the sense of “restricted access” —something like our zonal account —and decisional privacy; tavani (2007) argues for a “restricted access/limited control” position, latching together a “restricted access” account and a limited control component for the specific case of informational privacy. the literature most directly relevant to our purposes here is that on physical intrusion. however, we think the case of stalking helps to demonstrate the relevance of physical intrusion to understanding wider considerations, especially that of autonomy. 18 the austere conception of the home is supposed to be distinct from the problematized domestic space —outside the reach of law in classical liberal formulations —that is supposed to be one of the loci for the exertion of male or patriarchal power. to exclude issues that are not relevant to our account of the field of application of the right to privacy, we can imagine the home space having only a single occupant at a time. guelke & sorell.indd 39 27/4/17 9:02 40 john guelke & tom sorell leap 4 (2016) zones of body and home. in the home, the normal conventions prohibiting the display of the body are relaxed. this means that surveillance of home space can give an outsider intimate access to the body of the person or persons whose home it is. surveillance can produce a facsimile of physical presence. but since the conventions governing the home space require presence to be by invitation, the ‘presence’ afforded by surveillance, especially covert surveillance, is a significant violation of privacy. the normative protections afforded to home spaces can travel with the individual to temporary homes like hotel rooms, or, more weakly, when travelling around particular kinds of public space. consider a couple eating dinner together in a restaurant. it is understood that they may be seen by others there or spotted through a window, but any kind of prolonged watching will be invasive. contact here might require some sort of negotiation —even a friend who spotted them might engage in at least non verbal communication to make sure their contact was not unwanted before approaching their table. we might call a table in a restaurant a ‘semi public space’. again, consider the norms governing watching or contacting an individual sitting in a parked car, relaxing in a public park, or reading in their seat on an airplane. even in the most undeniably public of spaces — the concourse of a railway station or a public square —there might still be normative presumptions against prolonged watching or uninvited contact, albeit ones more easily trumped by other considerations. in this way, repeated uninvited contact or hovering could amount to intrusion even if it occurred in what was otherwise a public —non-home —space.19 mere presence or observation in someone else’s zone of privacy does not necessarily mean that that person has been wronged. after all, we often voluntarily grant access to others. nevertheless, one may experience a loss of privacy even in these cases. the loss may be outweighed, e.g., by the benefits of (genuine, uncoerced) intimacy, or for more mundane reasons. the homeowner who asks a repairman to come round and fix their fridge gives up some privacy for a while. in a range of other cases potentially deep costs to privacy are mitigated by the fact that someone is acting in a professional role and has no personal interest in the information they gain access to. i may be less embarrassed by a repairman seeing how messy my kitchen is than by my neighbor’s seeing the same thing: i will probably never see the repairman again. our contact is at the outer fringes 19 normative protections of the naked body and of mental privacy arguably also ‘travel’ with the individual. if someone’s body is unwillingly exposed as the result of an accident it will be common to look away, to respect their privacy. except in specific circumstances it will be regarded as (mildly) invasive to check what someone is reading over their shoulder even if they are in a public space. guelke & sorell.indd 40 27/4/17 9:02 violations of privacy and law: the case of stalking 41 leap 4 (2016) of personal.20 with the neighbor it is different. we have been speaking of conventional restrictions on exposure of the body and outsider presence in the home space. a third, less obvious, zone of normative privacy is the mind. in a way this is the most sensitive of private zones, normatively speaking, since it is the space from which one chooses what the limits of willing self-exposure will be in relation to the body and also who else can be present in the home and how. more generally, the mind is the space from which everyday activity is considered and planned. it is also the space in which at times one discovers what one thinks, sometimes by ‘trying on’ opinions experimentally and attempting to defend them in conversation. in other words, mental space may be the staging area for the expression and controlled exposure to criticism of one’s opinions —in a space that is only open to others by invitation. here the home and mental spaces work together.21 incursions into mental space can take the form of unwanted indoctrination or overbearing parenting, but they can also take the form of harassment and stalking. incursions can be sporadic or sustained. when they are sustained and debilitating, in the sense of reducing the capacity of an agent for deliberation and choice, they are particularly serious, because of the way that deliberation and choice control exposure in the other privacy zones. prior-acquaintance stalkers have often had unrestricted access to all three of the privacy-sensitive zones on our list: they have been romantically involved with their stalking victims and have sometimes lived together and started a family with them. they have also gained information about what they think and what matters to them. this access is often what they are trying to regain by stalking. the same access is what stalkers exploit when they are trying to increase the anxiety of their victims. but the prime 20 two intermediate cases are contact with doctors involving physical examination and (less common) being subject to the attentions of a private investigator, and becoming aware of it. in the doctor case, we grant (typically brief ) access to a private zone for diagnostic or curative purposes, which purposes limit the degree to which it is personal. this is quite different from stalking. in the investigator case there is usually access to publicly available information about someone, rather than to the body or home. w here a private investigator carries out the investigation obtrusively and persistently over a long period of time, and stoops to wire-tapping or housebreaking, the distance from stalking shrinks. we thank anonymous referee 2 for getting us to think about these cases and the case at n21. 21 if a fellow traveller’s conversation on the bus is so racy and provocative that i cannot tune it out, has my mental privacy been invaded? in most circumstances no: the bus is understood as a shared space where overhearing conversations is to be expected. furthermore, the conversers are unlikely to have any intention of imposing their conversation on others. however, in unusual circumstances an inappropriate conversation could be an invasive action: consider a stalker who deliberately sits near their victim and deliberately begins a conversation that they know the victim will be unable to tune out. guelke & sorell.indd 41 27/4/17 9:02 42 john guelke & tom sorell leap 4 (2016) and overarching effect of stalking —often the intended effect —is to unsettle and preoccupy the mental space of the stalking victim, to such a degree that the stalker is always present to the stalking victim’s mind. in this way they have often therefore also penetrated the normative protections of the home space as well. the psychological harm produced by stalking brings out the importance of privacy in general, and the priority of protections for the mental zone among the range of zones of privacy. the reason why privacy matters in general is that it facilitates the autonomous pursuit of life-plans. someone with no privacy is likely to be subject to interference from others, sometimes through the excessive inf luence of close associates, whether friends, family, or employers. privacy can counteract excessive inf luence. it obstructs coercion by removing people from the coercers, enabling unobstructed choice and activity to proceed. it allows an agent to think, plan and act away from even well-meaning friends and family. again, privacy makes possible safe inactivity or rest. differently, it makes possible safe engagement in otherwise risky social activity. it makes possible willing disclosure to a very limited audience, or even all-out concealment of things from everyone else. it provides opportunities not only for non-exposure, but also, when the private space is under the agent’s control, for safely exposing oneself to, and thinking about, new ideas and inf luences, and for undergoing new experiences. through the opportunities it affords, privacy can enlarge the range of options an agent chooses between. it can also make available information about the experiences of those who have already made choices that one is considering. not that the opportunities provided by privacy have to lead to uncharacteristic behavior: they can instead lead to ref lections that confirm one in past choices. but by making available new grounds for endorsement of even characteristic choices, privacy makes characteristic choices more autonomous, at least in principle. against the background of the value of privacy, it is possible to understand the pre-eminence of the mental zone within the range of zones conventionally protected from unlimited observation and from intrusion. the mental zone is the locus for reasoning, critical ref lection, and deliberation leading to decision. it probably contains the determinants of the continuity and identity of the self and possibly the person.22 for this reason it might be considered an inner sanctum. if this zone is violated by the forced introduction of preoccupations, then the value of the privacy of the home is also diminished, since the home space acts to create a barrier 22 see for example locke (1975) and williams (1973). guelke & sorell.indd 42 27/4/17 9:02 violations of privacy and law: the case of stalking 43 leap 4 (2016) of protection for the mind in addition to an agent’s power of non-disclosure and concealment. if the mental space is anxiously preoccupied, its value as the locus for reasoning, critical ref lection, and deliberation is diminished. in its diminished condition it can become a source of vulnerability which insulation within the home may even increase. if mental vulnerability is prolonged in time, as often occurs in stalking cases, the harm caused is proportionally greater. mental vulnerability can in turn increase bodily vulnerability and the vulnerability of the home space. in other words, violations of the mental zone can rob the other privacy-sensitive zones of value, but not necessarily conversely. 4. stalking , harassment and law what is the difference between the psychological invasiveness of stalking and the psychological invasiveness of harassment? there are similarities and overlaps between harassment and stalking, but distinguishing them helps to explain why stalking is usually a more severe violation of privacy and, with that, a more severe violation of autonomy, than harassment. typically, harassment is repeated, one-sided aggressive contact. as defined in english law,23 the contact must cause distress or fear of violence to constitute an offense. it regularly occurs between a victim and more than one perpetrator, unlike typical stalking, or is directed by one or more people or by several perpetrators acting together.24 harassment may be a hate crime in which the perpetrators take out their racism or sexism on strangers who are representative of hated groups, but who are not known personally, or it may take place in the context of an employment relationship or between different residents in a neighborhood. compared to the kind of stalking that appears to be central —namely one-on-one prioracquaintance stalking with romantic associations —harassment seems to be more intended to frighten or exclude, and more open to collective rather than individual responsibility. admittedly, some harassment can be sexual and can take some of the forms that stalking does. but harassers are often keen to drive their victims away, or to remind them through frequent contact of an imbalance of power in their favor in a neighborhood or workplace. there is often in the background a threat of violence if the victim does not behave in a certain way. what is missing in many cases of harassment but present in nearly all cases of stalking is the wish on the part of the harassers to be permanently 23 http://w w w.cps.gov.uk/legal/s_to_u/stalking_and_harassment/#a02a 24 sometimes in stalking cases additional people will assist the stalker —see for example fine (1997) —but this is exceptional. guelke & sorell.indd 43 27/4/17 9:02 44 john guelke & tom sorell leap 4 (2016) present to their victims. the neighborhood harassers make themselves felt when the victim is in the neighborhood; the workplace harasser when the victim comes to work, and so on. they are not omnipresent, and often they do not want to be. by the same token, ordinary harassment can often be escaped, at least temporarily, by distracting the mind or by retreat into the home. a person who is regularly subjected to verbal abuse can sometimes escape it by restricting their hearing of the abuse, say by drowning it out with music heard through headphones. the victim of harassment can sometimes change location, or in the extreme case, their address. stalking, by contrast leaves the victim nowhere to retreat to, even if the perpetrator can be reported.25 the more inescapable the harassment, the more it is obsessively before the victim’s mind, the more it has in common in its effects with stalking. but the former intimacy of many stalkers with their victims, and their quite common lack of aggression, create bigger and better opportunities for psychological take-over than are open to common or garden harassers. perhaps the victim’s home space was once shared with the stalker, and is associated psychologically by the victim with the stalker, so that it is not quite the retreat that it might be from ordinary harassment. perhaps the stalker’s relatively comprehensive knowledge of the victim’s habits and movements, and the victim’s awareness of that comprehensive knowledge, combine to produce the impression that the stalker is always close at hand. in short the relative inescapability of the stalker’s presence, explained by former intimacy, distinguishes stalking from even quite similar forms of harassment. in framing what are now the oldest and most inf luential stalking laws, legislators have misidentified the core wrong of stalking by linking it to the threat of violence.26 this may fit many forms of harassment as we are characterizing it, but not the central forms of stalking. the first legislation to criminalize stalking was passed in california in response to a series of high profile murders committed by stalkers. the current legislation in the californian penal code 646.9 runs as follows: (a) any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking. 25 indeed, one line of criticism of stalking criminal justice is that it has offered too many opportunities for perpetrators to revictimize the stalked. see for example pathe et al. (2004). 26 see for example meloy (2002: 105): “the crime was codified to prevent acts of violence that were, in retrospect, sadly predictable”. guelke & sorell.indd 44 27/4/17 9:03 violations of privacy and law: the case of stalking 45 leap 4 (2016) the focus on physical safety in the originally drafted legislation, which required “a credible threat of death or great bodily injury” (meloy 2007: ch. 2, 28), has subsequently been weakened, but it still treats the offense as one of threatening physical safety.27 california law has remained a model for other american state jurisdictions, and up to now legislation in a number of other us states requires a credible threat to safety for an act of stalking to have taken place (royakkers 2000: 8-9). furthermore, in 1992, the national institute for justice, under the direction of the congress, issued a ‘model stalking code’: this code specifies that it is conduct causing ‘reasonable fear of bodily harm’ that counts as stalking.28 we acknowledge that stalking cases involving the threat of violence are in some way more urgent morally than cases where victims suffer only incessant but non-violent contact. does it follow that the actions of nonviolent stalkers should not be criminalized? in our view, the answer is ‘no’: it is invasion of psychological space and psychological takeover that ought to be treated as the core wrong. the threat of violence aggravates rather than constitutes the core wrong. to address the core wrong we need a new category of non-violent harm, or a widening of the scope of violence to include something like psychological violence, where psychological takeover is sufficient for psychological violence. these alternative approaches are up to a point ref lected in uk legislation and case law. to come first to legislation, the uk’s first attempt at criminalization was the 1997 protection from harassment act.29 it does not define harassment,30 instead relying on an understanding of ‘what a 27 see for example guy (1993: 1010) or zimmerman (2000: 233): “the ultimate harm that legislatures are trying to protect victims from is not the stalking conduct itself, but is instead the murder, rape or battery that the stalking conduct could ultimately produce”. both guy and zimmerman identif y dangers to constitutional liberties in the criminalization of stalking (see also purcell et al. 2004). identif ying the wrong involved with stalking conduct itself as opposed to violence helps to mitigate though not eliminate some of these worries. such worries are also mitigated by our assessment of the severity of stalking, independent of any relation to violence. from an early stage advocates of stalking laws have argued that the liberties curtailed by anti-stalking laws are outweighed by the harm considerations: “overall, the government’s interest in protecting its citizens from harm outweighs the defendant’s right to notice and extensive procedures in the short term. therefore these procedures for ex parte restraining orders should not raise constitutional concerns” (walker (1993: 301). we differ only in widening the harms relevant to this argument. 28 see for example tjaden (2009). 29 we criticize the protection from harassment act for misidentif ying the criminalizable core of the act of stalking, but for criticism of its effectiveness and implementation see petch (2002). 30 the director of public prosecutions’ latest guidance explains it “can include repeated attempts to impose unwanted communications and contact upon a victim in a manner that could be expected to cause distress or fear in any reasonable person” —see guelke & sorell.indd 45 27/4/17 9:03 46 john guelke & tom sorell leap 4 (2016) reasonable person would consider harassment’, and it further requires that the offender know that what they are doing would be so considered. ‘harassment’ refers to a much wider category of activities than stalking some of which —like journalistic persistence —might not merit criminalization at all.31 although we agree that harassment is often a criminalizable wrong, it seems a lesser wrong than stalking. the second alternative to the american approach —widening the scope of the harm of violence —can be seen in interpretations of the categories of assault and battery in uk law. ‘assault’ refers to the apprehension of violence, while battery refers to the actual inf liction or causation of harm. both assault and battery may inf lict either actual bodily harm (abh) or grievous bodily harm (gbh). actual bodily harm is an injury that is more than ‘transient’ or ‘trif ling’, while to count as grievous bodily harm an injury must be one a jury would consider ‘really serious’. courts have concluded that both abh and gbh can include entirely mental harms (herring 2009: 62-64), but these have to amount to medically recognized psychological conditions. for example, in the case of the more serious category of gbh, herring offers the example of post-traumatic stress disorder (herring 2009: 62-64). this may raise the bar too high for cases of stalking where there is no one identifiable traumatic event.32 legislation introduced in the scottish parliament in 2010 was the first in the uk to name and specify the offense of stalking. the relevant part of the legislation reads as follows: (1)a person (“a”) commits an offence, to be known as the offence of stalking, where a stalks another person (“b”). (2)for the purposes of subsection (1), a stalks b where (a) a engages in a course of conduct, (b)subsection (3) or (4) applies, and http://w w w.cps.gov.uk/legal/s_to_u/stalking_and_harassment/#a02a. one important case in shaping legal understanding was plavelil v director of public prosecutions [2014] ewhc 736 in which the defendant had brought a series of distressing accusations through the courts which he knew to be untrue — the court found that this could amount to harassment. 31 a point made by robert fine, whose case formed an important basis for the protection from harassment act (fine 1997: 158-9). 32 “the difficulties associated with establishing the existence and extent of psychological harm may prove to be an impediment to conviction. the need to establish a causal link between the defendant’s conduct and the psychological harm suffered by the victim may prove to be a particular barrier to conviction in the absence of a guilty plea. moreover, the quantification of the extent of psychological harm is insufficiently precise to enable subsequent prosecutions to be brought in cases where the stalker is undeterred by his conviction” (finch 2002b). guelke & sorell.indd 46 27/4/17 9:03 violations of privacy and law: the case of stalking 47 leap 4 (2016) (c) a’s course of conduct causes b to suffer fear or alarm. (3)this subsection applies where a engages in the course of conduct with the intention of causing b to suffer fear or alarm. (4)this subsection applies where a knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause b to suffer fear or alarm. this improves on the 1997 protection from harassment act by recognizing stalking as a distinctive offense, rather than stalking-asharassment. but it locates the wrong of stalking in causing ‘fear and alarm’, and this seems not to capture the wrong in cases of prior acquaintance stalking where no violence is threatened or feared.33 in england and wales, the 2012 protection of freedoms act was introduced to update the 1997 protection from harassment act. like the scottish legislation, this names stalking as an offense and gives a (non exhaustive) list of behaviors that could count. on the other hand, it retains some of the focus on violence of the 1997 act. offenses where the threat of violence is absent can be given prison sentences of no more than 6 months. the alternative of recognizing non-violent harms can again be seen in the new section 4(a) offense of stalking involving violence or serious alarm or distress, carrying a maximum sentence of up to 5 years in prison. while this retains something of the idea of stalking as most serious when it is a violent offense, in the spirit of the current paper it recognizes ‘serious alarm or distress’ as a kind of serious harm. below we shall consider whether serious alarm or distress ought to be built in to the definition of stalking itself. here it suffices to point out that such an approach coheres with our view of what stalking is. legislation in the netherlands and germany distinguishes the wrong of stalking from harassment. however, dutch and german legislators misidentify the core wrong involved. they frame stalking not only as an offense involving mental harms but also as one that involves manipulation or coercion of the victim. the dutch legislation describes the offense as “the willful, unlawful, systematical violation of a person’s private life with the intention of forcing someone to do, not to do, or to tolerate something or to frighten him or her”.34 relatedly, german legislation identifies stalking offenses by listing a series of stalking (and cyberstalking) behaviors 33 as in the fine and lasdun cases discussed at n16. 34 (royakkers 2000: 12). furthermore, the mental nature of the offense is further underlined in a “companion explanatory memorandum [which] makes it clear that stalking is viewed as psychical assault with malice aforethought against the physical and psychical integrity of the victim” (royakkers 2000: 12). guelke & sorell.indd 47 27/4/17 9:03 48 john guelke & tom sorell leap 4 (2016) directed against a victim “thereby seriously infringing their lifestyle”.35 we think ‘lifestyle’ misnames what is infringed. ‘private life’, the term used in the dutch legislation, is more suggestive and is open to amplification along the lines of this paper. nevertheless, both the dutch and german approaches seem to go wrong in requiring stalking to belong to a manipulative or coercive agenda whereas some stalkers may be more concerned with imposing their presence than with getting the victims to do or omit something. we argue that stalking laws ought to be reformed to ref lect better the core wrong of stalking, which is a certain deep violation of privacy. but this claim immediately meets an objection: namely, that while stalking surely ought to be and has been criminalized, there is no need for the criminalization to be geared too precisely to the core wrong that stalking involves.36 here there is a useful parallel with the case of rape. jurisprudents have disagreed over the core wrong of rape, but legislation or prosecutorial activity has not had to take sides in the controversy. imagine a case where a woman who is unconscious is penetrated without consent and never finds out what has happened. in such a case sex occurs without consent but does not register with the victim at all, and therefore is not associated with experienced pain or distress. could this count as a case of ‘harmless rape’, as some writers put it (gardner and shute 2000)? it is plausible that there is an interest in sexual integrity that is widely or universally distributed among human beings: this is clearly set back —which constitutes harm —even in the supposedly harmless rape case (see for example archard 2007). on this account, the wrong of rape consists of the fact that unconsented-to sex — even where it is not experienced —sets back an interest in sexual integrity. 35 w hosoever unlawfully stalks a person by 1. seeking his proximity, 2. trying to establish contact with him by means of telecommunications or other means of communication or through third persons, 3. abusing his personal data for the purpose of ordering goods or services for him or causing third persons to make contact with him, 4. threatening him or a person close to him with loss of life or limb, damage to health or deprivation of freedom, or 5. committing similar acts and thereby seriously infringes his lifestyle shall be liable to imprisonment not exceeding three years or a fine. (2) the penalty shall be three months to five years if the offender places the victim, a relative of or another person close to the victim in danger of death or serious injury. (3) if the offender causes the death of the victim, a relative of or another person close to the victim the penalty shall be imprisonment from one to ten years. (4) cases under subsection (1) above may only be prosecuted upon request unless the prosecuting authority considers propio motu that prosecution is required because of special public interest. http://w w w.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1935 36 victor tadros called our attention to this point. guelke & sorell.indd 48 27/4/17 9:03 violations of privacy and law: the case of stalking 49 leap 4 (2016) analogously, one can say that an interest is set back where someone goes through all the motions of obsessive following but the person followed never notices —say because they are very preoccupied themselves with something else. in such a case there might still be an interest that is set back —e.g., an interest in having mental space for forming plans free of attempts at encroachment. if making repeated efforts to colonize this space is the core wrong of stalking, however, the law may have to confine itself in practice to cases where the efforts to colonize do take effect. this would correspond to the fact that unnoticed rape is bound to lie below the prosecutorial radar.37 our view suggests that the actus reus of stalking consists in persistent attempts of unwanted following or contact, where this causes distress that we categorize as psychological take-over. this stands in contradiction to stalking legislation that specifies threats or fear of violence. on our account the mens rea of stalking could be characterized as seeking persistent contact where a reasonable person would know it was likely to cause distress. although the core wrong involved in stalking is, according to us, a privacy violation, our account of privacy connects the value of privacy to autonomy. stalking characteristically produces impaired autonomy by means of psychological take-over. but our account is consistent with saying that the harm that justifies the criminalization of stalking is the impaired autonomy it produces, rather than core wrong of encroaching on a fundamental zone of privacy. stalking is a serious crime because it involves a debilitating invasion of 37 furthermore, one can imagine cases where it would be difficult to determine whether stalking had taken place without knowing how the contact had affected the victim. contact —even persistent contact —isn’t inevitably psychologically harmful, or even distressing. some will be able to shrug off persistent contact and some won’t. the intention of an individual engaged in persistent pursuit provides another reason to stop short of pressing the analog y with rape too closely. pursuing contact with an individual isn’t inherently wrong —it’s a basic part of everyday social interaction. the boundary between legitimate pursuit of contact and stalking will depend (among other things) on how the victim responds. psychological harm may set the bar too high, though distress, broadly enough conceived, seems more reasonable. unaware targets of stalking have been discussed specifically in relation to efforts to capture cyberstalking, with critics of existing legislation pointing out that important categories of cyberstalking behavior —interfering with the victim’s computer, and carrying out ‘surveillance’ —are not covered by the law because these behaviors often are carried out without the intention that the target will be aware of them —see for example macewan (2012) for this criticism, though he goes on to note: “there is other law available in such circumstances. w here, for example, the stalker hacks into the victim’s email this would be an offence under computer misuse act 1990 (cma) s.1.108 it would also be an illegal interception of a message under regulation of investigatory powers act 2000 (ripa) s.1. crucially though, neither the cma nor ripa enables the imposition of restraining orders”. guelke & sorell.indd 49 27/4/17 9:03 50 john guelke & tom sorell leap 4 (2016) private space, an invasion that goes deep into private space because of the pre-eminence of the mind —as seat of deliberation and choice —among the zones of privacy.38 debilitation through occupation is the more characteristic attack on autonomy carried out by stalkers. this form of wrongdoing seems integral to stalking, regardless of any external, coercive force —personal, physical violence —that might also be inf licted. it is natural to regard the invasion as a privacy violation in the deep sense that it penetrates the space of emotion, attention, choice, deliberation, confidence, and self-image tied to a minimal form of self-respect. stalking is more than a violation of the precincts of the home, and the threat posed to it by stalking is crucial to understanding what is distinctively wrong with stalking. 5. gender and power stalking is deeply personal and, according to us, what is wrong with it cannot satisfyingly be understood merely as the assertion of power against the relatively powerless. very often stalking seems to arise from a will to connect rather than, or in addition to, a will to dominate,39 and this will seems to belong to a person rather than a power structure —e.g., a patriarchal power structure —personified. though stalking wears down and often permanently disables its victims psychologically, it is not always the behavior of stereotypically powerful people and institutions, and it is not always conducted with the goal of damaging or attacking the victim. on the contrary, stalkers can be isolated social incompetents who want to establish a romantic relationship with someone, and go about it in a particularly clumsy or deranged way. even forms of stalking that grow out of highly controlling domestic abuse can be described by the stalkers themselves as a means of regaining a life of affection with a family or a partner. this description detaches stalking from broader power dynamics which may also be at work. according to us, stalking does not only have a politics, concerned with the imbalances of power between men and women discussed in feminist writing, but also an ethics, connected with the value of having a personal space and personal plans outside the control 38 for a recent study of some of the typical psychological harms suffered by women see diette et al. (2013). 39 see for example spitzberg and cupach (2001: 350): “the stalker is engaged in a campaign of messages to persuade an object of affection to cast a vote in the pursuer’s direction. even clinical approaches have defined stalking as a process of communication (e.g. mullen et al., 2000). the stalk becomes a chess game of move and countermove, all directed toward establishing or re-establishing a relationship to suit the stalker’s conception, even if at times that relationship is one of enemyship rather than friendship or romance”. guelke & sorell.indd 50 27/4/17 9:03 violations of privacy and law: the case of stalking 51 leap 4 (2016) or access of others. our account is not in the least a denial of patriarchy or of its relevance to stalking. it is the suggestion that there is something further to be said. in this section we consider two possible feminist objections to our approach. the first objection arises from a critique of the value of privacy. there is a strong tradition of feminist skepticism about privacy (see for example decew 1997: ch 5). for example, feminist skeptics point out that the commonly recognized privacy of the home has often served to obscure violence and other abusive treatment of women in domestic settings. take this classic statement from catharine mackinnon: “it is probably not coincidence that the very things feminism regards as central to the subjection of women —the very place, the body; the very relations, heterosexual; the very activities, intercourse and reproduction; and the very feelings, intimate —form the core of what is covered by privacy doctrine. from this perspective, the legal concept of privacy can and has shielded the place of battery, marital rape and women’s exploited labor; has preserved the central institutions whereby women are deprived of identity, autonomy, control and self-definition; and has protected the primary activity through which male supremacy is expressed and enforced” (mackinnon 1987: 101).40 but the moral defensibility of norms of privacy is at least as much debated within feminist thought as it is between feminists and others. we think our approach coheres well with the approaches of (primarily liberal) feminists, such as anita allen (1988 and 2011), annabelle lever (2011), and judith decew (1997 and 2015), who take norms of privacy to be deeply important to gender equality. the many reasons a feminist might value privacy would surely include protection against unwanted contact from men —and not only protection from violence. privacy normatively excludes unwanted presence. we think our account explains why this is so. furthermore, our account of privacy allows that norms of privacy are criticizable. we don’t defend all norms of privacy —only those that on balance are justifiable. the feminist critique has its greatest force against a set of safeguards different from the ones we wish to prioritize, that is, those protecting a set of practices —within marriage, child-rearing, and the maintenance of a household. we agree with annabelle lever when she says that 40 for another classic statement of this argument see mackinnon (1983). guelke & sorell.indd 51 27/4/17 9:03 52 john guelke & tom sorell leap 4 (2016) “…while mackinnon is right that legal protections of privacy have often had these effects, it is less clear that this makes privacy inherently, and irremediably, sexist, as she implies. on the contrary, many feminists have been moved by virginia woolf’s claim, in a room of one’s own, that women’s lack of privacy has been a major obstacle to their development and self-expression and a potent sign of their second-class status. so, one could think that mackinnon is largely right about way that established philosophical and legal views of privacy have disadvantaged women compared to men —in part, by denying them privacy within their marital and sexual relationships —without supposing that this is unalterable or an escapable feature of claims to privacy” (lever 2012: 22-3). the zones recognized by our discussion of privacy are both more abstract and less connected with a traditional public/private distinction than those of marriage, family, and household, which we think correspond closer to the target of the feminist anti-privacy critique. the body, the home, and the mind, as we have characterized them, are not essentially seats of patriarchal power. indeed, decew (2015) distinguishes an alternative feminist position that redraws rather than collapses the public/ private distinction: “on this alternative interpretation, rejecting the public/private divide by collapsing the private side onto the public is neither the feminist point nor an implication of the feminist position…the boundaries between public and private need to be redrawn. [adherents of this alternative] would not jettison privacy but recognize that what happens in the family is not beyond scrutiny. an alternative understanding of the feminist critique of privacy, therefore, is that feminists merely want to reject the public/private distinction as it has been understood in the past, from aristotle on. these feminists are emphasizing that the state must stop ignoring the unbelievable abuses that have been protected in the name of privacy; this is, they believe, a position that is not captured by the public/private position as it has been known and used in prefeminist times and theories” (decew 2015: 92-93). there is a second potential feminist objection to our approach which does not lean on a denial of the value of privacy. feminists might object to the attempt to detach the core wrong of stalking from violence, as it obscures the fact that stalking is usually a crime carried out by men against guelke & sorell.indd 52 27/4/17 9:03 violations of privacy and law: the case of stalking 53 leap 4 (2016) women, and that there is something violent about patriarchal power. we reply that distinguishing the different wrongs involved in stalking —partly by violations of different zones of privacy —produces a clearer and more accurate picture of what stalking is. it also clarifies how power dynamics —including those rooted in gender —play a role. it is not to deny that some of the power dynamics are strongly gendered. there is indeed clear consensus that most perpetrators of stalking are male and most victims female, though no consensus on what best explains the disparity (lyndon et al 2012; davis et al. 2012; langhinrichsen-rohling 2012). in the most violent kinds of stalking behavior (including those involving physical threats) it is overwhelmingly men who are the perpetrators and women who are the victims. one explanation offered is the background power dynamics enabling men and disadvantaging women in day-to-day life. the argument is that this facilitates men’s stalking behavior and simultaneously makes such behavior less likely on the part of women: “when one takes account of the differentials in resources typically available to men, such as greater physical strength, socially sanctioned power, and control of wealth, it becomes clearer why women will more often be victims of coercive control while in relationships, and persistent pursuit when attempting to leave abusive relationships” (davis et al. 2012: 337). it is probably correct to say that entrenched male power facilitates some abusive behaviors connected with stalking, however maladroit and socially ineffective many male stalkers may be. however, if stalking does not necessarily involve violence, the gender difference between stalkers and stalked may be less marked. davis et al. (2012) restrict stalking to “the willful, malicious, and repeated following and harassing of another person that threatens his or her safety” (davis et al. 2012: 329) —in other words defining stalking as involving some possibility of violence. ‘persistent pursuit’ is used to refer to “‘ongoing and unwanted pursuit of romantic relationships between individuals [who are either] not currently involved with each other’ or who have broken up with each other” (davis et al. 2012: 329). we take a wider conception of stalking that would include persistent pursuit, denying the claim that behavior has to threaten safety, or even cause fear to qualify. davis et al. (2012) conclude that if one focuses on the wider set of stalking behaviors, the profiles of perpetrators and victims are less distinct guelke & sorell.indd 53 27/4/17 9:03 54 john guelke & tom sorell leap 4 (2016) in gender terms. furthermore, they argue that studies may fail to include methods of pursuit more likely to be carried out by women, suggesting that the picture may be more equal still. women, they maintain, are as likely as men to engage in the least serious forms of persistent pursuit such as “following, showing up uninvited, and persistent telephoning, texting, and emailing: the difference is that when women persistently pursue, they don’t have the backing of a broad, well-established cultural system that supports the cultural norm of a woman persistently and aggressively seeking a relationship” (davis et al. 2012: 332). we have argued that a description of the core wrong of stalking does not need to refer to power dynamics. however, the core wrong of stalking can of course be exacerbated by power differentials to which gender may well be pertinent. laws criminalize behaviors, not people. stalking cannot be regarded as a lesser offense just because it is carried out by a woman rather than a man. however, our view allows that following behavior could be much more threatening when carried out by a man against a woman. the law can widen its narrow focus on violence while distinguishing pursuit that is merely unwanted or annoying from pursuit that is debilitating. 6. state surveillance the ethics of respecting and protecting privacy is most often discussed in relation to state surveillance, not stalking. we previously claimed that the privacy violation of stalking could be worse than violations of the human right to privacy associated with state surveillance. we shall now substantiate this claim. as articulated by the international covenant on civil and political rights (iccpr), article 17,41 and the associated human rights committee general comment 16,42 the human right to privacy is a protection against surveillance of one’s home, monitoring of correspondence, and attacks on one’s reputation. civil and political rights anticipate the whole range or arbitrary and excessive uses of power by states against their own citizens, especially politically active citizens. the right to privacy fits into that scheme: it affords a protected setting not only for conjugal and family life, but for thought and discussion, including thought and discussion that is critical of government and other powerful organizations. the home can also be a site for meeting a wide group of friends who may have, among 41 http://w w w.ohchr.org/en/professionalinterest/pages/ccpr.aspx 42 http://w w w1.umn.edu/humanrts/gencomm/hrcom16.htm guelke & sorell.indd 54 27/4/17 9:03 violations of privacy and law: the case of stalking 55 leap 4 (2016) other things in common, a shared political or religious outlook. the home is thus a key site for the exercise of freedom of thought and association. human rights theory and practice focus primarily on abuses of state power or failures of states to channel resources where there is most need. they tend not to take account of disputes between individuals or smallscale abuses of power where they fall short of assault. it is true that article 17 recognizes violations of privacy by natural persons; still, nosey neighbors, voyeurs, or spouses concerned with infidelity probably lie well outside its main ambit. its focus is on arbitrary official intrusion and disruption, disproportionate police surveillance, disproportionate data retention, and defamation. encroachments on parental rights to determine the education and religion of their children and even the size of their families are also included. in all of these cases it is against the state that privacy needs defending. since a large proportion of the literature on the ethics of privacy and the wrongness of intrusion has been focused on state surveillance, it is natural to question our claim that stalking attacks privacy and autonomy more directly than paradigm cases of state surveillance. we readily concede that, in extreme cases, state surveillance can threaten the psychological preconditions of autonomy. sufficiently extreme cases —we outline some below —can be conceived, and some real world cases can be pointed to as well. nevertheless, there are good reasons to consider such cases unrepresentative of state surveillance in practice. in considering what the state does, it is routine to distinguish between mass and targeted surveillance. examples of mass surveillance include cctv and the internet monitoring system revealed in the guardian in 2013 and commonly referred to as prism. mass systems attempt to capture information on anyone within a particular area, or carrying out a particular activity. the actual scrutiny involved in mass surveillance tends to be slight, however, because attention must be divided between many different targets. the limits to the degree of individual scrutiny in mass surveillance also restrict how intrusive one can consider the surveillance in question.43 targeted surveillance is a different matter. by definition it involves intense scrutiny of individuals. again, targeted surveillance may involve 43 intrusiveness is of course also a function of the kind of information involved — most would consider the nsa internet monitoring system more intrusive than cctv in a public place, even though the likelihood that any particular person’s communications are monitored is low. from our point of view it is not the intrusiveness but the undiscriminatingness and the disproportionate scale of the surveillance that is objectionable. guelke & sorell.indd 55 27/4/17 9:03 56 john guelke & tom sorell leap 4 (2016) penetration of spaces like the target’s home or car, which are far more protected by law from surveillance than public parks or squares. furthermore, targeted surveillance involves concentrated attention and scrutiny from a number of people. the targeted monitoring of an individual’s movements throughout public space, by the deployment of a surveillance team, say, will be much more intrusive than a cctv viewer who notices the same individual as one of many people in the area. surveillance techniques can and have been used for repression, for example by the stasi in east germany after 1960.44 some of the techniques of the stasi are similar to techniques used in contemporary serious crime investigations in liberal jurisdictions. they involve placement of bugs or human intelligence to gain access to the target in private places or tracking the movement and behavior of the target throughout their daily lives. the reach of the stasi was enormous, with intelligence files on close to a third of the population by the time the berlin wall came down. these files were compiled with the willing help of many thousands of informers engaging in surveillance of their neighbors and acquaintances. stasi targets were not restricted to credible suspects of serious crime; they included anybody who disagreed with the regime, or who was even merely suspected of doing so. the system of surveillance was also sometimes used as a tool to settle private scores that had nothing to do with politics. the stasi was interested not simply in gathering intelligence but also in intimidating dissidents, smearing their character, and organizing ‘professional failures’. invasions of privacy, then, were used directly for repression, by making it clear to the target that they were being watched, or that they were targets of smears or coercion. for example, the activist with ‘women for peace’, ulrike poppe, was not only watched often and subjected to ongoing state scrutiny and detention: she was arrested 14 times between 1974 and 1989; and she was subjected to obvious surveillance, surveillance she could not help but notice, such as men following her as she walked down the street, driving six feet behind her.45 in a case like this, it might be apt to talk about stasi agents successfully achieving psychological takeover of the target; dominating their thoughts to the point that a normal autonomous life is impossible. 44 for histories of the stasi state see for example childs and popplewell (1996) and koehler (2008). 45 see for example willis (2013). furthermore, after reunification, when it became possible to read the file the stasi were maintaining on her, she was to discover not only further surveillance she was not aware of (such as the camera installed across the road to record everyone coming to or from her home) but also the existence of plans to ‘destroy’ her by discrediting her reputation —http://w w w.dw.dgermans-remember-20-years-access-to-stasi-archives/a-15640053 guelke & sorell.indd 56 27/4/17 9:03 violations of privacy and law: the case of stalking 57 leap 4 (2016) stasi tactics provide the closest analogy between the intrusiveness of state surveillance and stalking. but ref lection on this analogy exposes its limitations. first, the extremism of stasi tactics is untypical of state surveillance in general. most surveillance —even in illiberal states —is impersonal and much less pervasive, so that a person has something of a life behind closed doors and can have a full and unpreoccupied mind quite a lot of the time. stasi surveillance is even untypical of surveillance in authoritarian regimes, as much successful repression can be achieved by the more modest means of simply disincentivizing political activity — raising the costs so high that very few will engage in it. this ‘chilling effect’ is often mentioned among the politically important costs of state surveillance policy, often in the course of a more general argument to the effect that modern surveillance unacceptably erodes the private sphere. however, ‘chill’, as distinct from psychological takeover, cannot erode the private sphere completely. for the disincentivization of political activity to be successful there must be a relatively roomy private life that the discouraged activist can retreat into. this means that it can be counterproductive for surveillance in the most repressive states to amount to autonomy-undermining psychological takeover. this can do more than discourage political activity: it can take away sanity when nothing so extreme is required for rendering people apolitical. stalking does more than disable activist inclinations; it undercuts the conditions for even the apolitical, personal autonomy that activist and non-activist lives alike presuppose. so while there ought to be a greater focus on violation of privacy in analyses of stalking, privacy is over-emphasized in much public debate about state surveillance. this is not to dismiss moral objections to the rise in surveillance of the last 15 years, largely a consequence of the september the 11th attacks. to judge much contemporary surveillance to be less invasive than stalking is not to endorse it. much stalking f lows from abusive relationships in which men are the abusers or from a refusal, overwhelmingly on the part of males, to accept rejected romantic overtures. it could be that a will to dominate that pervades many unreformed malefemale interactions partly explains stalking, and is irreducibly political.46 but this would not fully explain the personal harm involved in stalking, nor hence why stalking should be criminalized. the abusive husband does not just represent his gender and arguably gender-based will to dominate through stalking. nor does his target merely represent ‘womankind’. he acts in his own right —as a person —and his stalking is a serious crime committed against a unique individual. 46 we thank anonymous referee no. 2 for this point. guelke & sorell.indd 57 27/4/17 9:03 58 john guelke & tom sorell leap 4 (2016) bibliography adam, a., 2002: “cyberstalking and internet pornography: gender and the gaze”, ethics and information technology 4: 133-42. allen, a., 2008: “dredging up the past: lifelogging, memory and surveillance”, the university of chicago law review 75: 47-74. —2014: “an ethical duty to protect one’s own informational privacy?” the alabama law review 64: 845-866. —1988: uneasy access, new jersey: rowman & littlefield. —2011. unpopular privacy, oxford: oxford university press. american psychiatric association. diagnostic and statistical manual of mental disorders, fifth edition. 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99-122. scanlon, t., 1975: “thomson on privacy”, philosophy and public affairs 4: 315-22. guelke & sorell.indd 59 27/4/17 9:03 60 john guelke & tom sorell leap 4 (2016) spitzberg, b. h. and w. r. cupach, 2003: “what mad pursuit? obsessive relational intrusion and stalking related phenomena”, aggression and violent behavior 8: 345-75. tavani, h. t., 2007: “philosophical theories of privacy”, metaphilosophy. 38: 1-22. tavani, h. t. and f. s. grodzinsky, 2002: “cyberstalking, personal privacy and moral responsibility”, ethics and information technology 4: 123-32. thomson, j. j., 1975: “the right to privacy”, philosophy and public affairs 4: 295314. walker, j. m., 1993: “anti-stalking legislation: does it protect the victim without violating the rights of the accused”, denver university law review 71: 273-302. weller, m., l. hope and l. sheridan., 2012: “police and public perceptions of stalking: the role of prior victim-offender relationship”, the journal of interpersonal violence 28: 320-339. williams, b., 1973: “the self and the future” in problems of the self, cambridge: cambridge university press. willis, j., 2013: daily life behind the iron curtain, santa barbara, ca: abc-clio. zimmerman, n., 2000: “attempted stalking: an-attempt-to-almost-attempt-toact”, northern illinois university law review 20: 219-250. guelke & sorell.indd 60 27/4/17 9:03 leap 5 (2017) domination and the (instrumental) case for free time* de si r e e l i m the mccoy center for ethics, stanford university abstract this paper examines the case for fair shares of free time from a civic, or neo-republican perspective. i claim that, unlike liberal egalitarians like julie rose, who can make a straightforward case for free time, republicans’ theoretical commitments make it more appropriate for them to throw their weight behind a portion of time specially allotted for political activity. however, as i will show, republicans have strong instrumental reasons to endorse fair shares of free time for all citizens. first, focusing on the idea of non-domination, i outline the typical preoccupations of republicanism that i believe have direct implications for how they ought to treat the topic of free time. next, focusing on the case of domination in the workplace, i claim that fending off the threat of domination requires a substantial amount of time. chief ly, workers need time to effectively participate in processes of justification and contestation, in order to uphold sturdy checking mechanisms that can protect them against domination. as a consequence, setting aside a window of time specially devoted to political activities, rather than free time in itself, is more consistent with the republican project. nevertheless, in the final section, i conclude that “free time” would be instrumentally necessary on the republican picture. fair shares of free time are a preferable means to achieving conditions of nondomination than compulsory time for political activity, for practical and principled reasons. keywords: republicanism; domination; freedom; workplace democracy; free time * i am indebted to my colleagues at the mccoy center for ethics in society, tom parr, philip pettit, alex gourevitch, an anonymous reviewer, and the leap editors for their valuable comments on an earlier draft of this paper. i also thank grant macdonald for helpful information on unionization efforts amongst student workers. d oi : 10. 310 0 9/l e a p. 2017.v 5.07 domination and the (instrumental) case for free time 75 leap 5 (2017) 1. introduction julie rose has argued persuasively that liberal egalitarians ought to embrace free time as a distinct object of egalitarian concern. specifically, she contends that free time, defined here as time that can be devoted to one’s chosen ends at one’s discretion, as opposed to time constrained by necessary activities, is a resource that citizens are entitled to a fair share of (rose 2016: 39).1 this is because free time is a resource that is “generally required for the pursuit of one’s chosen ends, whatever those may be”, as well as “generally required to exercise one’s formal liberties and opportunities” (rose 2016: 67). rose’s book is a crucial intervention into the neglect of free time despite its political and philosophical significance. my contribution to the symposium further advances this goal by examining the case for a fair share of free time from a civic, or neo-republican perspective.2 i claim that, unlike liberal egalitarians like rose, who can make a straightforward case for free time, republicans’ theoretical commitments make it more appropriate for them to throw their weight behind a portion of time specially allotted for political activity. however, as i will show, republicans have strong instrumental reasons to endorse fair shares of free time for all citizens. in section 2, focusing on the idea of non-domination, i outline the typical preoccupations of republicanism that i believe have direct implications for how they ought to treat the topic of free time. in section 3, focusing on the case of domination in the workplace, i claim that fending off the threat of domination requires a substantial amount of time. chiefly, workers need time to effectively participate in processes of justification and contestation, in order to uphold sturdy checking mechanisms that can protect them against domination. as a consequence, setting aside a window of time specially devoted to political activities, rather than free time in itself, is more consistent with the republican project. nevertheless, in the final section, i conclude that “free time” would be instrumentally necessary on the republican picture. fair 1 we should leave open the possibility that at least some non-citizens might be entitled to time-related rights, especially those who participate in the host country’s workforce. however, this discussion, as rose’s does, will focus only on citizens. 2 here, i don’t claim that republicanism is the theory of justice we ought to prefer. rather, i am interested in seeing how much of rose’s argument for fair shares of free time can be preserved in a different political framework, as well as calling attention to the temporal dimension within republicanism. neither do i claim that the central argument i make for free time is the only republican path that can be taken to this destination. for example, the labor republicans discussed by alex gourevitch in from slavery to the cooperative commonwealth (cambridge: cambridge university press, 2014) have contended that each person needed adequate time for political engagement and personal development. my intention is simply to highlight one of the core preoccupations of contemporary civic/neo-republicans and show how this might lead to a distinctive instrumental argument for fair shares of free time. 76 desiree lim leap 5 (2017) shares of free time are a preferable means to achieving conditions of nondomination than compulsory time for political activity, for practical and principled reasons. 2. civic/neo-republicanism and non-domination 2.1 the definition of republicanism characteristically, republicans believe that the existence of domination is what makes the exercise of power unjust. i will avoid commenting on disagreements between various strains of civic republicanism, instead only seeking to outline what i take to be the fundamental tenets of a republican theory. in line with philip pettit’s inf luential account (1997), there are three basic aspects to any dominating relationship. someone has dominating power over another to the degree that they have the capacity to interfere, on an arbitrary basis, in particular choices that the other is able to exercise (pettit 1997: 52-4). interference may encompass a wide range of possible behaviors, including coercion of their physical body or will, as well as manipulation, which takes the form of agendafixing, deceptively shaping people’s beliefs or desires, or rigging the consequences of their actions (pettit 1997: 52). it worsens agents’ situations by altering their range of options, the predicted payoffs assigned to those options, or by establishing control over which outcomes will result from which options (pettit 1997: 53). importantly, it is not necessary that the dominating agent actually interferes with the dominated party; in fact, the person who enjoys that power need not even be inclined towards interference (ibid). the emphasis, instead, is on their effective capacity to interfere, which leads the power-victim to live at the mercy of the power-bearer (lovett 2013: 98). in addition, exit costs on the part of the power-victim, which frank lovett terms “dependency”, play a role in determining a dominating relationship’s level of intensity. as he puts it, “the greater the dependency of subject persons or groups, the more severe their domination will be, other things being equal” (lovett 2013: 50). suppose that leaving a dominating social relationship would worsen someone’s prospects, and that undertaking the move itself would impose further costs and risks (ibid). the higher the exit costs for the dominated party, the more leeway dominating agents have in treating her poorly, as they can do so with the knowledge that she is not likely to leave the relationship. for my present purposes, i want to focus more closely on what it means for interference to be arbitrary. i take interference to be arbitrary when it domination and the (instrumental) case for free time 77 leap 5 (2017) is only subject to the discretion or goodwill of the power-holder, and is not forced to track the interests of those who are interfered with (pettit 1997: 55).3 of course, power-holders may freely cater to the interests of those they interfere with, like in the case of a benevolent dictator who cares deeply about the well-being of her subjects. nevertheless, the benevolent dictator still dominates insofar as her interference is unchecked, unconstrained, or unaccountable (ibid). in what ways, then, can power-holders be “forced” to track the interests of their powersubjects? checking mechanisms – institutional arrangements that place limits on how power-holders may use their power – may perform these three functions: a. justification: ensuring that power is justified to its subjects, whether by appeal to norms of public reason, and/or through their participation in democratic processes;4 b. contestation: ensuring that subjects of the power are able to protest if their interests fail to be met; c. retribution: ensuring that power-holders are appropriately punished if they do not track power-subjects’ interests. (benton 2010: 408). as the next section will reveal, the need for robust checking mechanisms, especially those pertaining to justification and contestation, is of special importance to the relationship between republicanism and time. to sum up, for republicans, society must aim for a distribution of rights, goods, and resources that secure each individual’s status as safe from domination. one necessary condition for non-domination, which i continue to focus on in the remainder of this article, is the existence of sturdy checking mechanisms that force power-wielding agents to track the interests of their power-subjects. 3 i leave open how “interests” ought to be determined. 4 for benton, justification refers to governments having to give citizens reasons for their decisions, as well as being forced to respond to citizens’ interests through the democratic process. however, one concern is that she provides an incomplete account of the role of democratic procedures. other than forcing reason-giving and responsiveness from those in power (termed the “output-based view” by bellamy (2008)), democracy also encompasses participation that render decisions non-arbitrary (termed the “input-based view”). on the “input-based view”, it is not the content of the decisions made that renders power non-arbitrary, but my having equal status in public decision-making processes (bellamy 2008: 164). w hile drawing on her categories, i depart from benton by interpreting justification in the broad sense, taking it to include democratic justification through coauthorship. on my view, democracy helps justif y state power through compelling it to enact responsive policies, and the fact i am able to play a co-authoring role through participation. 78 desiree lim leap 5 (2017) 3. time and non-domination i will now establish the conceptual link between time and non-domination. republicans, i believe, can make a distinct argument for free time that is nevertheless complementary to the liberal egalitarian one. to brief ly visit the latter, i take it that liberal egalitarianism’s two central commitments are to individual freedom of choice, as well as some degree of equality in the distribution of society’s benefits. on this account, what will make the exercise of political power unjust is if citizens are unable to meaningfully exercise their individual freedom of choice, or because the distribution of society’s benefits is unequal to the extent that some citizens are significantly less able to utilize those liberties and opportunities. consequently, it is not difficult to see why a fair distribution of free time ought to be championed by the liberal egalitarian. if the distribution of free time is inegalitarian, with some people enjoying a much larger amount of time that can be devoted to their chosen ends at their discretion than others, some citizens would be far less able, or even unable, to meaningfully pursue their projects and commitments. however, looking to non-domination reveals a different path from which we might reach a similar destination. i make the following argument in two stages. in the first stage, i argue that there is an important temporal dimension to republicanism. as emphasized in the previous section, republicans greatly value the presence of checking mechanisms that ensure that power-wielders are forced to track the relevant interests of power-subjects. given that successfully establishing checking mechanisms and keeping them in place is often very time-consuming, it is important that power-subjects have enough time to do so. to bring out the significance of time for republicans, i concentrate on the concrete case of nondomination in the workplace. chief ly, workers need time to establish or participate in crucial processes of justification and contestation that protect them against workplace domination. i expand on these points below. the second stage, which argues that free time – and not just time in itself – may be instrumentally necessary for us to have sufficient time for political activity, will be fully developed in section 4. before i proceed, a note about how we ought to envision the relationship between my argument and the liberal egalitarian one is in order. as i have hinted, i view the republican case for free time as a friendly companion to the liberal egalitarian one. it does not challenge the premises of the liberal egalitarian argument, but simply brings out another important political function of free time. assuming that relations of domination are a quintessential type of social inequality, where the dominated suffer an domination and the (instrumental) case for free time 79 leap 5 (2017) inferior public status, it helps to bridge a key connection between free time and social equality – a connection that rose’s account does not fully investigate. combined, the two arguments help us build a strengthened case for fair shares of free time. 3.1 domination in the workplace the extent of domination that can be found in present-day workplaces should not be underestimated. elizabeth anderson has made an explicit comparison between workplaces and authoritarian governments. for her, the workplace is akin to a private government where everyone must obey an assigned superior who is “unaccountable to those they order around”, as they are “neither elected nor removable by their inferiors”, and who issues orders that “may be arbitrary and can change at any time, without prior notice or opportunity to appeal” (anderson 2015: 94). similarly, as alex gourevitch puts it, “…the typical workplace is a site of domination not self-government, of arbitrary power not democratic control. workers are subject to a panoply of rules, directives, orders, commands, whims, caprices, and impositions over which they have no legal control and that they have limited capacity to resist” (gourevitch 2016: 17-8). while workplace domination may come in diverse guises, i will describe two forms that gourevitch has helpfully identified: personal and structural domination. in line with the definition sketched out in the previous section, these forms of domination do not hinge on employers possessing malicious intentions, or even their actual interference with workers. it is enough for them to possess the capacity to do so, in virtue of current systems of employment that are routinely taken for granted. as a starting point, workers suffer personal domination when they are subject to the arbitrary authority of bosses whom they are conventionally expected to obey (gourevitch 2015: 316). employers have frequently been judged to be within their rights when subjecting workers to unreasonably harsh working conditions, or f lat-out demeaning and humiliating treatment. these include being forced to work in extreme heat or physically hazardous but not illegal conditions, being forced to wear diapers rather than go to the bathroom, being refused lunch breaks, or being forced to take random drug tests (ibid). importantly, these exercises of power often go above and beyond what has been explicitly spelt out in contracts, and thus what has been assented to by the employee at the outset. this is because employers have the authority to specify underdetermined terms in work contracts, which are necessarily vague or incomplete (gourevitch 80 desiree lim leap 5 (2017) 2013: 607). for instance, despite the potential for wide-ranging disputes over conditions of employment, including questions about whether the political views or social media postings of employees are a reasonable basis for being fired, these decisions are largely controlled by employers (ibid). as this example reveals, vagueness or incompleteness paves the way for employers’ control to creep into employees’ off-hour lives. as anderson observes, most believe that they cannot be fired for their off-hours facebook postings, or for backing a political candidate their boss opposes, but only half of american workers enjoy even partial protection of their off-duty speech from employer retaliation (anderson 2015: 95-6). in these ways, personal domination by employers goes beyond poor treatment during work hours: it involves the capacity to exercise insidious power even over intimate aspects of workers’ lives. on top of personal domination, workers also experience structural domination, which rises out of how they are forced to sell their labor-power in the absence of reasonable alternatives to wage labor (gourevitch 2015: 313). many societies are structured such that some group of owners privately controls all of society’s productive assets, and non-owners are forced by the legally protected unequal distribution of productive assets to sell their labor to some employer or other (gourevitch 2013: 602). because labor is forced, under the current structure of property-ownership, employers have the capacity to set arbitrary terms and conditions for job positions, with the knowledge that they will continue to be filled. many end up working “longer hours, at lower pay, under worse conditions than they would otherwise accept” not because they want to, but because they must (gourevitch 2015: 314). echoing lovett’s contention that dependency makes domination more intense, structural domination heightens personal domination because it makes workers dependent on employers for a living wage. in the absence of reasonable alternatives to selling one’s labor, there are onerous exit costs to leaving the job market. this dependency may be exploited by employers who force employees to work under harsh or punishing conditions precisely because they know the workers do not have adequate exit options. furthermore, as gourevitch notes, even if employers do not intentionally seek to take advantage of workers, exploitation is implicit in their economic decisions about firing, hiring, wages, and hours that presume a steady supply of economicallydependent labor. again, employers can fire a worker who challenges their authority, knowing they can most likely be easily replaced. in short, the exiting imposes asymmetrical costs on workers and employers. this has the effect of forcing workers to put up with bad jobs, while permitting employers to get away with exploitation and ill-treatment. domination and the (instrumental) case for free time 81 leap 5 (2017) to be clear, the argument is not that all workers are equally dominated. of course, there is a wide spectrum of domination across different lines of work, with some privileged classes of employees enjoying relatively low levels of personal and structural domination (compare a factory worker to a tenured university professor with multiple job offers). the extent of workplace domination that we experience may also be inf luenced by our individual career choices: if, for example, i chose to be a professional football player whose employers are considerably more dominating than if i had chosen the alternative of being a tenured university professor.5 however, because of the underlying structure of property-ownership, all workers are dominated to some extent, and the privileged class of workers who experience trivial levels of domination is relatively narrow. furthermore, i submit that there is a comparably narrow class of socially privileged people who have voluntarily chosen a more dominating job over a less dominating one, often because of other valuable payoffs (like fame and fortune in the football player case). more often than not, workers do not have access to less dominating alternatives that would not also be accompanied by significant exit costs, and this is the group that i take theorists like anderson and gourevitch to be interested in. finally, it is worth noting that my voluntarily choosing a more dominating job over a less dominating one does not necessarily neutralize the wrong of domination. to see this point, suppose that i voluntarily choose to marry adam over ben with the knowledge that i am more likely to be dominated in my relationship with adam, who has a rather controlling personality. yet it would be misguided to say that my freely choosing adam over ben makes adam’s dominating behavior over me morally acceptable. 3.2 domination and checking mechanisms how ought we respond to these instances of personal and structural domination? here, i want to focus on how checking mechanisms can help to reduce employers’ capacity for arbitrary interference. in 2.1, i introduced three types of checking mechanisms that force power-holders to track the interests of power-subjects: those that enable justification, contestation, and retribution. i now consider how these checking mechanisms bear on workplace domination. specifically, i will explore how processes of contestation and justification that directly involve workers can be 5 i thank tom parr for this example, and for pressing me on these points. 82 desiree lim leap 5 (2017) implemented to keep employers’ arbitrary power in check.6 first, workplace decisions should be made robustly contestable by workers. in order to be emancipated from the relationships of domination they experience in the workplace, workers ought to organize themselves into political organizations and industrial unions, thus transforming the social and economic order (gourevitch 2016: 25).7 this is because the formation of such organizations and unions would allow workers to robustly contest situations where their interests fail to be met through strengthening their collective bargaining power, thus empowering them to challenge arbitrarily-made decisions. if employees found themselves faced with unreasonable or humiliating demands from the employer, they could dispute these with the union’s backing. being a trade union or staff association member has been shown to increase the odds of a problem at work being resolved satisfactorily (compa 2004: 5). in addition, while being part of a union in itself does not give workers a direct say in determining the terms and conditions of employment, unionized workers typically enjoy significantly more favorable working conditions than non-unionized workers.8 workplace decisions should also be justified to workers. notably, it has been suggested that a right to justification regarding the conditions of one’s labor should be understood as the extension of the moral right to selfdetermination; “we have a right to demand and be given good reasons when deliberating over matters that affect us in important ways” (borman 2017: 82). one way the right to justification can be satisfied is for employees to participate in a system of co-determination, where they share control of an economic enterprise with providers of capital, such as through work committees and employee representation on boards of directors (hsieh 2008: 92). in order to ensure that employees are treated as fellow deliberators, instead of silent parties who passively wait to have rules or 6 i do not claim that implementing such mechanisms would be sufficient to protect workers from domination. for example, they may need to be accompanied by measures that improve workers’ exit options, such as more generous welfare payments or a universal basic income. however, i don’t think that improving exit options on their own would be sufficient, as they do not address the domination suffered by workers who choose to remain employed. for this reason, the importance of contestation and justification remains. 7 it is important to note that, while gourevitch believes that transforming the order requires workers to organize themselves in unions, it is also necessary for structural domination to be addressed at a deeper level by cooperatively organizing the means of production. i don’t disagree with the importance of changing the structure of employment, but here i choose to focus on what can be done to lessen domination within existing structures. 8 see http://w w w.epi.org/publication/briefingpapers_bp143/ for some statistics on this issue. http://www.epi.org/publication/briefingpapers_bp143/ domination and the (instrumental) case for free time 83 leap 5 (2017) decisions enacted upon them, they should be guaranteed the right to participate in determining the policies that affect them, as well as play a role in governing the enterprise more generally (ibid). concretely, participation in decision-making would give employees the ability to determine the terms and conditions of their employment and the wider organization of their work, so that these do not lean entirely on the employer’s authority. of course, this is not to place all of the burden of protecting against domination on the workers themselves and detract from states’ responsibilities to their citizens. in fact, workers’ ability to form trade unions is heavily dependent on the existence of state-enforced labor laws that protect their freedom of association. i believe it is consistent, however, with the spirit of republicanism to pay significant attention to political action on the part of private citizens. 3.3 time and checking mechanisms now that i have identified two commonplace forms of workplace domination, as well as suggested two measures that could be used to address them, i will clarify the links between these and the subject of time. chief ly, i contend that the establishment and maintenance of those checking mechanisms would require a substantial amount of time. if workers lack adequate time-resources to participate in these activities, as i believe many currently do, workplace domination would remain seriously unaddressed. broadly speaking, individuals must possess adequate timeresources in order to effectively justify and contest the interference of power-holders, therefore protecting themselves from domination. first of all, the formation of political organizations and industrial unions tends to require many onerous steps. for example, employees wanting to form industrial unions would need to canvass support from other workers, or allies outside of the workplace; they would have to find ways of making decisions about who should lead and motivate the union; they would have to tread through red tape for the union to be approved by government agencies. it is obvious that going through the appropriate motions would be immensely time-consuming. even if employees chose instead to join pre-existing unions, they would still require time to decide which union to join, as well as obtain the union’s approval to represent them, and communicate the issues that they wish to negotiate. in addition, in order for workers to successfully contest retributive decisions by employers or managers, they would need to know their rights and understand how exactly these have been violated. again, in order to clearly understand what we are entitled to, and how it may apply in particular 84 desiree lim leap 5 (2017) situations, we would require time to educate ourselves on these matters. in some cases, it would involve having to seek legal assistance; locating and consulting an appropriate authority on the matter would, no doubt, require even more time. participating in workplace decision-making might be comparably time-consuming for workers. suppose that a team of workers is allowed to decide on their own rate of compensation, or have a say in an important decision that will determine their company’s future path, as opposed to these decisions being made autocratically by higher-ups. it is very unlikely that all the workers would immediately agree with one another about how to act; instead, disagreement would probably have to be teased out, and compromise or consensus eventually reached, through a series of deliberation. (tellingly, the hypothesis that more democracy in the workplace mean slowing down decision-making, hence harming productivity or efficiency, has often been used against advocates.) furthermore, i assume here that the people involved in decision-making are not themselves responding arbitrarily or idiosyncratically, but in a responsible and well-grounded way. making well-informed decisions – for example, when deciding on a fair rate of compensation – would require the employees to perform research on what people in related fields are earning, or perhaps to come up with a justification for why persons performing a particular task merit more compensation than others performing what appears to be a similar one. simply put, research and ref lection for collective decision-making requires time. i have tried to show why the resource of time is crucial to the establishment and maintenance of checking mechanisms in the workplace – mechanisms that are necessary to stave off the threat of domination. before concluding this section, i note three final points on time and its relation to non-domination. importantly, given the history of employers’ hostility to unionization and workplace democracy, it seems that introducing the checking mechanisms described above, in the first place, may require concerted effort and struggle from workers – suggesting that even more time may be necessary for practical implementation. the appropriate time-scale here is years, not months, with no guarantee of success. take, for example, the ongoing attempts of graduate students in the us to obtain the right to unionize and the massive obstacles enacted by universities. efforts have been blocked, despite students voting to join unions certified by the national labor relations board (nlrb), by various universities on the grounds that the students should not be considered employees (semuels 2017). a number of universities even hired a law firm known for their formidable powers against workers to block graduate domination and the (instrumental) case for free time 85 leap 5 (2017) students from organizing, signaling that they were prepared to spend years in court on the endeavor (jordan 2017). the ongoing challenges graduate students face to successful unionization are likely to intensify given donald trump’s presidency, under which they expect the nlrb’s recognition of graduate students as employees to be reversed (rivin-nadler 2017). as this case demonstrates, workers’ striving for sufficient contestation and justification in the workplace can feel like fighting a losing battle – to wit, a very time-consuming one. secondly, while the core argument i have given is very different in essence from rose’s, it dovetails with hers with respect to temporal coordination. rose argues insightfully that exercising one’s freedom of association does not only generally require the resource of free time, but also free time that is “shared with one’s fellow associates” (rose 2016: 93). this is because the central exercises of freedom of association, such as sharing a meal with one’s family, marching in a rally with one’s political co-partisans, or sharing religious services with one’s fellow believers, involve engaging in the pursuit at the same time as others (rose 2016: 94). therefore, citizens must have reasonable access to shared free time in order to exercise their freedom of association. similarly, to a large extent, workers need shared time to perform contestory and justificatory activities together. certainly, an individual can learn about the full extent of their employment rights, or launch a dispute against the employer on their own. but there is an important collective aspect to political organization and deliberation. while i have chosen to focus on a smaller-scale case to bring out the central role of time in addressing specific forms of domination, the above arguments are meant to extend to political activity and the republican duties of citizens writ large. the kind of political engagement that enables political institutions to be effectively justified or contested is inherently time-consuming. citizens need time to vote, run for office, or educate themselves on political institutions and political life more generally. for example, voting – the most basic form of political participation – often requires citizens to head to a particular location and stand in line for their turn to vote, which can be rather-time consuming. u. s. federal law does not require employers to give their staff time off to vote, and while a number of states have instituted their own laws on the matter, with some allowing up to three hours off to vote, not all states require that employees be remunerated for that time off. coupled with other competing factors like caregiving duties, and the negative impact that losing even a few hours’ wages can have, it is no surprise that many people are unable to set aside the time to vote, or find themselves having to leave polling stations because they cannot afford to continue waiting, thus contributing to voter 86 desiree lim leap 5 (2017) suppression. it is in this way that citizens need time to be able to protect themselves against domination. without sufficient time for citizens to participate in political activities designed to justify or contest power, state power cannot be properly kept ‘in check’. to conclude this section, on the republican account, possessing sufficient time-resources to engage in the justification and contestation of power is necessary for persons to protect themselves from domination. this is markedly different in tone from the liberal egalitarian picture, where time is deemed necessary for exercising our basic rights and opportunities, as well as pursuing the ends and projects we find valuable 4. ‘free’ versus ‘sufficient’ time? so far, i have talked a lot about ‘time’, but not free time specifically. i attend to this in the final section by arguing that, unlike liberal egalitarians, republicans cannot make a case for the importance of the fair distribution of free time as a resource in itself. at most, they can make an instrumental argument for the fair distribution of free time, as ensuring fair shares of free time may be the best means of encouraging political engagement and the development of civic virtue, in comparison to the alternative. i explain why below. 4.1 the instrumental necessity of free time previously, i argued that many activities with a quintessentially republican flavor – and more particularly, those necessary for processes of justification and contestation – are inherently time-consuming, and that people need time to participate in them. however, this does not establish an argument for fair shares of free time. it simply shows that citizens need a sufficient portion of time to engage in political activity, and does not say anything about their claims to time for pursuits of their own choosing. in contrast, rose’s account does not specify what people ought to be doing with their free time beyond pursuing their chosen ends or exercising their formal liberties and opportunities. we can use our free time to be activists, surfers, or couch potatoes without judgment, so to speak. in other words, it is the liberal emphasis on the freedom to do whatever one wants with the allotted time that makes it “free”. without this, republicans cannot make a case for the entitlement to fair shares of free time, as opposed to sufficient time for political engagement. keeping this in mind, what kind of time-related policies ought republicans to endorse? one initial suggestion would be for the state to partition off a domination and the (instrumental) case for free time 87 leap 5 (2017) certain amount of time to be used exclusively for republican activities. for example, very crudely, citizens could be allocated five hours a week that would be compulsorily dedicated to some form of civic engagement. yet this looks very unattractive, and unlikely to be endorsed by any present-day republican, as enforcement would be deeply problematic. how, exactly, would the state ensure that citizens would use the allotted time for political purposes alone? to start with, a high level of surveillance and intrusion into citizens’ privacy would be required for states to police citizens’ time-usage. in practice, the policy might end up licensing more domination on the part of the state; it equips the state with an excuse to monitor and control citizens’ activity, enhancing its capacity to interfere with their choices on an arbitrary basis, and hence running counter to the policy’s purported ends. it also seems that unpalatably coercive measures would have to be employed in order to deter citizens from misusing their time-share, such as penalizing them if they are caught using the time for some other activity. here, it might be objected that at least some republicans have endorsed coercive measures to ensure political participation, the case in point being mandatory voting, where citizens pay a financial penalty for failing to vote. why, then, shy away from time for compulsory political activity? yet mandatory voting would not involve the same level of intrusiveness, as citizens are penalized on the basis of records indicating that they failed to vote, rather than having their individual time closely monitored by the state. nor is it as demanding, as citizens are penalized for a one-time failure to act, rather than for the failure to regularly engage in republican activities, which would plausibly lead to repeated fines for many people who are tired, distracted, disillusioned, or simply disinterested in politics. furthermore, it might disproportionately impact less well-off citizens who are already less likely to participate in politics, yet for whom monetary fines would be more detrimental. while intrusiveness and demandingness are, on their own, principled reasons against enforcing time-periods of compulsory political activity, such time-periods would arguably be counterproductive to the cultivation of authentic civic virtue. being forced into regular political engagement would most likely turn it into a tiresome chore, draining the activity of any meaning or significance. worse still, being punished for failing to do so would almost certainly create resentment and even more disillusionment with the practice of politics, rather than feelings of empowerment. a second possible policy would be conditional time for political activity. that is, instead of giving all citizens a period of time they must dedicate to political activity, only those who are active members of political groups would be given time to participate in it. for example, the state might legally 88 desiree lim leap 5 (2017) require corporations to give employees who are union members a certain amount of time off from work. this alternative policy avoids some of the worries i have outlined about compulsory time for political activity. it does not force the cultivation of civic virtue, but provides encouragement and support to those who have authentically chosen to be civically engaged. furthermore, while it seems rather unlikely that anyone would go to the lengths of creating a bogus political organization just so they could use the allotted time for non-political pursuits like surfing or video games, imposing penalties on bogus organizations seems far less problematic than penalizing individuals for how they choose to use their time. for one, enforcing those penalties would not require violating the privacy of individuals; political organizations do not have an analogous right to privacy. secondly, members of bogus political organizations are exploiting the system by engaging in deceit. it seems fair for deceitful behavior to be punished, rather than the mere lack of desire for political participation. unfortunately, conditional time also suffers from a fatal flaw. namely, it adopts a very narrow view of what political participation is. political engagement today encompasses a wide variety of activities, including marching in a street protest; writing petitions; creating art; or even posting on social media like twitter and facebook. but none of these forms of engagement involve formal membership that we can submit as proof of our participation. only giving time to members of political organizations would deprive others of time for valuable political activities that do not hinge on membership. worse still, states would be able to make value judgments about what is a valuable or worthwhile political activity that is worth supporting. this could risk disadvantaging those who participate in activities that the state considers ‘fringe’ or disruptive in some sense, like graffiti art or street protests. furthermore, political organizations that the state disapproves of may be barred from qualifying as legitimate organizations. a final option would be for states to ensure that citizens have fair shares of free time that they can use for any activity of their choosing.9 if time is necessary for freedom in the republican sense, as i have suggested, it must be available robustly, as a matter of right. citizens would not be given free time only at the discretion of the powerful, like their employers. rather, their access to free time would be entrenched by the state, in the form of laws and norms, as one of the basic liberties necessary for free undominated status. nevertheless, rather than being a demand of republican justice per se, these allotments of free time would serve an instrumental purpose: a more 9 here, i leave open how a “fair” share of free time ought to be determined. for a detailed discussion of how we can do this, see rose (2016: 127-134). domination and the (instrumental) case for free time 89 leap 5 (2017) permissive approach to parceling out time-resources would be more effective in bringing about robust levels of political participation, which can be encouraged in two ways. on a more conventional state-centric view, rather than being forced to do so, citizens could be encouraged to use that time for political participation through “soft”, non-coercive measures that have already been advocated by republicans (including subsidies for political activities, civic education, or public campaigns promoting political engagement). on a more radical view, the state is corrupt and should not be trusted to guide the appropriate use of our free time, as it would likely seek to align our behavior with the interests of dominating forces through empty civics or other forms of mainstream ideology. instead, we can carve out a major role for counterpublics, or counter-dominating institutions, to educate and guide us in our resistance to domination.10 i deliberately leave open the question of who the main political influencer over our free time ought to be, to show that this policy can be appealing to different varieties of republicanism. either way, the guarantee of free time would be likely to encourage political activity amongst citizens in the long run, while avoiding the shortfalls of compulsory political engagement or conditional timeshares. of course, there is a good chance that most citizens would always prefer to use that time to pursue their own goals or projects, shunning political activity altogether. but i think that the objections to the other policies considered above are sufficiently serious for republicans to bite the bullet. 5. conclusion in this article, i have sought to make a rather bare-bones argument about how republicans can make a case for fair shares of free time, albeit an instrumental one. i pointed out that time is necessary for the creation and maintenance of non-dominating institutions, because we need sufficient time to effectively participate in processes of justification and contestation. i went on to suggest that, while this only entitles individuals to sufficient shares of time dedicated to these forms of political engagement in theory, fair shares of free time may be instrumentally necessary to encourage participation in republican activities. i have not said anything about what, exactly, constitutes a fair share of free time or how to measure the amount of time that would minimally be required for healthy civic engagement. neither have i made any policy suggestions for how fair shares of free time can be achieved, a task which 10 for a parallel case of a dominating agent encouraging political participation by those it dominates in order to further its own agenda, see hertel-fernandez (2016). 90 desiree lim leap 5 (2017) rose helpfully takes up in her book. i also do not claim that this route is the only one available to republicans for justifying fair shares of free time; there may be other, perhaps even more convincing, ways of linking nondomination to free time. these remaining questions provide fertile ground for future discussion. nevertheless, i hope that my contribution takes an important first step in considering a potential republican justification for the entitlement to free time. bibliography anderson, e., 2015: private government, princeton: princeton university press. bellamy, r., 2008: “republicanism, democracy, and constitutionalism”, republicanism and political theory, eds. c. laborde and j. maynor, 159-189, chichester: blackwell publishing ltd. benton, m., 2010: “the tyranny of the enfranchised majority? the accountability of states to their non-citizen population”, res publica 16: 397-413. borman, d., 2017: “contractualism and the right to strike”, res publica 23: 81-98. compa, l., 2004: blood, sweat and fear, human rights watch. gourevitch, a., 2013: “labor republicanism and the transformation of work”, political theory 41: 591-167. — 2015: “quitting work but not the job: liberty and the right to strike”, perspectives on politics 14: 307-323. — 2016: “the limits of a basic income: means and ends of workplace democracy”, basic income studies 11: 17-28. hertel-fernandez, a., 2016: “how employers recruit their workers into politics – and why political scientists should care”, perspectives on politics 14: 410-421. hsieh, n., 2007: “survey article: justice in production”, the journal of political philosophy 16: 72-100. jordan, b., 2017: “graduate students on these 7 campuses are fighting for their labor rights”, the nation. lovett, f., 2013: a general theory of domination and justice, oxford: oxford university press. pettit, p., 1997: republicanism, oxford: oxford university press. rivlin-nadler, m., 2017: “trump the union-buster”, new republic. rose, j., 2017: free time, princeton: princeton university press. semuels, a., 2017: “will grad students lose the right to unionize under trump?”, the atlantic. leap 6 (2018) socioeconomic human rights, autonomy and the cost of error m a r i a no g a r r e ta l ecl e rcq universidad de buenos aires consejo nacional de investigaciones científicas y técnicas de argentina abstract one of the most inf luential strategies to justify human rights available in the specialized literature is centered on the notion of autonomy. such a strategy assumes that civil and political and socioeconomic human rights are equally essential to lead a minimally autonomous human life. this article examines whether the ideal of autonomy can really provide support to the view proclaimed in the covenant that socioeconomic human rights must be realized progressively, according to “the maximum of available resources”. to do so, i focus on the conceptual relation between the ideal of autonomy and a fundamental dimension of moral deliberation which is often overlooked in the debate, namely: the cost of error in decision making. in a nutshell, i argue that once this key variable considered, it becomes evident that any measures governments may implement to promote the realization of social and economic human rights must be subject to democratic control. keywords: economic and social human rights, autonomy, progressive realization, cost of error, democratic legitimacy. 1. introduction one of the most common philosophical strategies used to justify human rights – including both civil and political rights (cphr) and socioeconomic ones (eshr) – appeals to the notion of autonomy. cécile fabre provides a d oi : 10. 310 0 9/l e a p. 2018.v6.0 4 socioeconomic human rights, autonomy and the cost of error 65 leap 6 (2018) particularly persuasive example of such strategy (fabre 1998), 1 which may be appl ied to t he nor mat ive just i f icat ion a nd ju r id ica l i nter pretat ion of t he un covenant on economic, social and cultural rights (1966).2 her ultimate aim is to prove that socioeconomic rights must be constitutionalized because both socioeconomic human rights and civil and political ones perform the very same normative function: they preserve the value of personal autonomy. following authors such as john rawls (1993), joel feinberg (1972) and gerald dworkin (1988), fabre insists that in spite of its obvious liberal origins, the principle that individuals have a fundamental interest in personal autonomy may be accepted by people holding the most diverse doctrines of the good. in her own words: “autonomy captures an essential characteristic of human beings, which distinguishes them from other beings, namely their ability rationally and morally to decide what to do with their life, and to implement these decisions, over long periods of time, so as to lead a meaningful existence and through it develop an awareness of the kind of persons they are” (fabre 1998, 265). so we have reason to respect people’s autonomy because autonomy is an essential component of the human condition: only autonomous persons can fully develop their human nature. in this vein, fabre sustains that civil and political rights have normative importance precisely because they are necessary to preserve our autonomy: freedom of expression, freedom of conscience, freedom of association and freedom of movement are obviously crucial to enjoying control over one’s own life. in fact, when such freedoms are not protected, individuals become unable to choose and revise their own life-plans in the most fundamental sense. the same is true of political rights: “if it is important that i have some degree of control over my life, then surely it is important that i have some degree of control over the social and political environment within which i lead my life: electing representatives in parliament, voting in referenda and running for office myself are means to acquire that control” (fabre 1998, 266). 1 although human rights can undoubtedly be derived from other normative ideals, fabre’s argument is particularly relevant. this is because autonomy, under different formulations, has played a central role in liberal thought from kant and mill down to the most significant thinkers in the 20th century, with john rawls’ theory of justice (1971 and 1993) in the front line. on the other hand, the notion of autonomy has played a crucial role in the specific field of human rights justification: the theories of alan gewirth (1982) and james griffin (2008) are excellent examples. 66 mariano garreta leclercq leap 6 (2018) according to fabre, the above considerations explain why civil and political rights must be constitutionalized and protected from majoritarian decision making. importantly, fabre insists that socioeconomic rights are equally important to preserve the autonomy of individuals: “giving these resources –income, education, housing, etc.– to people is important because without them they would be unable to develop the physical and mental capacities necessary to become autonomous. if we are hungry, thirsty, cold, ill and illiterate, if we constantly live under the threat of poverty, we cannot decide on a meaningful conception of the good life, we cannot make long-term plans, in short we have very little control over our existence” (fabre 1998, 267). the main goal of this paper is to suggest that even if socioeconomic human rights are relevant to preserving the autonomy of individuals, there are cogent autonomy-based reasons to resist their constitutionalization. of course, this does not mean that the satisfaction of socioeconomic human rights should not be regarded as a political priority by democratic societies. it simply means that any specific decisions about their implementation must remain under ordinary democratic control: neither courts, nor experts are authorized to make unilateral decisions to ensure their fulfillment under the clause of progressive realization according to the maximum of available resources. in this sense, the paper provides support for one particular understanding of what specific obligations governments have under current international law: while the fulfillment of subsistence needs is certainly a high priority mandate, they cannot be enforced by courts or public policy experts. how to implement them must be decided by the people. the paper is structured as follows. in section 2 i discuss a demanding interpretation of article 2 (1) of the covenant and explain why it is problematic, at least if we accept that human rights are grounded on the value of autonomy. in section 3 i develop an original argument in favor of adopting a more modest interpretation of state’s commitments under present international law. such argument sustains that when our actions involve serious risks for the interests of others, they cannot be implemented unless their implementation is authorized through democratic or representative mechanisms. otherwise, the autonomy of those affected by our actions is seriously compromised. in section 4 i discuss an important objection to my view, according to which lack of expert knowledge on the part of citizens may render democratic authorization unpalatable in the context of extremely poor societies. finally, in section 5 i present some concluding remarks. socioeconomic human rights, autonomy and the cost of error 67 leap 6 (2018) 2. autonomy and the progressive realization of socioeconomic human rights the view that value of autonomy may justify the authority of both civil and political human rights and at least some socioeconomic ones, appears to be plausible in principle. in this vein, the 1966 un covenant proclaims human rights to adequate food, decent housing, fair and just conditions of work, health and education. nevertheless, because in present conditions their immediate satisfaction may be unfeasible, the covenant also asserts that their realization should be progressive and that states must invest the maximum of their available resources to achieve their realization. this is how article 2(1) is framed: “each state party to the present covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures”. as we see, article 2(1) constitutes and attempt to re-articulate the idea that socioeconomic human rights are of major normative importance even in contexts where resources are scarce: although some states may lack the resources required to bring about their immediate realization, they must nevertheless use all the resources at their disposal to ensure their satisfaction in the shortest period of time. otherwise, they would be failing to live up to their international commitments. however, the very notion of progressive realization according to the maximum of its available resources is opaque. it can be interpreted in a number of ways. on a demanding interpretation, article 2(1) implies that states must devote all their resources to promoting socioeconomic rights, unless this implies undermining the satisfaction of other human rights, such as civil and political ones. in the context of developing countries, this account is vulnerable to two interrelated objections. the first objection is that it may seriously undermine the political autonomy of citizens. to see why, imagine that a government elected by a majority of votes proposes to implement a number of political reforms in order to improve the economic performance of the country. the nation is poor and the government wants to achieve a reasonable level of economic development. if the plan is incompatible with the progressive realization of eshr in the terms mandated by the covenant, then it will be indefinitely blocked, even though it is supported by a majority of citizens. of course, this does not imply that economic development is more valuable than eshr; rather, the 68 mariano garreta leclercq leap 6 (2018) point is that on the demanding interpretation, the covenant may erode the political autonomy of the people, understood as their freedom to make collectively free decisions about their social environment. predictably, such restriction of political agency will have a negative impact over individuals’ personal autonomy as their capacity to control important aspects of their lives would be curtailed. the second problem has to do with the burdens that bringing about the realization of eshr may have over the population. on the demanding interpretation, governments are obliged to use all the resources they can find to ensure their progressive satisfaction. in many cases, this will force them to impose heav y taxes on their most productive sectors at the expense of economic growth. so even if such measures increase the present capacity of the government to deliver on socioeconomic human rights, this strategy may nevertheless render the society poorer in the long run. furthermore, there are persistent disagreements as to what measures can most effectively promote the realization of eshr. most likely, liberals, social democrats and socialists will propose alternative programs to achieve that goal and insist that the rival strategies are problematic as they may end up eroding the very values they aspire to promote. as a result, the demanding interpretation of article 2(1) is seriously incomplete as societies have no clear orientation about the exact policies it calls for. 3. autonomy and the cost of error the above considerations point to another problem which is often overlooked in contemporary debate: in scenarios where the costs of undertaking mistaken courses of action are particularly high, the ideal of personal autonomy involves some particularly stringent demands. to see this, consider the following example: imagine that two scientists, a and b, plan to carry out some experiments that prove necessary for the development of different technological appl icat ions of a pa r t icu la r t heor y. t he cha nces of success a re ident ica l ly high in both projects. the scientists’ work is not moved by prudential reasons, but by moral ones: both are persuaded that the result of their work will imply a significant improvement in the quality of life of their community. assume also that a and b have equally sound reasons to make such moral judgment. therefore, they both have a fallible moral knowledge that provides a pro tanto reason to act. there is, however, an important difference between both cases: the cost of error. if a’s research fails, this poses no substantial costs to the wellbeing of third parties. the situation is very different in b’s case: should her socioeconomic human rights, autonomy and the cost of error 69 leap 6 (2018) research fail, it will cause serious and irreparable harms to a substantial number of people – say, b’s research requires a kind of experimentation, which may be extremely dangerous for the environment and for people’s health.3 this thought experiment suggests that when a moral agent deliberates on how to act, she must not only make a moral assessment of the various courses of action at her disposal; rather, she must also consider the cost of error each alternative involves – such as those of making a false moral or factual judgments.4 so how are we to interpret the situation of scientists a and b from a moral perspective? both are in similar conditions to think that they know – albeit fallibly – that the following statement is true: “proceeding with my research is the best alternative from a moral point of view, since the result of such decision will bring about a significant improvement in life-quality for members of the community.” consequently, they also seem to be equally morally justified to act on the basis of such judgment and continue their work on their research projects. the latter statement, however, is deeply problematic: there are cogent reasons to believe that while a is effectively justified to act on the basis of her factual and moral knowledge, such is not the case with b. the above conclusion may be thus backed. it is obvious that a is morally justified to act based on her knowledge. from an epistemic perspective, a is justified in subscribing the factual and moral tenets we attribute to her, and they constitute enough reason to act accordingly. should something go wrong, neither a nor any other persons involved would endure any damage. yet, the analysis varies as we move to a context in which the costs of error are drastically high. to see this, imagine for a moment that one aspect of b’s situation is different from what we described above: error-cost is very high but it only concerns the scientist’s welfare, not that of third parties. although b firmly believes that her research will be successful, she is aware that in cases of error her experiments could be dangerous for her own wellbeing. b might decide that it is not worth running the risk, even if the chances of failure are very low; or she might alternatively decide to run the risk and proceed with his research. both courses of action appear equally acceptable from a moral perspective. but what happens when, as in the original example described, other people could be seriously harmed 3 this example, applied to the moral field, is modeled after some well-known cases in the epistemological debate around contextualism and pragmatic encroachment: derose’s bank case, cohen’s airport case and fantl and mcgrath’s train case. see derose (1992), cohen (1999), and fantl and mcgrath (2002). 4 interesting exceptions to the tendency to overlook the relevance of the cost of error in the process of moral deliberation are thomson (1986), mckerlie (1986), lockhart (2000), hansson and peterson (2001), and hansson (2003). 70 mariano garreta leclercq leap 6 (2018) if b is mistaken? b may research further and try to diminish the probability of error. however, since time is limited examining all potential sources of mistake is impossible. from an epistemic perspective, there is no way out of this situation. no matter how solid the arguments and evidence displayed by b, those who could be harmed have the right to refuse taking the risk: b is not entitled to decide in their name as this would undermine their equal moral status. in other words, in case b did so, she would fail from a moral perspective in her relationship with those agents. why should b arrogate herself the special prerogative of deciding in the name of others, without their consent or some kind of authorization? why might b deprive these people of their right to make a decision that may prove crucial for their lives? if b neglects such fundamental moral right, she would be treating those involved as mere instruments for the achievement of her own goals, rather than agents whose interests and projects have a weight of their own and are irreducible to interests and projects of other individuals. in essence, if b acted unilaterally in the way she judges best from a moral perspective – despite having good reason to presume her judgment is correct – she would infringe the autonomy of the potential victims – in fabre’s terms, this would entail depriving them of holding significant control over their existence. with this in mind, we can now reexamine the problem of implementing eshr. as we saw, it is plausible to hold that the moral reason why eshr must be fulfilled is that they prove just as indispensable as cphr to respect people’s autonomy. however, in view of the large amount of economic resources required – particularly within unfavorable contexts – complying with eshr demands launching dangerous economic experiments; and in case of error, this may bring about substantial damage to the people (both those who lacked the chance to have access to the resources necessary to enjoy those rights and those who did have access to them prior to the implementation of the necessary redistributive policies). so as in the case with scientist b, when the state unilaterally decides to enact risky economic measures, it undermines its citizens’ autonomy. consequently, at least at first sight, we have reached a dead end: while eshr are grounded on respect for people’s autonomy, implementing them in contexts such as those described proves incompatible with such very grounds, namely: respect for the autonomy of individuals. fortunately, there is a solution to the paradox. let us assume that b manages to persuade all the potential victims to allow her to proceed with her research: they all decide to voluntarily run the risk, having received sufficient information about its potential costs. in such case, should b decide to carry out her experiment she will not be acting unilaterally, nor socioeconomic human rights, autonomy and the cost of error 71 leap 6 (2018) violating the autonomy of others. she is not running the risk in their name; all share responsibility for the decision. similarly, it is reasonable to hold that, under certain conditions, democratic resolutions with a high level of legitimacy may have the same result. we can imagine in this vein that b’s decision to proceed with her research results from a free and open deliberation process in which all the relevant information was circulated, all those concerned were part of the process, and the decision was backed by a majority. whenever these conditions obtain it is reasonable to say that, through their participation in the political process, all those concerned have authorized the decision – or, at least, none can protest that the decision was arrived at with no previous consultation. of course, the kind of authorization provided by democratic procedures may not amount to unanimous consent. yet neither unanimous consent nor the effective consent of all concerned is expectable within the context of ideological pluralism that pervades contemporary democratic societies. but it is generally accepted that a democratic procedure governed by majority rule is an adequate substitute of unanimous consent – at least when it complies with stringent legitimacy standards. now if we admit the legitimacy of the democratic system in general, then we must also accept that such system offers an appropriate instrument of authorization, both in the case of scientist b and, more broadly, in the selection of public policies in which the cost of error is significantly high. a committee of experts, or members of a tribunal, may certainly believe that a certain policy will promote the welfare of the people better than the others. however, if the cost of error is highly significant, they will not be morally justified to act unilaterally based on their (fallible) knowledge. for if they did so, they would be deciding in the name of others, thereby undermining their autonomy and their status as independent moral agents. in cases where fallibility is combined with the high cost of error for the wellbeing of those concerned, knowledge is not enough to justify action from a moral point of view. by contrast, the situation is radically different when that kind of decision results from an inclusive democratic process: even if not everyone agrees, implementing the policy that receives a majority vote is not comparable to a unilateral decision. in sum: if we assume that democracy is a valuable political system, we must also accept that it constitutes an adequate tool to authorize the implementation of risky measures in way that respects the autonomy and equal status of individuals. similar considerations apply in the case of decisions about the amount of resources to be devoted to comply with the eshr included in the covenant. if the measures to put them into practice are the end result of a 72 mariano garreta leclercq leap 6 (2018) process of democratic authorization with high levels of legitimacy, the cost of error will not have the moral implications described above. plus the fact that it cancels the plausibility of the notion that implementing eshr, no matter how risky, violates the autonomy of those concerned. 4. democracy, political autonomy and scarcity there is an important potential objection i need to tackle before concluding.5 the argument i am suggesting is grounded on a connection between autonomy and democratic deliberation. however, it could be countered that although such connection is plausible in conceptual terms, it is nevertheless unrealistic in the context of most developing nations. this is because citizens of such nations may lack the capacities or resources to engage in sophisticated economic debates. as a result, their autonomy could perhaps be better promoted through alternative means, such as decision making by courts or technical experts. in the example of the scientists, it was argued that b has no right to decide in the name of others because this would be incompatible with honoring their equal moral status. yet one may recognize the equal moral status of individuals while at the same time insisting that they have no capacity to understand or contribute to complex technical debates. so if scientist b enjoys genuine expertise on the subject matter, she may legitimately refuse to take into account the views of others. along the same lines, it could also be argued that when basic human needs are not secured and people lack adequate education and reasonable access to information, democratic debate and democratic authorization may not be the best option to promote the autonomy and wellbeing of individuals. nevertheless, the argument i have offered precludes the kind of epistocratic view underpinning this objection. as david estlund points out, epistocracy tends to rely on three fundamental tenets: the truth tenet: there are true (at least in the minimal sense) procedure-independent normative standards by which political decisions ought to be judged. the knowledge tenet: some (relatively few) people know those normative standards better than others. the authority tenet: the normative political knowledge of those who know better is a warrant for their having political authority over others. (estlund 2008: 30) 5 i am thankful to an anonymous reviewer for law, ethics and philosophy for raising this key objection. socioeconomic human rights, autonomy and the cost of error 73 leap 6 (2018) the case of the scientists accepts the first two tenets, which look more or less plausible. it accepts the second tenet because it assumes that scientist b enjoys some privileged expert knowledge by virtue of which she knows that a certain course of action is the better one; and it accepts the first tenet as the claim that b’s knowledge is independent of any particular decision making mechanism. however, my account firmly rejects the authority tenet: since knowledge is in principle fallible, and the experiment involves high costs in case of mistake, then b is not morally allowed to act on her own personal assessments of merit. this is because even though her potential victims may lack relevant technical knowledge, they have a fundamental right to veto any unilateral decisions on the part of b. to enjoy such right they just need to know that the costs of a mistake are high for themselves and that the chance that the scientist is mistaken is significant. thus, the only solution is to achieve the consensus of those who may be potentially affected by the experiment or, alternatively, to setup reliable mechanisms of democratic authorization. the same is true of citizens living in poor countries: they are entitled to resist any unilateral decisions adopted by epistemic elites, ranging from courts of justice to expert policy makers. on the other hand, it is worth emphasizing that, contrary to what the objection appears to presuppose, these kinds of decisions hamper the moral autonomy of individuals rather than just their political autonomy. if scientist b unilaterally decides to go on with her experiment under the assumption that this will significantly benefit her community, she not only undermines the political autonomy of the potential victims but also fails to respect their status as separate moral persons endowed with an intrinsic dignity. and the same is obviously true of an elite of experts who make unilateral public policy decisions that may compromise the interests of those in their power. to illustrate the point, imagine that after considering a set of alternative economic policies – p1, p2, p3 – a group of economic experts concludes that p1 is the best option. if p1 is successfully implemented, it will considerably improve the life prospects of the people. yet, if the strategy fails, it will have a devastating impact on low and medium income classes. it is evident that in such case the experts are not morally allowed to impose their views on the citizenry. for even if the experts know that p1 is the best policy, they have a fundamental moral duty not to impose serious risks on others or decide in their name on matters that may seriously compromise their vital interests. of course, the existence of a minimally legitimate democratic system requires that at least the most basic socioeconomic needs of the people are 74 mariano garreta leclercq leap 6 (2018) fulfilled. in this sense, the duty to satisfy certain eshr is supported by distinctively democratic considerations: such rights are preconditions for a genuine democratic deliberation. in fact, when people lack adequate education and are deprived of the means of subsistence, political autonomy is a chimera. yet, even if the satisfaction of eshr constitutes a political priority, this does not imply that courts or experts can make unilateral decisions as to how to implement them. since any such decision would presumably involve considerable risks, they call for democratic authorization. naturally, when a nation is desperately poor, or when minimally reliable democratic frameworks are absent, we may have to consider other options. but in most present developing democracies, it is up to the people to figure out what specific policies must be implemented in order to promote their satisfaction and honor their commitment with human rights instruments. 5. concluding remarks the conclusion of my argument is that even if we admit that eshr are essential to the development and enjoyment of genuine autonomous agency, their unilateral implementation by governments or courts may be morally unjustifiable in many contemporary societies. fundamentally, this is because in view of the extreme costs their implementation may involve, unilateral implementation violates the autonomy of individuals. it is important to emphasize, however, that this implies no skeptical view about the feasibility of eshr or about their normative status. on the contrary, the account i propose suggests that governments and citizens are morally obligated to engage in democratic conversation about what measures to undertake in order to fulfill eshr and grant this issue a privileged role in public debate. within such political processes, people must compare rival interpretations of the “progressiveness” and “maximum available resources” clauses and their precise implications. yet, if they want their human rights policies to be legitimate, they must result from democratic decisions about what risks the political community is willing to run to fulfill them. bibliography cohen, s., 1999: “contextualism, skepticism and the structure of reasons”, in philosophical perspectives, ed. j. tomberlin, 57-89, cambridge: blackwell. estlund, d., 2008: democratic authority, princeton: princeton university press. socioeconomic human rights, autonomy and the cost of error 75 leap 6 (2018) derose, k., 1992: “contextualism and knowledge attributions”, philosophy and phenomenological research 52: 913–29. dworkin, g., 1988: the theory and practice of autonomy, cambridge: cambridge university press. fabre, c., 1998: “constitutionalising social rights”, the journal of political philosophy 6, 3: 263-284. fantl, j., and mcgrath, m., 2002: “evidence, pragmatics, and justification”, the philosophical review 111: 67-94. feinberg, j., 1972: “the idea of a free man”, in education and the development of reason, ed. r. f. dearden, london: routledge&kegan paul. gewirth, a., 1982: human rights: essays on justification and applications, chicago: university of chicago press. griffin, j., 2008: on human rights, oxford: oxford university press. hansson, s. o., 2003: “ethical criteria of risk acceptance”, erkenntnis 59: 291-309. hansson, s. o. and peterson, 2001: “rights, risks, and residual obligations”, risk decision and policy 6: 1-10. lockhart, t., 2000: moral uncertainty and its consequence, new york, oxford university press. mckerlie, d., 1986: “rights and risk”, canadian journal of philosophy 16, 239-251. rawls, j., 1971: a theory of justice, cambridge, ma: the belknap press of harvard university press. — 1993: political liberalism, new york: columbia university press. thomson, j. j., 1986: rights, restitution and risk, cambridge, harvard university press. _goback leap 3 (2015) the limits of moral argument: reason and conviction in tadros’ philosophy of punishment1 e r ic blu m e nson suffolk university abstract for generations, philosophers of punishment have sought to revise or combine established t heories of punishment in a way t hat cou ld reconci le t he utilitarian aims of punishment with the demands of deontological justice. victor tadros’ recent work addresses the same problem, but answers it w it h an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. the unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between tadros and his critics on many of the individual claims that, linked together, comprise his argument. this critique focuses instead on tadros’ theory as a whole and the methodology he uses to support it. it proposes that tadros’ argumentative strategy can’t justify his rationale by virtue of (1) the extent and complexity of the moral reasoning he invokes, (2) the counter-intuitive results his theory produces in an array of specific cases, and (3) the superiority of a negativeretributivist account in which moral reasoning and intuitive judgments, and the principles and applications that f low from each, are coherent and mutually supportive. victor tadros responds to these arguments in an essay following this critique. key words : moral philosophy, punishment, criminal law theor y, moral reasoning, tadros the philosophy of punishment covers enormous ground, but if one problem endu res at its core, it is t he con f l ict bet ween t he ut i l ita r ia n a i ms of punishment and the demands of deontological justice. they seem mutually 1 i am particularly grateful to victor tadros for responding to this critique, to participants at the nyc criminal law colloquium for their comments, and to carol steiker and harvard law school for arranging the symposium with tadros at which i presented an early version of this paper. thanks are also due to jeff alsdorf, jeffery atik, claire blumenson, jeanie fallon, stanley fisher, gabriel lev in, steven nathanson, derek parfit, pat shin, ken simons, ror y smead, marion smiley, rayman solomon, and terrell ussing for their comments and counsel. the limits of moral argument 31 leap 3 (2015) exclusive in theory, and may often generate different sentences in practice. finding a principled way to combine them has motivated generations of criminal law theorists. this challenge has served as a kind of conceptual rosetta stone that, if met, might clarify much of the field. the philosopher victor tadros has applied his considerable skill to the problem and believes he has solved it. in his highly regarded 2011 book the ends of harm and in papers since refining some of his views,2 tadros offers a truly original justification for state punishment, and does so with impressive dept h a nd cla r it y. t he a ston ish i ng advent of a new mora l accou nt of punishment has already inspired three journals to publish symposia on its merits, and prompted punishment theorists to revisit widely varied areas of the field. tadros and his critics have commenced a robust dialogue on many of the individual claims that, linked together, comprise his argument. i join that endeavor in part 1(b), infra, enumerating what i see as weak or missing links in tadros’ argument. although i raise these substantive objections to particular claims, my principal interest is in the argument as a whole, and the methodology tadros uses to construct it – subjects that are necessarily excluded from the piecemeal analyses that have occupied tadros and his interlocutors to date. a central claim is that this methodology is out of balance: it places too much faith in conceptual argument and too little in intuitive moral judgment; its extreme reliance on distended chains of reasoning leaves no role for deeply held convictions about specific cases.3 one can’t reach an end-point of reflective equilibrium with such a methodolog y, and i believe this, more than any 2 tadros has developed and in some respects revised his theory in response to critics (2012; 2013; 2015a) and in his response to this critique (2015b). 3 rawls distinguished three categories of normative beliefs that should play a role in the method of moral reasoning he called wide reflective equilibrium: considered judgments about specific cases, moral principles and rules, and moral theories (rawls 1971: 19-21, 48-51). the distinctions are orthogonal and overlapping, however, because we may also have considered judgments about moral principles and theories (rawls 1999: 286, 289; also see brun 2014). “considered judg ments” a re a k in but not identica l to what ot hers ca ll “pre-t heoretica l convictions” or “moral intuitions.” as an example, one might believe that slavery to be immoral (a) by virtue of an intuitive conviction that such is the case, or (b) by inference from other beliefs that yield that conclusion; judgment “a” would qualify as a considered judgment in rawls’ usage if it also satisfied certain epistemological safeguards – stability over time, relevant knowledge, impartiality, etc.. “considered judgments about specific cases” thus supply two ingredients to mora l inquir y, bot h integ ra l to t he met hod of ref lective equilibrium: mora l conv ictions regarding particular cases, which in their specificit y can act as a check on more general principles and theories (and vice versa); and moral intuitions as provisionally credible sources of moral knowledge. both dimensions of a moral belief are important to my critique. regarding its degree of generality, section 3 argues that specific sentences the duty view would generate are so unacceptable as to warrant rejecting the theory. regarding its grounding, section 2 argues that intuitive moral judgments matter, and cast more doubt on tadros’ counter-intuitive conclusion than his distended chain of inferential reasoning can support. 32 eric blumenson leap 3 (2015) particular weakness in tadros’ reasoning, accounts for the theory’s failure to persuade t he numerous commentators who have sought to pick his argument apart. methodological imbalance is not a problem for tadros alone, but constitutes an occupational hazard for moral and legal philosophy generally, given that conceptual argument is at the heart of what philosophers and law yers are trained to do. but tadros’ argument is an especially fruitful example with which to consider t he use of reason, intuit ion a nd judg ment in mora l argumentation generally: it is precisely because tadros’ moral reasoning is so exhaustive, accomplished and transparent that its frailties and limits come into view. this study proceeds as follows. part 1 describes tadros’ justificatory theory of punishment, distilling his argument down to eleven sequential steps a nd ident if y ing severa l wea k or missing lin ks a mong t hem. the balance of the article puts these piecemeal critiques aside and evaluates the methodolog y and strength of the argument as a whole. part 2 argues that tadros’ argumentative strategy can’t take him as far as he seeks to go, simply by v irtue of the extent and complex it y of the moral reasoning he invokes. part 3 demonstrates the counter-intuitive results his theory would produce in an array of specific cases, and argues that results so at odds w it h st rong a nd sett led conv ict ions count heav i ly aga inst t hat t heor y. fi na l ly, pa r t 4 demonst rates t hat a n a lter nat ive – a for m of negat ive retributivism -remains more persuasive than tadros’ theory because it leaves us in a position of ref lective equilibrium, in which moral reasoning and intuitive convictions, and the principles and applications that f low from each, are coherent and mutually supportive. 1. tadros’ theory of punishment on one view, punishment is justified by the intrinsic goodness of a criminal’s suffering in proportion to his desert. tadros entirely rejects this idea; he believes that no one deserves to suffer and that suffering is never valuable in itself, whomever it aff licts. for tadros, the only possible ground for punishing someone lies in its beneficial effects. his rationale for punishment is exclusively instrumental. tadros calls his philosophy of punishment “instrumentalist” rather than “consequentialist” because he wants to distinguish clearly between his justification of punishment and the comprehensive theory of morality known as consequentialism (2011: 25, 39-40). were his theory consequentialist in the latter sense, he would face the familiar devastating objection: because the limits of moral argument 33 leap 3 (2015) results are all that count, the theory could require imprisoning a mobster’s innocent mother when there would be utilit y in doing so, and even her execution if it would deter more killings than the one it would inf lict. this is unacceptable to tadros, but so is the retributivist solution that grounds punishment in the offender’s desert. tadros’ third way is a hybrid position: an instrumentalist rationale for punishment situated within a non-consequentialist moral theory. he insists that the value of punishment lies in its deterrent impact, but also recognizes deontological side constraints on pursuing it – most importantly, the means principle prohibition on using a person merely as a means to another’s benefit (13, 23). in tadros’ telling, this constraint places very stringent limits on government actions (so much so that only a libertarian state would seem to comply with it.4) we punish in order to reduce crime, but the means principle restricts its inf liction to the guilty, tadros claims, because only the guilty have a duty to submit to it. for that reason, tadros calls his theory the “duty view” of punishment. of course, everything depends on establishing that this duty exists, and that it derives from something other than desert. (otherwise all tadros has done is change words, substituting a “duty to suffer punishment” for “just deserts.”) tadros’ starting point is the example of one person attacking another: uncontroversially, the assailant is morally liable to be harmed by defensive force. tadros then argues that if the assailant completes the crime, his liability to suffer harm persists, extending to a series of residual and remedial duties that culminate in a duty to deter crime by submitting to punishment. 4 tadros argues that the state may not tax people to finance retributive punishments, both because (1) liberal neutrality would rule out compelling people to finance a controversial, non-neutral conception of the good, and in any case, (2) citizens are not bound to expend resources to pursue the good unless they have a duty to do so (2011: 79-83). he argues that measures protecting people from crimes are not subject to either objection, because citizens have rights to securit y t hat create co-relative duties to prov ide it (82-3). by contrast, he classifies retributive justice as an impersonal good and “it is much more difficult to justif y forcing a person to make a contribution to the pursuit of goods that are not grounded in the rights of others,” like the promotion of natural beauty, because each citizen is entitled not to pursue them (81). of course, this objection would eliminate large areas of government funding well beyond the promotion of natural beauty or the arts. massive infrastructure projects like america’s rural electrification project in the ‘30s or interstate highway system of the ‘50s are also not “grounded in the rights of others.” even funding such things as health care or occupational safety would seem to require a showing that people have rights to them and co-relative duties to provide them through the state. for that reason, the implications of tadros’ argument seem to approach the strict libertarianism robert nozick (1974) propounded, and bring to mind nozick’s famous claim that redistributive taxation is akin to forced labor. compare nozick 1974: 169 with tadros 2011: 79, wherein tadros argues that to “use resources that a person produces for the pursuit of [a] goal is perhaps not as coercive as forcing them to work for the sake of that goal, but the difference is not terribly significant.” 34 eric blumenson leap 3 (2015) that’s a very long road to travel. how does tadros get all the way from the permissibility of defensive force to the permissibility of state punishment? a highly distilled and simplified version of tadros’ argument as i understand it consists of the following multiple-step progression. 1.1 tadros’ argument in eleven steps liability to be harmed by defensive force i. all persons have a moral duty to refrain from wrongful aggression against others. ii. if wrongful aggressor a commences an attack upon victim v, a has a residual duty to prevent its completion or harmful impact on v if possible. a’s obligation includes incurring a proportionate degree of harm if necessary to thwart the crime. note: a's obligation to incur harm does not arise because he deserves it. it stems in part from a principle of distributive justice, the choice principle. on this principle, if someone must suffer, it is better that it be a person whose choice created the situation than someone merely trapped in it. (whether it is “better” prudentially because we all have reason to value choice, or morally because it is fairer, neither view treats deserved suffering as good.) here it was a’s choice to attack v that made the threat of harm inevitable (2011: 56).5 iii. v (or a third person) may enforce a’s duty to avert her threat by using defensive force against a that inflicts no more harm than a would have been liable to suffer in discharging her own duty to avert her threat. residual duty to compensate victim by protecting against other crimes iv. if a’s attack succeeds and harms v, a has a residual duty to provide a remedy to the victim. v. the remedy a must provide v is protection from future crime, even at significant cost to herself, as long as that harm is (a) no more than a was liable to suffer from v defending himself at the time of the crime, and (b) proportional to the harm it would prevent. 5 tadros (2011: 56) says that while the opportunity to avoid being harmed will often coincide with culpability, it is the element of choice rather than desert that is basic. the obligation to submit to defensive force appears over-determined in tadros’ theory. w hether the choice principle is necessary to his argument is left unclear given his sporadic reliance on the aggressor’s breach of her duty of non-aggression to justify, by itself, the residual duty to suffer defensive force that follows. if it is the latter, there is a question whether forcing the aggressor to do what he had a duty to do can fulfill the duty, because it may completely bypass the aggressor’s agency. (see duff 2013: 116-117.) the limits of moral argument 35 leap 3 (2015) note: suppose a 1 has just shot v when a 2 arrives on the scene and independently attempts to shoot v. v may use a 1 as a protective shield against a 2 ’s attack even though a 1 was not responsible for it, based on a 1 ’s remedial protective duty. w hile this uses the aggressor as a means, it does not v iolate the means principle because she has a duty-based liability to suffer that harm. regarding the specification of protection as the remedy, tadros argues that monetary compensation is ordinarily an inadequate remedy for a serious crime, and often unavailable in any event, so something more akin to specific performance is required of the aggressor: to protect the victim against a future crime of similar gravity (2011: 2, 277-78). vi. on efficiency grounds, criminal wrongdoers are obligated to pool their protective duties and take responsibility for protecting each other’s victims (193-94, 280). note: consider two assailants, each responsible to protect her particular victim from a future crime. if each assailant is unable to protect the person she attacked, but is able to protect the other’s victim, both have an enforceable duty to do so. in the previous example, a 1 was liable to be used as a shield to protect v from a 2 . as a result of this implied exchange, a 1 may now be used as a shield to protect someone else. duty to submit to punishment v ii. if punishing wrongful aggressors can deter crimes against the victims they are responsible to protect, they have a duty to submit to punishment, subject to the same limits as step #5 (279-80, 291). state’s exclusive right and responsibility to punish viii. the state may enforce a wrongful aggressor’s duty to submit to pu n ish ment by punishing her (395). ix. because all citizens have a modest duty of mutual protection, all victims are obligated to use their right to protection-through punishment to protect others as well as themselves (298). x. for reasons of prudence, effectiveness and fairness, the state is best able to fulfill the v ictim’s dut y to punish. therefore, all victims have an obligation to transfer their rights to punitive compensation to the state (297-99, 304-05). x i. as the exclusive instrument of enforcement of both citizens’ and aggressors’ protective duties, the state is obligated to punish w rongful aggressors (293, 299-305). 36 eric blumenson leap 3 (2015) hence the core principle of the duty view: the state has the exclusive right and responsibility to punish a wrongful aggressor for the purpose of general deterrence, provided that (a) the harm the punishment inf licts is proportional to its beneficial consequences, and (b) does not exceed that which the aggressor was liable to suffer in order to avert his crime. 1.2 some weak links in the argument critics who quarrel with a particular step in an argumentative chain often assume that the argument is only “as strong as its weakest link.” in fact, as the next section argues, an inductive chain of reasoning is not as st rong as a ny of its indiv idua l lin ks, however wea k or st rong, a nd t his problem may prove fatal to an argument as distended as tadros’. but first, with tadros’ individual claims now in mind, it is worth noting some particularly weak or missing links in that argumentative chain. step 5 the prior step has established that if a wrongdoer does not thwart the crime he started, he must do the next best thing: he must provide a remedy to the victim. step 5 specifies that “[t]he appropriate way to remedy that wrong is by providing protection to victims and other citizens against future harm.” (2011: 2). but that claim dismisses alternative types of rectification – monetary payment in a theft case, for example, or surgery and long term care in a maiming case. this move has spurred a fair amount of argument between tadros and his critics which i need not repeat here, other than to note that nothing in tadros’ further arguments obviates the two problems noted in the margin.6 step 6 this step seeks to establish the aggressor’s obligations to people he has never threatened: he has a qualified duty to exchange responsibilities with other wrongdoers, so that each victim will be protected by somebody. the duty to pool responsibilities is contingent on the greater effectiveness 6 first, ma ndating a protective dut y rat her t ha n permitting moneta r y or ot her compensation deprives the victim of any choice in assessing how she might best overcome the damages she suffered. in a theory largely concerned with assuring respect for the moral status of autonomous persons, why shou ld t he state a rrogate t his choice to itself ? (see tanguay-renaud 2013: 154; ferzan 2013: 193-94). responding to this criticism, tadros has argued that leaving this choice with the victim “may lead her to violate the duty of protection that she owes to others.” (2013: 307). as i argue later in this section, it is more likely that the state will violate its duty to protect the victim’s compensatory right by aggregating it with all others and trading off among them on utilitarian grounds. second, t he residua l dut y is supposed to be t he nex t-best t hing to f u lf illment of t he original duty, and it is far from clear that the victim would be better off with protection from a possible future crime than with a remedy aimed at mitigating or compensating for damages the victim has already suffered (tanguay-renaud 2013; ferzan 2013). tadros assumes monetary compensation is inadequate, but a remedy that is contingent on the possibilit y of future v ictimization may be more so. the limits of moral argument 37 leap 3 (2015) of doing so. suppose a assaulted v, and now wants to fulfill her protective obligation by purchasing a guard house on v’s street and spending hours a day there insuring v’s safety. assuming a’s work is sufficiently onerous so that it not only provides the protection but also exacts the degree of harm a could be required to bear, is a then exempt from the exchange, and thereby lacking the special duties to protect other victims that would ground a’s liability to punishment? if so, punishment will be imposed unequally, based on arbitrary factors like the wrongdoer’s wealth or the victim’s age. step 7 step 7 specifies that the wrongdoer’s protective duty is to submit to punishment. having already established the wrongdoer’s duty to avert someone else’s threat – serving as a shield, for example tadros says, “if punishing each wrongdoer can protect other victims of crime from future of fending, each w rongdoer ought to accept t hat he must be punished. (tadros 2011: 280) assume punishment can protect victims from future crime via deterrence; note that step 7 still doesn’t establish that wrongdoers are restricted to fulfilling their protective duty by that means when there are other effective methods available. punishment is only one of many methods of deterrence, and deterrence is only one of many methods of protecting people from crime. we may achieve deterrence w ithout punishment by increasing the neighborhood police presence, and we may reduce crime without deterrence through social work, job training, or other programs that ameliorate criminogenic conditions like poverty; so obligating offenders to undergo or help finance such programs might also fulfill their protective obligations. given the suffering that punishment inflicts and tadros condemns, he needs a persuasive argument to bypass such non-incarcerative alternatives. as this step makes clear, tadros’ justification for punishment is entirely contingent on the effectiveness of deterrent punishments, a relationship that is notoriously contested and hard to determine; and if the required deterrent value is present, contingent as well on what other consequences might accrue, as tadros recognizes (2011: 40; also see ch. 15, sec. v discussing what consequences may properly count in determining proportionality; and 30, 338, 348, 352-53).7 steps 9 and 10 here tadros seeks to transform the victim’s individual right to protection-through-punishment into a collective right exercised exclusively by the state. in step 9, he establishes that victims have a duty to use their right to punish so as to protect others as well as themselves, based on the modest duty all citizens have to provide mutual assistance to each 7 america’s mass incarceration policy arguably resulted from an unduly narrow focus on crime control, to the exclusion of the social damage that would result from the removal of vast numbers of men from their communities, the diversion of resources away from policies that might ameliorate criminogenic conditions, etc.. 38 eric blumenson leap 3 (2015) other (“easy rescue”). step 10 then argues that the victim’s duty to punish includes the obligation to authorize others to punish if they will do so more effectively and fairly, and that because the state is such an agent, the victim must transfer her individual compensatory right to protection-throughpunishment to the state to enforce (301; also see 297-99, 302-07). one difficulty with this two-step argument is that it depends on a duty of mutual assistance that can’t support it. at the least, the duty of mutual assistance morally (though not legally) requires a passerby to undertake relatively costless rescues, like calling 911 or throwing a lifejacket to a flailing sw immer. does it a lso require t hat a v ict im’s compensator y rights be transferred to the state and transformed into a system of deterrent punishment benefitting victims and non-victims alike, as tadros argues? that strikes me as a bridge too far. even if the duty of mutual assistance could justify some loss in benefits, it cannot justif y the loss of the v ictim’s right to the remainder. a lthough step 10 is framed as a matter of more effective enforcement of the rights and duties of each victim, the state can only enforce them in the aggregate. my right to compensation for theft, and your right to compensation for torture, and all other v ictims’ compensator y rights, become subject to trade offs based on factors such as which punishments of which kinds of crimes will have the “biggest bang for the buck.” rights may be defeasible, but they cannot not be subject to such maximizing cost-benefit calculations and remain rights. indeterminacy and arbitrariness a more general substantive problem with the duty view is the degree of indeterminacy and arbitrariness that comes with the proliferation of a large number of duties and rights, each with uncertain borders and relations to the others. among those that play a role in tadros’ argument are a wrongdoer’s duties to thwart her crime, to prov ide a remedy, to pool her protec t ive dut ies w it h t hose of ot her wrongdoers, and to submit to deterrent punishment; a victim’s duties to punish wrongdoers and transfer his right to punish to the state; and the state’s duties to protect citizens from crime and from unjust punishment. according to tadros, some of these duties may fade over time as the dutyholder becomes less psychologically connected to the person he was when he committed the crime. needless to say, with duties as inherently broad, vague, and temporally unstable as many of these are, problems of interpretation and application are daunting. for example, when is the remedial duty satisfied and the debt paid? how should we measure the state’s duty to punish in proportion to t he good t hat wou ld accr ue -ca se-by-ca se, or system ica l ly w it h a l l the limits of moral argument 39 leap 3 (2015) punishments treated collectively? if the former, how would we isolate the effect of the individual’s punishment? as duties and rights proliferate, and as more than one applies (or is available to be applied) to a particular circumstance, attempts to define, apply and balance them will generate a large margin of error that, with successive iterations, threatens to take over the page. as i shall now argue, we get closer to justice with a discourse that is tied more directly to our moral intuitions and capable of finer distinctions than the abstract discourse of rights and duties that constitutes the duty view. 2. a methodology of diminishing returns l et u s now put a side t hese subst a nt ive c r it iques, a ssu me t hat a l l of tadros’ subsidiar y claims are indiv idually plausible, and consider how they operate collectively in an argumentative chain. i want to examine two inherent limits on the persuasiveness of highly distended moral reasoning of this type. the first problem is that, as a general rule, the more complex and lengthy the argumentative chain, the less confidence we should have in its conclusion. a chain of inductive reasoning is weaker than the sum of its parts. the second problem is comparative. w hen such an extended chain of reasoning is necessary to establish a position as revisionist as the duty view, we may think that it isn’t enough to justify rejecting much more deep-seated and immediate intuitive beliefs. however strong the argument, it will lack plausibility if it is incompatible with fundamental moral convictions that are too compelling to doubt. (i leave aside a third methodological critique that has been persuasively demonstrated elsewhere: tadros’ reliance on highly idiosyncratic hypotheticals to elicit far broader principles than they can support. see husak 2012: 19) consider first tadros’ argument on its own terms. its initial steps invoke cer t a i n i nt u it ively plau sible pr i nc iples, such a s a mor a l dut y of nonaggression; succeeding steps are mainly established inductively by taking a preceding step’s principle and eliciting responses to hypotheticals testing its extension. this multiple-step moral argument is essential because the ultimate principle it seeks to establish -that state punishment is permitted only insofar as it may fulfill the wrongdoer’s protective duty -is not at all intuitive by itself. this kind of moral reasoning suggests the construction of a building, starting with the foundation and progressing upward as each successive f loor is built. it appears to make progress by addition. but addition is a misleading metaphor for viewing this kind of argument. each successive step should reduce our confidence in the conclusion,8 for three reasons: 8 unless, of course, it adds to the plausibility of a prior one. 40 eric blumenson leap 3 (2015) (i) the longer the chain, the greater the chance for a substantive error to infect it. each additional step brings with it an additional risk of failure. (ii) the second reason applies even if every step is highly likely to be correct. it reflects the mathematical truth that a chain of inductive reasoning is not “as strong as its weakest link” but weaker. the “weakest link” adage does apply to deduct ive reasoning, where t he t r ut h of t he log ica l ly-enta i led conclusion rests entirely on the truth of its premise. but tadros’ argumentative steps are based on inductive inference, analogy, and intuition, none of which can supply the 100% confidence that logical entailment does. in this case, each step can only be judged more or less plausible, and each step makes the chain weaker by compounding the possibility of error, however minimal. a bayesian calculation would treat each step as probabilistic to the degree of it s plausibility, and the likelihood of the concluding proposition as a product of the multiplication of fractions, just as the chances of tossing two tails in a row are ½ x ½ = ¼. we can illustrate how severely tadros’ methodology undermines his thesis by assuming that each individual step in tadros’ argument is amply persuasive, with all intuitive and inferential claims highly plausible. if we represent this arithmetically by assuming a 90% level of confidence in each of the eleven steps, the likelihood of the conclusion being correct is just 31%. we may wel l have more confidence in the brute conviction that only desert can justify and calibrate punishment. now this 31% figure is illustrative and subject to reasonable disagreement. one might deem some step unnecessary, or deductive, or so self-evident as to be incontrovertible, for example. but at least five of the eleven steps would have to be entirely discounted on such grounds to render tadros’ conclusion even slightly more likely than not. (iii) some may question whether this mathematical likelihood of error is su f f icient to d iscred it a mora l a rg u ment i n t he absence of speci f ic counterarguments, or whether mathematical probabilities can be attached to moral judgments at all. but a third reason to doubt tadros’ distended argument needs no mathematical proof to warrant acceptance: occam’s razor, the principle that the simpler explanation for a proposition is more likely to be true than a complex one, all else equal. given its fruitfulness in directing scientific investigation over centuries, we need not be able to the limits of moral argument 41 leap 3 (2015) explain why this principle is true to be justified in presuming it is.9 by this standard, tadros’ 11-step argument should be rejected as unnecessarily complicated, if only because the same principle tadros uses to justify the v ictim’s right to self-defense – the choice principle – would justif y state punishment directly if punishment deters crime. if imposing the death penalt y on conv icted killer a w ill deter the unprovoked murder of b, the choice principle provides a reason to execute a because, as one of the two will die, it is fairer that it be the one who had the opportunity to avoid the risk. in his response to my “diminishing returns” argument, tadros does not contest the math, or the inverse relation between the number of steps he uses and the likelihood his conclusion is correct. he argues instead that all moral claims rely on the truth of many subsidiary claims, so all moral claims are vulnerable on this analysis, including the ones i propound elsewhere in this essay. my “diminishing returns” argument would lead to a general moral skepticism, he claims. (2015b: 58) but that’s the wrong lesson. my argument is not an invitation to moral skept icism, nor a cla im t hat intuit ions a re infa l lible, but a n appea l to consider the relative persuasiveness of different legitimate modes of moral d i scer n ment on t he quest ion at ha nd. a s mor a l a rg u ment becomes increasingly abstract and distended, the intuitive plausibility of its conclusion increases in importance. this creates a burden that highly revisionist moral arguments may not be able to meet. the problem with tadros’ multi-step argument is that it culminates in a rationale that opposes the fundamental intuitive convictions most people have about the morality of punishment, and this forces us to decide which ground of belief is more trustworthy on the issue. t h is is one a nswer to tad ros’ cla i m t hat my a rg u ments a re a s v u l nerable a s h is ow n because t hey a lso i nvolve mu lt iple steps. t he conclusions to those arguments that it is unjust to inf lict punishment in the absence of desert, and that it is unjust to the v ictim for the state to ignore his victimization – do not require us to choose between an extended chain of reasoning and our considered moral convictions. the bottom line is that tadros’ methodology places his conclusion in a less plausible i n it ia l posit ion before a ny quest ion is ra ised about t he soundness of individual links in the chain. this doesn’t obviate exploring the merits of those links, see sec. 1(b) above, but it does provide a substantial, independent ground for skepticism. 9 richard swinburne (1997) claims that “it is an ultimate a priori epistemic principle that simplicity is evidence for truth.” some argue that this principle is self-evident, constitutive of rationalit y, or another kind of foundational truth that cannot be further justified. others, however, accept occam’s razor is an appropriate methodological ma x im but not by itself indicative of truth. 42 eric blumenson leap 3 (2015) 3. counter-intuitive sentences the last section examined the intricate structure of tadros’ reasoning and whether it can support the principles he derives from it. if we examine how these principles would apply to specific cases, the difficulty multiplies. they produce results so counter-intuitive that something has to give. apparently recognizing this, tadros modifies the duty view to make it cohere with moral common sense, but to such an extent that it largely disappears; as i shall argue, with tadros’ many work-arounds in place, what remains is something very much resembling negative retributivism. this is not surprising, as so many obv ious sentencing factors are easily understood in terms of retributive desert but invisible to the duty view in its unvarnished form. 3.1 losing proportionality in punishment consider the case of dzhokhar tsarnaev, recently convicted for his part in the 2013 boston marathon bombings that killed three people and injured hundreds of others. the duty view would prohibit punishing tsarnaev if he were innocent, but is it capable of generating a proportional sentence to tsarnaev given his conviction? i doubt it, unless we so revise our moral convictions as to make irrelevant numerous factors that anglo-american jurisprudence has consistently viewed as important considerations in sentencing. for ex a mple, i n pla nt i ng t he bombs tsa r naev acted w it h ex t reme premeditation. others may kill on impulse, or after being provoked, or by negligence, or by accident. retributivism can explain the enormously different sentences imposed in killings perpetrated w ith these different levels of culpability: a premeditated killing displays a degree of blameworthiness that doesn’t exist in a negligent one, for example, and therefore deserves far harsher punishment. on the other hand, tsarnaev was a teenager, and we are likely to think he therefore deserves a different, lesser sentence than a fort y year old career criminal who committed the same crime. these factors have been important to sentencing judges because of their obvious relation to desert. retributive sentences are straightforward in that way; most retributivists believe that a punishment should ref lect the gravity of the crime and the blameworthiness of the perpetrator in committing it. if premed itat ion, yout h, a nd pr ior conv ict ions a re releva nt sentenci ng considerations under the duty view at all, there is nothing straightforward about why this is so. on the dut y view, we impose sentences based on many factors, but most centrally on the factors that governed the wrongdoer’s liability to be harmed defensively at the time of his crime. the two primary sentencing limitations are that the harm it inf licts on the wrongdoer not exceed that the limits of moral argument 43 leap 3 (2015) which (a) he would have been liable to suffer from the victim defending himself (2011: 347), and (b) is warranted for the sake of the net benefit it will produce (333-34). that sets the baseline for the wrongdoer’s liability to su f fer ha r m i n pu n ish ment, wh ich is t hen adjusted by ma ny factors, including inter alia reductions based on repentance (347-48), the passage of time since the crime (347-48), the difference between “eliminative” selfdefense and “manipulative” punishment for deterrence (319-320), and the offender’s absence of responsibilit y for the threats his punishment w ill deter (348). as to “a”, note that this proportionality requirement has little to do with t he rect if icator y basis t hat tadros invokes as t he prima r y g round for liability. the sentence is limited not by what would be required to make the victim whole, nor by what would now be required to avert a new but similar crime against him, but by how much harm the v ictim was permitted to i n f l ict defensively at t he t i me of t he cr i me. t h is seems to ma ke t he aggressor’s liability to punishment dependent on the factors that govern t he per m issibi l it y of sel f-defense. key a mong t hem a re necessit y a nd proportionality: the defender may use only the amount of defensive force that is necessary to repel the crime and proportional to the gravity of the threat it is defending against. there are other factors that may limit defensive force, but none of them are sensitive to the age, record, or culpability of the aggressor because those factors do not change the moral preference afforded the victim given that one of the two must suffer harm. nor do age, record and culpability have much bearing on compensation to someone victimized by a crime; whether the aggressor’s threat is a product of negligence, recklessness, or design is not at issue, only the degree of harm that must be rectified. on the other hand, some factors that are relevant to self-defense have little obvious bearing on punishment. most inapt is the self-defense element of necessity. a victim defending himself may use only the amount of force necessa r y to repel t he agg ressor, which mea ns t hat dif ferences in t he circumstances – such as the type of weapon the aggressor is using -will cha nge t he a mou nt of defensive force per m it ted. if one’s l iabi l it y to punishment depends on one’s liability to suffer defensive force, punishment may var y greatly among w rongdoers who are identical in ever y respect except the morally arbitrary circumstances in which they acted. the result will be sentences that, intuitively, seem much too low or much too harsh. consider as examples: a, a bank teller, embezzles v’s account. b, a purse snatcher, grabs v’s purse. should a and b’s liability to punishment vary according to the fact that v is entitled to use defensive force against b but not a? 44 eric blumenson leap 3 (2015) a shoots v and misses, leaving v unaware of his narrow escape. v has no need to defend himself and no right to compensation. does this have any bearing on whether a should be liable to punishment for attempted murder? a threatens v with a knife. v is able to retreat safely and therefore defensive force is unnecessary; but v fails to retreat, parries a’s thrust unsuccessfully, and dies. does the fact that a was not liable to be ha rmed in self-defense have a ny bea ring on what his liabi lit y to punishment should be? in his response to this last hypothetical, tadros seems to argue that the permissibility of defensive harm does not have bearing in that case, but that seems impossible to reconcile with his fundamental argument against desert.10 3.2 tadros’ work-arounds this mismatch between permissible self-defense and proportional punishment should not be surprising. even if we assume the purpose of both is to prevent crime, the factors relevant to averting a wrongdoer’s imminent threat are not the same as those relevant to using a wrongdoer as a means of preventing crimes by other people against other victims at some time in the future. tadros allows that the “transition from self-defence to punishment may not be entirely smooth,” (2011: 348) and develops a number of arguments for departing from the self-defense template he had adopted. the challenge he faces is to cha nge t he scope of pu n ish ment l iabi l it y -ex pu ng i ng t he irrelevant factors and incorporating the relevant ones -while somehow maintaining the self-defense rationale for liability. in my judgment it is a challenge that defeats him: the independent proportionality rationales he marshals become so ad hoc, and so divorced from the self-defense and compensatory grounds that preceded them, that we may wonder what the self-defense template for punishment has accomplished. some illustrations: punishing environmental crimes most criminal codes include environmental crimes that cause harm without harming any particular person – for example, the intentional killing of the last member of a marine species. duties of victim compensation can’t apply to such a case, so one can’t justify punishment 10 tadros says that v wrongs a because his defensive force was unnecessary, but that “given his wrongful act he is permitted to defend himself. it follows that there is no asymmetry between liabilit y in self-defence and liabilit y in punishment of the kind that blumenson’s argument relies on.” (2015b: 71). this seems to contradict the central argument tadros used to show t hat l iabi l it y to defensive force is just i f ied by t he choice pr i nciple, not by t he aggressor’s desert. that principle of distributive justice holds that if harm is inevitable, it is better that it befall someone who was responsible for creating the situation than one who is not. in this case, harm is not inevitable given the victim’s opportunity to retreat; and when he fails to do so, he is the person responsible for making harm to one of the two inevitable. the limits of moral argument 45 leap 3 (2015) by extending the compensatory duty. but tadros doesn’t interpret that fact to bar punishment of such crimes. rather, he develops some much more direct grounds for punishing them. on tadros’ alternative rationale, the wrongdoer had a duty to respect the natural environment, and his violation of that duty may give rise to “a duty to protect that aspect of the natural environment from further damage. if the first duty is not owed to anyone, neither is the second…. hence, it may be permissible to punish [him] to deter others from causing further damage to the natural environment.” but the duty not to commit a criminal act applies to all crimes, raising the question of why these grounds don’t obviate his more complex (and therefore, ceteris paribus, less persuasive) primary argument. why isn’t that duty sufficient to ground a protective duty to prevent further such crimes, without relying on a particularized duty to victims at all? richard burgh (1997: 316) has made an argument along these lines, characterizing a crime as a social harm that requires the offender to compensate society through punishment. punishing attempts similarly, an attempted crime does not harm a particular victim who has no knowledge of it. if the perpetrator of such an attempt is to be punished, it can’t be because of any liability to submit to defensive force or provide compensation to the victim. however, tadros thinks these crimes can be punished because attempted crimes divert police resources and make everyone less safe, thereby establishing the attempter’s dut y to compensate ever yone (2011: 326-27). a lexander (2013) has criticized the factual premise of this claim,11 and ferzan (2013: 185-86) has criticized its rationale, both because it offers no way to determine what degree of harm a wrongdoer’s diversionary act has caused, and because it holds her strictly liable for it. but even if tadros could answer these critiques, his rationale would still dictate an entirely implausible proportionality calculus. for example, it suggests that attempted drug smuggling should be punished more harshly than attempted murder, given the greater police resources devoted to preventing smuggling. since publication, tadros has turned to a different argument to justify punishing attempted crimes. he argues that it is implausible that “attempting to harm others makes no difference to a person’s liability to be harmed as a means…i do not see what argument could be provided for it. even if we think that causing a threat is very important to ground a person’s liability to avert the threat, why should we conclude that attempting to cause harm 11 alexander (2013: 172) argues that because many failed attempts would go unnoticed but for their criminality, it is “ludicrous to assert that were they not criminalized, they would be causing us to devote security resources away from averting harmful acts.” 46 eric blumenson leap 3 (2015) is insufficient on its own to make any difference at all to a person’s liability to be harmed?” (2013: 320). tadros’ intuition is clearly explainable on grounds of desert, but given his rejection of that ground, and the inapplicability of tadros’ compensatory theory, i would argue this gets the burden of persuasion backwards, that the argument missing is his own. punishment beyond compensation attempted crimes present one of several difficulties that confront tadros’ effort to justify punishment on the basis of the offender’s residual compensatory obligations. as commentators have noted, this basis also produces the unacceptable corollary that wealthy offenders may be able to buy their way out of punishment (ferzan 2013: 189-91; walen 2012). most people would find this unacceptable on grounds of inequa lit y, but because t heir measure of inequa lit y is compa rat ive desert, that can’t be tadros’ worry. his worry is that an offender who does not bear any significant cost in protecting the victim “cannot claim to have fulfilled his rectificator y dut y….[f ]or he would only have done what he would have had a duty to do independently of his wrongdoing” – the duty to rescue each other from harm if it can be done at little cost (2011: 286). so tadros annexes an independent basis of punishment liability to the duty view. he claims that: our compensatory duties are fulfilled when we have done what is required to rectif y the harm that we have caused. the duties that underpin punishment, in contrast, are not…because i could have been harmed as a means to avert a threat that i posed as a result of my wrongdoing, i may now be harmed as a means to an equivalent degree to avert other threats, even threats of a greater magnitude than the harm that i caused (288, 291; also see 283-91 discussing punishment beyond rectification). the question is, why? tadros offers two rather vague answers. the first is the analogical argument that because a guarantee of compensation does not obviate the prohibition on tortious conduct in advance, ex post compensation does not fulfill the offender’s duties either (2015a: 82-83). but this analogy works only if the reason compensation is insufficient ex ante also applies ex post, the limits of moral argument 47 leap 3 (2015) and it doesn’t. that reason depends on the act not having occurred: at that point, compensation is second best to preventing the tort to begin with. ex post no such preference exists. in fact, there can’t be a preference as to type of remedy, because both the compensatory and further duties are paid in the same currency protection from future crime. the best we get is the discussion of a hypothetical -three threats, described below12 that suggests that committing a crime subjects the wrongdoer to conscription as a utilitarian means for crime control. tadros’ grounds are that (1) the victim is in serious danger, (2) the offender is harmed to no greater degree than he is liable to be harmed to avert the threat he imposed, and (3) he could have avoided that liability simply by refraining from his wrongful act (2013: 303, enunciating these reasons for the three threats conclusion; 2011: 291). but these grounds prove too much twice over. the first difficulty is that these grounds cannot distinguish bet ween using w rongdoers to prevent crime and using them to supply organs or fulfill other important social needs. in order to avoid making the offender fair game generally, tad ros of fers some except ions to t he above rat iona le ; whet her t hese exceptions are persuasive i leave to the reader to consider.13 12 in three threats, tadros imag ines t hat bob has propelled a bou lder t hat w ill injure jane. on the duty view, jane would have been permitted to harm bob to y degree in order to stop the boulder, but the boulder is unstoppable. she can, however, use bob to divert either boulder 2 or boulder 3, each of which have been pushed towards her by others. if she uses bob to avert boulder 2, she will avert the same degree of harm that bob’s boulder will cause, at minimal injury to bob. if she uses him to avert boulder 3, she will avert twice the deg ree of injur y t hat bob’s bou lder w ill cause, but bob w ill be much more bad ly injured, though in an amount less than y (2011: 289). tadros argues that it is strongly intuitive that jane may use bob to avert boulder 3, even though using him to avert boulder 2 would fully satisf y bob’s compensatory obligation with less injury to him (291). 13 tadros says that certain kinds of punishment w ill always exceed the offender’s liability. on his account, even if an offender was subject to lethal defensive force at the time of the crime, capital punishment is impermissible given the passage of time and the difference between eliminative and manipulative harm (2013: 308). w hat about the non-lethal harm of organ removal for transplantation? tadros rules this out as well on the following grounds: (1) “it is wrong to harm a person to tackle a problem that is utterly different from criminal offending.” (2011: 354). w hether a particular punishment is excluded thus depends on what kind of differences matter and why, but we get no more than the conclusory term “different.” without a definition, the criterion cuts both ways: others would find the difference between (a) harming a wrongdoer to defend against his aggression and (b) harming him to deter the aggression of others sometime in the future sufficient to make the latter impermissible. (see quinn (1985). (2) “it may be t hat t here is somet hing specia l about organ distribution…. perhaps using a person’s organs is a particularly pernicious way of using a person…” (2013: 309). but again, without specifics we are hard-pressed to explain why incarcerating a person regardless of his desert is not similarly pernicious. (3) institutional reasons to constrain punishments: for example, the likelihood that the institutions administering transplant pu n ish ments w i l l act u n fa i rly, t he ava i labi l it y of less d racon ia n but equa l ly ef fect ive alternatives, and the expansive tendencies of criminal justice systems (2013: 308-09). notably, however, all three grounds may easily apply to exclude prison sentences as well. 48 eric blumenson leap 3 (2015) the other way that tadros’ reasoning proves too much is that it seems to leave the duty of compensation superfluous. its justification reaches all the punishments that were prev iously grounded in the compensator y dut y. the latter now seems beside the point as arguably it should be, given that a victim may be fully compensated through the civil system. let us consider a different explanation for the intuition that wrongdoers have an extra-compensatory duty to deter crime by their own punishment. daniel farrell (2015) has argued that this putative requirement must be a duty of retributive justice; tadros disputes this on the ground that “retributivist views of punishment are not grounded in duties of offenders, or the relevant duties have nothing to do with protection.” (2015a: 81) i believe tadros is right to deny that this additional duty constitutes the pure form of ret ribut iv ism t hat requires t he inf lict ion of suf fering on offenders, because his theory prohibits doing so solely for that purpose. but i find it difficult to view his claim as plausible except as an implicit if diluted version of the negative retributivist theory i argue for in the following section – the view that desert is a necessary but not sufficient condition for punishment. on the duty view, the offender has a duty to exceed compensation to the full extent of his liability to be harmed, but this duty should only be enforced if some utilitarian benefit will accrue. and on what basis does that duty exist? not on the basis of either utility or compensation, because the duty exists apart from both. in the absence of some other specification by the author, it seems t hat t he dut y persists beyond f u l l compensat ion because t he offender deser ves to suffer the additional burden. that seems to be the best ex pla nat ion for tad ros’ statement t hat a ssa i la nt ja ke st i l l owes something after he has fully compensated his victim sally: “if jake manages to benefit sally at little cost to himself, we will have a sense that he has ‘got away’ with his crime.” (2011: 289). 4. the inexorable significance of desert i have just argued that the duty view generates highly counter-intuitive instructions to a sentencing authority unless modified beyond recognition, and that retributivism offers a better account of the factors that must inform the proportionality calculation. this should count heavily against the theory unless its retributivist rival is itself lacking in some greater way. so we must assess the comparative strength of the retributivist alternative and tadros’ arguments against it. tadros argues that retributivism is not an option because it is both false and incoherent, and what intuitions seem to support it can be better explained the limits of moral argument 49 leap 3 (2015) in other ways. his central objection, and the one i shall explore here, is that retributiv ism rests on a false premise – the premise that a w rongdoer’s suffering is intrinsically valuable to the degree it is deserved (2011: 26, 45).14 but there are many retributivisms, and only some of them depend on that premise.15 therefore tadros’ critique cannot establish the dut y view’s comparative advantage over retributivism tout court. more specifically, tadros’ definition does not encompass retributivists who believe that punishing criminals is at least sometimes a duty of justice, a claim i shall argue in part 4(b). nor can it apply to the prominent version known as negative retributivism. negative retributivists do not believe that the state should punish a criminal to the extent she deserves. rather, they believe that the state must not punish the innocent, nor punish the guilty beyond what they deserve. for them, desert is a necessary but not sufficient condition for punishment; therefore punishment is justified only if there is also an additional, non-retributive basis. negative retributivists quite clearly do not believe that the “goodness” of deserved suffering requires the punishment of a criminal, and there is no reason to think they believe such suffering is good at all. but desert is still the central element in their theory: its absence bars punishment, and its presence places a n upper limit on t he permissible sentence. negat ive retributivism illustrates the error in tadros’ argument: one can’t eliminate the importance of desert to sentencing by showing that deserved suffering is, li ke a l l suf fering, bad. we ca n believe t his but a lso believe t hat t he inf liction of suffering in proportion to desert is sometimes justified as a necessary evil. there is a reason tadros dismisses negative retributiv ism, but not, i think, a good one: he believes there can be no such thing. he claims that by its terms, retributivism provides a putative reason to punish the guilty but no reason at all against punishing the innocent, or against punishing the guilty beyond what they deserve. he further argues that if it did protect the innocent, the idea would be incoherent. the next section challenges these t w o c l a i m s. fol low i ng t h at , s e c t ion 4 ( b ) s how s how a br oader nonconsequent ia l ist t heor y of pu n ish ment m ig ht just i f y bot h a l i m it on punishment (through negative retributivism) and an affirmative duty to punish (grounded on other considerations of justice), as one example of a theory incorporating desert that is not subject to tadros’ critiques. i suggest that this theory is more compelling than the duty view, given its superior ability to account for our considered sentencing judgments and its greater 14 more precisely, tadros believes that only a retributivism built on that premise would be weighty enough to justif y an incarcerative system of punishment. 15 those that do include the theories argued in moore (1997) and kirshnar (2000). 50 eric blumenson leap 3 (2015) coherence as a theory. 4.1 desert as prerequisite: is negative retributivism possible? retributivists disagree about whether their theory commands punishment of the guilty or only permits it, but it seems all retributivists believe that their theory bars punishment of the innocent, and consider this a unique and powerful point in their favor. remarkably, this is precisely the opposite of tadros’ novel rendition of retributivism, which to him constitutes only a sword, not a shield. this fol lows, he says f rom “t he ver y simple t r ut h t hat t he existence of a reason to do something does nothing to exclude the possibility that the thing (and more) could not adequately be justified on other grounds.” (2011: 36; also see 35-7, 312-13). he claims that only the duty view protects the innocent from punishment. the oddity is that the basis for tadros’ claim that the duty view bars punishment of the innocent is identical to the reason retributivism purports to do so. that reason is the means principle. the claim in both cases is that only the guilty may be punished consistent with the means principle either because only they deserve it (according to retributivists) or because only they have a protective obligation the state may enforce (according to tadros). given the parallel structure, there are no good grounds to claim, as tadros does, that the duty view bars punishment of the innocent but retributivism does not. perhaps tadros believes that the duty view includes the means principle, whi le t he ret ribut ive v iew does not. but why shou ld he t hin k t hat? the retributivist tradition since kant has most centrally embodied respect for the right of autonomous individuals to choose their ends for themselves, a constraint that restricts punishment to those who will it on themselves by their own blameworthy acts. tadros (2015b: 59) also argues that if negative retributivism did protect the innocent it would be incoherent because desert necessarily cuts both ways: i think that ‘x deserves o’ implies that there is good reason for x to get o irrespective of any further good that will be secured if x gets o. if so, there is no such thing as negative desert in blumenson’s sense. a negative retributivist may believe it bad (or unjust) for someone to get what he doesn’t deserve without being logically committed to the view that it is necessarily good (or just) for him to get what he does deserve (wasserstrom 1978: 309-10). but let us assume that tadros’ first proposition is correct. his second sentence would not follow from it if any one of the following is true: i. a reason may be overridden. an offender may deserve punishment, and this may entail that punishing him is good in one way, but the limits of moral argument 51 leap 3 (2015) the net costs of punishment may be so great as to foreclose it. here’s an analog y: equality is intrinsically good in one way; if achiev ing it wou ld require redist ribut ion t hat lef t ever yone almost as impoverished as the worst off were, doing so may be bad in a greater way; therefore, whether states should aim for equality in any particular case is contingent on the costs and benefits it would produce. ii. a mora l side-const ra int might ba r t he state f rom a iming to cause offender suffering even when deserved. that constraint would not rule out state punishment for other reasons. iii. even if “x deserves o” entails that x should receive o, desert w i l l not require punishment if “o” sig nif ies “for feiture of a libert y right” rather than “punishment.” the question here is whether one can deser ve to lose a right by his blameworthy actions, and surely it is at least coherent to think one can. some of one’s rights may be contingent on respecting the rights of others. alternatively, blameworthiness may be the fairest criterion for the distribution of individual punishments when a punishment regime w ill produce enough benefit to be justifiable. there is nothing unintelligible or inconsistent in recognizing both a moral prohibition on punishing the blameless and a humane directive to impose punishment on the guilty only when something would be accomplished by doing so. rights-forfeiture theories differ over what rights a criminal forfeits by her conduct. depending on the theory, she might retain rights against punishments that serve no utilitarian benefit, or inflict pain, or are imposed by vigilantes, for example (see wellman 2012). there are many versions, but to qualify as a form of negative retributivism, the forfeited right against punishment must be limited to punishments proportional to the offender’s desert. 4.2 beyond desert: why punish? the second and third interpretations conceive negative retributivism as a matter of principle – one that that limits who may be punished and by how much – but by itself provides no reason to punish anyone. if there is to be any punishment at all, negative retributivists must look to some other theory that provides an affirmative reason to impose punishment on an offender. many negative retributivists find that reason in the utility of punishment as a crime-preventive deterrent. that hybrid view parallels tadros’, except that the permissibility of punishment is grounded in desert rather than a forward-looking remedial duty. 52 eric blumenson leap 3 (2015) but there is powerful intuitive support for another reason to punish as well: as tadros notes, most people believe that “something is amiss when a serious wrongdoer is not punished,” even in the absence of deterrent value (2011: 276). in this final inquiry, i add this conviction to the mix and ask whether it weighs for or against either theory. if we credit this intuitive conviction as roughly ref lecting some moral truth, we must ask what exactly is amiss. tadros thinks it is the fact that “offenders who are not punished have a duty that is unfulfilled.” (276). the ret ribut iv ists he ta rgets believe it is t he fa i lure to inf lict suf fering on wrongdoers who deserve it. one might argue that a negative retributivist who rejects both views, as i have, can’t explain this intuition and that this should count heavily against his theory. there are two rejoinders. first, even if true, that criticism would not count against the theor y in a pair-w ise comparison with the duty view, which itself leaves a wrongdoer unpunished when deterrent value is lacking. second and more importantly, a negative retributivist can answer that challenge because, unlike tadros’ theory, nothing prevents him from combining a desert-based limit on punishment with a non-utilitarian rationale for imposing it. here is a rudimentary sketch of one possibility: a hybrid theory that asserts as state deontological obligations (1) a prohibition on inflicting undeserved punishment, and (2) a responsibility within that limit to impose punishment when required as a matter of justice to the victim. (whether utilitarian benefit is also a reason to impose a permissible punishment is a separate question.) the intuitive appeal of the second element is currently illustrated by the demands for “justice for michael brown” by residents of ferguson, missouri, following a grand jury’s failure to indict the police officer who killed him, and by the startling number of similar cases since. what is “amiss” in such cases, and in a state’s refusal to sanction any grave crime, is the injustice that inf licts upon the victim: the devaluation for a second time of someone who has a lready been t reated by t he per pet rator as no more t ha n a n instrument to his ends. for george fletcher, this constitutes state complicity in the crime that leaves “the victim’s blood…on our hands.” (fletcher 1995: 6, 205; also see hampton 1992: 1684, 1692; burgh 1987). complicity may be too strong, but at the least, such state inaction betrays the protective role that largely underwrites its own legitimacy, and treats the victim as an outcast. on this account, the state’s obligation to punish crime derives from the injustice it does to victims when nothing is done. but to be clear, this rationale for punishment is a qualified one: punishment is not the obligation, only a means of fulfilling it, and whether other means may also do so is necessarily the limits of moral argument 53 leap 3 (2015) dependent, at least in part, on the social meanings that prevail in a culture.16 in ours, many people believe that a long term of imprisonment is the only way of taking victimization seriously. yet it is possible to imagine a cultural shift towards less draconian methods, such as fines, community service, house arrest now enforceable through the use of gps ankle bracelets -and even non-criminal restorative justice resolutions, in which case this justification for punishment would dissolve. to be sure, the duty view is also concerned with justice to the victim - unlike the prevailing punishment theories, which neglect the victim as an independent subject of justice17 -but its conception of justice is quite different, and is contingent on its crime-prevention utility. tadros believes that the state’s obligation to repudiate crime and vindicate its victims can’t justify punishment, (2011: 87-8, 91-2, 107, 109; 2013: 255) and argues that because a v ictim’s moral status “is incapable of being eroded through w rongful action….it is difficult to see why the obligation to protect people against lack of respect is very significant in itself” (2011: 108).18 but this misses the real stakes involved in a state’s response to victimization, and leads tadros to severely underestimate its importance. w hat is involved is not merely the wrongdoer’s violation of a victim’s inalienable moral status, but the very existence of the victim’s civil status as a member of the political community. in the united states, it is unconstitutionally cruel and unusual punishment to strip a person of “his individual status in organized society”.19 a state that ignores crimes against its citizens withdraws that status. there are other hybrid theories, of course. h. l. a. hart’s distinction bet ween t he ut i lita ria n “genera l just if y ing a im” of punishment a nd a deser t-based dist ribut iona l const ra int is perhaps t he most inf luent ia l among many (hart, 1968: 8, 10). the only point here is to demonstrate the inexorable signif icance of desert in punishment as a restriction on its permissibilit y, and its compatibility with a range of affirmative rationales 16 a further, necessary question, of course, is whether any particular cultural take on the requirements of justice may be morally unacceptable. w here permissible cultural diversity ends and moral imperatives begin is a vexing problem, and one that increasingly confronts institutions of global justice. for the international criminal court, that issue takes legal form as the question whether non-criminal, transitional justice alternatives are sufficient to bar icc prosecution under its complementarity principle. rome statute of the icc, art. 17, un doc. a/confr. 183/9 (july 17, 1998). over time, icc decisions on the issue will define minimum requirements for criminal justice systems throughout the world. 17 consequentialism is concerned with the collective benefit, presumptively leaving the victim with no greater significance than any other individual; retributivism classically treats justice to the victim as if it were a mere by-product of, or necessary identical to, the punishment that is required to treat the offender as she deserves. 18 see a lso 2013: 277-79, in which tadros rejects adil a hmad haque’s cla im t hat punishment can be justified because we owe it to the victims; see haque 2013. 19 trop v. dulles, 356 us 86, 101-102 (1958). 54 eric blumenson leap 3 (2015) for punishment. w hat’s fatally counter-intuitive in the dut y view is its exclusion of any direct role for desert as a prerequisite to the permissibility of punishment. conclusion i have argued that the duty view is unpersuasive as a theory of punishment, and that an alternative theory – one that recognizes both a defendant’s right against undeserved punishment and a victim’s right to vindication – comes closer to a point of reflective equilibrium in which principles, theories, and intuitive judgments cohere and support each other rather than forcing us to choose among them. yet what a fruitful thing it is for the philosophy of punishment that tadros has made his case for the duty view! there are not many works within the field that cover so much criminal law ground with such originality, and even fewer with the potential to stimulate a new wave of thought on numerous issues in the field. and, it is to be hoped, not just in the realm of philosophy. one of the gifts of a theory of punishment as imaginative and revisionist as the duty view is that it allows us to v iew our correctional policies through a new lens, rethink old choices, and discover alternative routes to security that don’t always go through a prison gate. that route, which the united states has traveled for the last half century, has left us with over 2.2 million prisoners and the distinction among nations of imprisoning the largest percentage of its population, five times the world’s average (bureau of justice statistics 2012: 3). tadros asks us why, and what we have to show for it. his approach presses us to take the suffering of inmates seriously as a central moral element in punishment, and in so doing, to consider alternatives. for consequentialists, retributiv ists, policy-makers, judges and others who long for a morally defensible criminal justice system, that is the best place to start. bibliography alexander, l., 2013: “can self defense justify punishment?”, law and philosophy 32: 159-75. brun, g., 2014: “reflective equilibrium without intuitions?”, ethical theory and moral practice 17: 237-52. bureau of justice statistics 2012: “correctional population in the united states, 2011”, in bulletin ncj 239972 : 3.7-52. bu rg h, r., 1987: “gu i lt, pu n ish ment, a nd deser t”, in responsibilit y, character, and the emotions: new essays in moral responsibility, ed. f. schoeman, 316-37, cambridge: cambridge university press. the limits of moral argument 55 leap 3 (2015) duff, r a., 2013: “punishment and the duty of offenders”, law and philosophy 32: 109-27. farrell, d.m., 2015: “using wrongdoers rightly: tadros on the justification of general deterrence”, criminal law and philosophy, 9: 1-20. ferzan, k.k., 2013: “rethinking the ends of harm”, law and philosophy 32: 177-98. fletcher, g., 1995: with justice for some: victims’ rights in criminal trials, new york: addison-wesley publishing company. hampton, j., 1992: “correcting harms versus righting wrongs: the goal of retribution”, ucla law review 39: 1659-1702. haque, a.a., “retributivism: the right and the good”, law and philosophy 32: 59-82. hart, h.l.a., 1968: “prolegomenon to the principles of punishment 1”, in punishment and responsibility, 1-27, oxford: clarendon press. husak, d., 2012: “retributivism in extremis”, law and philosophy 32: 3-31. k irshnar, s., 2000 : “a defense of retributiv ism”, international journal of applied philosophy 14: 97-117. moore, m.s., 1997: placing blame: a theory of the criminal law publisher, oxford: oxford university press. nozick, r., 1974: anarchy, state and utopia, new york: basic books. quinn, w., 1985: “the right to t hreaten and t he right to punish”, philosophy & public affairs 14: 327-73. rawls, j., 1971: theory of justice, cambridge, ma: belknap pess of harvard university press. —1999: “the independence of moral theory”, in rawls, j., collected papers, ed. samuel freeman, 286-302, cambridge, ma: harvard university press. swinburne, r., 1997: simplicity as evidence for truth, milwaukee, w i: marquette university press. tadros, v., 2011: the ends of harm: the moral foundations of criminal law, oxford: oxford university press. — 2012: “replies”, jerusalem review of legal studies 5: 89-109. — 2013: “responses”, law and philosophy 32: 241-325. — 2015a: “answers”, criminal law and philosophy 9: 73-102. — 2015b: “response to blumenson”, law, ethics and philosophy 3: __. tanguay-renaud, f., 2013: “victor’s justice: the next best moral theory of criminal punishment?”, law and philosophy 32: 129-57. walen, a., 2012: review of the book the ends of harm by victor tadros, at rutgers university, criminal law and criminal justice books, http://clcjbooks.rutgers.edu/ books/ends_of_harm.html wasserst rom, r., 1978 : “some problems in t he def in it ion a nd just if icat ion of punishment”, in values and morals, ed. a. i. goldma n a nd j. k im, 299-315, dordrecht: d. reidel. wellman, c., 2012: “the rights forfeiture theory of punishment”, ethics 122: 371-93. http://clcjbooks.rutgers.edu/books/ends_of_harm.html http://clcjbooks.rutgers.edu/books/ends_of_harm.html leap 5 (2017) justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim j u l i e l . rose dartmouth college introduction the contributors offer a rich collection of constructive and careful arguments. i am grateful for their thoughtful comments which, drawing on their own work and the book, broaden and advance the discussion of free time as a matter of justice in new and fruitful directions. w hile my response will in part involve clarif ying and developing my argument on behalf of citizens’ claims to the resource of free time, i have aimed to engage with their arguments in the same productive spirit, tracing potential avenues of future work. i begin with robert goodin’s contribution, and the question of how free time ought to be conceptualized for a public and feasible theory of justice, in particular – as goodin presses – so that it allows for empirical measurement. i turn then to rosa terlazzo’s argument, which draws our attention to considering the array of social conditions that must obtain to enable citizens to make effective use of their free time, and liberties and opportunities more generally. i next take up jeppe von platz’s argument, which asks whether the effective freedoms principle can support citizens’ claims to a fair share of free time as a matter of cooperative fairness. continuing the question of fair shares, lucas stanczyk asks how a theory of social justice should respond to class disparities in access to free time, developing this question by asking whether harried wealthy professionals ought to be regarded as having (more than) their fair shares of free time. finally, désirée lim’s argument considers the temporal dimensions of republicanism, examining the question of how a republican theory of justice might ground an entitlement to free time. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 9 106 julie l. rose leap 5 (2017) 1. the requirements of a public and feasible theory of justice: a response to goodin my account of the resource of free time both draws on and departs from goodin et al.’s conception of discretionary time (2008), and similarly my response here will both highlight ways in which our two approaches are and may be more convergent, while also maintaining what i take to be some important points of divergence. goodin’s central challenge to my conception of free time is how well it meets the requirements of empirical measurement. i share goodin’s view that the operative conception of free time must allow for empirical assessment. to be a resource to which citizens have claims in a public and feasible theory of justice, i argue that it must be possible to reliably and verifiably know whether an individual possesses the resource, and to obtain this information efficiently and noninvasively (rose 2016: 46–47). goodin et al.’s conception readily allows for empirical measurement, as their discretionary time (2008), an important advance in the study of time, clearly demonstrates. accordingly, in taking up this challenge, my aim is to show that my conception of free time meets the requirements for assessments that are both feasible and reliable. on both of our accounts, free or discretionary time is to be distinguished from necessary time – the time that one must spend to meet the necessities of life (rose 2016: 4, 42; goodin et al. 2008: 5–6, 34). the differences in our approaches arise in how to conceptualize and assess this time. the approach goodin et al. take – which i term the social benchmark approach – follows, as goodin here notes, the standard conceptualization of a relative poverty line (that is, a poverty threshold set relative to a society’s median income, rather than an absolute measure of deprivation). dividing one’s total necessary time into the categories of paid labor, unpaid household labor, and personal care, they assess one’s necessary time in paid labor as how much time it takes one to earn a poverty-level income at one’s wage rate, and one’s necessary time in unpaid household labor and in personal care, respectively, as fifty and eighty percent of the median amount of time people in one’s society spend in such activities, indexed, in the former, to one’s household structure (goodin et al. 2008: 34–53). the approach i take – the basic needs approach – instead conceptualizes one’s necessary time as how much time it is objectively necessary for one, taking account of relevant circumstances, to spend to meet one’s own, and one’s dependents’, basic needs, which are the demands one standardly must meet in order to attain a basic level of functioning in one’s society (rose 2016: 42 n. 5, 58). leap 5 (2017) 107 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim though the philosophical conception of free time underlying the basic needs approach could be fully tailored to a given individual’s relevant circumstances (i.e. how much time it is necessary for one, given all one’s very particular circumstances, to meet one’s basic needs), such a maximally individually tailored approach fails to meet the feasibility requirements of a public theory of justice, as it would not be possible for a public authority to practically make such an assessment efficiently or noninvasively. as such, i argue, the basic needs approach should be only moderately tailored to individual circumstances, such that it more generally assesses how much time it takes people in a set of relevant circumstances to meet their basic needs (rose 2016: 46–47, 57). the basic needs approach differs from the social benchmark approach in two key respects: first, on the social benchmark approach, as operationalized by goodin et al., the assessment of necessary time is tailored only to wage rate and household structure, while the basic needs approach is tailored to any individual circumstances that a theory of justice or democratic decision renders relevant (rose 2016: 60–65). second, while the social benchmark approach assesses necessary time purely relatively, the basic needs approach has both absolute and relative components (following sen 1983).1 the first distinction is not a deep one, as the social benchmark approach could be operationalized in a more fine-grained way, as goodin notes, if there were a suitable data set (goodin 2017: 41). indeed, this is a potential point of greater convergence, as my approach indicates that more comprehensive circumstance-tailored time-use data must be collected in order to empirically operationalize the basic needs conception of free time. goodin argues that though the two approaches could converge in this way, the added granularity would come at a cost, because public policy does and should operate through a system of general rules, and ought not to be unduly driven by the need to accommodate the very special circumstances of some small subgroup (goodin 2017: 41). this point about generality is well taken, but i don’t think it obviates the need for more finegrained data for sound public policymaking. consider, for instance, the question of where to invest in improving the speed and efficiency of a city’s public transportation systems. it might be the case that the city’s highincome workers, who choose to live in its suburbs, and its low-income 1 on whether necessary time should be measured by a relative or absolute standard, see the exchange between goodin et al. (2011) and bittman (2011); see also williams, masuda, and tallis (2016). for a measure that relies on an absolute standard, see hobbes et al. (2011). 108 julie l. rose leap 5 (2017) workers, who can afford to live only in its outer rings, spend the same amount of time commuting into work, but the low-income workers spend more necessary time commuting – a distinction that could be made only with more fine-grained data, and that ought to inform a just transportation policy. further, when there are exceptional cases that ought to be treated separately from general social policy, even on a case-by-case basis, the basic needs approach provides the required conceptual grounds for such assessments. the second distinction is more significant. consider the question of how much time it is necessary to spend grocery shopping, cooking, and eating. the social benchmark approach determines how much time it is necessary to spend on these tasks as half the median amount of time people in one’s society in fact spend on these tasks, tailored to some set of circumstances. on the basic needs approach, these relative comparisons are relevant – how much time people around you spend in necessary activities does provide meaningful guidance about what is socially necessary to function in one’s society – but they are not determinative. say that the median amount of time that full-time employed parents spend grocery shopping, cooking, and eating is only five hours per week. the assessment of necessary time might ref lect that, but it could also be adjusted by democratic or expert judgment about how much time it is objectively necessary to spend in these tasks. consistent with its underlying conceptualization, the basic needs approach allows for such adjustments in instances in which people generally might, due to competitive pressures or social norms, spend either more or less time than is objectively necessary to meet a basic need (rose 2016: 55). beyond these questions of conception and measurement, goodin also raises several points which fruitfully indicate areas of future work, and which i want to note here, if only brief ly. first, there is the matter of distinguishing and evaluating the various policy levers a society might engage to realize a just distribution of free time. these include, as goodin notes, beyond more generally equalizing resources, reducing and redistributing necessary time (goodin 2017: 37-38, 42-43). in addition, a society can realize a just distribution of time by ensuring that citizens have access to free time (e.g. counteracting overemployment, see rose 2016: 60, 78–81, 138–40), and entitling citizens to a greater portion of a society’s aggregate available free time, even if at the cost of lower rates of economic growth (rose 2016: 128–34). taken together, these means provide substantial scope to affect the amount and distribution of a society’s free time. second, there is the question of what conditions enable citizens to make effective use of their free time – which i take up next in engagement leap 5 (2017) 109 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim with terlazzo’s argument. and, finally, there is the question of how arguments for a claim to free time interact with those for a claim to various valuable goods in work. while the former might undermine the latter (if arguments for valuable work depend on how people must spend most of their time working), the arguments might instead apply in tandem, such that people have claims to these goods – as goodin suggests – within and outside of work.2 2. the social conditions for the effective use of free time: a response to terlazzo terlazzo generously proposes that the argumentative framework i use to establish citizens’ legitimate claims to free time may serve as a model to argue for citizens’ claims to other under-explored resources. she takes up this project by instructively arguing that, on the basis of the effective freedoms principle – which ensures that citizens possess the means that are generally required to make effective use of their formal liberties and opportunities – citizens have a claim to a distinctive internal resource: a sense of moral entitlement to make use of their basic liberties. terlazzo's example of irma illustrates how a lack of a sense of moral entitlement may compromise one’s ability to effectively exercise one’s freedoms. irma is an aff luent housewife who has ample money and free time, but she believes that a woman’s place is in the family, and that she is morally obligated to devote all of her time to taking care of her home and children. while irma is aware of her formally-guaranteed freedoms and has the temporal and material resources to exercise them, she does not feel morally entitled to do so. as such, irma does not participate in politics or community life, or engage in any other pursuit beyond caring for her family (terlazzo 2017: 93-94). terlazzo develops several alternative ways to specify this resource, but to take one version, we can understand it, analogous to rawls’s primary good of the social bases of self-respect, as a claim to the social conditions that reliably foster the belief that one is morally entitled to exercise one’s basic liberties. terlazzo argues that the social conditions that would ground this belief would likely be some standard of formal education and broad exposure to people living diverse lives (terlazzo 2017: 101-102). if 2 see, for instance, gheaus and herzog (2016: 80) for the suggestion that if people had far more free time, there would be less, if any, reason to be concerned with the distribution of people’s ability to realize these goods within their paid work. for a discussion of these argumentative possibilities, see hsieh (2008: 76–79), and for arguments that might apply within and outside of work, see, for instance, muirhead (2004) and arnold (2012). 110 julie l. rose leap 5 (2017) irma was not educated to consider or exposed to alternative views about the proper role of women in the family and in society, and therefore she has always held, and is not open to revising, her beliefs about women’s domestic obligations, she would then lack the relevant resource.3 terlazzo takes up the argument for the resource of free time to argue, in parallel, for the resource of moral entitlement. in response, i will, in turn, take up her argument to show how a claim to this type of internal resource interacts with citizens’ claims to free time. the effective freedoms principle grounds citizens’ claims to a set of resources. by extension, on the same grounds, citizens also have claims to the social conditions that are generally required to make effective use of these resources for the exercise their liberties. as such, citizens have claims to fair shares of free time, and to the social conditions that allow them to make effective use of their free time to exercise their liberties (rose 2016: 90, 142). to see how citizens might possess free time under conditions that undermine their effective use of it, and in turn the effective exercise of their liberties and opportunities, consider the following cases. ann has a fair amount of free time, but she is a retail employee who must work evenings and weekends, so she only has free time during weekdays when her family and friends, as well as most other people, are working. beth is a live-in housekeeper and nanny and, though she too has a fair amount of free time, she only has free time in brief windows between meeting the responsibilities of her position. chris works in a distribution center, and though he also has enough free time, it does not occur on a predictable schedule because he is regularly required to work overtime without advance notice; similarly for david, a restaurant server, with an on-call shift schedule (or zero-hours contract). though ann, beth, chris, and david all have a fair amount of free time, due to the constraints imposed by the terms of their employment, they do not have this time under conditions that allow them to effectively use it to exercise their liberties (rose 2016: 142-143). to address these sorts of constraints on the effective use of one’s free time, i argue that, in addition to having a fair amount of free time, citizens must enjoy their shares of free time under a set of fair conditions. in particular, first, one must have access to sufficient periods of shared free time; and second, one must either have discretion over when one’s free time occurs, or, if one has limited discretion, one’s free time must occur in generally usable periods and on a predictable schedule (rose 2016: 143-44). 3 for a related argument, see ferracioli and terlazzo (2014). leap 5 (2017) 111 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim the book focuses on these specifically temporal conditions that must obtain for the effective use of one’s free time, but these are, of course, not the only ways one’s effective use of one’s free time may be constrained, nor are these the only conditions that must obtain for one to be able to effectively use one’s free time to exercise one’s liberties and opportunities. the effective use of one’s free time also requires, for instance, various social conditions related to space. effective freedom of association calls for access to both private and public spaces that meet a set of conditions, including, as goodin notes, public parks that facilitate social mixing (goodin 2017: 44; rose 2016: 109 n. 32), as does effective exercise of the political liberties. the effective use of one’s free time to more generally pursue a conception of the good also requires access to diverse opportunities in the built and natural environment, which we might think of as free time infrastructure (rose 2016: 8; see also weeks (2011: 167-171) on the creative potential of free time, which in turn can expand these and other opportunities). terlazzo provides the useful example of irma to demonstrate how an absence of a sense of moral entitlement, like an absence of free time, can undermine the effective exercise of one’s freedoms. but her example also constructively highlights how the effective use of one’s free time can itself be hindered in other ways, and more broadly, how ensuring that citizens can make effective use of their formal freedoms requires an interlocking set of resources and social conditions. to illustrate how citizens’ claims are connected, consider education. on the basis of the effective freedoms principle, citizens are entitled to a system of education that fosters their all-purpose internal capacities, including, following terlazzo’s argument, a sense of moral entitlement. in turn, such an education system serves as one of the social conditions that enables citizens to make effective use of their free time to exercise their liberties. bertrand russell, for instance, who argued that “four hours’ work a day should entitle a man to the necessities and elementary comforts of life, and that the rest of his time should be his to use as he might see fit”, was quick to add that education would be “an essential part of any such social system” in order to ensure t hat people were equipped to ma ke use of t heir f ree t ime (russel l 2004: 12).4 4 this aim might inform both schools’ curricula (e.g. civics education) and schedules (e.g. recess, school vacations), so that students have both preparation for and experience with the effective use of free time. i thank tom parr for suggesting this point. children might also have a claim to free time to realize non-instrumental goods; for an argument that children have claims to free time, and to the means to make effective use of that time (e.g. playgrounds, extra-curricular opportunities), to realize distinctive childhood goods, see neufeld (2018); see also gheaus (2015); rose (2016: 63 n. 29). 112 julie l. rose leap 5 (2017) it is essential – especially as we consider the prospect of citizens having far greater amounts of free time – to remember that the effective freedoms principle grounds citizens’ claims not only to a fair amount of free time, but, as terlazzo’s argument highlights, to the social conditions that allow them to make effective use of it to exercise their liberties and opportunities. citizens must enjoy their free time under social conditions that allow for its value to be realized. 3. the scope of the effective freedoms principle: a response to von platz the argument that the effective freedoms principle grounds a claim of all citizens to free time can be understood, von platz argues, in two ways, corresponding to two readings of the principle. von platz contends that, while both arguments are sound and establish that free time is a proper subject of justice, neither establishes an additional way in which citizens are entitled to free time (von platz 2017: 60). the two ways that von platz argues the effective freedoms principle can be interpreted are: first, the basic liberties reading, on which citizens have a claim to an adequate amount of the resources required to exercise their basic liberties; and second, the general liberty reading, on which citizens have a claim to a fair share of the resources required to pursue their conceptions of the good, with “fair” meaning only that all should receive their due (von platz 2017: 52). von platz argues that, while the first reading yields a claim to only sufficient free time to exercise one’s basic liberties, the fair distribution of free time among cooperating citizens remains an issue of justice beyond the point at which all have enough time to exercise their basic liberties. yet, turning to the second reading, von platz contends that it cannot support this stronger claim to a fair share (von platz 2017: 54-56). in response, von platz suggests a way to extend the book’s argument to establish that citizens have a claim of distributive justice to a cooperatively fair share of free time (von platz 2017: 57-59). i take von platz’s argument on behalf of a claim to free time, as a distributive claim to the benefits of cooperation, to be compatible with my own, and would instead characterize his argument as one way of specifying the effective freedoms principle, rather than as an extension that is necessarily “outside the scope” of the principle (von platz 2017: 57). the effective freedoms principle allows for more variation and is incorporated into different theories of distributive justice in a wider range of ways than von platz’s description may indicate. as i argue, there is leap 5 (2017) 113 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim considerable diversity in the form the principle takes within different liberal egalitarian theories, from what grounds citizens’ claims and the conditions under which their claims are fair, to which liberties and opportunities its scope extends, as well as the currency of citizens’ shares and which distributive principles apply to their shares. additionally, some theories recognize the principle directly, while others realize it indirectly through other principles (rose 2016: 69-73, 85-89).5 the principle is, by construction, stated broadly – as a “legitimate claim to a fair share of the resources that are generally required to exercise their formal liberties and opportunities” – to encompass this diversity. across these variations, the principle’s core is the commitment, central to liberal egalitarian theories of social justice, to ensuring that citizens possess the means to exercise their freedoms (rose 2016: 6-7). one version of the effective freedoms principle is von platz’s basic liberties reading, grounding a sufficientarian claim to the resources that are generally required to exercise one’s basic liberties. yet, the principle is also developed in a variety of other ways, and these alternatives can be seen as different ways of specifying von platz’s general liberty reading of the principle. some versions of the effective freedoms principle, while grounding sufficientarian claims, are not limited in scope to resources for the basic liberties. cécile fabre’s (2006: 32–33) theory of social rights, for one, holds that citizens have “rights to the all-purpose resources they need in order to lead” a life in which they can frame, revise, and pursue a conception of the good with which they identify.6 elizabeth anderson’s (1999: 315–21; 2001: 70–71) theory of democratic equality, to take another, holds that citizens are entitled to the social conditions, including the resources, necessary to have effective access to levels of functioning sufficient to stand as equals in 5 the two principles of john rawls’s theory of justice as fairness provide an example of how a theory may realize the effective freedoms principle indirectly through other principles. in addressing the question of how to ensure that citizens’ liberties are not merely formal, rawls argues that, while the first principle requires guaranteeing the fair value of the political liberties, it does not specifically guarantee the fair value of all the basic liberties, because to do so would be “superf luous, given the difference principle” (rawls 2001: 148–51). the difference principle “underwrites the worth” of the guarantees of the basic liberties and fair equality of opportunity principles, and so the principles of the theory taken together ensure that citizens enjoy the worth of their formal liberties and opportunities (rawls 2005: 5–6). 6 see also fabre (2000: 18–20). in a notable exception to the general neglect of temporal resources in theories of justice, fabre cites as an example of lack of means someone “who needs to work fifteen hours a day in order to subsist”, and so “will not be able to pursue his chosen conception of the good, precisely for lack of time and money; in fact he most probably will not able, for these very same reasons, to pursue any conception of the good which does not involve working fifteen hours a day” (fabre 2006: 31). 114 julie l. rose leap 5 (2017) a democratic state and civil society, and as equal participants in a system of cooperative production. other versions of the effective freedoms principle yield, as von platz favors, stronger claims of distributive equality grounded in cooperative fairness. stuart white’s (2003: 26, and 25-76) account of justice as fair reciprocity, for instance, which is founded on a commitment to substantive economic reciprocity, holds that citizens have presumptively equal rights to the satisfaction of their opportunity interests, including their “interests in access to the resources necessary for pursuing the ideals that animate their personal lives”. as such, the effective freedoms principle’s central commitment – to ensuring that citizens possess the means to make effective use of their freedoms – can be specified in a range of ways. citizens’ “legitimate claims to a fair share” can, as von platz advocates, be grounded in the cooperative norms of fairness of distributive justice, and if the principle is specified in this way, it can yield claims to a cooperatively fair share of free time. the book aims to show that any theory that holds that citizens have claims to the resources required to exercise their freedoms – as all liberal egalitarian theories of social justice do – must recognize that citizens have claims to free time. from this recognition, citizens’ claims to free time ought, then, to be incorporated into different theories of justice, in various ways and with varying implications, depending on different theories’ particular principles – with von platz’s proposal being one welcome way of specifying citizens’ claims to free time. 4. confronting the class divide: a response to stanczyk stanczyk takes up the question of how we ought to regard the claims to free time of wealthy professionals. stanczyk makes two arguments: first, though aff luent professionals may loudly lament how little free time they have, they ought to be regarded, by virtue of their wealth and occupational opportunities, as already having (more than) their fair shares of free time. as such, wealthy professionals have no claim of justice to work hours protections (e.g. protections that entitle one to work no more than a maximum number of hours; to have predictable schedules; to have short or f lexible schedules or leave time for caregiving; or to not have to work during a common period of free time) (stanczyk 2017: 67-71). second, to extend such work hours protections universally, including to wealthy professionals, would not only be unjustified, it would conf lict with the aim of securing a just distribution of free time, and distributive justice more leap 5 (2017) 115 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim broadly (stanczyk 2017: 67, 71-73). this is an important and complex question, and one that goes, as stanczyk rightly argues, to the question of how liberal egalitarians ought to confront the class divide. i will take up stanczyk’s two arguments in turn. the first argument – that wealthy professionals ought to be regarded as already having their fair shares of free time – is part of the larger question of how choices for which one might be held responsible ought to affect the assessment of one’s free time (rose 2016: 60–65). say a corporate law yer has inherited, or has accumulated after enough years in her highly-paid position, a substantial amount of wealth, such that, if she were to quit her position, the terms of which require her to work long hours, she could use this wealth to meet her basic needs without ever working another day. or, say that a psychiatrist, who hasn’t inherited or accumulated wealth but earns a generous income working short and f lexible hours, leaves her practice to work as an interior designer, and now must work long and antisocial hours to earn a decent income. though the corporate law yer and the interior designer are required to work these hours by the terms of their current employment, they would not have to if they were to take advantage of the privileges afforded by their wealth and occupational opportunities. the book’s core argument, so that it applies broadly across different theories of justice, is constructed to be open to taking different positions on these questions of responsibility-sensitivity, and so is open to holding that such aff luent professionals, despite their long work hours, are properly regarded as having their fair shares of free time, and thus have no claim of justice to work hours protections. with respect to wealth, i argue that a society may democratically decide that, if one has personal wealth above some amount, any paid work one does ought to be treated as a use of one’s free time, rather than as necessary time. this threshold level might be set higher or lower, or include or exclude different asset types, depending on various circumstances (rose 2016: 64). stanczyk’s argument also rightly presses that this threshold should not be left solely to democratic decision, and is properly constrained by principles of distributive justice, if, for instance, it were necessary to treat the work hours of those above some threshold level of wealth as discretionary in order to meet the claims to free time of the less well off. with respect to occupational choice, the core argument is open to taking the more responsibility-sensitive position, such that if one chooses to work in an occupation that requires longer hours than another occupation one could have chosen, the assessment of how much free time 116 julie l. rose leap 5 (2017) one has would ref lect one’s occupational choice set, not the occupation one has in fact chosen. while the core argument allows for taking this position, in developing the argument and its implications, i instead argue that the importance of the interest in freely choosing one’s occupation provides a weighty reason to allow citizens to exercise this choice without forfeiting their claim to other important interests, including to free time. nonetheless, while citizens do have an all things considered claim to a fair share of free time, because it may sometimes be impossible or prohibitively socially costly to guarantee this claim for particular occupations, citizens have only a pro tanto claim to free time in their chosen occupational position (rose 2016: 90-92). this pro tanto claim can be defeated by several types of reasons, including, as stanczyk’s argument again presses, if guaranteeing free time to privileged professionals in their chosen occupations would unavoidably conf lict with meeting the claims of those who have less advantageous occupational opportunities. as such, even if citizens do have a pro tanto claim to free time in their chosen occupational positions, if extending work hours protections to all, including the most privileged, would necessarily conf lict with realizing the claims to free time of the less privileged, my argument is open, and indeed would favor, regarding the long work hours of those privileged by wealth and occupational opportunities as discretionary uses of their free time. time-pressed wealthy professionals who have access, by virtue of their wealth or occupational opportunities, to free time would – if there is such a conf lict – then have no claim of justice to work hours protections. yet, to turn to stanczyk’s second argument, we should not be too quick to assume that this conf lict would necessarily arise. stanczyk argues that the conf lict arises because providing work hours protections universally would be economically regressive: some of the aff luent professionals would inevitably choose to work less, resulting in lower profits and salary incomes, and thus a smaller tax base, diminishing the government revenue available to meet the claims of the less well off (stanczyk 2017: 71-72). to start, it might be the case that, for empirical reasons, universal work hours protections would in fact better realize the claims of the less well off. stanczyk grants that there may be other reasons to implement work hour protections universally, such as economic efficiency or political strategy (and, we could add, gender equality) (stanczyk 2017: 68). but, we might also raise questions about the assumed economic regressivity. to pose two other possible dynamics, it might be the case that harried professionals, with their long and always-on work hours, would in fact be, in total, more productive, and would be productive in ways that are more creative and leap 5 (2017) 117 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim socially beneficially, if they had shorter and more f lexible work schedules (rose 2016: 130–31). or, the fact that the those with high social status work long hours might promote social norms valorizing this culture – with “busyness as the badge of honor for the new superordinate working class,” as sociologist jonathan gershuny puts it – with the effect that these norms undermine the ability of workers across society to choose not to work long hours (2005; see also 2009; rose 2016: 138–39). further, whether extending work hours protections universally would conf lict with the aim of securing a just distribution of free time, or distributive justice more broadly, depends on the requirements and possibilities of the underlying theory of justice. on a theory with a sufficientarian distributive standard, for instance, there may easily be no conf lict between universal work hours protections and realizing all citizens’ claims to a sufficient amount of free time (and other resources). or, on a theory with a more egalitarian distributive standard, there might similarly be no conf lict between extending work hours protections universally and realizing distributive justice more broadly, given that there would be a far less unequal distribution of wealth and occupational opportunities than in the society, resembling our own today, that stanczyk describes. to draw these points together, first, the core argument is straightforwardly open, if maximally responsibility-sensitive, to holding that the long work hours of wealthy professionals are discretionary uses of their free time. moreover, even if citizens have pro tanto claims to free time in their chosen occupational positions, wealthy professionals have no claim of justice to work hours protections if their universal extension would necessarily conf lict with realizing the claims to free time of the less well off. but, second, whether the presumptive claim to universal work hours protections is defeated depends on whether this conf lict does in fact arise, and unavoidably so – a question that cannot be answered without looking further at both the potential empirical dynamics and the underlying theory’s requirements and possibilities. 5. a republican social justice argument for free time: a response to lim lim persuasively develops a republican case for an entitlement to free time, with a carefully constructed two-stage argument. first, republican non-domination requires robust checking mechanisms to ensure that power-holders are forced to track the interests of their power-subjects. in 118 julie l. rose leap 5 (2017) the domain of the workplace, for instance, employees must have mechanisms to check employers’ power, through both contestation (e.g. political organizations and unions to dispute decisions) and justification (e.g. workplace committees and employee representation on boards to participate in decisions). importantly, establishing, maintaining, and participating in these checking mechanisms – and citizens’ checks on political power more generally – takes time. thus, lim argues, the protection of republican non-domination entitles citizens to sufficient time for political engagement (lim 2017: 81-86). second, lim argues that providing citizens with time specifically for political engagement, either compulsorily or conditionally, would be contrary to republican commitments. for the state to ensure that citizens devote this allotted time to political engagement would require invasions of privacy, extensive surveillance, coercive enforcement, and state judgment about what activities are worthy, and would also likely be contrary to the cultivation of genuine civic virtue. to avoid these pitfalls, citizens’ claims to time for political engagement ought to be provided instead in the form of free time, for citizens to devote to any activities of their choosing (lim 2017: 86-89). lim argues that, unlike liberal egalitarians who can make a “straightforward” case for free time, this republican argument is an “instrumental” one (lim 2017: 75). while lim is right to argue that this republican justification for free time is less straightforward, it is perhaps worth clarifying that, on both accounts, citizens’ claims to free time are grounded in its instrumental value as a resource. to characterize the contrast, we might instead say that this republican argument is both more indirect (citizens’ claims to free time run through their claims to political time) and contingent (citizens’ claims to free time depend on the nonviability of claims to specifically political time). in examining the “temporal dimension within republicanism”, lim aims to see how republicanism might ground an entitlement to free time, and she readily notes that the argument she develops is not necessarily the only republican path available (lim 2017: 75). in the spirit of her argument, in response i will sketch another possible republican route to an entitlement to free time. to do so, i will take up lim’s suggestion to look toward the connection between free time and social equality. to be free citizens, philip pettit argues, republican citizens must enjoy freedom as non-domination not only in their relations to the state, with checks against public domination, but also in their social relations with one another, with blocks against private domination. to protect citizens against private domination, the republican theory of social justice requires leap 5 (2017) 119 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim “a level of protection and resourcing for people’s basic liberties – a level of entrenchment – that would enable them to count as equals in the enjoyment of freedom” (pettit 2014: 82). this ideal of equal status is grounded in the image of the liber, or free citizen, from the republican tradition, and requires that citizens can pass “the eyeball test”: they can “look one another in the eye without reason for fear or deference” (pettit 2014: 82). free citizens can “walk tall and assume the public status…of being equal in this regard with the best,” and “do not depend on anyone’s grace or favour for being able to choose their mode of life” (pettit 2012: 84, 82). the republican theory of social justice, then, requires that, to enable citizens to meet the eyeball test, all citizens must enjoy a threshold level of resources and protections for the exercise of their basic liberties (yielding, as such, a sufficientarian version of the effective freedoms principle) (pettit 2012: 85, and 75-129; 2014: 99, and 77-108; rose 2016: 70n8). from these grounds, it is then possible to argue that republicans ought to be concerned with the distribution of free time, insofar as inadequacies in citizens’ shares of the resource of free time undermine citizens’ ability “to stand on an equal footing” (pettit 2014: 80).7 to see how this might be the case, say that while some people have an abundance of free time, and devote it to social and community life, time-consuming political activities, and a wide array of educational and cultural forms of personal development, others must work very long or unsociable hours, and these time-poor citizens have scant opportunity to participate in such endeavors. it is not difficult to imagine how these deficits of free time might, like material poverty, undermine citizens’ equal standing. or, consider how if one has very little free time, or if the terms of one’s employment render one always on call to work demands or exposed to unpredictable work schedules, one might be dependent on the favors and goodwill of others and thus liable to their interference. one might well have to “bow or scrape, toady or kowtow, fawn or f latter” (pettit 2012: 82) with one’s bosses and coworkers, and perhaps one’s family or friends, in an attempt to manage and reconcile one’s personal commitments and obligations with these onerous and intrusive work demands. again, it is apparent how shortcomings in both in the amount and the conditions of citizens’ shares of free time might 7 though the eyeball test primarily requires that citizens possess an adequate level of resources and protections for the exercise of their basic liberties, it also imposes limits on how vast inequalities in resources can be, as citizens’ equal status depends in part in how their resources compare with others’, and if they “compare too unfavourably” that is likely to affect the “standing they can command in one another’s eyes” (pettit 2012: 90–91). it seems that the eyeball test would also impose limits on how vast inequalities in free time could unobjectionably be, but this argument primarily yields a sufficientarian claim to free time. (on the relationship between social equality and distributive claims to free time, see rose 2016: 85-89). 120 julie l. rose leap 5 (2017) undermine their equal status as free citizens. in this way, it is possible to construct another republican path to a claim to free time, building on the idea that republican freedom is “a freedom that presupposes the resources required to make it effective” (pettit 2014: 103). on these grounds, one might argue, citizens are entitled to the resource of free time for the exercise of their basic liberties, to the extent that it enables them to enjoy equal status as free citizens. such an argument, like lim’s, provides a republican connection between free time and social equality, as all citizens must possess free time on terms that enable them to pass the eyeball test. following lim’s lead in exploring the temporal dimensions of republicanism, there are likely other ways that republican commitments could yield a case for free time—and these further possible arguments, like the one described here, may be taken as complements to the republican argument developed by lim. 6. concluding comment to have one’s work read by such excel lent a nd t houg ht f u l cont r ibutors is a n honor. i a m g ratef u l to t he cont r ibutors for devot i ng t hei r at tent ion a nd t i me to engag i ng w it h t he book, doi ng so i n such a const r uct ive spi r it, a nd for prov id i ng so ma ny t h reads about wh ich to cont i nue t h i n k i ng. i a m a lso g ratef u l to t he ed itors, i n pa r t icu la r to tom pa r r, for h is va luable com ment s a nd for br i ng i ng t h is sy mposiu m to f r u it ion. bibliography anderson, e., 1999: “what is the point of equality?” ethics 109: 287–337. anderson, e., 2001: “optional freedoms.” in what’s wrong with a free lunch?, ed. j. cohen and j. rogers, 70–74. boston: beacon press. arnold, s., 2012: “the difference principle at work.” the journal of political philosophy 20: 94–118. bittman, m., 2011: “goodin et al.’s new measure of freedom: authors meet critic.” social indicators research 101: 185–87. fabre, c., 2000: social rights under the constitution: government and the decent life. oxford: oxford university press. fabre, c., 2006: whose body is it anyway? justice and the integrity of the person. oxford: oxford university press. ferracioli, l. and r. terlazzo, 2014: “educating for autonomy: liberalism and autonomy in the capabilities approach.” ethical theory and moral practice 17: 443–55. leap 5 (2017) 121 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim gershuny, j., 2005: “busyness as the badge of honor for the new superordinate working class.” social indicators research 72: 287–314. gershuny, j., 2009: “veblen in reverse: evidence from the multinational time-use archive.” social indicators research 93: 37–46. gheaus, a., 2015: “the ‘intrinsic goods of childhood’ and the just society.” in the nature of children’s well-being: theory and practice, edited by colin macleod and alexander bagattini, 35–52. london: springer. gheaus, a. and l. herzog, 2016: “the goods of work (other than money!).” journal of social philosophy 47: 70–89. goodin, r.e., 2017: “freeing up time.” law, ethics and philosophy 5: 37-46. goodin, r.e., j.m. rice, a. parpo, and l. eriksson, 2008: discretionary time: a new measure of freedom. cambridge: cambridge university press. — r.e., j.m. rice, a. parpo, and l. eriksson, 2011: “discretionary time: a rejoinder.” social indicators research 101: 189–92. hobbes, m., w.t. de groot, e. van der voet, and s. sarkhel, 2011: “freely disposable time: a time and money integrated measure of poverty and freedom.” world development 39: 2055–68. hsieh, n., 2008: “survey article: justice in production.” the journal of political philosophy 16: 72–100. lim., 2017: “domination and the (instrumental) case for free time.” law, ethics and philosophy 5: 74-90. muirhead, r, 2004: just work. cambridge: harvard university press. neufeld, b.e., 2018: “‘the kids are alright’: political liberalism, leisure time, and childhood.” philosophical studies 175: 1057–70. pettit, p., 2012: on the people’s terms: a republican theory and model of democracy. new york: cambridge university press. — 2014: just freedom: a moral compass for a complex world. new york: w.w. norton. rawls, j., 2001: justice as fairness: a restatement. cambridge, mass: belknap press of harvard university press. — 2005: political liberalism. expanded ed. new york: columbia university press. rose, j.l., 2016: free time. princeton: princeton university press. russell, b., 2004: “in praise of idleness.” in in praise of idleness, and other essays, 1–15. london: george allen & unwin, 1935; repr. new york: routledge. sen, a., 1983: “poor, relatively speaking.” oxford economic papers, new series, 35 (2): 153–69. stanczyk, l., 2017: “free time and economic class.” law, ethics and philosophy 5: 62-73. terlazzo, r., 2017: “entitlement and the resource of free time.” law, ethics and philosophy 5: 91-104. von platz, j., 2017: “free time, freedom, and fairness.” law, ethics and philosophy 5: 47-61. weeks, k., 2011: the problem with work: feminism, marxism, antiwork politics, and postwork imaginaries. durham: duke university press. white, s., 2003: the civic minimum: on the rights and obligations of economic citizenship. oxford: oxford university press. williams, j.r., y.j. masuda, and h. tallis., 2016: “a measure whose time has come: formalizing time poverty.” social indicators research 128: 265–83. 58 issn 2341-1465 leap 2 (2014): 58-86 rethinking the good – a small taste l arry temkin rutgers university abstract this article aims to convey a few of the key claims and arguments of my book, rethinking the good: moral ideals and the nature of practical reasoning. the article gives an example of a spectrum argument, and illustrates that such arguments put pressure on the axiom of transitivity, which holds that for any three possible outcomes or alternatives, a, b, and c, if, all things considered, a is better than b, and b is better than c, then a is better than c. the article distinguishes between two different approaches to understanding the goodness of outcomes, the internal aspects view and the essentially comparative view. it suggests that two deeply plausible, but seemingly incompatible, positions underlying the spectrum argument, an additive-aggregationist position, and an anti-additive-aggregationist position, reflect the essentially comparative view, and that on such a view they are not incompatible. the article introduces several widely-held views about neutrality and dominance principles, and shows that some of these views are incompatible. the article contends that various ideals or views that people care about are most plausibly understood as essentially comparative, and notes that one such view, a narrow person-affecting view, will be especially difficult to reject in at least some cases. it also illustrates how such a view, like other essentially comparative views, threatens the axiom of transitivity. the article concludes by contending that we must seriously rethink our understanding of the good, moral ideals, and the nature of practical reasoning, while recognizing that the way forward is murky, at best. keywords: transitivity, practical reasoning, internal aspects view, essentially comparative view, narrow person-affecting view, spectrum argument, additive aggregation, good, better than, ideals. this article is based on my fall 2012 leap lecture given at pompeu fabra university. the lecture kicked off a symposium on my book, rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012), with responses to the book offered by oscar horta and ingmar persson, rethinking the good – a small taste 59 leap 2 (2014) followed by comments from me on those responses. 1 the aim of the lecture was not to give an overview of the book, which would have been impossible in the time allotted, but rather, as i told the audience, to give a very crude and brief tour of a few of the book’s arguments, just enough to give a sense for the sorts of issues the book explores. correspondingly, this article, like the lecture from which it is derived, is woefully incomplete and superficial. but, hopefully, some readers will find it sufficiently important and intriguing to turn to the book itself, where a more careful and sustained treatment can be found of the issues broached here, as well as many other issues central to our understanding of the good, moral ideals, and the nature of practical reasoning. this article is divided into six sections. in section i, i provide a brief introductory remark, and offer a simple example of a spectrum argument. the spectrum argument puts pressure on a widely accepted principle of practical reasoning which may be called the axiom of transitivity. according to the axiom of transitivity, for any three alternatives, a, b, and c, if, all things considered, a is better than b, and b is better than c, then, all things considered, a is better than c. 2 in section ii, i offer some background to some of the issues i discuss, and make some terminological distinctions. in section iii, i introduce a distinction between two different approaches to understanding the goodness of outcomes, which i call the internal aspects view and the essentially comparative view. i note how two seemingly incompatible positions underlying the spectrum argument, which i call an additive-aggregationist position, and an anti-additive-aggregationist position, can be seen as reflecting the essentially comparative view, and that on such a view they are not incompatible. i also note various considerations against rejecting the anti-additive-aggregationist position. in section iv, i introduce several widely-held views about neutrality and certain widely-held dominance principles. i show that some of these views are incompatible. in section v, i suggest that various ideals or views that people care about are most plausibly understood as essentially comparative. i focus on a particularly plausible version of a narrow person-affecting view, and note 1. i want to thank paula casal and josé luis martí for inviting me to deliver the leap lecture, for organizing the symposium, and for arranging for the publication of the symposium’s papers. i would also like to acknowledge my gratitude to horta and persson for their careful and thoughtful attention to my work. 2. here, i am using “the axiom of transitivity” as shorthand for “the axiom of transitivity of the ‘all-things-considered better than’ relation”. elsewhere, i often put my discussions in terms of “the axioms of transitivity”, where these include the “allthings-considered equally as good as” and “all-things-considered at least as good as” relations as well as the “all-thingsconsidered better than” relation. at times, i may shorten my descriptions and just talk in terms of the “better than”, “equally as good as”, or “at least as good as” relations. but, unless noted otherwise, if i consider whether one outcome is better, equally as good as, or at least as good as, another, i am considering whether the one outcome is better than, equally as good as, or at least as good as the other all things considered. 60 larry temkin leap 2 (2014) how this view, like other essentially comparative views, threatens the axiom of transitivity. in section vi, i conclude with some final remarks. 1. introduction and a spectrum argument in this article, i will be discussing a number of views that are widely taken to be obviously true. at first blush this may seem rather odd. why labor the obvious? the answer, in a nutshell, is that a number of the seemingly obvious views aren’t even true, much less obviously so! this follows from the simple fact that a number of the so-called “obvious” truths are incompatible with each other. or so i shall argue anyway. indeed, on reflection, it turns out that an awful lot of hard work needs to be done to sort out what we really should believe in the domains i shall be canvassing. i can’t do the required work here, in this article, but perhaps i can say enough to motivate the importance of taking up the task. i tried, in rethinking the good, to do much of the work in question. the result of that work, i believe, is that we need to significantly revise our current understanding of the good, moral ideals, and the nature of practical reasoning, and that such revisions will have profound practical and theoretical implications. the aim of this article is to provide a small taste of the questions addressed in my book, and what is at stake as we try to answer them. let me begin by presenting two very simple questions, and the answers these questions typically provoke. my first question goes like this. suppose that you or a loved one are going to have to experience a certain intensity of pain, for a certain duration, or a little bit less intense pain for twice, or three, or five times as long. which alternative do you think would be better for you or your loved one? when i asked that question during my leap lecture, there was total agreement amongst the audience of roughly forty people, that the first alternative would be better; that is, that an outcome involving a slightly more intense pain would be better than an outcome involving a slightly less intense pain, if the duration of the pain in the outcome with the less intense pain would be two, or three, or five times as long as the duration of the pain in the outcome with the more intense pain. the audience’s responses were very typical. among audiences around the world, involving 1000s of people over many years, virtually everyone thinks the better outcome would be the one with a slightly more intense pain that lasted significantly less long. indeed, i estimate that over 95% of the people of whom i have asked my question have responded the same way; and, as i usually like to put it, only half in jest, if several people in an audience of a hundred have answered differently, typically one or two are just being rethinking the good – a small taste 61 leap 2 (2014) difficult, or figuring it is a trick question, and the other one or two haven’t fully understood the question! my second question goes like this. suppose that you, or a loved one, are going to live for a long time. perhaps a very long time. and there are two ways your life might go. in one, you will have, on average, fifteen mosquito bites a month for the duration of your life and, in addition, at some point in your life you will have two years of the most excruciating torture imaginable — including such things as hot wax under your eyelids, bamboo shoots under your fingernails, electrical shocks to your genitals, and so on. you would be awake 18-20 hours per day, and during every waking moment your life would be much worse than nothing and you would wish you were dead. however, after the two years of torture, you would be given a pill so that you didn’t remember any of the pain. further, let us suppose that the torture would have no permanent impact on your body or brain, and that there would be no other effects of any kind during the remainder of your life, once the two years of excruciating pain was over. in the second way your life might go, there would be no torture of any kind. however, instead of fifteen mosquito bites per month for the duration of your life, you would have sixteen mosquito bites per month. bearing in mind that your life might be very long, which life would be better for you or your loved one; the life with fifteen mosquito bites throughout and two years of excruciating torture, or the life with sixteen mosquito bites throughout? to this question, all but one member of the leap lecture audience gave the same answer. and i think it is fair to say that many audience members were dumbstruck when someone voted for the position that the life involving two years of torture would be better than the life involving one extra mosquito bite a month, if only the two lives lasted long enough! as before, the reactions of the leap audience were very typical. of the thousands of people to whom i have posed such a question over the years, the vast majority of them —again, well over 95% i would estimate— have given the same answer to this question. they think that the life involving one extra mosquito bite per month would be better, indeed much better, than the life involving two years of excruciating torture, and they think this no matter how long the two lives might persist. as indicated, these two results are very robust. but together, they are inconsistent if one accepts the axiom of transitivity: that if, all things considered, a is better than b, and b is better than c, then all things considered, a is better than c. to see this, notice that when i asked my first question, i didn’t actually say how intense the two pains were, nor how long they lasted. and i didn’t need to! this is because it seems to be a general truth that no matter how intense a given pain might be, and how long it lasted, it would be better to have that pain than one that was only slightly less intense but which lasted much longer. 62 larry temkin leap 2 (2014) accordingly, one can imagine a spectrum of lives, each of which would be very long and each of which would have, as a persistent background condition, fifteen mosquito bites per month. the first life in the spectrum would also involve extraordinary pain (the equivalent, let us suppose, of excruciating torture) lasting for two years, and each subsequent life in the spectrum would involve slightly less intense pain than that involved in the preceding life in the spectrum, but the pain would last two, or three, or five times as long as the duration of pain in the preceding life of the spectrum. moving from the first member of the spectrum to the last, the pain gets slightly less intense though much longer, until eventually the pain has decreased so much that its intensity is the equivalent of but one extra mosquito bite per month, though instead of only lasting two years, as the pain did in the first member of the spectrum, the once a month mosquito-like pain extends throughout much, if not all, of the very long life. the point, of course, is that in accordance with the answer to the first question i asked, most people would agree that, all things considered, the first member of the spectrum would be better than the second, the second would be better than the third, the third would be better than the fourth, and so on. for each pairwise comparison, the life involving fifteen mosquito bites per month and a slightly more intense pain lasting a certain duration would be better, all things considered, than the life involving fifteen mosquito bites per month and a slightly less intense pain lasting two, or three, or five times as long. according to the axiom of transitivity, it follows that the first member of the spectrum must be better than the last. but the first member of the spectrum involves a life involving 15 mosquito bites per month and two years of excruciating pain the equivalent of torture, and the last member of the spectrum just involves 15 mosquito bites per month and many years of a minor pain that is the equivalent in intensity to one extra mosquito bite per month! thus, as we have seen, most people would reject the claim that the first member of the spectrum would be better than the last. indeed, i have found that most people —though admittedly not all— regard such a view as preposterous, if not downright absurd. it follows that if people want to maintain the answers typically given to my two questions above —answers to which, i believe, most people are deeply committed— then they must reject the axiom of transitivity. 3 3. the first spectrum argument challenging the axiom of transitivity was developed by stuart rachels (1993). rachels’s thinking about intransitivity was sparked by my original article on the topic, “intransitivity and the mere addition paradox” (temkin 1987), but his argument against intransitivity was entirely original and at the time it was the strongest argument yet posed against the axiom of transitivity. although i have developed and defended spectrum arguments in my own way over many years now, the basic structure of my arguments remains heavily indebted to rachels’s original argument. rachels’s published contributions in this area include rachels 1998, 2001 and 2004. many people have worried about the implausibly rethinking the good – a small taste 63 leap 2 (2014) this is a very striking result. because the axiom of transitivity is one of the key premises underlying expected utility theory, and expected utility theory is arguably the central theory underlying game theory, decision theory, and much of modern economics. so, rejecting the axiom of transitivity would entail rejecting, or substantially revising our understanding of, game theory, decision theory, and much of modern economics. since, in many ways, those theories are intended to model our best understanding of practical rationality, rejecting the axiom of transitivity would require us to drastically revise our understanding of what it is to be practically rational. put differently, the axiom of transitivity lies very close to the core of our current understanding of practically rationality. we believe that just as it is irrational to believe both a and not a, or to prefer a to b or believe that a is better than b, all things considered, while at the same time also preferring b to a, or believing that b is better than a, all things considered, so, too, we believe that it is irrational to prefer both a to b, and b to c, or to believe both that a is better than b and that b is better than c, all things considered, while at the same time also preferring c to a, or believing that c is better than a, all things considered. as economists would often put it, someone with intransitive preferences is irrational and they ought to get their preferences in order! in this context, the “ought” is the strong normative “ought” of individual rationality, implying that rationality requires that their preferences be transitive. it is worth adding that the axiom of transitivity is not merely an important theoretical assumption underlying our understanding of ideal rationality and some important academic fields, it plays an integral role in countless cases of everyday practical reasoning, typically without our even being aware of the role it is playing. for example, often when we are faced with a decision between various alternatives with a number of competing factors relevant to our decision, and a significant degree of indeterminacy involved regarding how much to weight each factor, we simplify our decision procedure by focusing on just two alternatives at a time. for instance, suppose we have decided to buy a new car, and based on our research we have narrowed our choice down to seven models. at that point, we might test drive the first model, and then test drive the second, and then, taking account of each of the factors that are important to us and how much we care about them —cost, gas mileage, reliability, resale value, ease long length of life that might be involved in the kind of spectrum argument presented in the text. i address such worries in rethinking the good, but also show that similar arguments can arise involving many different people all living at the same time, rather than a single person living at many times (see chapters 2, 5, and 9 for extended discussion and defense of spectrum arguments). 64 larry temkin leap 2 (2014) of repairs, handling, storage capacity, power, handling, comfort, looks, extra features, and so on— we might determine that, all things considered, the first model, a, is better than the second, b. in that case, we remove b from further consideration, test drive c, and then decide whether a is better than c. if c is better we remove a, from further consideration, test drive d, and proceed as before. in this way, we might straightforwardly determine which of the seven models to buy on the basis of a sequence of six direct pairwise comparisons, with the “winner” of each pairwise comparison advancing to a subsequent comparison, and the “loser” being discarded from further consideration. as long as we are confident in each of our pairwise judgments, we will be confident that we have determined the best car for our purposes given our preferences. moreover, given the many different factors we have to pay attention to, focusing clearly and carefully on the various models just two at a time, we will often be much more confident in any comparative judgments we might arrive at as to which of two cars is better, all things considered, than we would be in any absolute judgments about exactly how good each of the seven cars were, all things considered. as indicated, this simplifying decision procedure of focusing on just two alternatives at a time is a staple of many practical decisions involving multiple options. but, importantly, this decision procedure depends on the axiom of transitivity for its legitimacy. after all, we can only confidently remove b from further consideration after determining that a is better than b, all things considered, if we can be certain that it couldn’t be the case that there is some third alternative, c, which is both worse than b, and yet better than a, all things considered. for if it could be the case that, all things considered, a is better than b, which is better than c, which is better than a, then there would be no more reason to remove b from further consideration just because it is worse than a, than there would be to remove a from further consideration given that it is worse than c, or c from further consideration given that it is worse than b. it is the axiom of transitivity which presumably “guarantees” that this unfortunate predicament couldn’t arise. thus, as indicated, the axiom of transitivity is presupposed, often implicitly and unwittingly, in numerous cases of everyday practical reasoning. clearly, such reasoning is deeply flawed if the axiom of transitivity fails to hold. i suggest, then, that there is a great deal at stake, both theoretically and practically, if the axiom of transitivity fails. and for many years, i argued that spectrum arguments, such as the one given above, as well as various other arguments i developed, gave us good reason to conclude that the axiom of transitivity does fail. that is, i used to claim that we should conclude that all things considered better than is not a transitive relation. but my earlier claims were too strong, and hence misleading. rethinking the good – a small taste 65 leap 2 (2014) what i now think is that over the years i have developed a series of impossibility arguments. the axiom of transitivity is one of the key premises in my impossibility arguments, but it is not the only one. accordingly, each of the key premises of my impossibilities arguments are in play and, if the reactions to the work in this area over the years are any indication, the question of which of the premises should be given up is a difficult one about which people are deeply divided, and about which there is unlikely to be a consensus for years to come. a second key premise that is in play in spectrum arguments is a position i call the first standard view: trade-offs between quality and number are sometimes desirable. on this view, in general, it is better to experience more intense suffering for a shorter period of time than less intense suffering for a longer period of time, if the difference in the intensity of the two pains is sufficiently small, and the difference in their durations is sufficiently large. a third key premise that is in play in spectrum arguments is a position i call the second standard view: trade-offs between quality and number are sometimes undesirable even when vast numbers are at stake. on this view, in general, it would be worse to receive a more intense pain of a significant duration than a much less intense pain of virtually any duration, if the difference in intensity of pains is such that the more intense pain of significant duration would have a significant negative impact on one’s life, while the less intense pain of longer duration would have little negative impact on one’s life. each of the axiom of transitivity and the first and second standard views is powerfully appealing, and i believe that giving any of them up would have deeply implausible implications. so my current position is like that of a juggler, who is juggling a number of very valuable and fragile balls, and he can’t hang on to all of them. he has to let at least one of them drop, but can’t decide which one. initially, he may decide to let the first ball drop, and preserve the others. but as the first ball heads towards the ground he thinks he can’t possibly let that ball drop, so he quickly reaches out to preserve that ball and lets the second ball go, instead. but he then realizes that he can’t let that ball drop either, so he seeks to save that one, as well, steeling himself to let the third ball drop. but as the third ball gets closer and closer to the ground he realizes he can’t bear the thought of losing that ball either, so reaches out to save it with the thought that he’ll let the fourth ball go. this process continues, till he once again finds himself letting the first ball drop. the problem, of course, is that the cost of letting any of the valuable balls go seems unacceptably high, so he frantically wants to keep each of them in the air, but realizes that that option is ultimately unsustainable. to a large extent, my book is about determining what various positions stand or fall together, and illuminating both the benefits and costs 66 larry temkin leap 2 (2014) associated with retaining or abandoning each of the offending premises in my impossibility arguments. 2. some background and terminology many believe that giving up the axiom of transitivity is not an option. they believe that it is an analytic truth —literally true in virtue of the meanings of the words— that “all-things-considered better than” is a transitive relation. this is the view of john broome (1991 and 2004), and at one time it was the view of tom nagel, tim scanlon, and derek parfit. 4 i suspect that this, or something very close to it, is also the view of many economists, for whom the transitivity of the “all-things-considered better than” relation is an unquestioned, and perhaps even self-evident, axiom which needs no argument. i think this view is mistaken or, more charitably, deeply misleading. since people can use words as they see fit, let me first simply grant that there may be a use of the words “all-things-considered better than” such that it must be a transitive relation, by definition. so, if broome or others want to insist that as they use the notion of “all-things-considered better than” the axiom of transitivity is analytic, there is no point in denying or trying to refute their claim. but then, let me hasten to add that, as wittgenstein might have put it, meaning is use, and there is another, widely accepted and more normatively significant, usage of “all-things-considered better than”, what i call the reason-involving sense of “all-things-considered better than”, according to which to say that a is better than b, all things considered, is to say that from an impartial perspective there is most reason to rank a as more desirable than b taking full account of all of the factors that are relevant and significant for making that comparison. 5 and, as i shall suggest next, on that notion of “all-things-considered better than” —the reason-involving one— even if it is true that “all-things-considered better than” is a transitive relation, it is not an analytic truth, rather, it is a truth that turns on substantive facts about the nature and structure of the good. 3. the internal aspects view versus the essentially comparative view to see how the transitivity of the “all-things-considered better than” relation in the reason-involving sense turns on substantive facts about the nature and structure of the good, it will help to consider two alternative models for 4. nagel’s, scanlon’s, and parfit’s early views on this topic were conveyed to me during discussions when i was a graduate student (for more on this see my preface in temkin 2012). 5. ludwig wittgenstein’s famous contention that “meaning is use” is defended in wittgenstein 1958. rethinking the good – a small taste 67 leap 2 (2014) thinking about ideals in general, and moral ideals in particular, which i call the internal aspects view and the essentially comparative view. here is one natural and plausible way of understanding the internal aspects view. on this view, how good or bad any given outcome is with respect to any given ideal depends solely on the internal features of that outcome. likewise, how good or bad any given outcome is all things considered will depend solely on how good or bad it is with respect to each ideal. now this will be a function of how much the different ideals matter relative to each other, and it may, in fact, be a very complex function reflecting various holistic interaction effects between different ideals, but the key point is that on the version of the internal aspects view that i am now elucidating, ultimately there is a fact of the matter about how good or bad each outcome is, and that fact depends solely on the internal features of that outcome and the internal relations between them. so, on the internal aspects view, if one wants to assess how good or bad an outcome is, all things considered, it will always be sufficient to consider that outcome directly, by itself, in terms of all of the factors or ideals that are relevant and significant for assessing the internal features of outcomes. thus, for example, if one believes that equality is relevant to the goodness of outcomes, one will consider the extent to which equality or inequality is a feature of that outcome, and similarly for other relevant ideals such as justice, freedom, utility, perfection, and so on. one will then give each outcome its due weight, taking account, as necessary, of any relevant interaction effects, in order to arrive at an all things considered judgment regarding the outcome’s overall goodness. the internal aspects view allows room for epistemological ignorance about how good or bad any given outcome is, as well as room for believing that facts about the goodness of outcomes may be indeterminate or imprecise, but it is natural to assume that each outcome will have a precise or imprecise degree of goodness or badness that can, in principle, be accurately represented by a number or range of numbers on the real number line. so, for example, in principle it might be a fact that, all things considered, any given outcome might have 1013 “units” or “degrees” of goodness or, alternatively, perhaps there may be no fact as to precisely how good the outcome is, but it might still be true that it has between 1003 and 1023 “units” or “degrees” of goodness. for simplicity, in what follows i shall ignore the complication introduced by imprecision, and assume that each outcome can be given a precise number representing its degree of goodness. but the points i am making could also have been made in terms of ranges of numbers for those who believe that the degree or extent to which an outcome is good or bad 68 larry temkin leap 2 (2014) is (often) imprecise, and best captured by a range of numbers rather than a single number. 6 the internal aspects view is a natural and plausible way of thinking about ideals and their relation to the goodness of outcomes. it also supports various views that have been thought central to practical reasoning or the assessment of outcomes. for example, it clearly supports the axiom of transitivity, since if the number representing a’s degree of goodness based solely on a’s internal features is higher than the number representing b’s degree of goodness based solely on b’s internal features —which will be the case if a is better than b— and the number representing b’s degree of goodness based solely on b’s internal features is higher than the number representing c’s degree of goodness based solely on c’s internal features — which will be the case if b is better than c— then the number representing a’s degree of goodness based solely on a’s internal features will be higher than the number representing c’s degree of goodness based solely on c’s internal features —since “being a higher number than” is a transitive relation— and hence a will be better than c precisely as the axiom of transitivity requires. the internal aspects view also supports another principle which many economists and others have regarded as a central principle of practical reasoning, which is often called the independence of irrelevant alternatives principle (iiap). on iiap, to know how a compares with b it is sufficient to compare them directly, as how a or b compares with respect to some third alternative, c, or some other set of alternatives c through n, is irrelevant to how a compares with b. as we have seen, on the internal aspects view, any outcome a will get a score representing its degree of goodness and that score will be based solely on a’s internal features. and similarly for any outcome b. a will be better than, equal to, or worse than b, if and only if its score is higher than, equal to, or lower than b’s, respectively. accordingly, how a compares to b in terms of goodness follows directly from how good each of them is, considered just by itself, and doesn’t depend at all on how either or both of them compares to some third alternative or some other set of alternatives. thus, as indicated, the internal aspects view supports, or indeed implies, the independence of irrelevant alternatives principle. 6. some people reject the numerical model entirely. for example, in discussion, both derek parfit and ingmar persson have conveyed their rejection of any sort of numerical model for understanding the good. but while there are problems with any numerical model, i think this way of thinking about the internal aspects view is natural, plausible, and sufficient for my present purposes. i might add that a well-worked-out alternative to such a model has not yet been given. moreover, i am skeptical as to whether a coherent non-numerical model can be developed which will capture the most important and attractive features of an internal aspects view. i briefly touch on this issue at the end of my response to persson’s article (see temkin 2014: 151-52). rethinking the good – a small taste 69 leap 2 (2014) let me mention just one other principle of practical reasoning which has great plausibility and which is supported by the internal aspects view. it is plausible to believe that if two alternatives, a and b, are equally good, then however a compares to some third alternative c, that is exactly how b will compare to c. i call this principle the principle of like comparability for equivalents. it is easy to see how the principle of like comparability for equivalents holds if the internal aspects view is correct. on the internal aspects view, for any three outcomes, a, b, and c, how good a, b, and c are will depend solely on their internal features, and each of them will receive a score representing its degree of goodness. if a and b are equally good they will receive the same score, so clearly however a’s score compares to c’s score, that is how b’s score compares to c’s score. in sum, the internal aspects view has great intuitive plausibility, and it would support and explain a number of other widely accepted views about practical rationality that many have found compelling, including the axiom of transitivity, the independence of irrelevant alternatives principle, and the principle of like comparability for equivalents. the problem is that despite its great appeal, the internal aspects view doesn’t reflect the thinking that many people often engage in when assessing outcomes! in particular, as i argued in chapter 12 of rethinking the good, many of the ideals people value most reflect an essentially comparative view of moral ideals. this includes especially plausible versions of utility, maximin, the pareto principle, and the narrow person-affecting view. 7 on such views, there is no fact of the matter as to how good or bad an outcome is considered just by itself with respect to the ideal in question, or if there is, that fact has no special significance in comparing outcomes with respect to that ideal. rather, our assessment of how good an outcome is with respect to the ideal in question will depend on the alternative or alternatives with which it is compared. more specifically, on an essentially comparative view of ideals, the relevance and significance of the factors for assessing how good an outcome is regarding a particular ideal may differ depending on the outcome’s alternative(s), so, in essence, a given outcome may have one value regarding an essentially comparative ideal given one alternative, but a different value regarding that very same ideal given another alternative. 7. roughly, utility assesses the goodness of outcomes in terms of how much utility, or well-being, the sentient beings in those outcomes have, maximin assesses the goodness of outcomes in terms of how well off the worst-off individuals fare in those outcomes, and the pareto principle claims that in outcomes involving the same people, one outcome will be better than another if it is better for at least one person and at least as good for everyone else. i’ll discuss the narrow person-affecting view more later. as stated in the text, in temkin 2012: ch. 12, i argue that in many contexts, the most plausible versions of the ideals in question are essentially comparative. 70 larry temkin leap 2 (2014) it follows that if an essentially comparative view of moral ideals is correct —so, for example, in comparing certain outcomes it is legitimate, as many believe, to assess them in terms of essentially comparative versions of utility, maximin, the pareto principle, or a narrow person-affecting view— then there is no reason to expect the “all-things-considered better than” relation to be transitive. this is because if the relevance and significance of the factors for assessing an outcome can vary depending on the alternative with which it is compared, then it could well be the case that for any three alternatives a, b, and c, a might be better than b in terms of all of the factors that are relevant and significant for making that comparison, and b might be better than c in terms of all of the factors that are relevant and significant for making that comparison, and yet a might not be better than c in terms of all of the factors that are relevant and significant for making that comparison. after all, it could then well be the case that the factors that are relevant or significant for comparing a with c, and which might rightly support the judgment that a is not better than c, may differ from the factors that are relevant and significant for comparing a with b, or b with c, allowing for the real possibility that those factors might rightly support the judgment that a is better than b, and b is better than c. so, in reflecting on whether or not the axiom of transitivity holds, a key question is whether the nature and structure of ideals reflects an internal aspects view of the sort sketched above, or an essentially comparative view of the sort sketched above. and i submit that the answer to this question is a substantive matter determined by the nature of the normative domain, it is not a terminological matter determined by the meanings of the words “all-things-considered better than”! the words “all-things-considered better than” can’t dictate the nature and structure of the normative realm. if ideals have the structure embodied by the internal aspects view as i have characterized it, then, indeed, the axiom of transitivity will hold. but if at least some ideals have the structure reflected by the essentially comparative view —as might be the case— then it will not. i submit, then, that in the face of seemingly compelling arguments that put pressure on the axiom of transitivity, we must do the hard philosophical work of facing those arguments head on and determining which, if any, of their premises should be rejected. we cannot confidently reject such arguments on the analytic grounds that the axiom of transitivity is necessarily true in virtue of the meanings of the words “all-thingsconsidered better than”. in light of the foregoing, let us quickly revisit what appears to be going on in section i’s initial spectrum argument. the first standard view reflects an additive-aggregationist approach that seems relevant and significant for certain comparisons. that is, in comparing the first alternative with the second, it seems appropriate to basically multiply the intensity of the pain rethinking the good – a small taste 71 leap 2 (2014) times its duration, in determining which of the two alternatives is better, and this yields the plausible judgment that the first alternative (the slightly more intense pain of shorter duration) is better than the second (the slightly less intense pain of much longer duration). similar additive-aggregationist reasoning seems appropriate in comparing the second alternative with the third, the third with the fourth, the fourth with the fifth, and so on. however, the second standard view reflects an anti-additive-aggregationist approach that seems relevant for other comparisons. in particular, in comparing the first alternative with the last, most people don’t simply multiply the intensity of the pains times their durations. rather, they judge that where the difference in intensity of the pain is such that the more intense pain of a given duration has a significantly adverse effect on one’s life, while the less intense pain of much longer duration would have little adverse effect on one’s life, then the former would be much worse than the latter, even though the sum total of pains as determined by their intensities times durations would be greater in the latter situation than the former. so, in essence, most people believe that one set of criteria is relevant and significant for assessing how bad the first alternative is in comparison with the second, but a different set of criteria is relevant and significant for assessing how bad the first alternative is in comparison with the last. this reflects an essentially comparative view for assessing outcomes and, as we have seen, such a view opens up the door to rejecting the axiom of transitivity. in response to my spectrum arguments, some total utilitarians and economists would reject the anti-additive aggregationist reasoning of the second standard view, and just insist that as long as there are enough extra mosquito bites, the life involving 16 mosquito bites per month is worse than the life involving two years of excruciating torture and fifteen mosquito bites per month. but is such a view really plausible? here are three related cases where most people would oppose simple additive aggregation. most people firmly believe that derek parfit’s repugnant conclusion is, indeed, repugnant (parfit 1984: ch. 17). they believe that an outcome, a, of at least ten billion people, all with a very high quality of life, would be better than an outcome, z, with a vast population all of whom have lives that are barely worth living, no matter how many people live in z. similarly, most firmly believe that an incredibly flourishing human life that lasted, say, a million years, would be better for the liver of that life than a mere oyster-like existence, no matter how many years one might live in an oyster-like state. 8 and likewise, most firmly believe that no matter how many people would each get one lick of a lollipop, it would be better for that not 8. i discuss this kind of example, which i call the single life repugnant conclusion, in temkin 2012: ch. 4. the single life repugnant conclusion was originally presented by j. m. e. mctaggart (1921: vol. 2, 452-3). 72 larry temkin leap 2 (2014) to occur, if it unavoidably involved an innocent person suffering unbearable agony for many years followed by a slow, lonely, miserable death. 9 notoriously, total utilitarians reject such claims. insisting that more utility is better than less utility, they offer a number of sophisticated explanations for why our intuitions about such cases are not to be trusted. for the total utilitarian, then, no matter how small the amount of good may be in a life that is barely worth living, or in a moment of oyster-like existence, or how small the amount of pleasure may be from one lick of a lollipop, if only there are enough such lives, moments, or licks, eventually the total amount of good or pleasure will be greater, and then be better, than, any finite amount of good or pain that might be balanced off against it. the utilitarian’s position is admirably consistent, but it reminds one of emerson’s contention that “a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines” (emerson, 1983). few are willing to “bite the utilitarian’s bullet” in such cases, and i believe they are right not to do so. in evaluating outcomes, we don’t simply care about how much utility obtains, we also care about how that utility is distributed and the impact that the distribution has on people’s lives. 4. neutrality and dominance principles it is common for philosophers and others to assume that in certain contexts, morality requires us to be neutral with respect to people, places, and times. so, for example, setting aside the special obligations that one may have towards people with whom one stands in certain special relations —such as one’s family, friends, students, patients, and so on— it is thought that, other things equal, if one could save one person or five, it would be better to save the five whether the five were (a) black or white, rich or poor, hindu or non-hindu, men or women, european or african, and so on (neutrality with respect to people), (b) close or far (neutrality with respect to space), or (c) living in the present, the near future, or the distant future (neutrality with respect to time —we’d also think it wouldn’t matter if the five were living in the past if, contrary to fact, we could save people who were living in the past). now i am aware that certain prevalent theories of modern physics discuss the space/time continuum in a way that suggests that space and time are not really distinguishable, so that however we treat space we should also treat time, and vice versa. but despite this, i have my doubts whether space and 9. my lollipops for life case is presented in temkin 2012: ch. 2. that case serves as the inspiration for the book’s cover art. rethinking the good – a small taste 73 leap 2 (2014) time should, in fact, be treated the same normatively. consider, for example, the following thought experiment. suppose i learn that our civilization will live in our galaxy another 1000 years, and then die out. i also learn that in a distant galaxy another advanced civilization will exist for the same 1000 years and then die out, and that this is also so in a third distant galaxy, and a fourth distant galaxy. i find this all quite interesting. it is somewhat pleasing to me to learn that there are, in fact, advanced civilizations living in galaxies far away. but suppose i also learn that beyond the fourth galaxy there is nothing but cold, empty, space. this, too, i find interesting, but i must confess that learning that fact doesn’t bother me at all. indeed, if someone said that events beyond the fourth galaxy were about to unfold which would make those distant reaches inhospitable to life forms in perpetuity, i wouldn’t think it important for our civilization to make significant sacrifices, if it could, to prevent that from happening. suppose, on the other hand, i vary the story a bit. as before, i learn that civilization in our galaxy will die out in 1000 years; but i learn that after ours dies out another advanced civilization will arise and persist for 1000 years in a second galaxy, and that this will happen again a third and fourth time. but i also learn that after the fourth civilization dies out there will be nothing but cold, empty, space, forever. for some reason, that knowledge would bother me a lot. indeed, if i learned that events were about to unfold which would make the universe uninhabitable for any life forms 4000 years from now, unless our civilization made significant sacrifices to prevent that from happening, i would feel quite strongly that we should do so, and i would feel that way even if i knew that our civilization was going to die out in 1000 years no matter what we did. my views here may ultimately be indefensible, but i don’t think they are idiosyncratic. they reveal an asymmetry in my thinking about space and time. i think it very important that many periods of time are filled with flourishing sentient beings. i think it much less important that many areas of space are filled with flourishing beings. there is much more to be said about this suggested asymmetry between space and time, but i shall not pursue this here. instead, let me turn to another set of views that might be held regarding space, time, and people. at first blush, i think most people would readily accept the following three dominance principles: (1) if outcome a is better than outcome b at every point in space, then a is better than b; (2) if outcome a is better than outcome b at every moment in time, then a is better than b; and (3) if outcome a and outcome b involve the very same people, and a is better than b for every person, then a is better than b. 1, 2, and 3 are exceedingly weak pareto-like principles. according to the pareto principle, if two outcomes involve the same people, and the first outcome is better for at least one person and at least as good for everyone 74 larry temkin leap 2 (2014) else, then the first outcome must be better than the second. 1 and 2 apply similar reasoning to the domains of space and time, respectively, as to the domain of people. in addition, 1, 2, and 3 require that the first outcome be better than the second at every point in space, at every moment in time, or for every person, respectively. given the widespread appeal of the pareto principle, the fact that the dominance principles noted above are much weaker —and are therefore even more plausible— than the standard pareto principle, and the common assumption that we should be neutral with respect to people, places, and times, i think it is fair to assume that most people would find each of the three dominance principles intuitively appealing. indeed, i suspect that many people would think that each of the dominance principles is “obviously” true. yet, it is easy to see that however intuitively appealing the three dominance principles may be, at least one of them must be rejected. consider diagram one. day 1 p 1 hell day 1 p 1 heaven day 2 p 1 heaven; p 2 , p 3 hell day 2 p 1 hell; p 2 , p 3 heaven day 3 p 1-3 heaven; p 4-9 hell day 3 p 1-3 hell; p 4-9 heaven day 4 p 1-9 heaven; p 10-27 hell day 4 p 1-9 hell; p 10-27 heaven : : : : w 1 w 2 diagram one diagram one represents two possible worlds god is thinking of instantiating, w 1 and w 2 . in w 1 , there will be a single person, p 1 , who will exist on day 1, and he will be in hell. we don’t have to think that p 1 ’s life will be infinitely bad, we just have to think that it will be very bad. during the course of that day, it would be much better for p 1 if he were not alive. on day 2, p 1 moves to heaven, where it will be very good for p 1 that he is alive. for simplicity, let us assume that each day in heaven would be as good for the person experiencing it as a day in hell would be bad for a person experiencing it, so that on balance the net value of a life with an equal number of days in heaven and in hell would be zero. unfortunately, on day 2 two new people, p 2 and p 3 are created and put in hell. on day 3, each of p 1 -p 3 are in heaven, but six new people p 4 -p 9 are in hell. on day 4 each of p 1 -p 9 are in heaven, but 18 new people are created in hell. and so on. w 2 is just like w 1 except in reverse. in w 2 , p 1 will again exist on day 1, but this time he will start in heaven. on day 2, p 1 moves to hell, but two new people, p 2 and p 3 are created and put in heaven. on day 3, each of p 1 -p 3 are rethinking the good – a small taste 75 leap 2 (2014) in hell, but six new people p 4 -p 9 are in heaven. on day 4 each of p 1 -p 9 are in hell, but 18 new people are created in heaven. and so on. how do w 1 and w 2 compare in terms of goodness? which, if either, is the better outcome, all things considered? if one looks at the two outcomes day by day, it may seem clear that w 2 is better than w 1 . after all, on day 1, there would be one person in hell in w 1 and one person in heaven in w 2 . so, on day 1, w 1 is clearly worse than w 2 . similarly, on day 2, w 1 would have one person in heaven, but two people in hell, whereas w 2 would have one person in hell, but two people in heaven. given our views about neutrality with respect to people, it seems clear that it is worse for there to be twice as many people in hell as in heaven, than it is for there to be twice as many people in heaven as in hell, so w 1 is worse than w 2 on day 2. similarly, on day 3, w 1 , where there are three people in heaven but six people in hell, will be worse than w 2 , where there are three people in hell, but six people in heaven. and so on. the point is that on day 1, w 1 is worse than w 2 , and that on each day after that w 1 is worse than w 2 , since, on each day after day 1, there will always be twice as many people in hell as in heaven in w 1 , while there will always be twice as many people in heaven as in hell in w 2 . thus, comparing w 1 and w 2 day by day, or moment by moment, the dominance principle with respect to time would entail that w 2 is better than w 1 . is w 2 better than w 1 ? i find that very hard to believe. suppose we compare the two outcomes not moment by moment, but person by person. in w 1 , each person spends exactly one day in hell, and the rest of eternity in heaven. in w 2 , each person spends exactly one day in heaven, and the rest of eternity in hell. i know which of these worlds i would want for myself, a loved one, or anyone else who was not pure evil! i would want w 1 , and i would want it because it would be better for each person who ever lived. notice, since in this example we are assuming that the very same people would live in each world, and we know that each of them would be better off in w 1 than w 2 (indeed vastly so, since it is much better to spend only one day in hell and the rest of eternity in heaven, than to spend only one day in heaven and the rest of eternity in hell), then the dominance principle with respect to people would entail that w 1 is better than w 2 . in this example, we see that two intuitively plausible and seemingly “obvious” dominance principles are in fact incompatible. in this case, at least, we must choose between the dominance principle with respect to time and the dominance principle with respect to people. as i have already made clear, i know how i would choose in this case. i think w 1 is clearly and unequivocally better than w 2 . notice, if one adopted a purely impersonal view of morality, according to which it didn’t matter how any particular sentient beings fared, or how benefits or burdens were distributed within or between lives, but it only mattered how many benefits or burdens obtained in an outcome, then it 76 larry temkin leap 2 (2014) might be plausible to maintain that w 2 is better than w 1 , in accordance with the dominance principle with respect to time, or, alternatively, that w 1 and w 2 were equally good, since each would ultimately involve an infinite number of days lived in both heaven and hell of the same orders of infinity. but my own view is that one lesson to be learned from diagram one is that in assessing the goodness of outcomes we should not merely focus on the impersonal questions of how much well-being there is in the two outcomes, or how many benefits and burdens obtain in total. rather, in some cases, at least, we must focus on the question of how the well-being or benefits and burdens are distributed, and, in particular, on how the sentient beings are affected for better or worse in those outcomes. 5. essentially comparative ideals i claimed earlier that a number of ideals people attach great value to have an essentially comparative structure, including the pareto principle, the most plausible versions of maximin and utility, and the narrow person-affecting principle. i defend this claim in temkin (2012: ch. 12) for each of the ideals in question, but for the purposes of this article let me just focus on the narrow person-affecting principle. in any choice situation between possible outcomes, let us call those people who do exist, or have existed, or will exist in each of the outcomes independently of one’s choices, independently existing people. by contrast, let us call those people whose existence in one or more possible outcomes depends on the choices one makes in bringing about an outcome, dependently existing people. bearing these distinctions in mind, we can now state the narrow person-affecting view. the narrow person-affecting view: in assessing possible outcomes, one should (1) focus on the status of independently existing people, with the aim of wanting them to be as well off as possible, and (2) ignore the status of dependently existing people, except that one wants to avoid harming them as much as possible. regarding clause 2, a dependently existing person is harmed only if there is at least one available alternative outcome in which that very same person exists and is better off, and the size of the harm will be a function of the extent to which that person would have been better off in the available alternative outcome in which he exists and is best off. 10 10. derek parfit presented a position which he also called a narrow person-affecting view in parfit 1984: ch. 18. the view as i present it here is different in important respects than parfit’s, but i have retained the name parfit uses, because i think the view i have described reflects a fundamental approach to assessing outcomes that is best described as a narrow person-affecting view. i believe that my version of the narrow person-affecting view is rethinking the good – a small taste 77 leap 2 (2014) as stated, the narrow person-affecting view reflects an important extension of jan narveson’s claim that “morality has to do with how we treat whatever people there are…. [we] do not … think that happiness is impersonally good. we are in favor of making people happy, but neutral about making happy people” (narveson 1973: 73 and 80). specifically, the first clause reflects the view that we are neutral about making people exist, while the second clause reflects the important qualification that if we are going to make a particular person exist, her interests have to count the same way as every other existing person’s, in that we must equally seek to make that person, like every other existing person, as well off as possible. now, in fact, that there are lots of ways in which the narrow personaffecting view needs to be qualified and limited in scope, which i won’t go into here (temkin 2012: ch. 12.3). nevertheless, when properly interpreted, the narrow person-affecting view reflects a deeply plausible and widelyaccepted view for a certain range of cases. to illustrate the narrow person-affecting view, it will be useful to consider a range of cases to which it might be applied, and to contrast it with some other principles that might be appealed to in assessing outcomes: the impersonal total view, the impersonal average view, and the wide personaffecting view. roughly, we might say that the narrow person-affecting view assesses outcomes by considering how the particular people in those outcomes fare, relative to how they fare in any available alternative outcomes (here, and below, “people” refers to any sentient beings). the aim is to make sure that each particular person who does, or will, exist independently of our choices, or who will exist as a result of our choices, fares as well as possible. in contrast, the wide person-affecting view assesses outcomes by considering how the people in those outcomes fare, but it is not concerned with how any particular people fare in one outcome relative to how those very same people might fare in any available outcomes. 11 a precise characterization of the wide person-affecting view is elusive, but one natural and plausible way of interpreting it implies, among other things, that if the people in one outcome, a, are all better off than the people in another outcome, b, whether or not they are the same people or there are the same number of people, then a is better than b; if, for each distinct person in b, there is corresponding more plausible than parfit’s original version, and in conversation parfit has indicated that he agrees. 11. the notion of a wide person-affecting view was introduced by parfit 1984: ch. 18. unfortunately, as parfit originally presented the position, he combined two elements which are best kept distinct. the first reflects the view that in assessing outcomes we want to assess them in terms of the extent to which the people (sentient beings) in those outcomes are affected for better or worse. the second concerns the very distinct question of whether causing someone to exist benefits that person. i use the notion of a wide person-affecting view to reflect the first element only. parfit now shares my view (temkin 2012: note 41, section 12.4). 78 larry temkin leap 2 (2014) distinct person in a, at least one of whom is better off and the rest of whom are at least as well off, then a is better than b as long as anyone else existing in a has a life that is (sufficiently) worth living; and if a and b have the same number of people, and for each person in b there is a corresponding person in a who is equally well off, and vice versa, then a and b are equally good. finally, the impersonal total and average views imply that regardless of whether or not they have the same people or the same number of people, one outcome will be better than (equal to) another if and only if the one outcome has a higher (the same) total or average amount of utility or wellbeing, respectively. consider diagram two. 1000 p 1 p 1 p 1 p 2 p 1 p 3 p 1 p 4 p 1 p 4 a a a b a c a c a d i ii iii iv v vi diagram two 1200 1100 1100 800 1100 800 600 in i, there is a large population, a, say of 10 billion people, on a given planet, p 1 , all of whose members are at level 1000. assume that i is the initial outcome, and that the a people are thinking about transforming their outcome into one represented by ii. in ii, those very same people all exist and are better off, at level 1200. ii would be judged a better outcome than i on all of the different approaches for assessing alternatives. specifically, ii is better than i on the impersonal total and average views, since the total and average amounts of wellbeing are greater in ii than in i, on the wide personaffecting view, since it is better for people, as everyone in ii is better off than everyone in i, and on the narrow person-affecting view, since it is better for the particular, independently existing a people who exist in both outcomes. suppose, instead, that the a people could transform i into an outcome like iii. in iii, the a people have all been lowered to level 600, but a new population of 10 billion people, b, would also come to exist at level 600 on a second planet, p 2 . in this scenario, iii would be ranked better than i on the impersonal total view, since the total wellbeing would be greater in iii than in i. but iii would be ranked worse than i on the impersonal average view, rethinking the good – a small taste 79 leap 2 (2014) since the average level of wellbeing would be less in iii than in ii. iii would also be ranked worse than i on the wide person-affecting view, since the people in i are better off than the people in ii. finally, iii would also be ranked worse than i on the narrow person-affecting view, as the independently existing a people are better off in i than in iii, and the principal aim of the narrow person-affecting view is to make the particular existing people as well off as possible (making people happy) rather than to add more people to an already large and well-off population (making happy people). while total utilitarians would rank iii better than i, if outcome i were one’s starting point, many people, and perhaps most, would rank i better than iii, and they might do so on any combination of the grounds suggested. suppose next that the people in i could bring about iv. iv involves a new group of 10 billion people, c, living on a different planet, p 3 . unfortunately, the conditions on p 3 are not quite as favorable as those on p 1 , so the c people would only be at level 800. but we may presume that level 800 is still quite high, so that everyone on p 3 would have lives well worth living. in addition, there might be resources on p 3 which could be used in trades with those on p 1 , so that everyone in p 1 would be raised up to level 1100. iv would be worse than i on the impersonal average view. many find this hard to believe. if there is an objection to iv, it would seem to rest on the fact that iv involves inequality while i is perfectly equal, not on the fact that the average level of well-being is lower in iv than in i. after all, iv is better off than i for everyone who lives in i, and in addition iv involves a very large group of people all of whom have lives that are well worth living. 12 on reflection, i believe most people would judge iv better than i, and this would be supported by the impersonal total view —since the total wellbeing is greater in iv than in i— by the wide person-affecting view —since iv is better for people than i, as for each person in i there is a corresponding person in iv who is even better off, and any additional people in iv have lives that are well worth living— and by the narrow person-affecting view, since the particular independently existing a people are better off in iv (being at level 1100) than in i (being at level 1000). next, suppose that the people in outcome i could bring about either iv or v. in v, the a people have to make extra sacrifices to enable the c people to live on a different, more hospitable, fourth planet p 4 . the result would be 12. the strongest arguments against the average view involve alternatives where people’s lives are well below the level at which life ceases to be worth living. surely, one wouldn’t improve an outcome where billions of people were living in the worst hell imaginable in any respect, merely by adding billions of more people whose lives were almost, but not quite, as badly off. but, of course, the addition of all those extra people living hellish lives would raise the average level, even if only by a small amount. for further discussion of this kind of case, which parfit called hell three, and other reasons to be skeptical of average views, see parfit 1984: 422; temkin 2012: section 10.4; temkin 1993: section 7.5. 80 larry temkin leap 2 (2014) that the c people would be at level 1100, but the a people would only be at level 800. interestingly, as alternatives to i, iv and v would likely be regarded as equally good on all four of the principles we have been discussing. iv and v are equally good on the impersonal total and average views, as they are equally good in terms of total and average wellbeing. they are equally good on the wide person-affecting view, since in terms of how people in those outcomes fare (rather than in terms of how the particular people fare in one outcome rather than another), they are equally good for people. finally, they are equally good on the narrow person-affecting view, since on that view one doesn’t have to bring about the dependently existing c group, but if one is going to bring a particular group into existence —and, by hypothesis, the very same c people would be brought into existence in both iv and v— then their interests have to be given the same weight as those of the independently existing people, a. hence, on the narrow person-affecting view, there would be nothing to choose between outcome iv, where the independently existing a people would be at level 1100 and the dependently existing c people would be at level 800, and outcome v, where the independently existing a people would be at level 800 and the dependently existing c people would be at level 1100. finally, suppose that the option facing those in i is not iv or v, but iv or vi. here, the option is between populating planet p 3 with 10 billion people, the c people, who would all be well off, but “only” at level 800, but where this would enable the a people to raise their level from 1000 to 1100, or populating a more hospitable but more distant planet p 4 , with an entirely different group of 10 billion people, the d people, but where the cost of populating the more distant planet would be to lower the level of the a people from 1000 to 800. iv and vi would be equally good on both the impersonal total and average views, since the total and average levels of wellbeing are equal in both outcomes. likewise, iv and vi , would be equally good on the wide person-affecting view, since, overall, people fare equally well in both outcomes. however, importantly, if one’s initial starting place was i, then iv would be decidedly better than vi on the narrow person-affecting view. this is because, insofar as we are concerned with “making people happy, rather than making happy people”, iv is a clear improvement, while vi is a clear worsening of the outcome. that is, on the narrow person-affecting view, iv is better for the independently existing a people (they are at level 1100 rather than level 1000), and it in no way harms the dependently existing c people, since their lives are well worth living, and, in this choice situation, there is no available alternative in which they would be better off. vi, on the other hand, is clearly worse for the independently existing a people (they are at level 800 rather than level 1000), and this worsening of the outcome cannot be made up for by the neutral factor of adding extra “happy” d people. rethinking the good – a small taste 81 leap 2 (2014) let me acknowledge that the narrow person-affecting view is not plausible in cases like parfit’s non-identity problem (parfit 1984: ch. 16) as stated, it is also implausible in a host of other cases, many of which will readily occur to the reader. however, despite this, i believe that the narrow person-affecting view is plausible, and relevant and significant for comparing outcomes in a large range of cases, including those just discussed. thus, in considering cases like those represented in diagram two, i believe that many people would judge that if one’s initial outcome were like i, then ii would be better than i, iii would be worse than ii, iv would be better than i, iv and v would be equally good, and iv would be better than vi, and i believe that many would base their judgments partly, if not wholly, on narrow person-affecting grounds (or a position very much like it in spirit if not exact detail). as should be clear, the narrow person-affecting view is an essentially comparative ideal. on such a view, assessing how good an outcome is depends not solely on its internal features, as is the case on the internal aspects view, but on whether the particular people in that outcome exist in available alternative outcomes, and if so, on how they fare in the available alternatives. assuming that there would be no morally relevant differences between the different people in my examples other than narrow person-affecting considerations, on the internal aspect view iv, v, and vi would be equally good, since their internal features are identical, except for which particular people exist in which outcomes and which particular levels they are at. hence, in accordance with the principle of like comparability for equivalents, on the internal aspects view, however one of them compared with some other alternative, that is how each of them would compare with that alternative, and this would be so regardless of whether or not any other outcomes were available. but, as we have seen, in accordance with the narrow personaffecting view, many people would judge iv as better than i, if outcome i was the initial starting point and those were the only alternatives, but they would judge v as worse than i, if outcome i was the initial starting point and those were the only alternatives. similarly, in accordance with the narrow personaffecting view, many people would judge iv as equally as good as v, if those were the only alternatives, and v as equally as good as vi, if those were the only alternatives, but, contrary to both the principle of like comparability for equivalents and the axiom of transitivity for equally as good as (each of which is entailed by the internal aspects view), they would deny that vi is equally as good as iv. likewise, in accordance with the narrow personaffecting view, and contrary to the axiom of transitivity for better than, it is plausible to contend that if outcome i were one’s initial starting point, then iv would be better than i if those were the only alternatives, and i would be better than v if those were the only alternatives, but iv would not be better than v if those were the only alternatives. 82 larry temkin leap 2 (2014) could we abandon the narrow person-affecting view and simply adopt impartial views or the wide person-affecting view instead? not without abandoning a view that underlies many judgments people make in assessing outcomes. and not easily. to buttress this claim, let us consider two further cases, of a different sort, the first of which is exemplified by diagram three. –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 1 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 –21 –22 –23 –24 –25 –26 –27 –28 –29 –30 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 2 diagram three suppose that one of two outcomes was going to come about. in o 1 , there would be one person living on planet one, p 1 , at time one, t 1 , and that person would be at level –1, which is below the level at which life ceases to be worth living. it would be better for that person if he or she never existed. there would also be one person living on planet two, p 2 , at time two, t 2 , and that person would be even worse off at level –2. there would be a third person living on planet three, p 3 , at time three, t 3 , and that person would be even worse off at level –3, and so on. hence, there would be an infinite number of people living on different planets and at different times, and each person, after the first, would be worse off than those that preceded him or her. in addition, let us assume there would be no other morally relevant factors or events obtaining in w 1 . in the second outcome, o 2 , there would again be one person living on planet one, p 1 , at time one, t 1 , but this time the person would be at level –11. there would also be one person living on planet two, p 2 , at time two, t 2 , and that person would be even worse off at level –12. there would be a third person living on planet three, p 3 , at time three, t 3 , and that person would be even worse off at level –13, and so on. as before, there would be an infinite number of people living on different planets and at different times, and each person, after the first, would be worse off than those that preceded him or her, and there would be no other morally relevant factors or events obtaining in o 2 . finally, for any level –n, it is worse for someone to be at level –(n – 10), than to be at level –n. rethinking the good – a small taste 83 leap 2 (2014) how do o 1 and o 2 compare? as described, there might be some reasons associated with how we think about cases involving infinity, for claiming that o 1 and o 2 were equally good. on the other hand, i think there would also be powerful reasons for thinking that o 1 was better than o 2 . if we, or god, had to choose which of the two outcomes to produce, or we learned that one of the two outcomes was going to be instantiated, at first blush it seems that we should produce or hope that it is o 1 rather than o 2 . other things equal, it seems we should be confident that o 1 would be at least at good as (and probably better than) o 2 . the preceding ranking of o 1 and o 2 would be supported by both impersonal principles, as well as any plausible wide person-affecting view. insofar as one merely focuses on the impersonal value in each outcome, or on how people fare in each outcome without regard to how any particular people fare, then it seems clear that o 1 is at least at good as o 2 . moreover, i think o 1 would be at least at good as o 2 if completely different people lived in o 1 than in o 2, or if anyone who lived in both outcomes, lived on the same corresponding planet and at the same corresponding time in both outcomes, such that if a given person, john, lived in both outcomes, then whatever planet p n and time t n that he occupied in o 1 , he would also occupy p n and t n in o 2 . suppose, however, that i now tell a different story regarding the members of o 1 and o 2 . suppose it is true that every person who would exist in o 2 , if o 2 obtained, would also exist in o 1 , if o 1 obtained, but that each of them would be worse off in o 1 than in o 2 . specifically, let us assume that the very same individual, i 1 , who would exist at t 1 in o 2 , would exist at t 21 in o 1 , that the very same individual, i 2 , who would exist at t 2 in o 2 , would exist at t 22 in o 1 , that the very same individual, i 3 , who would exist at t 3 in o 2 , would exist at t 23 in o 1 , and so on. it would then be the case that every single person who would exist in o 2 would also exist in o 1 and would be ten units worse off, where, as before, for any level –n, it is worse for someone to be at level –(n – 10), than to be at level –n. given that scenario, it seems clear that if we, or god, had to choose which of the two outcomes to produce, or we learned that one of the two outcomes was going to obtain, we should produce or hope that it is o 2 rather than o 1 ! o 1 is worse than o 2 for every person who lives in o 2 , and, in addition, there are 20 different individuals who exist in o 1 but not in o 2 (those who would be living at times t 1 through t 20 in o 1 ), whose lives are below the zero level —they would rationally prefer that they had never been born. surely, if we were aiming to choose the better outcome, and we knew that we or our loved ones might actually be occupants of one of the two worlds, we would choose o 2 , and we would make a similar choice on behalf of any strangers who were not pure evil. it seems clear, then, that our judgments about how outcomes like o 1 and o 2 compare would not, and should not, be influenced solely by impersonal or wide person-affecting considerations. in some cases, how the particular people are affected for better or worse depending on the alternatives is rightly 84 larry temkin leap 2 (2014) relevant to our assessment, as is implied by the narrow person-affecting view. thus, in some cases at least, cross-world identification of particular individuals is both relevant and necessary for accurately comparing outcomes, as is permitted on the essentially comparative view of ideals, but is prohibited by the internal aspects view. let us apply the preceding reasoning to a final case, represented by diagram four. –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 3 –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 4 –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 5 diagram four o 3 , o 4 , and o 5 are just like o 1 in diagram three. in each outcome there is one person on p 1 at t 1 at level –1, a second person on p 2 at t 2 at level –2, a third person on p 3 at t 3 at level –3, and so on. if one asked how o 3 , o 4 , and o 5 compared, it would be natural to assume that they were all equally good, all things considered. and if there were different people in o 3 , o 4 , and o 5 , then it seems clear that they would all be equally good. suppose, then, we make the assumption that the people in o 3 would be different people than those in o 4 , and similarly that the people in o 3 would be different people than those in o 5 . in that case, there would be no narrow person-affecting considerations that were relevant for comparing o 3 with o 4 , or for comparing o 3 with o 5 , and there would be good grounds for judging that o 3 and o 4 were equally good, and similarly that o 3 and o 5 were equally good. does it follow from this that o 4 and o 5 must be equally good, as it must if the internal aspects view is correct, since such a view entails both the principle of like comparability for equivalents and the transitivity of the “equally as good as” relation? it does not! because consistent with the forgoing relations between o 3 and o 4 , and o 3 and o 5 , o 5 may stand in a rethinking the good – a small taste 85 leap 2 (2014) different relation to o 4 , one that is similar to the relation in which o 2 stood to o 1 in diagram three. after all, even it is true that the people in o 3 are different from the people in both o 4 and o 5 , it doesn’t follow from that that the people in o 5 are different from the people in o 4 . they may not be! suppose, then, that the person who would occupy p 1 and t 1 and be at level –1 in o 5 , would occupy p 11 and t 11 and be at level –11 in o 4 , the person who would occupy p 2 and t 2 and be at level –2 in o 5 , would occupy p 12 and t 12 and be at level –12 in o 4 , the person who would occupy p 3 and t 3 and be at level –3 in o 5 , would occupy p 13 and t 13 and be at level –13 in o 4 , and so on. it would then be the case that everyone who exists in o 5 also exists in o 4 and is ten units worse off, and that, in addition, there would be 10 different individuals who exist in o 4 , but not in o 5 , whose lives would be below the zero level and who would rationally wish that they had never been born. in this case, as above, it seems clear that o 4 would be a worse outcome than o 5 , and mainly in virtue of narrow person-affecting considerations. we see, then, that in accordance with the essentially comparative view, a factor that is relevant and significant for comparing o 4 and o 5 —specifically, the fact that everyone who exists in o 5 also exists in o 4 where he or she is worse off— is not relevant or significant for comparing o 3 with o 4 , or o 3 with o 5 . this explains how it can be the case that in terms of all of the factors that are relevant and significant for making each comparison, o 3 and o 4 might be equally good, and o 3 and o 5 might be equally good, but o 4 and o 5 might not be equally good. more generally, as we have seen, once we accept an essentially comparative view of ideals, as it seems we must if we are to account for the judgments to which many are committed regarding diagrams two, three, and four, then there is no reason to expect the “all-things-considered better than” or “all-things-considered equally as good as” relations to be transitive, or, alternatively, no reason to think that such relations even apply to various alternatives we may have expected them to for the purposes of practical reasoning. 13 13. in my book, i discuss various ways of preserving the axioms of transitivity in the face of my arguments, which have the implication that there is no single set of alternatives that are being compared in the cases i discuss, or no single relation that the different alternatives are being compared in terms of, so that there is, strictly speaking, no violation of the axioms of transitivity in the cases i discuss, rather those axioms don’t even apply to the cases i consider. i suggest that even if such a move can be plausibly defended, it has significant practical and theoretical difficulties akin to those that would accompany the rejection of the axioms of transitivity (see temkin 2012: ch. 13). 86 larry temkin leap 2 (2014) 6. concluding remark as promised at the beginning, this article barely scratches the surface of some of the issues raised in rethinking the good. moreover, the further one explores such issues, the more one realizes how this domain is fraught with complications, unresolved difficulties, and impossibility results whose premises are exceedingly difficult to abandon. the book seriously challenges us to rethink our understanding of the good, moral ideals, and the nature of practical reasoning in many ways that have deep practical and theoretical implications. but beyond that, i’m afraid, it offers little guidance, and i have little sense, of where we go from here. i wish it were otherwise. bibliography broome, j., 1991: weighing goods, oxford: basil blackwell. — 2004: weighing lives, oxford: oxford university press. emerson, r. w., 1983: “selfreliance”, in essays and lectures, ed. joel porte, new york library of america: 259-82. mctaggart, j. m. e., 1921: the nature of existence, 2 vols., cambridge: cambridge university press. narveson, j., 1973: “moral problems of population”, the monist 57. parfit, d., 1984: reasons and persons, oxford: oxford university press. rachels, s., 1993: “a theory of beneficence”, unpublished philosophy, politics and economics thesis, oxford university. — 1998: “counterexamples to the transitivity of better than”, australian journal of philosophy 76: 71-83. — 2001: “a set of solutions to parfit’s problems”, noûs 35: 214-238. — 2004: “repugnance or intransitivity”, in the repugnant conclusion: essays on population ethics, ed. j. ryberg and t. tannsjo: 163-86, dordrecht: kluwer academic publishers. temkin, l. 1987: “intransitivity and the mere addition paradox”, philosophy and public affairs 16: 138-187. — 1993: inequality, new york: oxford university press. — 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. — 2014: “intransitivity and the internal aspects view”, law, ethics and philosophy 2: 139-152. wittgenstein, l., 1958: philosophical investigations, 2nd ed., ed. and trans. by g. e. m. anscombe, oxford: blackwell. leap 6 (2018) the democratic case for a basic income1 l e t ici a mor a l e s universidad austral de chile abstract while most of its advocates justify the right to a basic income because it promotes individual freedom, autonomy and human development, an alternative line of argumentation insists that a universal basic income is a core component of a well-functioning democratic society. in this article i examine the democratic case for a basic income by engaging with the work of carole pateman and michael goodhart. more concretely, i argue that although their proposals offer interesting insights, they ultimately fail to properly justify the importance of a basic income on democratic grounds. i develop an alternative argument based on the right to political participation and explain why a universal basic income scheme may promote such right. keywords: democracy, political participation, material preconditions, social rights, income security, basic income. 1. introduction the right to income security poses something of a conundrum. while it is universally accepted that income is very important for the lives of human beings, the main international human rights treaties do not explicitly recognize a right to income security. neither the universal declaration of human rights nor the international covenant on economic, social and cultural rights directly proclaim a right to income security. however, they appear to do so indirectly through the right to social security, the right to 1 previous versions of the paper were presented at the 8th summer-school in political philosophy & public policy (university of minho), the 17th bien congress in lisbon, the seminario austral de la universidad austral de chile, and the 2nd international conference of the uk-latin america network for political philosophy (ukl appn) in mexico city. i am grateful to the audiences at these events and to jurgen de wispelaere, felicitas holzer, julio montero and two anonymous referees for this journal for helpful comments and suggestions. d oi : 10. 310 0 9/l e a p. 2018.v6.07 the democratic case for a basic income 121 leap 6 (2018) an adequate standard of living and the right to work.2 income security can be established in various ways (de wispelaere and morales 2016). the most common view links income to a wage obtained from work, social security payments or other state benefits, often subject to certain eligibility criteria and past contribution. in recent years, however, the proposal to grant each individual citizen a regular cash payment, without insisting on a means test or work requirements, has become popular in both academic and public policy debates (van parijs and vanderborght 2017). the advocates of “basic income” – as the proposal is most commonly known – argue that granting each citizen or long-term resident an unconditional cash payment is the most effective way to ensure income security for all. unsurprisingly, this proposal is regarded as deeply controversial and there intense debate about its normative justification is ongoing. the most inf luential view tries to ground the right to basic income on the ideal of individual freedom. in this vein, philippe van parijs – one of the pioneers in the basic income debate – famously sustained that basic income is a condition for securing real freedom, understood as the freedom to do whatever one might want to do (van parijs 1995; also van parijs and vanderborght 2017). while freedom-based justifications have dominated the debate for years, some authors have emphasized the limitations of this approach. such dissenters do not necessarily object to basic income as such; they merely reject the freedom-based justification because they think it fails to take into account some key structural features of contemporary societies.3 one such view proposes that, instead of freedom, we focus on democracy as the political value that could justify an unconditional basic income (pateman 2002, 2003, 2004; goodhart 2007, 2008; van damme, 2017). in this article i explore the relationship between basic income and democracy. i start my analysis by focusing on the critique of carole pateman and michael goodhart against freedom-based justifications and 2 the universal declaration of human rights (udhr) recognizes the right to social security (art. 22), the right to work (art. 23), and the right to a standard of living (art. 25). the international covenant on economic, social and cultural rights (icescr) establishes the right to work (art. 7), the right to social security (art. 9), and the right to a minimum standard of living (art. 11). 3 although some have argued against basic income on precisely such grounds. see, for instance, gourevitch (2016). 122 leticia morales leap 6 (2018) their attempt at grounding a democratic case for basic income.4 the writings of pateman and goodhart offer many interesting insights but in my view end up conf lating a number of different democratic arguments. a first task of this article is to disentangle the strands of their argumentative web and separate out what i believe are importantly different mechanisms through which basic income could have a democratic impact. upon ref lection, it turns out not all of these different pathways to a democratic justification of basic income are convincing. i offer a two-fold critique of pateman and goodhart by first suggesting that both authors are unnecessarily wedded to an over-expansive ideal of democracy and, secondly, arguing that a basic income in many cases would fail to deliver on the democratic outcome they anticipate. the final section of this article constructs what i believe to be a more plausible democratic case for an unconditional basic income. adapting a line of argument already found in pateman and building on my earlier work on the democratic justification for social rights (morales 2016), i examine the extent to which basic income constitutes a material precondition for the effective political participation of all citizens. 2. basic income: from individual freedom to democracy? a basic income is usually defined as an individual entitlement to receive a regular payment, independent of other sources of income, employment or willingness to work, or living situation (see van parijs and vanderborght 2017: 5). it is very tempting to articulate the main value of such a basic income in terms of expanding a person’s individual freedom as advocated most forcefully by philippe van parijs (van parijs 1995). of course, some authors reject van parijs’ particular conception of freedom; instead, they value basic income because it promotes republican freedom (pettit 2012b; taylor 2017), rawlsian political liberalism (birnbaum 2012), or “independentarian” status freedom (widerquist 2013). however, all these views share a crucial feature: they ground basic income on a certain account of individual freedom. carole pateman – a leading democratic theorist – embraces the idea of an unconditional basic income, but firmly objects to the dominant 4 one restriction of this article is that i deliberately focus on the democratic case for basic income within a single state. in contrast to goodhart (2007) i remain agnostic on the need to establish a global basic income or the role of basic income within single polities as a mechanism to further global democracy. the reason for this restricted focus is my emphasis on the role of democratic participation in the political system as typically represented in electoral democracies. the democratic case for a basic income 123 leap 6 (2018) freedom-based justification (pateman 2003; 2004).5 her main concern is that because this justification is entirely focused on social justice, liberal autonomy and individual freedom, it overlooks the impact a basic income may have on fundamental democratic values: “little attention has been paid in recent academic debates to the democratic significance of […] a basic income. participants have tended to focus on such questions as social justice, relief of poverty, equality of opportunity, or promotion of f lexible labor markets, rather than democracy” (pateman 2004: 91). at the core of a democratic society, pateman holds, lies the idea that “all citizens, women and men alike, have full standing and enjoy democratic rights and individual freedom” (pateman 2003: 130). however, the reference to individual freedom should not be misinterpreted; it refers to self-government or autonomy and explicitly denotes “a political form of freedom in contrast to an economic form of freedom as individual opportunity” (pateman 2003: 132). pateman insists that political freedom must be prioritized: while individual opportunity has an important place within a democratic society, it is nevertheless “insufficient for democratization, the political process through which all citizens obtain full standing, and become first-class democratic citizens” (pateman 2003: 132, added emphasis). by focusing on self-government and political freedom and its capacity to bring about the “necessary social and political change to create a robust democracy for all citizens” (pateman 2003: 136), pateman moves the justificatory goal posts away from excessively individualist approaches and towards a more structural perspective. in fact, her decisive objection against freedom-based justifications insists that “individual self-government depends not only on the opportunities available but also on the form of authority structure within which individuals interact with one another in their daily lives” (pateman 2004: 91). how does basic income feature within this democratic theory? i believe pateman provides a patchwork of distinct arguments to answer this question. in the remainder of this section i brief ly distinguish four of them. first, pateman highlights the democratic significance of a universal basic income by analogy to the historical and institutional role played by universal suffrage. suggesting that basic income and the right to vote are comparable, she writes “a basic income should be seen as a fundamental 5 at the time, pateman’s focus was primarily on van parijs (1995) and the debate his work inspired in political philosophy. pateman’s critique thus predates the “new wave” of freedom-based justifications of basic income, such as pettit (2012b) or widerquist (2013). 124 leticia morales leap 6 (2018) or democratic right, like universal suffrage” (pateman 2003: 131). universal suffrage means that every member of a polity is entitled to participate in the electoral process, perhaps subject to certain minimal qualifications, such as age or residence. the key aspect here is that any barriers that make it harder for citizens to demonstrate their qualification to vote – e.g., cumbersome voting registration laws – are deemed undemocratic. similarly, pateman sustains that all citizens must be entitled to a basic income because they are adult members of the polity (pateman 2003: 146).6 the right to basic income and the right to vote are analogous in the sense that both are entitlements that every citizen must enjoy as such. when their enjoyment is subject to further conditions they turn into a privilege rather than a right (pateman 2003: 146; 2004: 102). in pateman’s view, just like adding strict voting registration requirements frustrates access to voting, adding work requirements or means testing hampers access to the basic income citizens are entitled to. second, pateman suggests that a basic income is necessary because it “provides the lifelong security that helps safeguard other rights” (pateman 2004: 94). michael goodhart has defended this view in more detail. his starting point is a justification of social and economic rights – including a right to guaranteed subsistence – as essential to secure emancipation and the enjoyment of other basic rights (goodhart 2007: 94, 2008). he maintains that the fundamental right to guaranteed subsistence requires the social provision of a basic income (goodhart 2007: 106) and insists that such income is an integral part of a democratic perspective because “its primary justification is its role in achieving and securing emancipation for all members of society” (goodhart 2007: 107). in goodhart’s view, basic income therefore is a desirable scheme because it “satisfies the fundamental economic right to a guaranteed subsistence that democracy demands” (goodhart 2007: 109). third, pateman insists that democratic citizenship requires equal social standing, understood as a relational notion that captures “the form of authority structure within which individuals interact with one another in their daily lives” (pateman 2004: 91). democratic standing informs both how individuals perceive themselves in relation to others and how they perceive others. in this respect, pateman (2004: 94) finds inspiration in the writings of sociologist t.h. marshall (1950), who divides citizenship into three different components – civil rights, political rights and social rights – and maintains that social citizenship involves an equality of status which requires “a direct sense of community membership based on loyalty to a 6 in many proposals children and adults are covered by slightly different schemes (van parijs and vanderborght 2017). the democratic case for a basic income 125 leap 6 (2018) civilization which is a common possession” (marshall 1950: 40-41). basic income presents an appealing way to guarantee equally social standing: unconditionally securing a basic income to everyone avoids a person who would otherwise be subject to a controlling sanctioning welfare regime to be treated as “second-class citizens”. in a similar vein, pateman argues that a universal basic income is valuable because it helps “to remove the temptation for some citizens to see others as less worthy of respect, and so as lesser citizens, because of their lack of economic resources” (pateman 2003: 146). pateman famously extends this idea of democratic citizenship to emphasize its potential in advancing the freedom and full social standing of women (pateman 2004: 90). this implies revisiting the social institutions of family, marriage and employment, and the extent to which these traditionally frustrated “the standing of wives as citizens” (pateman 2004: 98). critically, a basic income “is a crucial part of any strategy for democratic social change” by virtue of its capacity to “break the long-standing link between income and employment and end the mutual reinforcement of the institutions of marriage, employment, and citizenship” (pateman 2004: 90). in other words, for pateman, basic income plays an important democratic role by promoting full social standing of citizens in general, and women in particular, in the different spheres of life. fourth, pateman argues for the democratic potential of a universal basic income by reference to an important opportunity it creates, namely the freedom not to be employed (pateman 2004: 92). the reason why basic income has a significant democratic potential is that it improves the capacity of individuals “to refuse to enter or to leave relationships that violate individual self-government or that involve unsafe, unhealthy, or demeaning conditions” (pateman 2004: 96). furthermore, basic income also promotes citizens’ participation in collective self-government by opening up “opportunities for citizens to develop their political capacities and skills” and ensuring “that participation in social and political life would not require heroic efforts on the part of any citizens” (pateman 2004: 96).7 the focus on increased opportunities allows pateman to explicitly link basic income with the ideal of democratization: “by opening up this range of opportunities and uncoupling income and standard of life from employment, a basic income has the potential both to encourage critical reassessment of the mutually reinforcing structures of marriage, employment, and citizenship and to open the 7 pateman (2004: 97) writes: “a basic income would allow individuals at any time to do voluntary or political work, for example, to learn to surf, to write or paint, to devote themselves to family life, or to have a quiet period of self-reassessment or contemplation.” 126 leticia morales leap 6 (2018) possibility that these institutions could be remade in a new, more democratic form” (pateman 2004: 97). in sum, the democratic case for basic income, as outlined in the writings of carole pateman (2003, 2004) and michael goodhart (2007, 2008) can be understood as the mutually reinforcing combination of four distinct arguments. together these paint a picture by which an unconditional basic income represents the economic analogy of universal suffrage which, by securing the equal enjoyment of fundamental human rights, promotes the full social standing and equal range of political and social opportunities for all citizens. 3. democracy and basic income: a critical assessment pateman and goodhart justify basic income from a democratic perspective by assuming a substantive conception of democracy. however, substantive conceptions of democracy often fail to appreciate “value pluralism by neglecting the constitutive role of democratic decision-making processes for groups of individual agents who try to determine how they should act together” (peter 2009: 2-3). a set of valuable outcomes is posited in advance and constrains the decision-making process (e.g., goodhart 2008: 150), neglecting other alternative goals that citizens may reasonably want to advance. as waldron (1999) has forcefully pointed out, this view fails to take deep political and moral disagreement seriously. furthermore, substantive conceptions of democracy also blur the lines between democracy and social justice, failing to give proper due to democratic legitimacy as a distinct political value (pettit 2012a: 59; morales 2015). michael goodhart insists that because substantive conceptions of democracy highlight the democratic importance of human rights, they contribute to the revival of “democracy itself, which in its atrophied electoral and procedural forms can seem like a fairly moribund and uninspiring ideal” (goodhart 2007: 98). but in order to avoid the kind of “atrophied” democracy represented by procedural models of aggregative democracy that give primacy to the formal right to vote and schumpeterian elite competition, it is not necessary to turn democracy into a substantive conception of social justice with predetermined social outcomes. as phillip pettit explains: “normative thinking about legal, political, and social institutions has been dominated over the past quarter century or more by the ideal of justice, in particular social or distributive justice. this focus on justice the democratic case for a basic income 127 leap 6 (2018) is unfortunate, because it has suggested that there is only one basic ideal that we need to think about in our normative projects. it is unfortunate, in particular, because it puts out of the picture the very different sort of ideal to which i give the name of legitimacy — specifically, political legitimacy” (pettit 2012a: 59). michael goodhart, for instance, clearly adopts such an unfortunate position when he suggests that democracy is only instrumentally justified as a means to achieving emancipation through the enjoyment of fundamental rights (goodhart 2007: 103; 2008: 150). in the next section i propose an alternative democratic model centered on political participation that avoids atrophied proceduralism without collapsing political legitimacy into social justice. the pateman-goodhart approach to democratization is also problematic because they explicitly extend democracy to the family, the workplace and the economy (pateman 2003, 2004). goodhart holds that “certain institutions are more democratic than others, precisely because they are instrumental in securing fundamental human rights”; yet this also implies that “many rights can be secured differently in different contexts” (goodhart 2008: 150). unfortunately, this view overlooks that democracy is mainly a framework for collective decision making within a political system: its fundamental aim is to ensure that collective decisions are legitimate (peter 2009). these theoretical difficulties pose a practical and strategic problem: the sort of basic income scheme required to satisfy the goals that pateman and goodhart have in mind may be too radical or too demanding under present-day socio-economic conditions. the more moderate basic income schemes currently under consideration around the world are not likely to have the democratic impact pateman and goodhart are hoping for. to illustrate this problem, i re-examine the four arguments outlined in the previous section. to begin with, the analogy between a universal right to vote and a universal right to basic income has some initial plausibility.8 however, these rights differ in important aspects. the right to vote is often explained through the egalitarian formula “one person, one vote”. similarly, basic income may also be articulated through the formula “one person, one basic income”. but is there any deeper reason to accept the analogy between both rights? pateman observes that “universal suffrage is the 8 pateman, along with many others, views basic income as a right but see the discussion of why conceiving basic income as a right is problematic in de wispelaere and morales (2016). 128 leticia morales leap 6 (2018) emblem of equal citizenship”, which is further explained by reference to “an orderly change of government through free and fair elections” (pateman 2004: 94). it is generally accepted that a person cannot be a citizen without the right to vote (king and waldron 1988). along similar lines, pateman tries to argue that “a basic income is the emblem of full citizenship”, because “basic income as a democratic right is necessary for individual freedom as self-government” (pateman 2004: 94-95). however, it is dubious that granting people a modest basic income will suffice to ensure the kind of equal citizenship pateman proposes. even though basic income offers a f loor (van parijs and vanderborght 2017), it may fail to block the vast differentials in income and wealth – and, therefore, of power – that characterize contemporary societies (casassas and de wispelaere 2016). second, pateman and especially goodhart maintain that basic income is meant to help to secure the equal enjoyment of universal human rights across different social spheres, including the family, employment and citizenship. through the secure enjoyment of human rights, basic income helps to change the structure of oppressive institutions. yet the kind of basic income that could secure the enjoyment of fundamental rights – “the minimum necessary to secure rights and emancipation” (goodhart 2007: 105) – would most likely be unfeasible under current conditions.9 however, the tenet that a basic income may promote the emancipation of women within the family is subject to considerable debate (e.g., robeyns 2001; zelleke 2011). some feminist authors argue that a basic income may end up reinforcing traditional gender roles as it may cause women to disproportionately exit the labor market (robeyns 2001: 100-102).10 similarly, the view that basic income will emancipate workers has also been challenged (gourevitch 2016; birnbaum and de wispelaere 2016). the argument advanced by pateman and goodhart relies on basic income improving the bargaining position of workers vis-a-vis employers by granting workers an exit option. but on realistic assumptions of how 9 additionally, goodhart’s democratic argument appears to be circular. if all fundamental basic rights must be achieved in order to obtain emancipation, and if basic income’s failure to protect one right means no single right is protected (because of their interdependence), then the securement of other fundamental rights never could be justified if not by a democratic decision-making process where the fundamental basic right to participation is secured. but for goodhart the right to participation can be left aside if there is another political organization that can guarantee other rights, such as an absolutist government, destroying the very notion of interdependent fundamental rights. 10 robeyns concludes that basic income does not reduce gender injustice, and it is necessary for it to be “supplemented with other social policy measures that liberate women”, including “the transformation of certain cultural and social patterns, like gender roles and gender hierarchies, which are now constraining individuals in their freedom” (robeyns 2001: 103). the democratic case for a basic income 129 leap 6 (2018) contemporary labor markets work, “an exit strategy might end up worsening rather than strengthening the opportunity set and bargaining position of the most vulnerable workers” (birnbaum and de wispelaere 2016: 61). a democratic case for basic income that relies on basic income being able to substantially secure a set of fundamental rights in order to promote genuine emancipation and democratization appears too tall an order for a realistic basic income scheme to satisfy. this puts pateman and goodhart at risk of being caught between the rock of downgrading the fulfillment of fundamental rights and the hard place of insisting on an utterly impractical basic income ideal.11 third, as i have already mentioned, pateman views democratic citizenship as a form of social standing. building on the work of t.h. marshall allows her to extend citizenship into the economic sphere by arguing that social and economic rights play a constitutive role in the equal standing of citizens. being denied this equal standing amounts to a person being relegated to second-class citizenship or even denizenship (standing 2012). importantly, equal social standing requires independence and freedom from oppression and domination within the prevailing institutions of marriage, family, and employment. once more, this idea is problematic because the sort of basic income policy that would promote such genuine independence would be unfeasible under current conditions. without a clear sense of what level of basic income would be deemed sufficient to ensure the required independence it is difficult to assess whether a feasible basic income scheme contributes to democratization in the desired manner. finally, pateman insists that basic income promotes a bundle of social and political opportunities, including those that follow from the freedom not to be employed. this includes opportunities to support individuals’ political participation in the decision making-process, opportunities for citizens to develop their political capacities and skills, and opportunities to do political work. these are all very relevant and important opportunities that directly connect basic income with democracy. however, two problems remain. on the one hand, pateman offers no clear account of how precisely a basic income would improve political participation or democratic skills. what social or institutional levers does basic income 11 goodhart appears to bite the bullet when proposing basic income not as a welfare or poverty reduction program, but rather as a democratic entitlement that “costs more and delivers more; the value of what it delivers is ultimately a measure of our political commitments” (goodhart 2008: 155). of course this does not make basic income politically feasible. 130 leticia morales leap 6 (2018) pull and how does this impact on democratic opportunities? on the other hand, for pateman basic income appears to impact primarily by granting workers the opportunity to refuse employment. as mentioned before, recent research casts doubt on whether basic income is able to achieve such a robust “right to exit” or even have any meaningful impact on the democratic nature of employment relations (birnbaum and de wispelaere 2016). but even if that were the case, there is something fundamentally f lawed about a view that depends on freedom from employment as a mediating mechanism to make a democratic argument stick. what about the democratic impact of basic income on workers’ political opportunities? if indeed freedom from work was the main pathway through which basic income secures democratic values and objectives, this would surely reduce its scope and democratic impact. when considered together, these objections suggest that in spite of its initial plausibility, the freedom to exit the labor market may make no real contribution to individual self-government. what we need is an argument that explains why a basic income may improve individuals’ opportunities to participate in the political process that does not exclusively depend on the freedom to exit employment. i provide such argument in the next section. 4. the democratic argument for basic income revisited in this final section i offer a democratic argument for basic income that builds on the work of pateman but avoids the pitfalls i have discussed previously. collective decisions are considered legitimate if they result from a decision-making process that satisfies the necessary formal and material conditions that secure the participation of all citizens (peter 2009: 4). on this view, political participation is the foundation of legitimate political authority because it respects the equal moral agency of each citizen. political citizenship essentially refers to the right to political participation in the decision-making processes of the polity (waldron 1999). this right must be universally realized: no citizen should be excluded either on formal or material grounds (morales 2015, 2017). formal exclusion occurs when institutional rules prevent some citizens from exercising their right to political participation. material exclusion takes place when citizens fail to participate because they lack certain material resources even if no formal rule prevents them from doing so. in liberal democratic theory, the right to political participation is typically interpreted in formal the democratic case for a basic income 131 leap 6 (2018) terms. however, the legal recognition of a formal right to political participation is insufficient to guarantee the effective political participation of all. this raises a fundamental question: why must a citizen accept the authority of a political decision when she is materially unable to exercise her formal right to participate? why should citizens accept political authority in cases where they are formally included but practically excluded from participation in the decision-making process? real life examples of such a disjunction between formal and material right to political participation are plentiful, especially regarding the right to vote. some political systems impose burdensome requirements of voter registration, which effectively disenfranchise otherwise eligible voters. other systems may facilitate registration but many voters are unable to reach the polling booth because of a lack of transport or inability to take time off work. a formal interpretation of the right to vote – understood as a subset of the broader right to political participation – appears too weak to establish the legitimacy of a political system. the tenet that democratic decisions are legitimate because every citizen has an effective opportunity to participate in the decision making process does not imply that individuals must be treated equally in all domains of life – be it the family, the workplace, or the marketplace. although all domains of life can be considered as political – as feminists such as pateman have rightly argued – there are relevant differences between the political domain and other social spheres. several arguments may justify a more extensive or generous conception of equality in the social and economic realm; yet this is fully compatible with thinking that the political system is where legitimate processes of collective decision-making take place under conditions that must ensure the political participation of all citizens. importantly, this view implies no commitment to the sort of atrophied electoral proceduralism that pateman and goodhart have criticized. legitimate political participation is not restricted to voting in a formal election, campaigning for a candidate, or having the opportunity to run for public office, as schumpeterians maintain. the concept of political participation must be broadened to include a host of other political acts provided they are “structurally embedded in the political system” (cicatiello, ercolano and gaeta 2015: 448-449). thus, the actions of public interest groups, civil organizations or social movements aimed at lobbying political decision-makers are rightly regarded as instances of political participation. even acts of civil disobedience and protest at the margins of the social order – such as boycotts or the occupation of public offices – can be considered forms of political participation, for they too are aimed at 132 leticia morales leap 6 (2018) directly or indirectly inf luencing decision-makers.12 what unites this wide range of political activities is that they all contribute to the democratic process “by which citizens can communicate information about their interests, preferences and needs to the government” (bovens and wille 2010: 395). adopting a broad view of political participation that includes both “conventional” and “unconventional” forms of political action (cicatiello, ercolano and gaeta 2015) situates my account of political democracy between advocates of a schumpeterian electoral democracy and the more expansive emancipatory democratic model advocated by pateman and goodhart. the intermediate model i propose implies that a genuine democracy must ensure that citizens have access to the full range of political participation activities, not merely a right to vote or stand in an election. contestatory measures such as access to courts to challenge legislation or to engage in social protest are equally important (pettit 2012b). that said, since most citizens engage in unconventional participation when they feel excluded from conventional forms of participation – e.g., people protest when they feel they have no real voice in an election – we should focus on conventional political participation in the first instance. securing access to unconventional political participation is a second-best solution to a political system that has failed to include all citizens in conventional politics. with these building blocks in place, let us now examine the role of an unconditional basic income. the democratic case for basic income depends on establishing a firm link between basic income and its expected impact on political participation. the idea that citizens need a guaranteed income to effectively participate in the legitimate democratic process is hardly a novel thought: “almost all of the great theorists of citizenship [...] have believed that in order to be a citizen of a polis, in order to be able to participate fully in public life, one needed to be in a certain socio-economic position. [...] people, it was said, could not act as citizens at all, or could not be expected to act well in the political sphere and to make adequate decisions, unless some attention was paid to matters of their wealth, their well-being and their social and economic status” (king and waldron 1988: 425-426). contemporary democratic societies do not restrict the formal political 12 political participation at the margin of the social order may skirt what is deemed legal at any given time. the legality of protest and other unconventional political acts is a complicated matter. the democratic case for a basic income 133 leap 6 (2018) participation of poor or economically disadvantaged people any longer: political rights are accorded to all citizens equally and no one can be politically excluded on the basis of social and economic status. nevertheless, lack of money or income inequality continue to affect political participation even today. should income be regarded as a material precondition for political participation? the role of money in politics is indisputable: “money is an important political resource for any group, but it takes special significance for people who live at or near poverty levels” (verba, schlozman, and brady 1995: 288-303). a recent study confirms this view: “[t]he higher (lower) individual income is, the higher (lower) individual engagement in conventional and unconventional political activities is” (cicatiello, ercolano and gaeta 2015: 451). in fact, “income may be considered the most important individual-level determinant of political participation; all political activities are costly because resources (time, money, skills) must be invested in order to carry them out” (cicatiello, ercolano and gaeta 2015: 450). of course, the relevance of money should not lead us to underestimate other important structural obstacles to political participation.13 a universal basic income may be unable to eradicate many structural barriers that continue to exist in contemporary societies – including those related to religion, ethnicity, or gender. basic income is only a partial solution to practical disenfranchisement in contemporary politics. still, poverty and income inequality are also important structural obstacles that prevent those at the bottom of the income distribution from exercising their equal right to political participation. to the extent that poverty and income inequality undermine political participation, the democratic case for a basic income is a promising avenue to explore. the main question is why money matters more for the political participation of those living at or near poverty, which presumably is where we would expect a basic income scheme to have its most pronounced effect? in other words, what is the mechanism that allows basic income to impact on a citizen’s ability to participate in political life? first, we might expect basic income to have a direct effect on the sort of costly actions that active citizens must engage in. for instance, basic income may help people afford the costs of voting registration or transport to the polling booth. likewise, it may help to finance political campaigns: obama’s presidential campaign was famously funded through numerous small donations from poor supporters. in spite of this, we might ask why a basic income is the best response to the reduced participation of the poor. perhaps more targeted policies, such as subsidized registration or free public transport 13 i thank a referee for this journal for pressing me to clarif y this point. 134 leticia morales leap 6 (2018) during the election day, are better. furthermore, when resources are scarce, using money to promote participation involves significant opportunity costs for the poor because such money could be invested in providing them secure access to nutritious food, housing or medical care. finally, any moderate basic income scheme will most likely not suffice to support a number of important instances of political participation, thereby failing to fully satisfy the requirements of political inclusion. so it seems that when it comes to direct costs, more targeted solutions may perform better than a universal basic income. the democratic value of a basic income is better appreciated when we consider the indirect effects that (the lack of ) money has on political participation. for instance, a basic income may create incentives to participate through conventional channels because citizens will most probably want to defend a public policy that benefits them (campbell 2003). in other words, a basic income might politicize citizens because it gives them a stake in society (dowding, de wispelaere and white 2003). relatedly, those who cannot “live the lives of a civilized being according to the standards prevailing in the society risk marginalization and shame”, which translates in political distrust and subsequently in reduced participation (soss 2005: 306, citing marshall 1964: 72). unlike highly selective and conditional programs, a basic income would avoid negative experiences with case workers and other “representatives” of the state, therefore boosting political participation (soss 2005; bruch, ferree and soss 2010).14 in addition, “the daily struggle to make ends meet leaves individuals with little time or energy to follow the public debate, participate in political organizations, or hold elected representatives accountable” (soss 2005: 306). recent research has even suggested that poverty implies a genuine “scarcity mindset” with cognitive bandwidth restricted to survival activities (mani et al. 2013). finally, political decision-makers respond differently to distinct “target populations”, such that “policies for disadvantaged groups will isolate or stigmatize their targets, setting them apart from the majority as an object of pity or scorn” (soss 2005: 294). one expected effect of the universalism of a basic income policy is that it might escape such easy targeting by decision-makers. in sum, through a variety of pathways basic income could have indirect positive effects on poor citizens’ political participation by freeing up time, energy and “cognitive bandwidth”, and by positively affecting their status 14 however, a recent study of the bolsa familia program in brazil suggests much also depends on how selective programs themselves are framed (hunter and borges sugiyama 2014). the democratic case for a basic income 135 leap 6 (2018) and beliefs about themselves and others. the democratic hope is that basic income can generate a virtuous circle, through which an increased participation of the poor will bring about more responsiveness to their plights; and this will in turn reinforce participation. 5. conclusion in this article i have examined the democratic case for basic income. the idea that basic income should be justified not by reference to individual freedom but because of its impact on democratic citizenship was pioneered by carole pateman and developed by michael goodhart. however, i find that their approach fails to establish a robust case for basic income on democratic grounds. one major issue is that neither pateman nor goodhart offer a clear account of the pathways by which a basic income produces democratic value. another major obstacle is that the kind of basic income their expansive model of democracy calls for is unfeasible under present conditions. i sustain that a more modest model of democracy that prioritizes broad and effective political participation in decision-making processes, offers a more plausible democratic case for a universal basic income. recent research by political scientists has established a number of mechanisms through which low income and poverty negatively impacts on political participation. granting each citizen an unconditional and secure basic income is a promising remedy to rectify this problem. bibliography birnbaum, s., 2012: basic income reconsidered: social justice, liberalism and the demands of equality, new york, palgrave macmillan. birnbaum, s. and de wispelaere, j. 2016: “basic income in the capitalist economy: the mirage of ‘exit’ from employment”, basic income studies 11(1): 61–74. bovens, m. and a. wille, 2010:”the education gap in participation and its political consequences”, acta politica 45: 393-422. bruch s., ferree, m. and soss, j., 2010: “from policy to polity: democracy, paternalism, and the incorporation of disadvantaged citizens”, american sociological review 75(2): 205-226. casassas, d. and de wispelaere, j., 2016: “republicanism and the political economy of democracy”, european journal of social theory 19(2): 283-300. cicatiello, l., ercolano, s. and gaeta, g., 2015: “income distribution and political participation: a multilevel analysis”, empirica 42: 447–479. de wispelaere, j. and morales, l., 2016: “is there (or should there be) a right to basic income?”, philosophy and social criticism 42(9): 920-936. dowding, k., de wispelaere, j. and white, s. (eds.), 2003: the ethics of stakeholding, basingstoke, palgrave macmillan. 136 leticia morales leap 6 (2018) goodhart, m., 2007: “‘none so poor that he is compelled to sell himself’; democracy, subsistence, and basic income”, in l. minkler and s. hertel (eds.), economic rights, cambridge, cambridge university press. — 2008: “a democratic defense of universal basic income”, in i. m. young, m. l. shanley, and d. i. o’neill (eds.), illusion of consent: essays after carole pateman, state college, pa, pennsylvania state university press. gourevitch, a., 2016: “the limits of a basic income: means and ends of workplace democracy”, basic income studies 11(1): 17–28. hunter, w. and borges sugiyama, n., 2014: “transforming subjects into citizens: insights from brazil’s bolsa familia”, perspectives on politics 12(4): 829–45. king, d. and waldron, j., 1988: “citizenship, social citizenship and the defense of welfare provision”, british journal of political science 18(4): 415-443. mani, a, mullainathan, s., shafir, e., and zhao, j., 2013: “poverty impedes cognitive function”, science 341(6149): 976–980. marshall, t.h., 1950: citizenship and social class, cambridge, cambridge university press. morales, l., 2015: derechos sociales constitucionales y democracia, barcelonamadrid, marcial pons. — 2017: “the discontent of social and economic rights”, res publica 24(2): 257272. pateman, c., 2002: “self-ownership and property in the person: democratization and a tale of two concepts”, journal of political philosophy 10(1): 20-53. — 2003: “freedom and democratization: why basic income is to be preferred to basic capital”, in k. dowding et al. (eds.), the ethics of stakeholding, palgrave macmillan, london. — 2004: “democratizing citizenship: some advantages of a basic income”, politics and society 32(1): 89-105. peter, f., 2009: democratic legitimacy, new york, rutledge studies in social and political thought. pettit, p., 2012a: “legitimacy and justice in republican perspective”, current legal problems 65: 59–82. — 2012a: on people terms. a republican theory and model of democracy, cambridge, cambridge university press. robeyns, i., 2001: “will a basic income do justice to women?”, analyse und kritik 23(1): 88–105. soss, j., 2005: “making clients and citizens: welfare policy as a source of status, belief, and action”, in anne l. schneider and helen m. ingram (eds.), deserving and entitled. social constructions and public policy, new york, state university of new york press. standing, g., 2012: “the precariat: from denizens to citizens?”, polity 44(4): 588– 608. taylor, r.s., 2017: exit left: markets and mobility in republican thought, oxford, oxford university press. van parijs, p., 1995: real freedom for all: what (if anything) can justify capitalism, oxford, oxford political theory. van parijs, p. and vanderborght, y. 2017: basic income. a radical proposal for a free society and a sane economy, cambridge, harvard university press. the democratic case for a basic income 137 leap 6 (2018) verba, s., schlozman, k., and brady, h.e., 1995: voice and equality: civic voluntarism in american politics, cambridge, harvard university press. waldron, j., 1999: law and disagreement, oxford, oxford university press. widerquist, k., 2013: independence, propertylessness and basic income, basingstoke, palgrave macmillan. zelleke, a. 2011: “feminist political theory and the argument for an unconditional basic income”, policy and politics 39(1): 27–42. leap 5 (2017) reply to critics1 l i a m sh i e l ds university of manchester abstract in this paper i reply to the response articles in this issue, which discuss my recent book. in addition, i restate the main claims of the book and clarify some of the key distinctions and arguments. keywords: distributive justice; sufficientarianism; autonomy; education; global justice; parents’ rights 1. introduction in this paper i reply to the critical responses to the arguments in my book that appear in this issue. i am very grateful to all of the contributors for their detailed, thoughtful and forceful criticisms of the arguments and to the editors of the issue for their hard work in putting it together. i will not be able to reply to every aspect of their responses in this piece, so i will focus my discussion on the few that i have replies to. i know that i will continue to ref lect on these criticisms and i hope i will find fully adequate ways to confront them, but for now this is my immediately reply. i shall begin by restating some of the central claims of the book and, in particular, set out one distinction that is not made in the book but is important for my replies, and then i engage with each of the responses, beginning with those that respond to earlier parts of the book and ending with those that respond to later parts of the book. 2. restatement of main claims the book defends the claim that the prospects for sufficientarianism are 1 i am very grateful to pierre-etienne vandamme, lasse nielsen and david a xelsen for helpful feedback on an earlier draft. d oi : 10. 310 0 9/l e a p. 2017.v 5.18 211 leap 5 (2017) reply to critics good and better than has been thought because sufficiency principles have an indispensable and extensive role in our thought. it does so through first articulating the central commitments of sufficientarianism. these are the necessary and sufficient conditions that must be satisfied by some principle for it to count as “sufficientarian”. the plausibility of these, and only these, principles is what determines the prospects for sufficientarianism. i have taken as my starting point the idea that sufficientarianism is concerned with the concept of sufficiency, the idea of having enough, and its important role within an account of distributive justice. if sufficiency is to have an important role in an account of distributive justice it must have normative significance. in other words, it must make a difference to our reasons of distributive justice. in particular, securing enough cannot merely be instrumentally valuable. if it were, then it would be possible to fully state the demands of justice without ever referencing sufficiency. i therefore characterized sufficientarianism as endorsing two claims. the positive thesis: we have weighty non-instrumental reasons to secure at least enough of some good(s). the shift thesis: once people have secured enough there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further (2016: 34-35). for short-hand i refer to the shift of sufficiency as a change in the nature of our reasons, but for reasons to do with distinguishing it from prioritarianism the technical definition is important. this definitional statement of sufficientarianism may appear to contrast with the commonly used upper-limit definition of sufficientarianism, which combines the positive thesis with the negative thesis. the negative thesis holds that once enough has been secured there are no distributive reasons that apply to benefits and burdens. appearances are a little deceptive here though. for those who endorse the negative thesis, the particular shift in our reasons, once sufficiency is achieved, is a shift from some set of distributive reasons to no distributive reasons. as such, the negative thesis specifies a particular shift and so those who endorse the negative thesis offer one type of sufficientarian view, on my conceptualisation. the definitional statement of sufficientarianism that i presented above allows a rich variety of views to count as sufficientarian. the reason to celebrate this is that, the negative thesis has attracted a good deal of forceful criticisms and so if the negative thesis were a definitional claim, the prospects for sufficientarianism would appear to be poor. i conclude that if the prospects for sufficientarianism are to be good and better than has been thought, then it must be because there are some more attractive positions that reject the negative thesis. 212 liam shields leap 5 (2017) in the book, i defend as plausible and theoretically and practically significant several sufficiency principles that endorse a non-instrumental concern with distributions once the threshold is met. each of these views rejects the negative thesis and insists that different distributive reasons applying to supra-threshold benefits and burdens. because of this let’s call these views versions of positive shift-sufficientarianism, a label i do not use in the book but it will be helpful to use here. to defend a positive-shift sufficientarian principle, one must defend a shift as specified by the shift and positive theses and reject the negative thesis. i set out two ways of defending a shift. first, one could defend the existence of justice-relevant satiable reasons. by their very nature, satiable reasons cease to confer their weight on claims once they are satisfied. one way this can happen is if a person has enough of something. so, if we have satiable reasons that cease to confer their weight on claims once that reason is satisfied, the point where that reason is satisfied is likely to cause a shift in our overall reasons to benefit that person, but it does not entail nor imply that there are no other reasons that apply to the distribution of benefits and burdens thereafter. it merely entails that at least one reason that did apply before does not apply after, thus changing the overall set of reasons that apply. second, one could defend a relative change in the weight of our reasons at the point of sufficiency. this can occur with insatiable reasons. imagine a uniformly diminishing insatiable reason, one that confers weight on claims for one unit more of some good but confers less weight the more of the good that is possessed, and imagine another non-diminishing insatiable reason, one that confers equal weight on claims for one unit more of some good, regardless of how much someone has. imagine the non-diminishing reason confers weight of 5 onto any further unit of the good. the diminishing reason could outweigh the nondiminishing reason, be weightier than 5, when low amounts are possessed, but the non-diminishing reason will, as that reason diminishes, be decisive, as greater amounts are possessed. this cross-over point is a shift or change in our reasons to benefit someone and represents a noninstrumental sufficiency principle. by these two methods for defending a shift i aimed to show that principles of sufficiency could be defended as plausible and had an important role to play in theoretical and practical debates. in chapter three, i argued for a principle of sufficient autonomy, by appeal to the satiable reason we have to secure the social conditions of freedom, the conditions under which belief can be freely held. in chapter four, i explained that this principle should play an important role in theoretical debates in helping us to correct a defect in theories of equality of 213 leap 5 (2017) reply to critics opportunity, especially those that take meritocracy as an important component, and it should help us to justify compulsory schooling to those who would opt out on welfarist grounds. in chapter five, i argued for a principle of adequate upbringing, by use of the value clash method. i argued that parents have a relevant interest in parenting, but one that is often outweighed by a child’s interest in the quality of her upbringing as part of her life as a whole. according to this argument, a good enough parent, that is a parent who is good enough to retain the right to rear her children in the face of superior alterative parents, may fall short from the best alternative custodian by no more than the significance of her own interest in parenting. i argued that this position is theoretically important, since it elucidates the most plausible way of thinking about the good enough parent and it strikes an important departure from minimalist abuse and neglect thresholds and demanding best custodian views. i argued that this position is practically important because it helps us to determine the good enough upbringing threshold and directs us to think carefully about the relative quality of alternatives to parental care prior to severing a relationship. finally, in chapter six, i sought to show how the shift-sufficientarian conceptual apparatus made possible new and plausible positions in the debate about the fundamental demands of global justice. i argued that the shift in reasons once one group has secured enough could help explain both compatriot partiality, the belief that we can be required to do more for compatriots than non-compatriots, and state is arbitrary, the belief that the factors that determine compatriot status are morally arbitrary. if we relax these statements of intuitions slightly, we find that they need not conf lict. they can be reconciled. and one way of reconciling them would be to introduce a shift in our reasons to benefit people at the point of sufficiency. so, once people have secured enough, our reasons of compatriot partiality may be sated, or our cosmopolitan reasons may be sated. so, once we have secured enough, we may transition from holding a cosmopolitan position to a statist one or vice versa. 3. reply to vandamme pierre-etienne vandamme characterizes my position in certain ways that i would like to discuss in order to clarify and hopefully strengthen my arguments. first, vandamme characterizes my position as both agnostic and partial. my characterization of sufficientarianism does leave open the possibility that we may be concerned with inequality or priority to the worse off even once the threshold has been met. the shift thesis is 214 liam shields leap 5 (2017) compatible with a wide-range of views about how to distribute suprathreshold benefits and burdens. as the view i defend does not commit us to any specific recommendations, or lack thereof, once the threshold is met vandamme characterizes this position as agnostic. “shields rejects the principles of equality that fail to take into account the discontinuity introduced by the sufficiency threshold, but he does not provide a justification for not adopting a form of sufficiencyconstrained egalitarianism. and this might be explained by agnosticism towards residual inequalities” (vandamme, in this issue). vandamme also notes that my commitment to the shift thesis renders my favoured views partial. unlike most sufficientarians, who endorse a particular distribution of sub-threshold benefits and burdens and an attitude of indifference to supra-threshold benefits and burdens, my favoured view does not provide a determinate answer to the question of what to do with supra-threshold benefits and burdens on its own, though i do think some principle does apply. therefore, it is true to say that my view is partial. i think that a single sufficientarian principle could, at most, be part of a full account of distributive justice. while it is true to say that the conceptualisation of shift-sufficientarianism, the combination of the positive thesis and the shift-thesis, is agnostic, it is intended only to identify which views are and which views are not sufficientarian. any conceptualisation of sufficientarianism should be compatible with a wide variety of specific accounts of sufficientarianism. in other words, it should be agnostic, to some extent. it should allow for different currencies, different placements of the threshold(s) and different guidance for how to deal with both sub-threshold and supra-threshold distributions of benefits and burdens. so, the conceptualisation is certainly agnostic about that and partial in that it insists that other principles must be included alongside sufficiency principles in a complete theory of justice. however, there is one important way in which the conceptualisation it is not fully agnostic. what it means to count as a sufficientarian, on the shiftbased understanding, is that the distributive reasons that apply to suprathreshold benefits are not the same as the distributive principles that apply to super-threshold benefits. this still leaves open a w ide range of possible combinations, but it rules out one v iew of how to distribute suprathreshold benefits and that is, the same as sub-threshold benefits. such a v iew would not contain a normatively significant threshold, one that makes a difference to our reasons. more generally, i am sceptical of indifference as the correct attitude to take to supra-threshold benefits and burdens. i believe that the indifference objection will always have force against the negative thesis within the 215 leap 5 (2017) reply to critics circumstances of justice. the specific sufficiency principles that i defend in the book do endorse a positive shift, that is, they endorse the shift thesis but deny the negative thesis. however, in the book at least, i am silent, if not agnostic, on what principle(s) should apply to supra-threshold benefits and burdens. but the fact that i endorse a positive shift, means that i also accept a partial view. i am sceptical about sufficientarians that endorse the negative thesis, which is why i recommend the positive shift. however, vandamme is correct to note that i am quite silent on what this should be, i simply doubt being agnostic or offering a partial view amounts to a problem. being agnostic is essential to a broad conceptualisation and being partial is the only way that sufficientarians can be at least moderately plausible. second, vandamme characterizes my position as pragmatic and concerned with rules of regulation, rather than fundamental moral principles when he says that “what shields seems to be looking for is a clear rule of regulation, and this pragmatic motivation might partly explain his non-selection of luck or outcome equality as the primary or secondary principle of justice” (vandamme, in this issue). although vandamme notes a number of reasons that could be used to defend sufficientarianism that are themselves pragmatic, such as reasons of urgency, reasons of feasibility or reasons of modesty, these are not reasons that i believe should figure in a task like mine. my concern with sufficientarianism is to see whether it is justifiable simpliciter rather than justifiable to currently existing people or justifiable as a means to an end. i can see why there might be good pragmatic arguments from these bases for sufficientarianism, but such pragmatic arguments are too contingent to provide a secure grounding for principles of justice. for example, if, as is likely the case, the most feasible option is the status quo some pragmatic reasons would not support sufficiency, but that would not seem to be a good reason to favour the status quo. but there is another sense in which my view could be pragmatic. vandamme says i seem to endorse the view that principles of justice should directly guide action, which appears in my claim that if principles “had little significance in terms of policy implications […] then it could not have an extensive role in our thought” (shields 2016: 10-11) characterizing my project as seeking rules of regulation and not fundamental principles of justice. i can understand why the quoted passage would lead someone to think i was seeking rules of regulation, but i am not. it is important to recall that my objective is to assess the prospects for sufficentarianism and this turns on the extent of their role in our thought. i think that if a principle was true and sound, but nevertheless has no important policy or practical 216 liam shields leap 5 (2017) implications it wouldn’t much improve the prospects for that principle, even though it would have an indispensable role in our thought. for example, imagine that in order of lexical priority our first principle is sufficiency (basic needs), our second principle is equality, our third principle is priority to the worse off and our fourth principle is efficiency. now imagine a fifth principle of individual desert is added. according to this arrangement of principles, individual desert would make a difference only in those cases where, the first, second, third and fourth principle were satisfied as far as possible in lexical order. because of this, we would not expect the principle of individual desert to play much of a role in our thought nor about practical debates, even if it is strictly required in a full description of the demands of justice. concluding that some principle has an indispensable role in distributive justice would be too trivial a conclusion on its own, i think. so my concern with the practical and theoretical significance of a principle of justice is not a concern with a principle having clear policy implications here and now. rather, it is a concern with its place within a theory of justice and its capacity to help us to understand practical debates. the latter can be achieved by derivation. indeed, all rules of regulations are derived from, and in this sense account for, the actionguidingness of the fundamental principles they are grounded in. 4. reply to nielsen lasse nielsen’s response to the arguments of chapter two advances an argument in favour of retaining the upper-limit character of sufficientarianism, against my suggestion that sufficientarians do better by opting for, what i have here called, a positive shift. nielsen thinks that by defining sufficientarianism as i do i allow that non-sufficientarian reasons could outweigh the reasons we have to achieve sufficiency, but this would betray the strong sufficientarian conviction that securing enough is paramount. he also objects that the shift sufficientarian position remains vulnerable to the indifference objection, which partly motivated its creation. i shall respond to each point in turn before engaging with a further objection. nielsen suggests that to be worthy of the label sufficientarian one must believe that sufficiency is the only thing that matters or that it is the most important among a plurality of considerations. the label sufficientarian would cease to capture a wide range of positions that give a fundamental role to sufficiency that could not be avoided in fully describing the principles of justice. but it would also limit sufficientarianism to a number 217 leap 5 (2017) reply to critics of positions to which there are already good objections.2 those who hold that only sufficiency matters or give lexical priority to sufficiency, which is the f lip side of my allowing other reasons to outweigh reasons of sufficiency, will implausibly always favour helping the badly off by tiny amounts at the expense of helping the well-off by huge amounts. for this reason, we should wish to look for positions that use the attractive and common sense idea of sufficiency in more plausible ways. in setting out the shift-thesis i believe i have articulated the central idea in a way that is compatible with more plausible views. if we took nielsen’s suggestion and applied it to other views too, then we would see the problems more clearly. for example, if we restricted the label egalitarian to views that held that equality is the only or most important demand then egalitarianism would always be vulnerable to levelling down. if we apply this to prioritarianism and restrict the label prioritarian to views that held that priority to the least advantaged was the only or most important demand then all prioritarian views would be vulnerable to a waste-based objection too, as it would only include absolute prioritarianism. i think this approach would impoverish our understanding of different ideas that can be useful in distributive justice. it would restrict use of these labels to views that were quite implausible, necessitating the creation of more labels. this is just to say there are good reasons to be pluralist and this comes from the problems there are with monist views. moreover, my characterization includes those monist views in any case. nielsen is right to say that my own characterization of sufficientarianism doesn’t fully avoid a version of the waste or indifference objection because the objection attaches itself to lexical priority, which is compatible with a rejection of the negative thesis, and not merely the negative thesis itself. but the difference between my position and upper-limit sufficientarianism is that i don’t have to endorse a claim that has this implication, such as lexical priority or the negative thesis. i set out a way that sufficientarians can be distinctive without endorsing lexical priority. overall, i suppose some of the disagreement between nielsen and myself is that i do not find lexical priority plausible. i do not think there exists a disadvantage (however tiny) such that ameliorating it is more important than any other benefit. i do not know what further to say about this, though i think the discussion of the illusion of numbers discussion in nielsen’s paper is relevant to it, so i shall now turn to that. in nielsen’s response, he develops a point about the illusion of numbers, which i think give expression to an idea that underpins the suspicions that 2 w hether these are good objection is, obviously, a matter of dispute between me and nielsen (and many others). 218 liam shields leap 5 (2017) relational egalitarians have for luck egalitarians and others, and expresses a suspicion about outlandish numerical counter-examples to upper-limit sufficientarianism. i think that my particular use of numbers provides an ideal case for his objection, but i think the numbers are forceful even when the differences are lower than those i state. the point of using very large numbers is to simply exaggerate the point to make the implausibility of indifference as clear and as forceful as possible. we could describe a case to illustrate that point instead, without using numbers. either it can be modelled using numbers – in which case the illusion is not one – or it cannot be modelled using numbers – in which case it is unclear how people can be said to be better or worse off. it appears, however, that the upper limit sufficientarian thinks numbers matter below the threshold but not above it and that seems odd to say the least. there is much more to say about this, but a final brief remark will explain my caution in accepting it. the structure of the move made by nielsen in the discussion of illusion of numbers is to deny that there are numbers so big that they can represent different levels of advantage, but it seems to me that the underlying sufficientarian position he endorses is insensitive to the fact of the matter. it should not matter to the sufficientarian position whether it is possible to have huge inequalities once enough is secured or not. the position states that even if massive inequalities are possible, they do not matter. so nielsen’s suggestion that we deny the possibility of these inequalities does not provide a defence of that claim any more than a denial that slavery would maximize aggregate utility is a defence of utilitarianism. i am sure there is much more to say about this on both sides. 5. reply to huseby in his response to chapter three, robert huseby identifies several ways in which the principle of sufficient autonomy is not clearly specified. in my reply i will aim to provide some clarification in those areas. the first area that huseby identifies as needing clarification concerns the satiability of the principle of sufficient autonomy. on one understanding autonomy is itself satiable, which is to say that you can get enough autonomy and once you have enough you cannot get any more autonomy. on another understanding the principle of sufficient autonomy is satiable in that the changes or improvements in autonomy it calls for can be fully met, even when it is possible to get “more” autonomy. huseby states that “if satiable in this way… the principle of sufficient autonomy now looks like a highthreshold sufficiency principle that conforms to the negative thesis” (huseby, in this issue). 219 leap 5 (2017) reply to critics huseby is right. if one cannot get more autonomy than sufficient autonomy, then the position i defended would be vulnerable to the main objection that motivates my argument. i am happy to clarify that my view is that one reason to promote autonomy is the conditions of freedom and that with respect to the promotion of autonomy it is satiable. once we have enough autonomy to be free we might need more things to be free (though not more autonomy) and we may have reasons to obtain more autonomy (to be happy). so i think that you can get more autonomy, or the related features, once enough autonomy is secured. anticipating this response, huseby claims that “this might be perfectly reasonable, but the level would have to be specified.” (huseby, this issue). but i wasn’t sure why this particular view had any more burden of explanation than any other. why for example, doesn't an upper-limit principle of sufficient autonomy also have to explain where the threshold is? my position is that i don’t think it has to be specified more than saying that in order to enjoy the social conditions of freedom one must be sufficiently autonomous and to point to gains in terms of autonomy, perhaps valuable options, that wouldn’t make you more free. as it applies to belief formation, one needs a certain amount of autonomy but not full autonomy. the level doesn’t have to be specified for it to be true, vagueness is an acceptable feature of moral principle. this is one reason why the vagueness objection that has been levelled at sufficientarianism is not one i consider in the book. huseby also urges me to clarify the link between social conditions of freedom and autonomy. huseby works through several ways of understanding what i have said at various points. when huseby says “if autonomy is a part of what constitutes the conditions of freedom (or if it is a condition of freedom in itself ), then it could be the case that autonomy can be sated with respect to the conditions of freedom” (huseby, in this issue) he describes my view. autonomy can be sated with respect to the conditions of freedom, but autonomy is not sated conceptually, at that point, you can get more autonomy. nor is it sated normatively. there may be other reasons to promote autonomy. the social conditions of freedom include sufficient autonomy. sufficient autonomy is not the only aspect of the social conditions of freedom and so being sufficiently autonomous, is not sufficient for the social conditions of freedom, but it is necessary. huseby goes on to point to a particular problem with this understanding, “if autonomy is a part of what constitutes the conditions of freedom (or if it is a condition of freedom in itself ), then it could be the case that autonomy can be sated with respect to the conditions of freedom. sufficient autonomy just is autonomy sufficient for the realization of 220 liam shields leap 5 (2017) (sufficient) conditions of freedom. in my view, however, this interpretation squares badly with shields’ presentation of the principle, according to which there are supposed to be weighty, non-instrumental, satiable reasons to provide peoples with sufficient autonomy” (2016: 45). as i understand huseby’s point, it is that the non-instrumental character of the principle of sufficient autonomy is threatened by its being sufficient for the social conditions of freedom. to clarify i don’t think sufficient autonomy is sufficient for the social conditions of freedom, there are other conditions, but the “sufficient” in “sufficient autonomy” is a level determined by what is required, if other conditions are met, for the social conditions of freedom. in other ways, the whole justificatory basis for the principle of sufficient autonomy is that it contributes to the realization of the social conditions of freedom. it therefore looks instrumentally valuable. if it were instrumentally valuable, then it would not support the prospects for sufficentarianism as i have characterized them. instrumental sufficiency principles can be omitted from a complete description for the demands of justice. however, i think that the link between the principles of sufficient autonomy, as the autonomy component of the conditions of freedom, has a tighter link than an instrumental principle might. this is because nothing else could help us realize the conditions of freedom in its place. sufficient autonomy is not substitutable. one way of characterizing this link is in terms of the constitutive value of sufficient autonomy. the commitment to the social conditions of freedom, always and every where, includes a commitment to sufficient autonomy because they are so linked. for this reason, a complete description of the principle of justice could not omit reference to sufficient autonomy. 6. reply to mills in responding to the arguments of chapter three, chris mills makes two points about the principle of sufficient autonomy' which states that individuals should secure enough autonomy to secure the social conditions of freedom. first, he states that the principle is too thin and will fail to protect us from all violations of autonomy, in particular he is concerned that the principle i offer relies on a distinction between coercion and external threats, capturing only the latter and not the former. second, that constitutive views of autonomy and welfare can be defended and won’t have a threshold. with regards to the first point, that the principle i offer relies on a distinction between coercion and external threats, capturing only the 221 leap 5 (2017) reply to critics latter and not the former, the principle that i put forward is only supposed to offer a partial defence of autonomy. my aim is to show that there exist sufficientarian shifts, and so all i need to do in this chapter is show that autonomy has one such shift. i don’t need to say these are the only or even the most important violations of autonomy. so then mills could emphasize his remarks about how our views might not have been arrived at freely when there is self-deception. that freedom to set and pursue our ends can be thwarted or frustrated by our own selfdeception. in reply, i would say that the requirement to deliberate, and be disposed to deliberate, with others seems sufficient for avoiding some kinds of self-deception at least. this focus generates the requirement that citizens are: “(a) well-informed, (b) able to give reasons for one’s views, and (c) disposed to exchange reasons and participate in a public deliberative process with others.” (mills, in this issue) these attributes would provide good protection against self-deception through being ill-informed or unref lective. however, it might not avoid the problem entirely. there may be some forms of self-deception that are consistent with sufficient autonomy, and if they too frustrate our freedom, particularly freedom in belief formation, that would be a problem. one avenue sketched by mills seems attractive. i am tempted to say that some forms of self-deception themselves are not obviously a concern of justice. not in the purest case of self-deception at least. where the social background or particular policies or laws encourage self-deception, it is not clear that the deception is really self-deception rather than something else. i follow mills when he is mapping the possible positions i could take to the point where he characterizes my view are being concerned primarily or exclusively with interpersonal threats. while it is true that sceptics will respond by “denying the downstream relationship and arguing that our autonomy is threatened by more than a mere loss of freedom” (mills, in this issue) my view is not incompatible with other additional justifications for a concern with autonomy and while i have not yet developed an account of what they are i could possibly adopt them and thereby explain these cases too. mills’ second point is that a non-instrumental constitutive value of autonomy as a pre-condition for welfare could be defended and could be governed by a prioritarian principle. he states that “if you are a uniform prioritarian about welfare, then constitutive welfarism allows you to: (a) distinguish between qualitatively different disadvantages, and (b) appeal to some reasonably fine-grained metric of well-being in order to distribute autonomy without necessarily appealing to sufficientarian reasons” (mills, in this issue). 222 liam shields leap 5 (2017) the first thing i would like to say in reply is that prioritarian welfarism is not incompatible with my view. the idea that we have reasons to promote autonomy that are grounded in welfare and that are uniformly diminishing in moral importance is consistent with thinking that there is an overall shift caused by our reasons grounded in the social conditions of freedom. it is only if prioritarian welfarist reasons were the only reasons to care about autonomy, that this would be a rival to the principle of sufficient autonomy. but that sort of monist view would be implausible and would fail to meet criterion a). if our only reasons to be concerned with autonomy are to do with well-being, then there would be no qualitative difference between violations of autonomy. one possible way around this would be to give the account of autonomy a special place within well-being, so that violations of it were different from violations of well-being simpliciter. mills suggests that autonomy might be a pre-condition for well-being in his discussion and i discuss that below as danielle zwarthoed develops this point further. 7. reply to zwarthoed in her response to chapter four, danielle zwarthoed advances two arguments. first, zwarthoed argues that at least some instrumental accounts of autonomy, where autonomy is causally necessary for welfare, can justify mandatory autonomy enhancing education, thus denying parents the right to remove their children from aspects of civic education. this point runs contrary to my argument that because instrumental accounts of autonomy cannot justify mandatory autonomy enhancing education and intrinsic accounts of autonomy can, we should endorse an intrinsic account like the principle of sufficient autonomy. second, zwarthoed argues that the requirement of talents discovery, which holds that individuals have an entitlement to sufficient opportunity to know and develop their native talents, does not fit well with rawls’ principle of fair equality of opportunity, as i claim, because that principle points us towards the development of different talents than does the principle of talents discovery. i shall respond to each point in turn. in advancing the claim that instrumental arguments can justify mandatory autonomy enhancing education zwarthoed considers whether autonomy is a necessary pre-condition of well-being. if it is, then mandatory autonomy-enhancing education would follow from this instrumental argument. in my response i put forward some reasons for doubting that autonomy is a pre-condition for well-being and that autonomy as a precondition could justify an intuitively plausible level of mandatory 223 leap 5 (2017) reply to critics education, particularly at a level that would address the practical disagreements around mandatory education. regarding autonomy as a pre-condition, it seems odd to say that some people haven’t lived good lives simply because they are not autonomous. indeed, i think that this view implausibly commits its holder to the view that childhoods cannot go better or worse or cannot make your life go better or worse. consider two more plausible roles autonomy might play that are constitutive of well-being. autonomy can be said to amplify our well-being in a way that means our successful pursuit of objectively valuable ends is much greater when that pursuit is autonomously chosen. autonomy can be said to enable us to reach high levels of well-being that it is not possible to reach non-autonomously. rather than being a precondition, autonomy might more plausibly be an amplifier or the lifter of a cap on well-being. but once we reject the pre-condition account of the value of autonomy we cannot make the causal claim and so the account ceases to be instrumental. moreover, we lose its ability, on its own, to ground mandatory education, since there is going to be a trade-off between the kind of well-being that a person can get from living a non-autonomous, traditional, way of life. i suppose that persons can live f lourishing lives in such communities. others may deny this, but, this denial is implausible and uncharitable to those who argue against autonomy enhancing education. the strongest point those from traditional communities have is that these children are currently on a path that leads to f lourishing. my argument does not deny this, it simply insists that f lourishing is not the only thing that matters. being free also matters, and it matters a great deal. but even if there is some way around this problem, even if autonomy really is a pre-condition for well-being, the kind of education for minimal autonomy that is a pre-condition is not going to support compulsory education beyond a very minimal level. the reason for this is that the higher the threshold is set the more implausible its implications. in the case of autonomy, it gets implausible because it implies that very many people live lives of zero well-being. so the view is only plausible if the threshold is set fairly low, but this may be set too low to ground an intuitively plausible account of mandatory autonomy education. if you look at the court cases yoder v. wisconsin and mozert v. hawkins, the traditional communities are not asking for their children to be exempt until they are almost teenagers. at which point i think it is plausible to think they have enough autonomy to have met the pre-condition for well-being, but it is not plausible to think that they have enough autonomy to be making free choices. in her second argument, zwarthoed takes issue with my account of the 224 liam shields leap 5 (2017) requirement of talents discovery. that account states that each person should have sufficient opportunity to identify and develop their native talents. i claim that this account is a pre-requisite for any plausible version of fair equality of opportunity, which is concerned with equalizing the prospects of those with equal native talent and ambition (rawls 2001: 42-44). i argue that the requirement of talents discovery is attractive partly because it fits well with fair equality of opportunity. if it did not, i take it, that would be a reason to be suspicious of it, if not reject it. zwarthoed argues that the fit is not good. this is because the sorts of talents that the requirement of talents discovery focus on are not the same as fair equality of opportunity, so there is a tension between the two. she claims that the requirement of talents discovery will focus on talents requirement for the conception of the good, while fair equality of opportunity will focus on the talents required for economic positions. while i agree that fair equality of opportunity might naturally focus on talents for acquiring economic positions i think this would be included in any conception of the good planning. so, without conception of the good planning, an adequate range would include a focus on marketable talents, but this would not be the exclusive focus. moreover, the grounding of fair equality of opportunity is in self-realization, which itself is grounded in the two moral powers, so i don’t think that we can say that economic talents would have any significance for rawls except insofar as they are conception of the good talents (see taylor 2003; 2004). the fit then, with rawls and with his explicitly stated grounds of fair equality of opportunity is good. 8. reply to gheaus in her response to the arguments of chapter five, anca gheaus raises some very important issues in relation to my account of when parental rights over particular children can be re-allocated. i will respond to two of the counter-arguments she provides. first, gheaus argues that what i take to be a unique advantage of my version of the dual-interest view, its ability to explain why we need not reallocate wherever there is a better custodian available, can be had by both the child centered and dual-interest views. i believe her argument, however, begs the question. gheaus concedes that one way that my rivals might respond, by appeal to the child’s interests in continuity of care, would be question begging. the reason for this is that this type of case is not the one that separates my view from the rest. if children do have a very strong interest in continuity of care, then it is hardly likely that there is a better alternative custodian, though this isn’t necessarily the case. my concern is 225 leap 5 (2017) reply to critics with showing that the dual-interest view i defend can explain that even if there is an alternative custodian who would in fact do a better job in terms of the child’s interests, we would not usually be justified in re-allocating rights to her under certain conditions. gheaus then presses what she takes to be a more decisive argument, which is to appeal to the need for the right of parent to be securely held, something which she finds in the work of vallentyne, a child centered theorist, but which can also be adopted by dual-interest theorists, since they are concerned with the child centered reasons and other reasons too. “there is, however, a reason why a change in custody away from adequate parents is impermissible even when the child would really be better off with extraordinarily good parents. this reason is advanced by some child-centred theorists (vallentyne 2003). children‘s interests are well served if, once acquired, the right to parent is securely held – that is, immune to custody change, as long as the parent is at least adequate” (gheaus, this issue). this example looks structurally identical to the question begging case. securely held rights would have to be grounded in an interest that children have for vallentyne to endorse it. the details of the interest are not so important, the fact that it is a child’s interest suggests that in this case, the interests of children are being best promoted by maintaining a secure attachment, which, if severed, would leave the child to live a worse life, even if the alternative custodians would have done a better job excepting the costs of severing this attachment. so, again, this is not a case where rival dual interest or child centered views do succeed in explaining why the best custodian should not get the child. the objection from secure attachments relies on an assumption that my view identifies as the best parent, the parent who would do the best job if there were no costs of severing the relationship. but that it not my position. my position is that the best parent(s) would do the best job from now, taking into account all the relevant costs, which include the costs of separation. one could argue that this makes the view uninteresting because all children and parents value secure attachments, making redistribution unjustified in all but the most extreme cases. of course, this wouldn’t be an objection to the soundness of my view, but even if secure attachments are very important to children, this interest will likely vary in its strength when applied to particular attachments. for example, in the early years it may be possible to remove a child from a current parent without creating large costs and without jeopardising the possibility of the establishment of a secure attachment with the new carers. as the child ages, and their initial attachment and relationship develops, the costs could be much larger and 226 liam shields leap 5 (2017) therefore harder to outweigh. i believe our views should be sensitive to this case and mine is. the second major issue is explained by gheaus as follows, “most of us now believe that children are our moral equals except from the fact that their lack of full autonomy makes paternalistic behaviour towards them permissible (indeed, required.) if so, then exercising authority over children must be justified by appeal to their consent or by appeal to their own interests but not, usually, by appeal to the interests of those who exercise the authority. children cannot give valid consent. therefore authority over them cannot be denied to those likely to advance their interests as much as possible for the sake of advancing the interest of other prospective authority-holders” (gheaus, this issue). according to gheaus, as someone who believes that children have full moral status i am committed to the presumptive principle that authority over them can only be justified by reference to their own interests. the only acceptable exceptions are where there are very strong overriding reasons, such as equality. but, as a sufficientarian, i do not believe in equality, so i cannot avoid being committed to the presumptive claim that authority over children can be justified only by reference to children’s interests, thus making me a child-centered and not dual-interest theorist. indeed, all those who reject equality and endorse the full moral status of children, should think this, if gheaus is correct. this is a very interesting and intricate argument, and so first a few clarifications are required. i do believe that equality in distributions does matter and that is part of what motivates me, if not motivates the view that i defend throughout the book. also, i don’t think that i am committed by this particular argument to saying that children have full moral status if that means they have the moral status of fully competent adults. i do find it plausible to think that children may have a moral status that is different, i do not know what “full” means here, but if all it means is that children can have basic rights, then i do agree with it, but i don’t see why it follows from that that we cannot make decisions that affect them or yield authority over them in the interests of others. having said all of this, i don’t think these points suffice to produce an adequate response to gheaus on my part. instead, my response will question the claim that an agent with moral status cannot have someone else wield authority over them in the interests of others. gheaus argues that dual-interest theories violate the sound (prima facie) principle that one cannot claim legitimate authority over someone possessing full moral status by appeal to one’s own interests. on my view, 227 leap 5 (2017) reply to critics it is possible for the interests of parents not only to matter, and to be decisive in tie-breaks, but to out-weight the interests of children. so, one might think my view violates this principle in the worst way and not only in some way. gheaus describes two ways of resisting the presumption. one way of showing the presumption can be overridden is by appeal to equal opportunity to f lourish and the way that parenting contributes to f lourishing can override that principle. but in order to advance this argument one must accept that parenting is non-substitutable and that justice requires equality of opportunity to f lourish. but i reject the nonsubstitutability of parenting. so i cannot avoid this problem, it seems. there’s plenty of ambiguity in the so-called “sound principle”. in particular, it could be interpreted as prohibiting authority over someone simply because it is in the interests of the prospective holder of authority, or it could be that no one can have authority over someone in anyone’s interests but those of the person over whom authority is held. these two interpretations have quite different extension. moreover, if the principle gheaus describes, and borrows from vallentyne, is true then it is unclear that, for example, democratic institutions, where authority is exercised, at least in some significant life-affecting decisions, in the interests of all. so the idea that no one can have authority over me in anyone’s interests but my own must be false on either interpretation. i agree with lots of the examples gheaus gives about adults having control over other adults, e.g. romantic partners. but the problem with drawing conclusions from that example this is that someone must have control over children, no one else need have control over the bodies of competent adults. that is a morally relevant distinction that can explain different treatment. moreover, insofar as gheaus accepts this she accept that children’s status is different from adults. this is just to say i think the “sound principle” is questionable. i think the cases i describe are still the best to show why the parents’ interests can justify shortfalls from the best custodian in some cases because they illustrate the following. while some of the child’s interests are very weighty, such as their interest in avoiding neglect and abuse, their interests are not all weighty. those less weighty interests can be outweighed by the interests of parents. moreover, i think cases where parents make decisions that have costs for their children, like taking a different job, relocating, etc. can, in some cases be justified. gheaus’ view cannot explain this except if she appeals to an artificially robust distinction between the interests that are relevant to decisions parents make once they have the rights and the interests relevant to the decision to give a particular parent the right. there should be continuity between these, not least because 228 liam shields leap 5 (2017) what a parent would do with the rights is a determinate of how well they will do it and so a sharp discontinuity here cannot be justified. 9. reply to harb and axelsen siba harb and david axelsen’s response to chapter six has two parts. part one of their reply argues that there is nothing new in one of the distinctions i make while part two provides an interesting development of one of the lines of thought in the chapter. as the second part is mainly complimentary i won’t engage with that much, except to say “thanks”. i will use this reply to try to explain why the first distinction is of importance. i argue that the achievement of sufficiency could trigger a shift in the content of our obligations to compatriots and to foreigners, and not merely their stringency. by this i mean that once the sufficiency threshold is met for at least one of these groups, then we may move from being statists to being cosmopolitans. that means we move from thinking that the content of our obligations to compatriots and foreigners is different, to thinking that they are the same. the authors discuss the example i give in the book about moving from being a statist to a cosmopolitan by reference to the satiable reasons that can justify a threshold. “now, according to shields, reasons that can justify the existence of a threshold are ones that are satiable. the reasons that shields explores in previous chapters are basic needs and autonomy. both are satiable in the sense that they do not provide a normative basis for benefiting above a certain level (the threshold) (shields 2016: 34-37). surely, however, reasons of basic needs and autonomy apply universally; everyone shares the trait that gives rise to such reasons. and, indeed, when theorists in the global justice debate, be it statists or cosmopolitans, hold that we owe basic needs to foreigners, they hold that we do so because they are human beings, not because they are foreigners. it is difficult to see, then, how one can be statist about content below the threshold” (harb and axelsen, this issue). now, i do not claim that only satiable reasons can justify a noninstrumental threshold, but i claim that some do, and these may very well be the most plausible such reasons that justify thresholds. reasons that focus on basic needs and autonomy, once met, no longer apply. these reasons however appear to apply universally and so would not be plausible candidates for the sorts of reasons that can explain why the content of our obligations can change. 229 leap 5 (2017) reply to critics the concern that the category of shift sufficientarian content approaches to global justice does not contain a plausible member, is a serious one. to respond i will develop the statement in the book explaining this view. i state that “possible examples include a view whereby we owe sufficiency to non-compatriots and equality to compatriots but once noncompatriots have enough, we owe equality to all” (shields 2016: 187). this is all too brief, so i am grateful for the opportunity to expand here. the line of thought set out in the quoted sentence described a view whereby we pursue equality among compatriots and sufficiency globally. these are two of our duties of justice. how they are to be weighed is a further question and concerns stringency. this position remains too vague to test its plausibility comprehensively, though a good deal of the plausibility test will be met by the implications of such a view and whether they can explain intuitions like compatriot partiality and state is arbitrary. so consider a possible example. imagine our set of reasons include a commitment to global sufficiency, perhaps specified by basic needs or autonomy, and a commitment to local or statewide equality of opportunity, as well as a global commitment to helping the worse off in the form of a priority principle. at this point our reasons are mixed. some are cosmopolitan and others are statist. whether our outlook is statist or cosmopolitan, i think, depends on how far we have gone in meeting our reasons of justice. if some of our reasons (cosmopolitan or statist) can be sated, then once enough is secured, the content of our remaining obligations is different for compatriots and non-compatriots. this would mean that the satisfaction of global sufficiency means our outlook is statist. this might appear to be a superficial shift since the totality of our reasons remains the same: a mix of cosmopolitan and statist reasons. it’s just that some no longer apply. alternatively, the achievement of global sufficiency might bring into existence new reasons. for example, once everyone is sufficiently autonomous perhaps political equality matters between compatriots but not globally. perhaps also equality of opportunity matters between compatriots but not globally. the last example would be a more thoroughgoing account of a shift in the content of our obligations 10. conclusion i am very grateful to the contributors for pressing me on these and other areas, and i hope i will be able to more fully appreciate those contributions as i continue to think about them. 230 liam shields leap 5 (2017) bibliography rawls, j., 2001: justice as fairness: a restatement. cambridge, ma: harvard university press. shields, l., 2016: just enough: sufficiency as a demand of justice. edinburgh: edinburgh university press. taylor, r. s. 2003: “rawls's defense of the priority of liberty: a kantian reconstruction”, philosophy & public affairs 31: 246-271. taylor, r. s. 2004: “self-realization and the priority of fair equality of opportunity.” journal of moral philosophy 1: 333-347. vallentyne, p. 2002: "rights and duties of childbearing." wm. & mary bill rts. j. 11: 991 – 1009. leap 6 (2018) social rights and deontological constraints* e dua r do r i v e r a-l ópe z universidad torcuato di tella/conicet abstract assuming that there is not terminological or conceptual impediment to call social and economic rights “human rights”, this paper argues that social and economic human rights are normatively different from classical civil and political human rights, and that this may have some significant institutional implications. following mainstream opinion, i presuppose that both classical liberal rights and socioeconomic human rights are bundles of negative and positive “incidents” (concrete rights). my first claim is that in both cases negative incidents can plausibly be constructed as “deontological constraints.” that means that such constraints must be observed even if infringing them could maximize the satisfaction of the interests those rights seek to preserve. my second claim is that, contrary to classical human rights, the fulfillment of the negative incidents of socioeconomic rights, albeit necessary, does not represent a significant contribution to their fulfillment. since in the case of socioeconomic human rights positive incidents play such crucial role, there is a relevant asymmetry between classical and socioeconomic human rights. the paper concludes by showing some institutional implications of this asymmetry. keywords: human rights, deontological constraints, social and economic rights. 1. introduction there are several arguments for holding that economic and social human rights (which, for simplicity, i will call “social rights”) are not “genuine” d oi : 10. 310 0 9/l e a p. 2018.v6.0 5 * for helpful comments and criticisms i am grateful to marcelo alegre, mariano garreta, jeffrey howard, ignacio mastroleo, saladin meckled-garcia, julio montero, leticia morales, two anonymous reviewers, and the audience of the i workshop “the political philosophy of economic and social human rights”, uk-latin america political philosophy research network (buenos aires, 2017). social rights and deontological constraints 77 leap 6 (2018) human rights. in this vein, it could be argued that they are simple goals or aspirations; that they count as principles of social justice rather than rights we enjoy just because we are human persons; that they are not enforceable due to the complexity of their effective implementation; that they are unfeasible; and that, as opposed to other human rights, they cannot be claimed against courts or enforced by them.1 the contrast is obviously with classical civil and political human rights (which i will stipulatively call “classical rights”). on this view, only these amount to genuine (human) rights. my aim in this paper is not to argue that social rights are not genuine rights as i do not think there is anything like a “true” notion of human rights. there may be different kinds of norms, ideals, and moral or political principles that can be conveyed in the language of human rights, and this can be plausible or defensible, both politically and conceptually. what i want to show instead is that, beyond terminology and political use, social rights are normatively different from classical rights and that this may have some significant institutional implications: while classical rights (or relevant aspects of them) can plausibly be conceived as “deontological constraints” (in a sense to be explained), social rights (or relevant aspects of them) cannot. although they can be conceived in that way (in the sense of there not being any conceptual impossibility), it is not plausible to do so, except (perhaps) in very specific or exceptional cases. importantly, the concept of human rights i will use throughout the paper is philosophical. so i will not be speaking about legal human rights such as those enacted at the international body of treaties and declarations. rather, my concern is how we should conceive human rights from the viewpoint of strict moral analysis. while the way judges and other national or international authorities understand legal human rights may well be relevant to building a philosophical view of human rights, such relevance is only due to the fact that we want our philosophical theories of human rights to keep some ref lective equilibrium with the practice, not because we are merely describing the practice. the paper is structured as follows. in section 2, i elucidate the concept of “deontological constraint” and provide some examples that show how human rights sometimes operate in that way. the key point of a right being a deontological constraint is that, in principle, it cannot be violated even if it doing so would maximize the satisfaction of the interest the right seeks to preserve. section 3 advances a view about how to understand the relationship between classical and socioeconomic rights on the one hand, 1 for some of these objections, see cranston (2001); o’neill (2005). 78 eduardo rivera-lópez leap 6 (2018) and negative or positive rights on the other. i reject the traditional identification of classical rights with negative rights and of social rights with positive rights, and endorse instead the widely accepted account that both classical and social rights are bundles of negative and positive “incidents” (concrete rights). nevertheless, i also claim that in specific way the negative incidents of classical rights are more fundamental than the negative incidents of social rights. section 4 focuses on the relationship between deontological constraints and classical rights. in this respect, my claim is not that only negative rights or classical rights can operate as deontological constraints. the point is more nuanced and complex: while negative incidents of classical rights can plausibly be (and usually are) conceived as deontological constraints, positive incidents of classical rights may sometimes function as deontological constraints. in section 5 i sustain that the positive incidents of social rights cannot plausibly be understood as deontological constraints, except for some very specific cases – such as the right to be rescued from imminent death. this completes my main argument: there is a normative asymmetry between classical rights and social rights because relevant incidents of classical rights (which are negative in kind) can plausibly be conceived as deontological constraints, while relevant incidents of social rights (which are positive in kind) cannot be conceived in such way. in section 6 i explain why the alleged asymmetry may have some significant implications in terms of the role judges can play in the enforcement of human rights. 2. the concept of deontological constraint the notion of rights as deontological constraints (hereafter dc) i will use is not necessarily the most common one. in my sense, a moral right works as a dc when the fundamental moral reason to fulfill the correlative duty is focused on the individual holding that right. if john has a dc right against me that i do x, then i ought to do x because (and, in principle, only because) he has that right. that he has that right is the (in principle, sufficient) reason why i should do x. that a right (and its correlative duty) is a dc does not necessarily imply that it is absolute, or a “trump,” or a “side constraint.”2 but it does imply that it does not follow a strictly consequentialist logic, according to which fulfilling the correlative duty would be purely instrumental in achieving (or optimizing) some valuable social goal, whether aggregative or distributive. let me clarify the idea through some examples. consider the (human) 2 see dworkin (1977) for the concept of rights as “trumps,” and nozick (1974: 29) for the concept of rights as “side-constraints.” social rights and deontological constraints 79 leap 6 (2018) right not to be tortured and the correlative duty of state officers (or the state) to never use torture as a method of obtaining information or confessions from detained or accused persons. since there is broad agreement on the absolute (or quasi-absolute) character of this right (and of the correlative duty), the example is simple (as we will see, other examples may be more complex). claiming that a has a human right not to be tortured means that no state officer is allowed to torture a. this right is a dc because the fundamental reason why a state officer is not allowed to torture a is that a has a right not to be tortured. such reason is sufficient to justify the prohibition. this implies that the state officer is not allowed to torture a, even if torturing a would optimize what we may consider morally valuable goals (such as human life). more importantly (and crucially), the state officer is not allowed to torture a, even if not torturing a would imply that more instances of torture will occur in the future. the dc feature of some rights can be noted even more clearly with another example: the right of innocent people not to be convicted and punished. when the judge releases an innocent person, her reasoning is not (or should not be) that acquitting this person is instrumental for the good of society or for some valuable social goal. the reasonable belief that the accused person is innocent is (at least in principle) sufficient reason to release her. the innocent must be acquitted. this is the only relevant consideration. as i said, it is not necessary for a right to be absolute to constitute a dc. there could be some threshold of social harm above which the duty not to torture or not to condemn an innocent might yield. even if consequentialist considerations (for example, about potential social harm) might be thought to be relevant, it may still be correct to say that there is a dc right not to be tortured or not to be wrongly convicted. however, at the point where considerations of consequence alone become relevant, it would start to be doubtful that we are dealing with a right not to be tortured or not to be wrongly convicted. certainly, we might still use the terminology of rights, insofar as, in general, the state would have a duty not to torture or to convict innocent people. but, beyond terminology, we are dealing with a qualitatively different kind of norm, namely: a rule aiming to minimize tortures or wrongful convictions. this, in turn, could only be understood as part of a more general norm aiming to optimize some more basic value, such as the well-being of people or the minimization of suffering (where minimizing instances of torture or wrongful convictions would be instrumental to the optimization of that value). there is a third more complex example, which nevertheless illustrates the dc feature of some human rights: the right to democratic participation 80 eduardo rivera-lópez leap 6 (2018) (to vote and be elected). the state violates the right to be elected by, for instance, proscribing or coercively preventing a candidate or a party from participating in free democratic elections. this is so, even if it were true that not proscribing a certain candidate would lead to a deterioration of democracy, or to more people being wrongfully proscribed in the future. as in the previous examples (actually, more so than in the previous examples), this dc character of the right to democratic participation may be subject to certain limitations (such as the duty to tolerate the intolerant). where to draw such limitation may of course ben controversial. yet, if the human right not to be proscribed is a dc right, the limit must be more demanding than the limit would adopt if we simply wanted to optimize political freedom. in sum, a right to x is a dc right only if we are prepared (at least to some extent) to sacrifice the satisfaction of important values (including, crucially, the fulfillment of more cases of the right to x) to honor the right to x in particular cases. the right not to be tortured or wrongly convicted and the right to be allowed to participate in free elections are examples of rights that can plausibly be conceived as dc rights. 3. positive and negative incidents of human rights the idea that certain rights (typically, classical rights) are dc must not be confused with the idea that classical rights are negative rights (rights that correlate with duties of omission), whereas social rights are positive ones. let me clarify this point. in this respect, i follow ideas from cecile fabre and david bilchitz on social rights that capture our common sense intuitions about the relationship between the positive-negative distinction vis a vis the classical-social distinction (fabre 1998: 267-270; bilchitz 2007: 90-91).3 the main idea is that human rights are clusters of more specific rights (to which i will refer as “incidents,” or “aspects” of a human right).4 some incidents of a human right are negative while others are positive; or, in other words, 3 although similar, what i am defending is not exactly henry shue’s view. he claims that any basic right conceptually involves the existence of negative and positive duties (shue 1980: 52-53). i just claim that classical rights (such as the right to political participation) usually include positive incidents (such as the right not to be prevented from voting) and that social rights (such as the right to subsistence) usually include negative incidents (such as not to eliminate the only available means of subsistence). for a discussion on shue’s view, see cohen 2004. 4 i borrow the use of the term “incident” from honoré’s classical work on ownership (honoré 1961). social rights and deontological constraints 81 leap 6 (2018) some require only abstentions from the state, while others require actions and the provision of resources from the state. even though we may speak of a right to free expression (a typical classical right) as an “abstract” right (to use bilchitz’s terminology),5 this abstract human right brings together a set of “concrete” rights or incidents, which in practice make up the right to freedom of expression. within this set, there are usually negative rights as well as positive rights. similarly, abstract social rights (such as the right to subsistence or to adequate housing) are clusters of incidents that correlate with specific duties, including both positive and negative ones. now that the complex nature of rights has been clarified, the next step is determine the role that negative and positive incidents play in classical rights as opposed to social ones. in this respect, i want to highlight an important asymmetry that will be crucial for my overall argument. i have admitted that both classical and social rights have negative and positive incidents that can be violated both by action and omission (by the state). the operation of both kinds of rights is symmetrical in the case of the violation of a right. for example, the social right to adequate housing is violated both when the state evicts members of a community from a certain territory over which they have a right and when the state does not provide adequate housing to homeless people. in this sense, positive and negative incidents of the social right to adequate housing operate in the same way as positive and negative incidents of classical rights. in both cases, we can safely say that the (abstract) right (be it classical or social) is being violated. however, such symmetry breaks down when we focus, not on the violation but on the fulfillment of the right. so imagine that the state meets a negative incident of a classical right. for example, it abstains from censoring the press. in that case, we can plausibly say that the state fulfills at least one important, relevant or substantial part of the abstract classical right to freedom of speech. and we can plausibly say so even if the state, at the same time, fails to fulfill positive incidents of the same classical right, say, because it does not promote the public expression of minorities or disadvantaged groups. to be sure, we might say that in such case the fulfillment of the right to free speech is deficient or insufficient. still, if the state does not actively censor or in any way prohibit or restrict public expressions, we would surely conclude that a relevant, substantial, part of the right to free speech is being fulfilled. on the contrary, imagine that the state meets the negative incidents of a social right: the government does not evict persons from their houses or territories. in such case, we may think that this is not enough to fulfill the most important, relevant, or 5 bilchitz (2007: 91). 82 eduardo rivera-lópez leap 6 (2018) substantial aspect of the social right to adequate housing, in particular when the state fails to fulfill the positive incidents of that same social right.6 consider a further example: imagine that the state simply refrains from actively obstructing people’s access to nutritious food. would we say that the state is fulfilling the social right to subsistence, in the most relevant sense? i think the answer is no. the only way for the state to guarantee the satisfaction of the social right to subsistence or adequate housing is to actively guarantee that people who lack access to nutritious food or decent housing enjoy secure access to the objects of their rights. in other words, while in some cases this may turn out to be insufficient, fulfilling just the negative incidents of a classical right makes a substantial contribution to its satisfaction. contrariwise, in most relevant cases, fulfilling just the negative incidents of a social right makes only a secondary contribution to its full satisfaction. in fact, the point and purpose of social rights is to make sure that everyone enjoys secure access to their objects. to illustrate the point, let us take a closer look at the negative incidents of social rights. those incidents are negative rights that can be violated (only) by actions. imagine a community living from fishing at sea (a common property). at some point, the government grants a private company an exclusive fishing license which deprives the community of its only means of subsistence. in such case we could certainly claim that the state has actively violated the social right to subsistence.7 the state has violated a negative incident of that right by performing an action that renders community unable to obtain sufficient food. now imagine that at some point the government changes its mind and decides to fulfill the community’s social right to subsistence. an obvious way of doing so would be to cancel the company’s exclusive license so that members of the community can fish again. since this solution cancels its previous active intervention, it restores the fulfillment of the negative 6 thomas pogge would disagree at this point. according to his view, when social rights are not fulfilled, the state is violating negative rights, not (just) positive rights (see pogge 2002: 203 ff; pogge 2011). the correlative duty to that (negative) right is the (negative) duty not to impose an unjust institutional scheme that causes social rights to remain unfulfilled. i do not want to discuss this view here, but it seems to me that the discussion is rather terminological. the important point is whether those duties are dc duties or just goals. it seems to me clear that the duty to reduce global poverty is (at least partially) an aggregative goal, and the measures that pogge suggests to achieve that goal (such as his “global resources dividend”) is not a dc duty. proof of that is that we (and pogge, i assume) would not be prepared to defend the global resources dividend if it were foreseeable that, while rescuing some people from extreme poverty, it will pull more people into extreme poverty. this implies that the duty (and the correlative right) involved in fighting against extreme poverty is not a dc, in contrast with what happens with (negative incidents of ) classical rights. i thank an anonymous reviewer for raising this point. 7 i thank julio montero and mariano garreta for this example. social rights and deontological constraints 83 leap 6 (2018) incident of the right to subsistence. however, there are other options the state may try. in this vein, it may choose to transfer money to the victims so that they can buy the food they need. or else, it may directly distribute food among the victims. if so, the state is not fulfilling a negative incident of the right to adequate food.8 rather, it is fulfilling the right by undertaking a positive action, that is by fulfilling a positive incident of the right. i take this to prove that fulfillment of negative incidents are less relevant in the case of social rights than in the case of classical ones. this is not to deny that infringing negative incidents of a social right may amount to a very serious wrong. however, my impression is that, in such cases, the incident will also constitute an independent negative right (or a negative incident of a classical right). to see why, consider a perfect and rich libertarian society in which all human needs are satisfied through market transactions. if at some point the state starts confiscating some people’s food, we would not (primarily) say that the state is violating the social right to subsistence, or at least not only that right. instead, we would most likely insist that the state is (primarily) infringing the property rights of the victims, that is: a classical right. on the other hand, if the state does not intervene and everyone happily satisfies their food needs, we would not say that state fulfills the social rights of citizens by omission (say, because the state does not coercively stop people from satisfying their needs). we would rather say that social rights are spontaneously satisfied though not officially guaranteed. all this shows that there is an asymmetry between the fulfillment of classical rights and of social rights. to repeat: the fulfillment of the negative incidents of classical rights is a substantial part of their satisfaction, whereas the fulfillment of the negative incidents of social rights is much less substantial (unless that negative incident has an independent justification, for example, as negative incident of a classical right). 4. dc and classical rights the claim that rights are dc, or that at least some rights work as dc, is admittedly controversial. i do not want to defend that claim here, or the associated claim that to qualify as a right (or as a “true” right), any interest or claim must have this feature. i want to argue instead that classical rights (or, as we will see, at least certain aspects of classical rights) seem to have the feature of being dc as defined in the previous section. so let us explore more 8 except in the trivial sense that the state is not actively impeding to use the money or the food that the very state has provided. 84 eduardo rivera-lópez leap 6 (2018) carefully how the negative and positive incidents of abstract classical human rights behave with respect to their having or not having a dc character. negative incidents of classical rights can plausibly be conceived as dc rights. the correlative duties of abstention held by state officers not to kill or torture, censor the press, persecute religious minorities or specific associations, imprison people without trial, or proscribe candidates, are duties that the state must (at least in principle) strictly honor irrespective of the consequences of honoring them, including the consequences in terms of the satisfaction of the very same rights. it is important to emphasize that what distinguishes classical from social rights is not that the former are negative. for as i have explained, both classical and social rights involve negative and positive incidents. rather, my point is just that the negative incidents of classical rights can plausibly be regarded as dc. this means, again, that the state is not allowed to violate the negative incidents of classical rights (in this case, actively) to optimize some valuable social goal, including the social goal of optimizing the satisfaction of the very classical right in question. classical rights, i have assumed, also have positive incidents which call for active state policies or allocation of the relevant resources. so the right to due process requires that the state spends resources to establish impartial courts, jurors, and prosecutors, and to guarantee a public law yer to the defendant. likewise, the right to democratic participation implies that the state must provide resources to organize free elections and guarantee polling stations across its territory or jurisdiction, among other things. assuming that the negative incidents of classical rights are dc rights, we can wonder whether the positive incidents of classical rights are dc rights as well. the question is not directly relevant to my argument, but it merits some attention. although i have no conclusive views about this issue, i am inclined to think that whether the positive incidents of classical rights are in fact dc depends on the particularities of the case we consider. so let us consider the example of the classical right to a fair trial. this abstract human right involves clear negative incidents: the state must refrain from actively inf luencing judges, organizing summary trials that violate the right of defense, or coercively preventing the defendant from hiring a law yer. all these negative duties are plausibly dc, which implies that the state must respect them even if refusing to do so would bring about social benefits, such as that future trials would be more impartial or that terrorism would decrease significantly. on the other hand, the right to a fair trial also involves some obvious social rights and deontological constraints 85 leap 6 (2018) positive incidents: it requires that the state takes over the defense if the accused lacks the resources to pay for a law yer. may this incident count as a dc right? even though the answer is not completely clear to me, it is not unreasonable to think that its satisfaction may legitimately factor in consequentialist considerations. in such case, the state might be allowed refuse to guarantee an official defender if some alternative allocation of (scarce) resources (say, redirecting official defenders to some other jurisdiction) would optimize this specific aspect of the right to a fair trial. alternatively, it could also be argued that this positive incident (the right to a law yer) is in fact a dc right: if the state is unable to provide the service, then the trial should be suspended until it can do so.9 in any case, no definitive answer to this controversial issue is necessary for my argument; all i need to claim is that negative incidents of classical rights can plausibly be conceived as dc rights, whatever we believe about their positive incidents.10 in sum: classical rights have both negative and positive incidents. while the negative incidents may be plausibly regarded as dc rights, it is unclear whether their positive incidents are dc too. 5. dc and social rights what about social rights? as in the case of the right to a law yer in a criminal trial, there is no conceptual obstacle for a positive right to be a dc. in that sense, there is no conceptual impediment for both negative and positive incidents of social rights to be dc rights. but conceptual possibility is not the same as philosophical plausibility. the key question here is whether social rights (as conceived by international human rights conventions) can plausibly be considered dc rights equivalent to the negative incidents (and perhaps some positive incidents) that classical rights involve. there is at least one important positive right that can plausibly be conceived as a dc right: the right to be rescued from imminent death. in fact, it seems reasonable to claim that we have a moral duty to aid someone at dire straits, even if this means that fewer people in a similar situation will be rescued. these kinds of normative scenarios are familiar during health emergencies: in order to save a child who requires a heart transplant, we may need to invest a large amount of money which we will render unable to invest in saving many children at risk. if we assume that concrete 9 i thank marcelo alegre for discussion on this point. 10 in fact, the claim that positive incidents of classical rights are dc would support my (main) thesis that there is a normative asymmetry between classical and social rights, since, as we will see, it is not plausible to take positive incidents of social rights as dc rights. 86 eduardo rivera-lópez leap 6 (2018) lives take priority over statistical ones (and i am not saying that this is necessarily the case), then it is plausible to conclude that the right to be rescued (and the corresponding positive duty to rescue) is a dc.11 having conceded that positive rights can well be dc, the next question is whether positive incidents of social rights (which, if my argument in section ii is correct, constitute a crucial aspect of social rights) should be understood as dc. this is, i insist once more, not a conceptual question, but normative one. in other words, the relevant question is whether we are prepared to consider all (or most) social rights in the same way as (dc) rescue rights (and, of course, as negative incidents of classical rights), namely: in a way that implies that we have the obligation to fulfill the social right to x in one particular case, even if doing so would reduce the overall satisfaction of the social right to x. to anticipate my view: i think this is not plausible because social rights are better constructed as mandates to optimize certain goals. social rights are optimizing mandates in two senses. first, they allow for intra-subjective trade-offs. they form an interrelated set of interests, the joint satisfaction of which enables the individual to lead a minimally satisfactory life. take the rights to decent housing and to health. it is clear that most persons will rationally seek to optimize the joint satisfaction of both rights; or else they may decide to give up some degree of satisfaction of one of them to increase the satisfaction of the other one. the same is true for all social rights. in essence, the substantial normative claim that underlies them is the enjoyment the set of goods we need to lead a minimally autonomous or dignifying life (let us call this set “basic needs”). the state’s correlative duty is an optimization mandate as well, in the sense that it requires the provision of that set of goods that allows the optimal satisfaction of basic needs. furthermore, each of the individual duties correlative to specific rights (to housing, health, nutritious food and so on) stands in some sort or tension or trade-off with the rest. note that this is not the case with classical rights. even if individuals may rationally want to sacrifice a certain degree of freedom of speech or vote in exchange for an improved satisfaction of her basic needs (better housing or health care), we would not accept that the authorities engage in these kinds of trade-offs. social rights are also inter-subjectively optimizing. the aim of social rights public polies is to satisfy social rights for an entire population and in the long run. this means trying to achieve something like a state of affairs in which the satisfaction of basic needs is given to as many people as possible, or a state of affairs in which the satisfaction of basic needs of 11 on the controversy between saving identified versus statistical lives, see cohen, daniels and eyal (2015). social rights and deontological constraints 87 leap 6 (2018) those who are worse off increases to the greatest extent possible, or some other optimal state of affairs in terms of justice. these two optimizing features of social rights do not necessarily imply that social rights are not genuine rights. insofar they can be legitimately constructed as priority goals which take care of essential interests, rights language is not inadequate. still, whatever preeminence or importance we are willing to give to social rights, it is important to stress that they operate as social goals, that is: goals the state must promote according to some criterion of justice or efficiency to be optimized through an adequate set of public policies. such policies may be constrained by classical rights, but not by the same social rights. to determine to what extent social rights can be dc, let us brief ly consider henry shue’s discussion of a thesis sustained by garret hardin. according to hardin, humanitarian aid to the global poor is self-defeating because, given the limited carrying capacity of the planet, it will only produce more global poverty in the future (shue 1980: 97-104). although hardin’s theory has lost its appeal because it has proven empirically false, it is nevertheless interesting as it helps us to test if we we are willing to consider the human right to subsistence as a dc it has proven empirically false (see drèze and sen 1989). if the social right to subsistence generates a dc duty, then we should take action to satisfy it, even if this would undermine its satisfaction for a greater number of people in the future. on the other hand, if the social right to subsistence only the expresses a principle of justice that seeks to minimize (or eradicate) extreme poverty, then we should refrain from helping the poor now to avoid more poverty in the future – provided hardin’s thesis were true. of course this is a false dilemma, but it is remarkable that shue’s discussion focuses primarily on showing that the empirical basis of the theory is false, not that we should satisfy the right to subsistence regardless of what may happen in the future.12 this does not prove that shue was thinking of social rights as optimizing goals, but it suggests he was. and plausibly so. when we think of extreme poverty, our concern is to reduce or eradicate poverty, and we are willing to appeal to any means to achieve that goal (compatible with the fulfillment of some fundamental classical rights). we would not be willing to advance policies that, in the name of helping the poor (or satisfying their social rights), increase 12 “the dilemma suggested by the population objections dissolves entirely, provided that in fact poor countries have, or can obtain, means of controlling population growth that are compatible with the protection of subsistence rights” (shue 1980: 101). 88 eduardo rivera-lópez leap 6 (2018) the number of poor people (or the non-satisfaction of their social rights).13 these arguments do not show, as i said at the beginning, that social rights cannot be considered human rights. what they show is that social rights have a different normative structure vis à vis classical rights. the latter have a relevant dc component: we are willing to sacrifice valuable social goals (including the satisfaction of classical rights; including the satisfaction of that very classical right) to fulfill classical rights in each relevant occasion. social rights, on the other hand, cannot be plausibly conceived in this way. i repeat: we would not be willing to allow more people to remain in poverty if this were the consequence of actively bringing fewer people out of poverty. 6. some insitutional implications the conceptual distinction between liberal and social rights that i explored may have significant practical implications in terms of the judicialization of social rights, which i will now try to sketch though maintaining a considerable level of abstraction. schematically, there are three kinds of procedures judges may use to make a decision in the field of social rights. the first kind of decision takes the claim of the right holder as a dc right. in the case of classical rights, this is obviously the rule. for example, when a judge declares that an act of censorship is unconstitutional and cancels the closure of a newspaper, she does so to satisfy the right to free speech. importantly, the judge’s duty correlates to a dc right, since she is not allowed to consider the social consequences of reopening the newspaper. similarly, in the realm of social rights, a judge can order the executive to grant a specific indigent family adequate housing or a specific patient an expensive medicine.14 in these cases, she follows the same kind of reasoning: she is not calculating the burdens and benefits her decision may entail for society as a whole. a second kind of intervention is familiar in the realm of social rights and should not be confused with the first one.15 suppose there is a governmental policy that provides some service to the population, say 13 in the terminolog y coined by guido pincione and fernandotesón, publicly defending that kind of policy would be a case of “discourse failure” (pincione and tesón 2006: 142 ff.). 14 for example, in q. c., s. y. v. gobierno de la ciudad autónoma de buenos aires, a judge ordered the government of buenos aires to provide adequate housing to an indigent family with a disabled child. the decision was reversed by the superior court of buenos aires. 15 leticia morales has made me aware of this kind of intervention. social rights and deontological constraints 89 leap 6 (2018) basic education for every child. imagine now that one specific child (or set of children) is denied the service (for reasons of scarcity or for any other reason). in such case, the judge might order the executive to provide the service to that particular child (or set of children). in one sense, the intervention works as if the child had a dc right to basic education, because her claim is taken as a sufficient reason (for the judge) to deliver that order. still, i do not think a dc right to education is necessary involved, but rather a dc right to equal treatment. given that there is a policy providing some service, it must be provided to all. similar examples can be provided for the case of health-care services. finally, there is a third kind of judicial intervention which is qualitatively different in nature. in this kind of case, the judge orders the executive simply to deal with housing shortage, or to clean a polluted river, or to provide education, or to have some kind of social security plan, etc. so she is intervening in public policy in order to promote some valuable social goal, such as the goal that no one lacks housing, food or education, or that the river is clean. this is the intervention path followed, for instance, by the south african supreme court in the well-known “grootboom” and “t.a.c.” cases, which required that the government implemented a “reasonable” policy to provide adequate housing and essential hiv drugs to its population.16 along the same lines, in the case “mendoza” the argentine supreme court urged the executive to issue an “integrated plan” to improve the environmental situation of the polluted river “riachuelo”.17 naturally, i am not claiming that this type of intervention is not justified or that the judiciary should not make this kind of decisions; my sole claim is rather that this is an essentially different sort of intervention. from a strictly normative point of view, the relevant question is whether the judiciary should intervene only in the first (and the second) way, or we want it to intervene in the third way as well. for only the first kind of intervention implies granting social rights a dc status. instead, the second one is not essentially about social rights, while third one does not deliver on a dc right. one relevant conclusion we may draw from the above argument is that when courts behave in the third way, they are doing something conceptually and normatively different from what they do when they behave in the first one. we can of course say that they are enforcing social rights in both cases; but they are not doing the exactly same in the most fundamental 16 see government of the republic of south africa v grootboom 2001 (1) sa 46 (cc); minister of health v treatment action campaign 2002 (5) sa 721 (cc). 17 see mendoza, beatriz silvia y otros c /estado nacional y otros s/daños y perjuicios (daños derivados de la contaminación ambiental del río matanza-riachuelo)” (m.1569.xl). 90 eduardo rivera-lópez leap 6 (2018) conceptual sense: whereas in the first case the court is treating the social right as a dc right, in the third one, it is treating the social right as a normatively prioritarian policy goal (based on considerations of justice). this being so, we may wonder whether it is normatively acceptable or plausible that judges make the first kind of decision, taking (positive incidents of ) social rights as dc rights (assuming, of course, that we find acceptable that they treat negative incidents of classical rights as dc rights). i cannot pursue this question here, but i think there are reasons to be skeptical. as i mentioned before, taking social rights as dc rights seems plausible only in exceptional cases, such as those which involve rescuing people from imminent, serious and irreparable harm (typically death). beyond this, judicial intervention to provide specific solutions to specific problems (lack of housing, lack of medical care, lack of adequate education, etc.) is highly problematic. this is so because fulfilling a certain right (to adequate housing or health care, for example) in a particular case fails to factor in relevant social consequences; and when these kinds of measures are not taken in truly exceptional cases they may end up being detrimental to the satisfaction of the very right involved (they result, for instance in less people having adequate housing or health services).18 even though we are prepared to face such paradoxical result in the case of classical rights, it is much less clear that we want to do so with social ones. 7. concluding remarks i conclude brief ly. i wanted to bring to light a feature that at least some essential aspects of classical rights have. my question was whether that feature (which i called dc) also operates plausibly in the case of social rights. my response was cautiously negative. conceiving of social rights as dc rights might be reasonable in extreme situations or catastrophes, in which we have a very strong intuition in favor of saving concrete people with partial or total independence of the subsequent consequences of that decision. but this conceptual framework is inadequate to think about social rights in general, which are rather mandates to satisfy certain minimum in the satisfaction of basic needs of the whole population. this seems rather a mandate for optimization and, therefore, is qualitatively different from what happens with classical rights. 18 this is not just a speculation. see wang 2015, where wang describes how courts decisions to provide medical treatments to specific persons have become an important factor of the health policy in brazil. wang very plausibly claims that this has negative consequences in terms of distributive justice of the access to health services. the reason is, following my terminolog y, that judges enforce the right to medical treatment as dc rights, without looking at the consequences. social rights and deontological constraints 91 leap 6 (2018) bibliography bilchitz, d., 2007: poverty and fundamental rights. the justification and enforcement of socio-economic rights. oxford: oxford university press. cohen, a., 2004: “must rights impose enforceable positive duties?” journal of social philosophy 35 (2), pp. 264–276. cohen, g., n. daniels, and n, eyal, (eds.) 2015: identified versus statistical lives. an interdisciplinary perspective. oxford: oxford university press. cranston, m., 2001: “human rights, real and supposed”, in p. hayden (ed.) the philosophy of human rights (st paul: paragon house). drèze, j. and a. sen, 1989: hunger and public action. oxford: oxford university press. dworkin, r., 1977: taking rights seriously. london: duckworth. fabre, c., 1998: “constitutionalising social rights”, journal of political philosophy, vol. 6, no 3, pp. 263-284. honoré, t., 1961: “ownership,” in a. g. guest (ed.), essays in jurisprudence. london: oxford university press, 1961. nozick, r., 1974: anarchy, state, and utopia, new york: basic books. o’neill, o., 2005: “the dark side of human rights,” international affairs 81. pogge, t., 2002: world poverty and human rights. second edition. cambridge. polity. pogge, t., 2011: “are we violating the human rights of the world’s poor?,” yale human rights & development law journal, vol. 14, no 2, pp. 1-33. shue, h., 1980: basic rights. subsistence, affluence, and u.s. foreign policy. princeton: princeton university press. wang, d., 2015: “right to health litigation in brazil: the problem and the institutional responses”, human rights law review, vol 15, no 4, pp. 617–641. leap 5 (2017) the presumption of equality* c y n t h i a a . sta r k university of utah abstract many distributive egalitarians do not endorse strict equality of goods. rather, they treat an equal division as having a special status such that departures from equality must be justified. they claim, then, that an equal division is “presumptively” just. though the idea that equality is presumptively just and that departures from it may be just has intuitive appeal, making a case for this idea proves difficult. i argue, first, that extant “presumption arguments” are unsound. second, i distill two general philosophical morals: luck egalitarians have not adequately defended the presumption of equality and they face serious obstacles in doing so; rawls has defended it, but only indirectly via the contract apparatus. this approach narrows the presumption’s appeal. third, i consider and reject two alternative ways of understanding the presumption of equality that might avoid the problems revealed by my examination of extant views. the first appeals to the idea of value pluralism. the second treats the presumption as a view about the burden of proof. i conclude, ultimately, that it is misleading to think of distributive egalitarianism as typically having the form of a presumption argument. keywords: equality, distributive justice, rawls, luck egalitarianism. d oi : 10. 310 0 9/l e a p. 2018.v6.01 * i am grateful to the following people for helpful feedback on this paper or earlier versions of it: daniel halliday, jiewuh song, mathias iser, darrel moellendorf, rainer forst, catherine lu, merton reglitz, david rondell, christian schemmel, jahel queralt lange, eszter kollar, mara marin, elizabeth kahn, stefan gosepath, kit wellman and bruce landesman. i am also grateful to my audiences at goethe university, washington university and the free university of berlin where i presented this work. i owe thanks also to the london institute of philosophy and the forschungskolleg humanwissenschaften for providing me facilities in which to work on this project and to jonathon wolff for the conversation that prompted me to write this paper. 8 cynthia a. stark leap 6 (2018) 1. introduction many distributive egalitarians do not endorse strict equality of goods.1 rather, they treat an equal division as having a special status such that departures from equality must be justified. they claim, then, that an equal division is “presumptively” just. rawls, for instance, argues that inequalities in wealth are just only if they make everyone better off than they would be at a “benchmark of equality”. many luck egalitarians hold that distributive equality is the “moral default” and that departures from this default caused by brute luck2 are unjust while those produced by choice are just. though the idea that equality is presumptively just and that departures from it may be just has intuitive appeal, making a case for this idea proves difficult. in this paper i first show that extant “presumption arguments”, as i shall call them, are unsound. some of the arguments i canvas are given in a critical vein, so not in all instances do i make an original case against the presumption. the point of this canvasing is to demonstrate the difficulties besetting presumption arguments. second, i distill two general philosophical morals: luck egalitarians have not defended the presumption and they face serious obstacles in doing so; rawls has, but only via the contract apparatus, which narrows the presumption’s appeal. third, i consider and reject two alternative ways of understanding the presumption of equality that might avoid the problems revealed by my examination of extant views. the first appeals to the idea of value pluralism. the second treats the presumption as a view about the burden of proof. i conclude that it is misleading to think of distributive egalitarianism as typically having the form of a presumption argument. 2. getting to and departing from equality here are the bones of the presumption arguments i will consider: 1. equality is presumptively just because it eliminates the inf luence of luck on distribution. departures produced by choice are just because they hold people responsible for their choices. 2. equality is presumptively just because it distributes the effects of luck equally. departures produced by choice are just because they hold people responsible for their choices. 1 i use “goods” here as a neutral term for whatever distribuenda particular theories endorse. 2 luck egalitarians distinguish between brute luck and option luck. see dworkin (1981: 293). throughout my discussion, i will use “luck” to mean “brute luck”. the presumption of equality 9 leap 6 (2018) 3. equality is presumptively just because it is demanded by the equal worth of persons. departures produced by choice are just because they hold people responsible for their choices, which is necessary for recognizing their capacity for agency. 4. equality is presumptively just because it contains no inequalities caused by morally arbitrary factors. departures from equality are just when and because they increase everyone’s wealth and maximize the wealth of the least wealthy. 5. equality is presumptively just because it contains no inequalities justified by morally arbitrary factors. departures from equality are just when and because they increase everyone’s wealth and maximize the wealth of the least wealthy. 6. equality is presumptively just because it is demanded by the equal worth of persons. departures from equality are just when and because they increase everyone’s wealth and maximize the wealth of the least wealthy. before outlining the arguments listed above, i must explain, in order to avert confusion, an idiosyncratic way in which “equality” is sometimes used by luck egalitarians. ronald dworkin (1981: 285-304), who is arguably the father of luck egalitarianism, maintains than an equal division of resources is not f latly equal but is, rather, one that meets the “env y test”. according to this test, a div ision is equal if no one prefers someone else’s bundle of resources – which includes both material goods and natural talents – to her own. this division, dworkin states, ensures that each person pays the cost to others of her choices and is, to that extent, just. one might think that changes over time to such an equal division are themselves just whenever people freely engage in production and exchange. however, dworkin argues, this is not the case, for some will confront good luck and others bad, in particular with respect to their mental and physical powers – some will, luckily, have highly marketable talents and others less marketable talents. because of the inf luence of luck, subsequent distributions will not be env y-free. dworkin argues that those who suffer bad luck are owed compensation via a tax and transfer system, which is based upon a hypothetical insurance market, the details of which need not detain us. the point is that such a system is necessary to ensure that the distribution of resources in a market economy remains env y-free and, hence, equal and just. dworkin’s argument is not a presumption argument because equality of resources is not presumptively just on his view – it is just full stop. distributive justice is preserved, he thinks, so long as production and 10 cynthia a. stark leap 6 (2018) exchange continually produce distributions that meet the env y test. i assume that “equality” in the presumption arguments i discuss below refers to f lat equality and not to dworkinian equality because dworkinian equality is not, by the lights of luck egalitarianism, merely presumptively just. 2.1. eliminating the influence of luck susan hurley (2003: 146-58; see also eyal 2005) has proposed that luck egalitarians endorse the presumption of equality because they believe that an equal division eliminates the inf luence of luck on distribution, which is required by justice. they then endorse departures from this division that are produced by choice alone, as these inequalities hold people responsible for their choices, which is also required by justice. but, hurley notes, this argument does not work because an equal division of goods might also be a matter of luck. she reasons as follows. if we redistribute equally all the goods that people have acquired as a matter of luck, then what share people have is still a matter of luck, at least insofar as people do not have the share for which they are responsible. it follows that an equal division does not extinguish the effects of luck, it merely rearranges them. so, an equal division cannot stand as the moral default on the ground that it neutralizes the effects of luck. suppose that the luck egalitarian can, contra hurley, found the presumption of equality upon the demand to eliminate the inf luence of luck on distribution. in this case, the luck egalitarian would, nonetheless, not have a sound argument for the presumption of equality.3 this is because (re)distributing equally all the goods that people have gotten as a matter of luck would not create f lat equality. the resulting distribution would instead contain inequalities produced by choice; people’s shares would be composed of whatever goods they acquired through their choices and an equal portion of the luck-tainted redistributed goods. it is hard to see how this division should serve, for the luck egalitarian, (merely) as a moral default. by luck egalitarian lights, this division does not require departing from since it contains inequalities that are just, namely those caused by choice, and (ex hypothesi) it extinguishes the effects of luck. there are two problems, then, with founding the presumption of equality on the idea that this will neutralize the inf luence of luck. the first is that equalizing the goods gotten by luck does not necessarily eliminate the inf luence of luck. the second is that even if it did, equalizing the goods 3 though they would have a sound argument for dworkinian equality, in which case, they would not be making an argument for a presumptively just division, but for a just division. the presumption of equality 11 leap 6 (2018) gotten by luck does not produce equality overall. 2.2. equally distributing the effects of luck samuel freeman (2007: 120-21, 151; see also vallentyne 2003: 170, 177) has defended the luck egalitarian against hurley’s charge by suggesting that the luck egalitarian is justified in demanding that the inf luence of luck be equalized. if we assume, he says, that everyone’s natural endowments are equally a matter of luck, then a principle of equity requiring us to treat like cases alike enjoins us to distribute the goods produced by our natural endowments equally rather than to let them fall into the hands of people according to their particular talents.4 the default justice of equality is founded, then, not upon the aim to neutralize luck, but rather on the demand to distribute the effects of luck equally.5 the problem with this amendment is that it does not address the second of the two problems identified above. redistributing the effects of luck equally does not produce a f latly equal distribution. it produces one in which the goods initially acquired by luck are distributed equally and the goods attributable to people’s choices are distributed unequally. and so, according to luck egalitarianism, there is no obligation of justice to depart from this division. 2.3. equal moral status and responsibility for one’s choices critics of hurley claim that she proposes the luck neutralizing aim as a possible ground for the presumption of equality because she confuses the luck egalitarian demand to eliminate the effects of luck on inequality with a demand to eliminate the effects of luck on distribution (vallentyne 2003, 2006; lippert-rasmussen 2005; cohen 2006; segall 2012). for luck egalitarians, what should be neutralized is not the effects of luck but rather the differential effects of luck. it follows that if equality were caused by luck, it would not be unjust on that ground. in this sense, equality has a special status for luck egalitarians: it is immune from moral condemnation 4 presumably this argument would hold mutatis mutandis for other instances of luck that tend to affect people’s distributive shares, such as their class position at birth, their health, etc. 5 cohen (2006: 445) holds a similar view, although he does not offer it as an argument for an egalitarian default. he says, “[s]uppose…that we could divide goods up into those for which people are responsible and those for which they are not responsible. then…we might use only the goods for which people are not responsible as the currency of justice… if it is fair for people to keep, before any redistribution is set in train, what and only what they are responsible for, because they are responsible for it, then the same conception of fairness also requires that the rest be distributed equally, because to distribute otherwise is to benefit people in disaccord with their exercises of responsibility”. 12 cynthia a. stark leap 6 (2018) even if it is caused by luck. hurley calls this approach “the equality default view”, suggesting that this immunity is unfounded. kok-chor tan (2012: 89-90) counters hurley’s suggestion by providing a sketch of an argument for the presumption of equality and for departing from equality on grounds of choice. he reasons as follows: 6 1) persons have equal moral worth as agents. 2) therefore, distributive equality is the “moral default”: it is the distribution from which departures must be justified. 3) departures from equality are justified when they are expressions of agency. 4) therefore, departures produced by choice are justified. 5) “distributive arrangements” that ref lect luck and not choice fail to treat people as moral equals. 6) therefore, distributions that ref lect luck and not choice are unjustified. as it stands, this argument is invalid: given that equality is a distribution that ref lects luck (barring very unusual circumstances), it would, by the lights of this argument, be unjust and so it cannot be presumptively just. however, this version of the argument makes hurley’s mistake. it treats distributions as such, rather than unequal distributions, as susceptible to the luck egalitarian criterion. this problem can be solved with the following changes: 1) persons have equal moral worth as agents. 2) therefore, distributive equality is the “moral default”: it is the distribution from which departures must be justified. 3) departures from equality are justified when they are expressions of moral agency. 4) therefore, departures produced by choice are justified. 5) departures from equality that ref lect luck and not choice fail to 6 tan (2012: 89-90) claims that he is not in fact arguing for the egalitarian default. he says, “[i]n explicating what i take to be the implicit starting point of luck egalitarianism, that of equal moral agency and how that ideal is interpreted to support equal distribution as a default independent of luck but subject to choice, i have not provided any argument for it. i take this ideal of equal moral agency and its egalitarian entailment to be a basic and starting intuition common to most accounts of luck egalitarianism”. the presumption of equality 13 leap 6 (2018) treat people as moral equals7. 6) therefore, departures that ref lect luck and not choice are unjustified. this version of the argument is valid but not sound. the ultimate reason for this is that the same principle that grounds equality also grounds departing from equality to inequality caused by choice. so, the argument provides no grounds for departing (or not departing, for that matter) from equality. to see this, notice that the equal worth of persons does not entail distributive equality. in fact, the equal worth of persons is compatible with a number of distributions, including a winner-take-all lottery, the division that recognizes persons’ rights of self-ownership, and the division in which each gets what he deserves. indeed, tan’s argument implies that the equal worth of persons is also compatible with the ultimately just distribution to which he believes we should depart. this is because, given that luck and choice exhaust the possible cause-types of inequality, premise 5) entails that inequalities caused by choice treat people as moral equals. so, both equality and inequality caused by choice have the virtue of treating people as moral equals. however, if both distributions recognize persons’ equal moral worth, it is not clear, without further argument, why one is merely presumptively just while the other is completely or ultimately just. perhaps the further argument runs as follows: even though an equal division and an unequal division caused by choice both treat people as moral equals, the latter has the additional virtue of recognizing people’s moral agency. so, an unequal division caused by choice is, in the end, just. the problem with this suggestion is that if recognizing people’s agency is a distinct virtue from recognizing their moral equality, then it is not clear how departures from equality caused by luck fail to recognize people’s moral equality, as tan proposes. indeed, it turns out that they do this by ignoring people’s moral agency. tan (2012: 89) states, “[f ]or luck egalitarians, a distributive arrangement that ref lects not agents’ free decisions and choices, but the circumstances that are forced on them, such as their good or bad luck, fails to treat them as moral equals”. the manner in which departures produced by choice succeed in treating people as moral equals, then, is by recognizing their moral agency and the manner in which departures produced by luck fail to treat people as moral equals is by ignoring their moral agency. so, in the end, that it treats people as moral equals is what justifies equality as the default and what justifies departures 7 insofar as lotteries treat people as moral equals, this claim is false. lotteries are not, as such, matters of option luck. they are only so if one has a choice about whether to enter them. if the state were to distribute the fruits of cooperation, say, each year, by a winner-takes-all lottery, the outcome would be a matter of brute luck and it would treat people as moral equals insofar as everyone had the same odds of winning. 14 cynthia a. stark leap 6 (2018) from equality that are traceable to choice. thus, the puzzle of why inequality based upon choice is preferable to equality remains. (one might wonder, at this point, how it is that equality treats people as moral equals given that it fails to recognize people’s moral agency due to its lacking inequalities caused by choice. i believe the luck egalitarian answer must be this: the egalitarian moral default is immune from any condemnation that appeals to what causes it: it is not unjust even if caused by luck (as we saw above) and it is not unjust even if caused by a failure to incorporate choice.8) to summarize, then, the problem with tan’s approach is that because the same principle grounds both the default and departures from it, there is no reason to think of the default as merely presumptively just and departures based on choice as just full stop.9 2.4. morally arbitrary factors and mutual benefit another presumption argument can be found in brian barry’s interpretation of an argument given by john rawls that g.a. cohen calls “the pareto argument for inequality”. cohen contends that this argument, which is not only reconstructed but also endorsed by barry, is in fact internally inconsistent (rawls 1971: 60-75; barry 1989: 213-34; cohen 2008: 87-97, 151168; see also cohen 1995 and shaw 1999). some background: rawls offers the pareto argument, which is distinct from his well-known social contract argument, to support the “difference principle”. the difference principle governs the distribution of income and wealth and says that only inequalities that benefit everyone and maximize the income of the worst off are just. the argument identifies an equal division as a presumptively just “benchmark” and states that we should depart from this benchmark only when inequalities fulfill the difference principle. rawls assumes, in this argument, that there may exist strong pareto improvements on equality so that it will be possible to increase the income of everyone if inequality is permitted. he assumes this on the ground that the sum total of wealth may be greater when inequality is permitted because these inequalities provide incentives for people to work more, or at harder tasks, than they would under equality. rawls’s aim in the pareto argument is to single out the difference principle as the pareto improvement on equality that qualifies as just. though the reasoning is somewhat 8 for discussion, see segall (2016: 48-73). 9 a related issue is whether the two “conjuncts” of the luck egalitarian ideal can be grounded in the same principle. these are the claims that departures produced by choice are just and that departures caused by luck are unjust. see sher (2014: 2-19). the presumption of equality 15 leap 6 (2018) murky, it is clear that the idea that people’s natural talents are “arbitrary from a moral point of view” and hence should not “improperly inf luence” their incomes figures prominently. according to the barry/cohen interpretation, rawls founds the benchmark of equality upon the morally arbitrary status of natural talents and he founds the difference principle upon the irrationality of prohibiting mutually beneficial inequalities. rawls’s reasoning for the benchmark, on this account, is as follows: inequalities in wealth that have morally arbitrary causes – including those caused by differences in natural talent – are unjust. therefore, an equal distribution of wealth is prima facie just.10 cohen identifies a problem with this inference: a division lacking inequalities with morally arbitrary causes will nonetheless contain inequalities with morally non-arbitrary causes (which, as cohen sees it, are inequalities caused by choice). so, prohibiting inequalities caused by something morally arbitrary does not produce equality. so, it looks like the benchmark of equality cannot be grounded on the claim that inequalities with morally arbitrary causes are unjust. cohen concludes from this problem with barry’s reconstruction not that the reconstruction is wrong, but that rawls must hold that differences in income caused by choice are not inequalities. so, the benchmark, cohen says, is, for rawls, not a f latly equal distribution. (as odd as this idea might seem to a rawlsian, the notion that a division containing differences in shares produced by choice is an equal division has a precedent in luck egalitarianism, as we saw above. this may explain cohen’s willingness to regard rawls’s benchmark of equality as containing choice-produced differences in shares.) rawls reasons further, according to this interpretation, that it would be irrational to settle for equality if there exist (strongly) pareto superior unequal distributions – unequal distributions, that is, that benefit everyone. of these distributions, the one that maximizes the income of the least well off – who have (again, as this interpretation goes) the strongest complaint against inequality – is just. hence the difference principle is just. cohen maintains that rawls’s case for the benchmark undermines his case for departing from it. if the benchmark is prima facie just on the ground that it contains no income inequalities with morally arbitrary causes, and if, as rawls concedes, income differences that maximize the income of the least wealthy are caused by differences in natural talent, 10 this is cohen’s terminolog y. rawls himself does not refer to the benchmark of equality as “prima facie just”. 16 cynthia a. stark leap 6 (2018) then the inequalities sanctioned by the difference principle are unjust. in other words, if equality is prima facie just on the ground that it is devoid of inequalities with morally arbitrary causes, then a pareto improvement on equality that contains inequalities with morally arbitrary causes cannot be all things considered just. cohen’s observation about rawls argument is, though, trivial given the way in which he sets the argument up. because differences in shares of wealth with morally non-arbitrary causes are, by definition, not inequalities, then inequalities are, by definition, differences in shares with morally arbitrary causes. so, on cohen’s account, rawls’s argument for the benchmark amounts to the claim that equality is just because it contains no inequalities. naturally, any departure from the benchmark would be unjust on this account. only if the benchmark is f latly equal and all differences in shares, regardless of their cause, count as inequalities, does cohen’s objection have force. for in this case, it would be a substantive claim to say that the difference principle is inconsistent with the justification for the benchmark on the ground that the difference principle allows inequalities that have morally arbitrary causes. in summary, then, there are two problems with rawls’s argument as cohen interprets it (via barry). the first is that eliminating inequalities with morally arbitrary causes does not in fact produce equality. the second is that if eliminating inequalities with morally arbitrary causes did (somehow) produce equality, the ideal justifying equality would be violated by departures to the difference principle. there is a way of avoiding this second problem, cohen says, but it ends up vitiating the case for the benchmark. suppose we interpret rawls as claiming not that morally arbitrary causes make inequalities unjust but that morally arbitrary causes cannot make inequalities just. if this is the case, then, departures from the benchmark to the difference principle are indeed just: though the inequalities allowed by the difference principle are caused by differences in natural talent, they are not justified by their being so caused. they are justified by the fact that they maximize the wealth of the least wealthy. however, cohen argues, this approach provides no ground for the benchmark of equality. if what makes a distribution prima facie just is that it contains no inequalities justified by their morally arbitrary causes, then equality is not the only distribution that can stand as a benchmark. indeed, the principle of utility, cohen says, can be the benchmark on this account, for it justifies inequalities on the ground that they are necessary to maximize the sum total of goods. so, on this second reconstruction of the pareto argument, cohen claims, departures from the benchmark of the presumption of equality 17 leap 6 (2018) equality to the difference principle are justified but the benchmark itself is not. however, the problem is not merely that the ideal justifying equality does not single out equality as the benchmark, as cohen observes, it is that the difference principle can also qualify as the benchmark since it shares the virtue of containing no inequalities justified by the morally arbitrary. as cohen sets up this second version of the pareto argument, it seems that there is no reason to prefer departures from equality to equality, as long as those departures contain no inequalities justified by their morally arbitrary causes, because it is sufficient for qualifying as just (albeit, prima facie just) that a distribution contains no such inequalities. this would make the problem with the second pareto argument similar to the problem with tan’s account. on his view, recall, the same principle – the equal worth of persons – justifies both equality and departures from it and, therefore, there is no reason to see one distribution as presumptively just and the other as fully just. on this second pareto argument, separate principles justify equality and inequality: equality is justified by the fact that it contains no inequalities justified by something morally arbitrary and inequality is justified by the ideal of mutual benefit. hence it is not as clear as it is on tan’s account that there is no reason to see an equal division as presumptively just and see the proposed departure from equality as ultimately just; perhaps the ideal justifying inequality can defeat the ideal justifying equality. yet the second pareto argument is vulnerable to tan’s problem, but for a different reason. the reason is that what makes equality just is the same thing that makes departing to the difference principle just: the absence of inequalities justified by their morally arbitrary causes. indeed, that the difference principle shares the just-making property of equality is what keeps the second pareto argument from making the mistake of the first pareto argument. what we learned from that argument was that in order for a departure from equality to be just, the departure distribution cannot violate the principle that justifies the equal division. so, if equality is just because it contains no inequalities justified by the morally arbitrary, then the just unequal division must also contain no inequalities justified by the morally arbitrary. (if it contained such inequalities it would be unjust.) it follows that, on the second pareto argument, it is not obvious how we can distinguish, from the point of view of justice, between the benchmark of equality and the difference principle because they both contain a property that is sufficient for making them just. hence the second pareto argument, like tan’s argument, appears not to be able to explain why equality is merely presumptively just while the proposed departure from equality is 18 cynthia a. stark leap 6 (2018) ultimately just. however, cohen’s second pareto argument may be salvageable on grounds not available to tan precisely because separate principles are invoked to justify the benchmark and difference principle inequality. perhaps the argument cohen has in mind is this: equality is, let us say, sufficiently just because it contains no inequalities justified by differences in natural talent, and so no inequalities justified by something morally arbitrary. difference principle inequality is more just than equality because it also contains no inequalities justified by something morally arbitrary and, on top of that, it is mutually beneficial relative to equality. (another option would be to say that difference principle inequality is not more just than equality but is in some other way morally preferable. this interpretation is suggested by barry’s claim that it would be irrational to insist on equality if mutually beneficial inequality that maximally benefits the worst off is available.) on this interpretation, then, the second pareto argument is stronger than tan’s argument but it is not immune from cohen’s original criticism of that argument, namely, that other divisions (besides equality) that lack inequalities justified by something morally arbitrary (though not the division to which we should depart) can qualify as the benchmark. 2.5 equal moral standing and moral arbitrariness a further problem with the first version of the pareto argument outlined above is not noticed by cohen. it is that if the benchmark of equality contains inequalities produced by choice, as cohen claims it must, it is unclear why strong pareto improvements on equality might be possible and it is unclear why departing from equality is required to avoid leveling down. after all, if people already have different shares of wealth at the benchmark that are produced by their choices about work, they do not need the promise of incentives inequality in order to work harder. the incentives inequality is already present at the benchmark. this observation suggests that the barry/cohen account of rawls’s presumption argument the presumption of equality 19 leap 6 (2018) is incorrect.11 so, i offer below an alternative account of rawls’s argument for the benchmark of equality. however, before outlining that account, which is different in its structure from the arguments i have thus far examined, let me identify three general desiderata for constructing presumption arguments that can be gleaned from the analysis above. it turns out that these cannot be simultaneously fulfilled, so presumption arguments must have a different structure than those discussed above. 1. the thing that allegedly produces and justifies equality must actually produce equality. otherwise genuine equality is not the default, and in some cases, it is not clear why the alleged default requires departing from. 2. the thing that produces and justifies equality must entail equality. otherwise, it is not clear why equality is the default, rather than some other distribution, including in some cases, the distribution departure to which is recommended. 3. the unequal departure distribution must fulfill the principle that justifies equality. otherwise, that distribution cannot be just. the second two of these cannot be mutually satisfied. if what justifies equality entails it, then no departures can be justified. and if what justifies equality does not entail it, then departures can be justified, but equality is not uniquely justified as the default. as we will see below, this problem is traceable to the following feature of the above arguments: the presumptive justice of equality and the ultimate of justice of inequality are thought to hold in all circumstances. rawls’s pareto argument, though not sound as it stands, avoids this problem. it runs (as i interpret it) as follows: 1) persons have equal moral worth. 2) therefore, an equal division stands as a “benchmark for measuring improvements”. 3) suppose strong pareto improvements on equality (e.g., unequal 11 the idea that the moral arbitrariness claim is deployed by rawls in the argument for the benchmark is not well supported by the text of the pareto argument. but it may be supported by rawls’s reason for rejecting the bargaining theorist’s use of the nonagreement point as the “status quo”: “[i]t is to avoid the appeal to force and cunning that the principles of right and justice are accepted. thus, i assume that to each according to his threat advantage is not is not a conception of justice. it fails to establish an ordering in the required sense, an ordering based on certain relevant aspects of persons and their situation which are independent from their social position and their capacity to intimidate and coerce”. rawls says, further, in a footnote to this passage, “[w]hat is lacking is a suitable definition of a status quo that is acceptable from a moral point of view. we cannot take various contingencies as known and individual preferences as given and expect to elucidate the concept of justice (or fairness) by theories of bargaining. the conception of the original position is designed to meet the problem of the appropriate status quo” (1971: 134). 20 cynthia a. stark leap 6 (2018) distributions that increase everyone’s share) are possible. 4) then, of the two main candidates for the just strong pareto improvement – laissez-faire and the difference principle – the one that minimizes the inf luence of morally arbitrary factors on people’s income shares is just. 5) the difference principle minimizes the inf luence of morally arbitrary factors on people’s income shares. 6) so, the difference principle is just. this is merely a skeleton of rawls’s account, but the details are not important for assessing its form qua presumption argument. i wish to make two points about its structure. the first is that, as in tan’s case, the second premise does not follow from the first without further argument. as i have already observed, many distributions can be grounded in the equal standing of persons. indeed, if this were not case, there would be little disagreement among theorists of distributive justice. the second point about the structure of rawls’s argument concerns the status of the presumption. the sense in which equality is presumptively just is that it is just unless inequality can be mutually beneficial (rawls 1971: 62,76; see also cohen 2008: 156-60). for rawls (1971: 78), it is an open question as to whether or not this is the case. the answer depends upon the plausibility of certain economic theories and on controversial ideas about human motivation – for instance, the claim that people, as a rule, will work less hard in the absence of incentives to acquire extra wealth.12 at the end of the day, for rawls, whether or not equality or the difference principle is just depends on the circumstances.13 for this reason, an entailment relation between the justifier of equality and equality, which rawls does not provide and which is necessary to single out equality as the benchmark, does not prevent departures: we can say that justice demands equality, and only equality, in some circumstances and it demands a departure from equality in others. compare this approach to tan’s. on his account, both equality and inequality generated by choice are just (in the way in which they are just) in any circumstance. the difference is in the way in which they are just – presumptively or ultimately. this gives us a clue as to how we might salvage tan’s argument. it can be reinterpreted to have the same structure as rawls’s.14 this interpretation 12 for criticism, see cohen (1997). 13 for discussion, see cohen (2003). 14 thanks to christopher wellman for pointing out that the luck egalitarian argument might have this structure. the presumption of equality 21 leap 6 (2018) solves the main problem with tan’s view, which is that because the same principle grounds both equality and choice-generated departures from it, there is no reason to treat equality as merely presumptively just and departures generated by choice as ultimately just. if circumstances change, however, then the same grounding principle might entail a different distribution. it might be that equal moral worth demands equality if choices do not produce inequality and otherwise demands inequalities produced by choice. nevertheless, it is unlikely that this interpretation is what luck egalitarians have in mind when they invoke the presumption, because it commits them to the idea that it is an open question as to whether or not choice will produce inequality. but there are strong reasons to think that inequalities produced by choice are simply inevitable. this is because differences in shares based upon choice depend, not on complex theoretical claims or controversial empirical claims, but on nothing more than the laws of physics: if you and i have the same capabilities and are gathering nuts in the same place, if i choose to gather for ten minutes and you choose to gather for twenty, you will (ceteris paribus) have more nuts than i. if inequality produced by choice is inevitable, then it is implausible to treat the presumption as endorsing equality on the condition that choice might not produce inequality. to summarize, then, rawls’s pareto argument contains a plausible justification for departing from equality, to the extent that that departure precludes levelling down. (one may not agree with his account of which unequal distribution is just, but the idea that mutually beneficial inequality is, at least pro tanto, preferable to equality is reasonable.) however, rawls’s account fails insofar as it does not single out equality as the just benchmark. we can now draw two general conclusions about presumption arguments. first, luck egalitarians have not successfully defended the presumption of equality, because their distinction between presumptively and ultimately just describes two different ways in which distributions are just, rather than two different circumstances under which distributions are just. they are therefore vulnerable to the dilemma identified above: whatever justifies equality must entail it, or else equality is not uniquely justified, but if it does entail it, all departures are precluded. second, rawls (1971: 118-83) is entitled to the presumption of equality, but the pareto argument does not do the necessary work. in order to move from the claim of equal moral standing to the benchmark, rawls needs the contract argument. in this argument, he models the equal standing of persons in his description of the parties to the contract and in his description of the hypothetical circumstances (the “original position”) in 22 cynthia a. stark leap 6 (2018) which the parties deliberate about the distribution of wealth (among other “primary social goods”). the parties would opt for equality he argues, given their equal claim to social goods (derived from their equal status) and their lack of knowledge of their particular capabilities, unless they can all have more under inequality. in this case, rawls argues, they would opt to maximize the wealth of the least wealthy, given their inability to predict their ultimate place in the distribution of wealth. while this approach arguably supplies a justification for equality as the benchmark (and, indeed, a justification for departing to the difference principle) it is controversial qua hypothetical consent argument.15 one last consideration: perhaps there are alternative ways of understanding the presumption of equality that i have not considered. below, i brief ly discuss two. i argue that neither is a strong candidate. 3. value pluralism the idea of value pluralism is frequently invoked by egalitarians, especially luck egalitarians.16 this doctrine says that equality is one among many values that bear upon the assessment of distributive arrangements.17 one proposal is that the presumption of equality is simply an expression of the notion of value pluralism. to say that an equal distribution is presumptively just is simply to say that, while there is something to be said for equality in assessing distributive arrangements, there is something to be said for other values as well and that these values permit or require deviations from equality. the presumption of equality, then, simply expresses the sensible view that equality is not the only thing that matters. but notice that this way of putting the point presupposes the idea that 15 for discussion, see dworkin (1975); stark (2000); enoch (2017). 16 larry temkin (2003: 63), for example, says, “any reasonable egalitarian will be a pluralist. equality is not the only thing that matters to an egalitarian. it may not even be the ideal that matters most. but it is one ideal among others that has independent moral significance”. see also, temkin (2002); parfit (2002); segall (2007); eyal (2007); cohen (2008: 4). 17 there are several notions of value pluralism proposed by egalitarians and several contexts in which value pluralism is said to apply. some theorists, such as temkin, parfit and cohen, hold that equality is one among many values bearing upon the goodness or the badness of a distribution. others, such as segall, hold that distributive justice (understood as the fulfillment of the luck egalitarian ideal of equality) is one among many values bearing upon the justice of the design of social institutions. segall holds, further, that justice is one among many values bearing upon the morality of institutional design. another view, advanced by eyal, claims that luck egalitarian equality is one among many values bearing upon both the moral and non-moral goodness of a policy of compensating victims of bad luck. (see the references in the previous footnote.) the presumption of equality 23 leap 6 (2018) equality has a special status. the proposal states that because equality is not the only thing that matters, we are sometimes justified in departing from it. but that assumes that equality has some sort of priority – it is the division that other values might justify deviating from. if equality really were simply one among many values pertinent to distributive ethics, then there are no grounds for positioning it as the distribution that other values might defeat. on a genuinely value pluralist view, we would take equally into account the ideals of, say, utility, mutual benefit and equality.18 that is to say, we would not assign a special weight or status to any of these values. a genuinely pluralist approach, then, represents an alternative to the idea that equality is presumptively just. hence this approach cannot stand as an interpretation of the presumption. 4. the burden of proof another way to interpret the notion that distributive equality is presumptively just is as a claim about the burden of proof: the burden of proof, the argument goes, is upon those favoring an unequal division and not upon those favoring equality. equality simply requires no justification.19 as a preliminary point it is worth noting that as a matter of social practice, the burden of proof tends to be assigned simply to those who hold the more unusual view. for instance, vegetarians are often expected by meat-eaters to justify their refraining from eating animals, where meat-eaters generally do not see themselves as owing anyone a justification for their practice, in spite of the fact that their practice is arguably more harmful. though most people may not believe in distributive equality, most political philosophers do.20 yet this would surely be a f limsy ground for assigning the burden of proof to the non-egalitarian. so, let us assume that claims about the burden of proof can stand on sturdier ground than the mere prevalence of a view. to assess the idea that distributive equality demands no justification let us compare that claim to some views about the burden of proof that are widely accepted. one such view is the legal presumption of innocence in some systems of criminal law. another is the idea that the atheist is not required to disprove the existence of god in order to be justified in believing that god does not exist. the notion that the burden of proof falls upon those who support distributive inequality, i argue, is relevantly different from these two cases. 18 see parfit (2002: 87-88.) 19 thanks to david rondell for proposing this interpretation. see gosepath (2011); wollheim and berlin (1955-56). 20 many theorists of distributive justice are either rawlsians or luck egalitarians. 24 cynthia a. stark leap 6 (2018) so, we have reason to doubt the claim that distributive equality demands no justification. i argue, further, that even if the presumption of equality were relevantly similar to the presumption of innocence, the idea that equality should be presumed just demands justification, for those who say that the accused should be presumed innocent can offer reasons for their view. yet providing a justification for the idea that distributive equality requires no justification is tantamount to providing a justification for the idea that equality should be presumed to be just. and, depending on how that argument goes, it will be subject to the pitfalls i identified above in arguments for the presumption. here is how the presumptive innocence of the accused differs from the presumptive justice of distributive equality: where the former is a strictly epistemic notion, the latter is not. the demand to presume the accused innocent says that we must treat the accused as though they are innocent until there is sufficient evidence of their guilt. that is, until we know whether or not they are innocent, we treat them as though they are. we are not required to believe that they are innocent, or, alternatively, we do not ascribe to them the property of being innocent. to presume that an equal division is just, however, is not to treat equality as though it is just until we have sufficient evidence to think it unjust. rather it is to say that equality is just, but that its justice can be defeated by other considerations. the presumption of innocence tells us what we should do when we do not know what to believe. the presumption of equality tells us what we should believe, namely that equality is just in a certain circumstance or that equality is initially just. even if i am mistaken about this difference, however, it seems reasonable for someone to demand reasons for assigning the burden of proof in a particular way. and, in fact, proponents of the idea that the burden of proof should be borne by the prosecutor to establish the guilt of the accused have offered reasons for their view. for example, one line of defense appeals to the serious harm of wrongful conviction. placing the burden of proof on the prosecution to establish the guilt of the accused tends to produce more improper acquittals than improper convictions. the improper acquittals are seen as the legitimate price of avoiding wrongful convictions given the power imbalance between the accused individual and the state and the serious consequences of wrongful conviction. another view, proposed by hamish stewart (2014: 410), is that the accused have a right to be presumed innocent simply in virtue of being persons. the basic idea is that the moral status of persons includes being “without reproach”; it includes the right to not be “…found to have done wrong merely on the basis being a person”. therefore, to judge someone the presumption of equality 25 leap 6 (2018) legally in the wrong that person must have done something legally wrong. so, persons have a legal right to be presumed innocent until proven guilty. the continuity between this argument and both tan’s and rawls’s arguments for the presumption of equality is striking and lends credence to the notion that the presumption in favor of distributive equality must itself be justified; it is not adequate to simply assert that distributive equality needs no justification. the idea that the burden of proof falls upon the theist is similar in one respect to the idea that the burden of proof falls upon the non-egalitarian. both are views about what one should take to be true. one should believe that god does not exist in the absence of evidence that he does exist and one should judge equality to be just in the absence of reasons that it is not just. however, the case involving god’s existence hinges on the fact that the theist formulates the thesis that god exists in way that ensures that it cannot be disproved and then claims that the fact that god’s existence cannot be disproved justifies belief in god. this is the point of russell’s teapot analogy. russell says that if he were to claim that a china teapot, too small to be detected by the most powerful telescopes, is orbiting the sun, it would be ludicrous to claim that the teapot non-believer must disprove the existence of the teapot in order to be justified in believing in its non-existence.21 the dis-analogy between this case and the presumption of equality is plain. the theist says that because we cannot prove the non-existence of a thing the non-existence of which is virtually impossible to prove we must believe in the existence of that thing. this is indeed a strong reason for thinking that the burden of proof does not rest upon the atheist. yet no such sleight of hand is present in the case of the presumption of equality. we cannot say that the burden of justification falls upon advocates of distributive inequality because those individuals have formulated their account of distributive justice in such a way that there are no reasons that count against it and then claim that egalitarians must accept their view on the ground that they (egalitarians) can provide no reasons against it. so, just as the presumption of equality is not analogous to the presumption of innocence, it is likewise not analogous to the presumption of the non-existence of god. 21 to this, theists claim that absence of evidence is not evidence of absence – even if evidence cannot be provided for the existence of something it might still exist. and, moreover, theists say, the basis for their belief in god is not the absence of evidence for his non-existence but rather evidence for his existence. just as there is evidence that there is not a china teapot orbiting the sun, there is evidence that there is a god, for the postulate that god exists can explain e.g., the origins of universe, the complexity of life on earth and so on. to this the atheist replies that the things that the postulate allegedly explains can be explained without the postulate. 26 cynthia a. stark leap 6 (2018) 5. summary the idea that distributive equality enjoys a special status such that departures from it require justification is indeed attractive. it allows us to endorse equality, in some sense, and, at the same time, avoid some major criticisms of equality, including the claim that it requires levelling down or fails to hold people responsible for their economic choices. nevertheless, characterizing this special status and showing how it can be overridden or defeated proves difficult. i argued above that despite their endorsement of the presumptive justice of equality, luck egalitarians have not successfully shown equality to be presumptively just. this failure is due to the structure of their presumption arguments. in order to assign a special status to equality, then, luck egalitarians must fashion an argument that takes a different form. rawls, on the other hand, can assign a special status to equality. its special status takes this form: it is the just division if, as a matter of fact, inequality does not increase the social pie in a way that benefits everyone. otherwise it is unjust and the mutually beneficial division that maximizes the wealth of the least wealthy is just. to make this case, however, rawls cannot rely upon the pareto argument alone because that argument does not explain why equality stands as a benchmark. it explains only why departing from the benchmark to the difference principle is justified. rawls must rely on the social contract argument to justify the special status of equality: equality is the benchmark because it is what people who know nothing of their natural talents and initial social position would choose (unless mutually beneficial inequalities are an empirical possibility). a weakness of rawls’s approach is that it is limited in its appeal, given the controversial nature of social contract arguments. bibliography barry, b., 1989: theories of justice, berkeley: university of california press. cohen, g.a., 1995: “the pareto argument for inequality”, social philosophy and policy 12: 160-85. — 1997: “where the action is: on the site of distributive justice”, philosophy & public affairs 26: 3-30. — 2003: “facts and principles”, philosophy & public affairs 31: 211-45. — 2006: “luck and equality: a reply to hurley”, philosophy and phenomenological research 72: 439-46. — 2008: rescuing justice and equality, cambridge, ma: harvard university press. dworkin, r., 1975: “the original position”, in reading rawls, ed. n. daniels, 16-53, stanford: stanford university press. the presumption of equality 27 leap 6 (2018) — 1981: “what is equality? part 2: equality of resources”, philosophy & public affairs 10: 283-345. enoch, d., 2017: “hypothetical consent and the value(s) of autonomy”, ethics 128: 6-36. eyal, n., 2005: “review: justice luck and knowledge”, economics and philosophy 21: 164-71. — 2007: “egalitarian justice and innocent choice”, journal of ethics and social philosophy 2: 1-18. freeman, s., 2007: justice and the social contract: essays on rawlsian political philosophy, oxford: oxford university press. gosepath, s., “equality” the stanford encyclopedia of philosophy (spring 2011 edition) e.n. zalta (ed.), url = <http://plato.stanford.edu/archives/spr2011/entries/equality/>. hurley, s., 2003: justice, luck and knowledge, cambridge, ma: harvard university press. lippert-rasmussen, k., 2005: “hurley on egalitarianism and the luck-neutralizing aim”, politics, philosophy and economics 4: 249-65. parfit, d., 2002: “equality or priority?”, in the ideal of equality, ed. m. clayton and a. williams, 81-125, new york: palgrave macmillan. rawls, j., 1971: a theory of justice, cambridge, ma: harvard university press. segall, s., 2007: “in solidarity with the imprudent: a defense of luck egalitarianism”, social theory and practice 33: 177-98. — 2012: “why egalitarians should not care about equality”, ethical theory and moral practice 15: 507-19. — 2016: why inequality matters: luck egalitarianism, its meaning and value, cambridge: cambridge university press. shaw, p., 1999: “the pareto argument and inequality”, the philosophical quarterly 49: 353-68. sher, g., 2014: equality for inegalitarians, cambridge: cambridge university press. stark, c.a., 2000: “hypothetical consent and justification”, journal of philosophy 97: 313-34. stewart, h., 2014: “the right to be presumed innocent”, criminal law and philosophy 8: 407-420. tan, kc., 2012: justice institutions and luck: the site, ground and scope of equality, oxford: oxford university press. temkin, l.s., 2002: “equality, priority and the leveling down objection”, in the ideal of equality, ed. m. clayton and a. williams, 126-61, new york: palgrave macmillan. — 2003: “equality, priority or what?”, economics and philosophy 19: 61-87. vallentyne, p., 2003: “brute luck equality and desert”, in desert and justice ed. s. olsaretti, 169-86, oxford: oxford university press. — 2006: “hurley on justice and responsibility”, philosophy and phenomenological research 72: 433-38. wollheim, r. and berlin, i., 1955-56: “equality”, proceedings of the aristotelian society, new series 56: 281-326. leap 6 (2018) two (different) types of human rights duty s a l a di n m eck l e d g a rci a university college london abstract in this paper i introduce a (new) distinction in human rights theory, between two types of genuine obligations corresponding to human rights: a) obligations that require us to rule out specific considerations for treating people in a certain way, such as the obligation not to consider jane’s skin color when deciding whether she should be permitted to enter a shop or the obligation not to take political expediency as a consideration relevant to whether political opponents should be silenced, and b) an obligation to give some weight to different interests: those interests people have in enjoying certain conditions and those of people who must carry burdens to create these conditions, when deciding what must be done for rights holders. for example, we must weigh the interest jane has in seeing certain improved access to secured health care versus the interests of other members of jane’s society in not facing significantly-increasing tax burdens, or seeing reduced social opportunities for their ends, as these will impact on their abilities to pursue their own personal life projects. both types of interest matter, so to resolve how much health provision jane is entitled to have we need to know how to weigh them against each other – we need an index. these different types of obligations, with their basis in different forms of reasoning, cut across categories of human rights and can both exist for any one human right. accepting the distinction means accepting that we must pay careful attention to how a human right is given content in the form of obligations. it also re-introduces conceptions of distributive justice as a necessary component in solving how conf licting interests should be weighed an “index” for such weighing. keywords: human rights; responsibilities; obligations; conf licting interests; weighing; categorical reasons; excluded reasons; distributive justice; fairness. d oi : 10. 310 0 9/l e a p. 2018.v6.0 6 two (different) types of human rights duty 93 leap 6 (2018) 1. introduction a slogan adopted by the united nations, echoing an account by henry shue, says that the duties corresponding to human rights are to “respect, protect, and fulfil” those rights (shue 1996: 52; cescr 1999a: s. 15; cescr 1999b: s. 46; cescr 2000: s. 33). this, of course, means the duties are to respect, protect, and fulfil people’s secure enjoyment of the content or objects of those rights as described in international instruments. however, a problem with these headings is that they do not explain how we should allocate the burdens of these different types of duties and justify the allocation for those that will execute them or bear the costs of their execution – ultimately the citizens of each society. in this paper, i introduce a different categorization of duties. this cuts across, rather than underpinning, traditional distinctions between types of human rights – such as civil and political (civpol) rights versus economic and social (ecosoc) rights, liberty rights versus benefit rights, or even rights with positive obligations versus those with negative obligations, distinctions that have been debated in the literature.1 this new categorization is not intended to map onto debates where authors defend or dispute that such distinctions exist or use a categorization to undermine the importance of any specific group of rights. instead, the argument lies within the sphere of genuine obligations. it neither challenges the existence of the two categories of obligations i set out, nor questions the rights to which they give substance. indeed, for many traditionally understood rights in either of the above civpol or ecosoc categories, both of my types of duty will apply. the point of the distinction i introduce is rather to help us think about what it means to satisfy obligations and when it is appropriate to satisfy an obligation in one way rather than the other. the distinction focuses practically on how to adjudicate or claim different elements of a right, given the different obligations it can imply. as will become clear, when i set out the two different types of duty, adjudicating what it means to act on these two types of duties or to breach them amounts to very different things, implying very different tests. the distinction i have in mind is between a) obligations that require us to rule out specific considerations for treating people in a certain way, such 1 the civil & politial v economic & social distinction is a de facto description of rights appearing in different instruments of the un bill of rights (iccpr v icescr); liberty v goods and benefits rights is a terminolog y introduced by onora o’neill (1996:131 ff.); negative v positive rights are discussed in (bedau 1979); and positive v negative duties later by shue (1996: 35 ff.); other attempts to distinguish human rights that are thought genuine from those that are not include the justiciable versus non-justiciable distinction, justice sachs (2000); see also christiansen (2007). 94 saladin meckled-garcia leap 6 (2018) as the obligation not to consider jane’s skin color when deciding whether she should be permitted to enter a shop or the obligation not to take political expediency as a relevant consideration to whether political opponents should be silenced; and b) an obligation to give some weight to different interests people have in enjoying certain conditions and those interests of the individuals who must carry burdens to create such conditions. for example, we must weigh the interest jane has in seeing certain improved access to health care secured versus the interests of other members of jane’s society in not facing significantly-increasing tax burdens, as these will impact on their abilities to pursue their own personal life projects.2 both types of interest matter, so to resolve how much health provision jane is entitled to have we need to know how to weigh them against each other – that is, we need an index. consider an example. in 2015, the government of greece was criticized review of the committee for economic social and cultural rights (cescr) of the un for failings in its ecosoc rights provisions, such as basic health provisions (cescr 2015: e.g., paras. 19 & 20). specifically, provision of health resources and access to them had been curtailed by government policy during an economic emergency, principally ref lected in a sovereign debt crisis. the greek government responded that it did not have the resources to keep those ecosoc provisions at the prior level given the conf licting priority of f loating the economy. critics of greece point out that it had options as to where to find resources to address the crisis: health provision was not the only one. it could have increased taxation of the aff luent instead as a concrete response that is more specific than the cescr’s chide that the government could “do more”. however, a question arises as to what the right way to understand the duty to fulfil the right might be, in terms of how burdens can be allocated to resource that provision without being unreasonable (imposing unacceptable levels of burden). answering that question, i will argue, requires us to adopt the second model of obligations (b) above in that it calls for an index in weighing different and conf licting interests none of which are disqualified as irrelevant considerations to what we should do. that is a different question from the categorical one of whether the greek government was appealing to unacceptable, irrelevant considerations, in distributing burdens the way it did. in part 2 below, i set out this distinction in types of duties more clearly. 2 throughout this paper i refer to “duties” and “justified burdens” as comprising the costs that people may have to shoulder to secure the satisfaction of certain interests for others. duties are just one type of burden, whereas lost opportunities (opportunity costs) involving no obligatory action are another, thus the need to specif y both elements. i also use duty and obligation interchangeably. two (different) types of human rights duty 95 leap 6 (2018) in 3, i focus on the second obligations model, underpinned as it is by reasons relating to how one should weigh competing but legitimate interests and which i call ‘weighing reasons’. in 4 i return to the other model of obligations, those based in what i call ‘decisive reasons’. in 5 i show why some key objections to this distinction between the two models and its application to human rights duties do not work. 2. the distinction another way to frame the distinction among types of duties i have in mind is in terms of reasons and actions.3 on the one hand, we consider a specific action type in terms of the considerations for it and whether there are reasons to rule out those considerations – and with them the action. this might also work with omissions where a specific action should not be omitted for certain considerations.4 the government omitting to distribute food aid because it does not want to develop an aid plan for the poor, viz. poor citizens will not generally bring electoral dividends, makes it wrongfully neglectful of those citizens. in such cases, we have reasons to rule out the consideration, the electoral calculations, supporting the omission and with it the omission itself.5 however, ruling out omissions requires ruling out the positive considerations entertained in favor of wrongfully omitting the action. on the other hand, we have reasons to give a certain weight to some considerations when determining what action should be carried out, given the different competing considerations. the proposal to increase contributions towards educational provision must be considered by weighing the benefits the provision brings to those who can access it against what it requires in burdens for those who must, say, be taxed to finance it. we do not have a categorical reason to provide a given amount of education for any person, in this case, until we have found a 3 for one theorist, a practical reason is something “that counts in favour of some attitude or action” (scanlon 2004: 231). for clarity in the text when referring to “reasons” i shall exclusively be referring to obligation-generating moral considerations, and by “considerations” i shall mean any candidate reasons (in scanlon’s sense), moral or nonmoral, for acting or omitting to act. 4 i make no fundamental distinction between actions and omissions (the failure to perform a given action) in this paper. one can have an obligation to perform specific actions as well as an obligation not to perform certain specific actions (to omit). 5 the idea that there are special moral reasons that indicate considerations we can disqualify or exclude as reasons in moral deliberation is present in a number of authors (dworkin 1984; waldron 2000: 302 ff.; dworkin 2010: 330). scanlon identifies a special brand of ‘complex reasons’: those reasons we have to not take certain other considerations into account. these can include reasons not to weigh or promote a given aim (scanlon 1998: 50 ff.). the general idea that moral reasons can ‘silence’ other considerations is present in john mcdowell (1998, originally published in 1978: see 92). 96 saladin meckled-garcia leap 6 (2018) justified way to weigh the different interests against each other and arrived at the amount that is mandated by this weighing. we can call the first kind of reasons “decisive”: decisive: no considerations within a range, r, such as considerations a, b, or c, etc., is admitted as a (pro tanto) reason in deciding how to treat someone. actions based on those considerations are ruled out. considerations can here include people’s interests, which can be disqualified as having no weight in our deliberations. for example, consider a state claiming an interest for itself or its citizens in allowing slavery to take place. that interest should be given no weight because it demeans and diminishes human beings, treating them as objects of ownership. weighing the interests of one group (the slavers) versus another (the potential victims) is itself decisively ruled out because of what the pro-slavery interest implies about other human beings.6 where we have reason to weigh interests against each other, we can call this “weighing”: weighing: for a range of beneficial outcomes o that persons might enjoy, such as p, q, r, etc., the securing of which depends on others persons limiting their enjoyment of a range of outcomes, s, such as t, u, v, etc., we must assign a certain weight to these outcomes such that we know how much curtailment of s-type outcomes it is justified to assign to those that will experience the curtailment, given the o-type outcomes this will produce. simply, “weighing” assigns obligations according to some idea of appropriate weighing and balancing between certain benefits for persons and those burdens required to produce/secure the benefits. i will come to what such weighing amounts to and how it might be done below. for now, consider that the fact that we can increase street lighting by 50%, and with it personal security by 5%, does not by itself tell us whether we should do so. first, we must look at the costs, in terms of lost opportunities or outcomes to others. a proposal to reduce road traffic speed limits down to 20mph on all roads, even if it improves safety outcomes gained, has to be weighed against the losses it would bring in many other areas of life; and that weighing, done right, might indicate that a global 20mph speed limit 6 by “interest” here i mean an element of people’s wellbeing, in the sense of what does or can make their lives go better if satisfied. some theorists claim that one cannot have an interest in unjust things, and that is why some “interests” do not count for the purpose of grounding rights (tasioulas 2015: 49). however, if we are justif ying human rights this would be circular, appealing to a right (justice) to explain a right. not only that, there is an important sense in which interests relate to a person’s life plans, even mistaken life plans, rather than what is good per se. two (different) types of human rights duty 97 leap 6 (2018) constitutes too much of a loss in ways that matter for people’s lives, even if it would avoid a certain amount of death-risk on the roads. the weighing must be done to determine what we should do. we would not, however, accept similar reasoning when considering killing of one’s unhelpful boss, say, such that we weigh the benefits to us against her personal losses, assign weights to each on some scale, and then calculate what to do. rather, entertaining that very calculation smacks of psychopathy – we have a compelling reason not to treat such considerations as operative reasons at all, because treating people as part of such a calculation is excluded by their status as persons. secondly, where weighing is appropriate we need to introduce a way to weigh the securing of this range of people’s interests given the costs of doing so to others. that might be done by introducing a certain index to do this weighing, such as that for every gain x, a certain amount or type of cost y is acceptable for others, but no more. i will shortly come to how to weigh. weighing reasons allow both that the amount of provision towards satisfying a given interest for each person is determined according to the fair burdens that can be imposed on others in providing it. it might also allow that the numbers of persons having access to that provision are also limited, according to the fairness of the required burdens, as where people in the worst conditions are prioritized given what can fairly be imposed in the form of taxes at a certain juncture. fairness is a value that itself needs setting out, and there are different accounts. some see fairness as equivalent to reciprocity, others to focusing on the least well-off.7 for now, i am using it to indicate what burdens people may be expected to accept given the benefits, where no reason exists to cancel out the burdens as a valid consideration in deciding the correct course of action. the question of how we should weigh costs against benefits works along both axes (individual provision/numbers of individuals provided for). i will leave open the question as to along which axis balancing is permitted, in the sense set out above. if one accepts a basic equality restriction that no person can receive less provision than any other – which would require a special justification – then only one kind of balancing will be permitted. i am also leaving aside the question of weighing or deciding what to do when rights themselves (as opposed to the interests underpinning rights claims) clash. for my case that two types of reasons exist it is enough that 7 w hilst rawlsian fairness may have started out as hartian reciprocity, it is not clear that rawls’ theory of distributive justice, and especially his “difference principle”, is a reciprocal version of fairness. the original position models fairness in terms of what people would reasonably accept as a potential outcome for them: “…the idea of fair terms of cooperation: these are terms each participant may reasonably accept, and sometimes should accept, provided that everyone else likewise accepts them.” (rawls 2001: 6). 98 saladin meckled-garcia leap 6 (2018) sometimes we must weigh competing interests and sometimes competing interests are silenced. decisive reasons are pro tanto moral reasons or obligations. that is, there may be circumstances where one is forced by other moral reasons or obligations to go against these reasons. that would not, however, be a case where the reasons were extinguished. so, suppose a police officer was forced to act in a racially discriminatory way in order to prevent a murder (thus mollifying the murderer until backup arrived): that would not render the reasons to not racially discriminate invalid in such a case. there are other overriding reasons all-things-considered take priority in these circumstances. this is important because the mere existence of potentially overriding reasons all-things-considered, as in the above example, does not turn all decisive reasons into weighing reasons. that would be the case if weighing reasons were only, or principally, triggered where we had to adjudicate between pro tanto obligations. but weighing reasons exist where no pro tanto moral obligations exist, mandating us to act, but where valid considerations are nevertheless weighed and balanced. no obligation survives this balancing or weighing, all-things-considered, and we wrong no one by fairly adjudicating between the competing interests. thus, consider the benefits of university education and the cost of taxes to provide it. if we decide on a certain amount of taxation, and resulting university provision is acceptable, we are not thereby deciding to breach a pre-existing pro tanto moral reason not to tax. the question of whether we should tax or not is always posed in relation to the benefits that might be derived from taxation. the interests people may have against taxing at this level may be outweighed by the interests in university provision. in which case, we would have a resulting reason to tax, which is a pro tanto reason, not a group of separate pro tanto reasons. the focus on disqualifying considerations in decisive reasoning may be thought to imply that reasoning is wholly about intentions, versus the objective features of the actions themselves; indeed that has been raised as an objection to one version of this approach (möler 2009: 762 ff.). the objection poses a dilemma: either we focus on subjective states in pursuing an action or we focus on objective reasons of the action. focusing on subjective states is problematic because we may be unable to determine them, and part of what one can acceptably intend will any way depend on what an action objectively does – intentions deriving their moral acceptability form the actions they intend. focusing on objective effects, however, will focus on how interests are affected and that goes beyond the specific reasons the agent may have for carrying out the action. for my purposes, here we can refuse the dilemma. the objection runs together two (different) types of human rights duty 99 leap 6 (2018) “intention behind” with “reasons for”. we can consider what can best explain the action in its context in terms of the considerations that might support it, the reasons for it, and decide from those if any could plausibly render the action permissible because they are not disqualified considerations but genuine reasons. indeed, some types of action are already differentiated by their inherent incorporation of a certain kind of purpose that can never be an acceptable consideration for acting. the action of enslaving a person inherently incorporates extreme purposes with regard to human instrumentalization such that they cannot be divorced from a proper interpretation of the action. below i will identify the kind of moral basis one might cite to exclude reasons of this kind; but for now, we can see that it is not the subjective intention, but the publicly defensible interpretation of an action and its plausible supporting reasons that matters for decisive reasons. now, it might be objected here that there are moral theories that not only permit weighing, but endorse it, in all cases, meaning the cases i have described as decisive are only ever provisionally decisive. some forms of consequentialism, such as those incorporating an unconstrained wellbeing-maximizing instruction, might indeed assign weights to the option of murdering my boss, as well as reducing speed limits on the road. they arrive at both conclusions about what can or should be done by weighing. a significant attraction in rights thinking, however, which is also present in the aspirations for human rights standards, is to limit that kind of reasoning. rights are seen variously as limits, side constraints, or as invoking interests that are “qualitatively” different from other interests that can be simply weighed against each other.8 how, or why, such qualitative limits exist depends on one’s theory of individual-centered imperatives, but one thing any such theory would need to do is explain certain considerations as peremptory, such that certain considerations, including those relating to satisfying other people’s interests, cannot count against them even in very large numbers. to do that, those other considerations must have a weighting of zero in confrontations with these interests. examples of such, pro tanto, weightless considerations would be justifying the political exclusion of others on the basis of race or the sacrifice a person’s life on the grounds that it brings satisfaction in terms of (whatever number of ) other people’s life projects. to be able to do this, we need a reason to set the relevant considerations to zero in these confrontations, and that kind of reason needs explaining beyond an appeal to an unexplained terminology of qualitative differences between 8 for latter see waldron (1989: e.g., pp. 509, 512, & 519). 100 saladin meckled-garcia leap 6 (2018) interests.9 if one accepts that there are such rights, then one needs that reason-based explanation. now, if this is right, it means that, whilst decisive reasons focus on what counts as an acceptable consideration for an action (or omission), weighing reasons are index-focused. they concern what should be weighed against what and on what basis, as an index for negotiating between different and valid competing interests, in order to arrive at normative conclusions about what can or should happen. decisive reasons are more straightforward. key human rights or basic rights include rights not to be arbitrarily detained, arbitrarily killed, tortured, or enslaved, for example.10 it is important to note that what is ruled out by such rights relates to certain types of treatment, distinguishable not simply by the interests that they affect, but also by the basis for the treatment. we must not simply look at the impact on certain interests of being detained to determine whether it is morally acceptable, but must also consider whether it is arbitrary: meaning there is no compelling reason for it. if the non-arbitrariness test is passed, then detention can be permissible. it is also possible that negative impacts on interests such as one’s interest in being free from coercive force, from having one’s bodily integrity attacked, or from having one’s life threatened are not by themselves the basis for ruling out certain actions. killing in self-defense, forcibly coercing a detainee to prevent them carrying out a crime or from escaping justice, would both seem to be compatible with human rights standards. killing for personal advantage, coercing someone with the aim of convenience, interfering with bodily integrity for material advantage or for no good reason, are all ruled out. with some human rights, the disqualified purpose is already built-into the description of the right. so, torture incorporates the purpose of using attacks on a person’s wellbeing (inf liction of grave pain) to either break their resolve in order to extract something from them against their prior conviction, such as information, punish them, or enjoy their suffering. slavery incorporates the notion of ownership or control such that one person’s exercise of her will in directing her life and person is subordinated to the aims of another. the attack on the interests in question, on being free from pain or being free from restraint or free to do as one wishes, is not by itself obviously prohibited. one might legitimately apply very serious pain to prevent an attacker harming another person, and that would not constitute a violation of a 9 waldron, for example, never explains the notion of ‘qualitatively’ different interests that he takes to underpin rights (op cit). 10 these are clear core candidates for moral human rights, also ref lected in international instruments (viz. iccpr 1966/1978: arts. 9, 6, 7, 8). two (different) types of human rights duty 101 leap 6 (2018) human right, even pro tanto. this indicates that it is the way that interests are attacked – on the basis of what consideration or purpose that this is done – that determines the acceptability of the actions. here, one could object that the interest in question is the interest in being free from slavery, for example, such that it is an attack on these and not the considerations behind the attack that matters. that way, the effect on interests, and not the reasons behind the action affecting them is what matters in explaining human rights obligations. but not only is this an ad hoc move, introducing sui generis interests identified by type of treatment; this response still needs to explain why some interests are special, in the sense of being capable of disqualifying other considerations and not merely outweighing them. the slave owner’s interest in holding slaves should have a weight of zero in deliberating on what to do if many slave owners are not to skew the figures on whether slavery is acceptable. in which case, we need a reason to disqualify them and the interest taken on its own will not explain that reason. it is worth emphasizing here that decisive reasons do not only exclude actions. their focus is on disqualifying certain types of considerations as relevant to deciding how to act. they can also disqualify consideration that apply to omissions – as when a government neglects the safety of its citizens. decisive reasons cut across negative-positive rights or even negative-positive duties distinctions because they are reasons to disqualify considerations; and they rule out actions or omissions in so far as they are supported by disqualified considerations. these can include considerations that fail to sufficiently take into account the effect of a policy on citizens, and thereby imply neglect of their interests. decisive reasons do not only apply to civpol rights as traditionally understood. they can apply to considerations in the way ecosoc rights are distributed. a state that prevents jay from accessing a hospital because of her race or gender, where the hospital is not dedicated to group-specific ailments, will thereby breach a decisive reason. such considerations are disqualified when determining how to distribute social goods. what decisive reasons cannot tell us is how to fairly determine the balance between interests, benefits and burdens when weighing these is appropriate, and consequently how much of a given social good is to be provided. that question concerns the correct index for weighing these interests against each other in determining what to do, implying a different kind of moral consideration. weighing reasons are more complex because considerations against providing certain outcomes for people can include interests that are not easily dismissed or disqualified as inherently invalid, yet do not themselves ground decisive reasons. so, for example, the human right to health or 102 saladin meckled-garcia leap 6 (2018) education are often taken as entitling people to fulfilment in the form of a certain amount of benefit provision in these categories of (health and education) interest (cescr 1999b: s. 47; cescr 2000: ss. 33, 36, 37, & 44; also bilchitz 2007: 195). but it cannot be the case that a person has a claim against grounding an unconditional duty for others to provide n amount of health provision or n* amount of educational provision, given that providing these requires those others to take on burdens to do so that would represent personal costs in pursuing life aims. consider a level of resource requirement, n, needed to achieve educational provision n, that imposes on fellow citizens a duty to give up pursuing any personal life aims not dedicated to advancing n, but instead to adopt life-shaping aims around achieving n. they would have to decide their career choices and personal goals in terms of a personal commitment to what better achieves n. achieving n might require citizens to further restrict their personal lives, limiting their friendships in number so as to maximize resource and time towards contribution. untrammeled, obligatory dedication to n would reach deep into their lives as separate persons that would otherwise be guided by a sense of their own projects and pursuits. these requirements are unreasonable in the sense of undermining one of the points of a liberal and egalitarian morality: individuals living the lives according to their values and best lights. unlimited instrumentalization should be an unreasonable demand, even for egalitarians.11 so, we need some clear sense of the limits of reasonableness. whilst many authors mention reasonableness as a limit, or concede that no “excessive”, “unreasonable”, or “overly burdensome” requirements can be expected, these views always leave the criteria for reasonableness or excessiveness un-specified. nor do they even supply a decision-procedure or principle that we might use to arrive at such an answer.12 in addition to reasonableness problems, there are also matters of fairness. demanding large contributions from some citizens, even if these demands are consistent with allowing them to choose and pursue personal 11 in the words of g. a. cohen, they would turn each person into an “engine for the welfare of other people” or “slaves to social justice”. cohen says that this requirement would be “excluded by a legitimate personal prerogative [that] grants each person the right to be something other” than this (cohen 2008: 10). 12 viz. whilst cohen, supra, accepts a balance between other-regarding contributions and a personal prerogative (11), but gives no indication on how to determine the proper and just balance between the two (other than to claim we intuitively understand it [6 ff. and 354 ff.]). other examples of accepting limits but giving no account include buchanan (2004: 89, 92, 94 n.8), stemplowska, who concedes duties to provide resources apply “if such resources can be provided at a reasonable cost to the provider”(stemplowska 2009: 468), and gilabert, who also acknowledges there are limits to contribution but gives no account of those limits (gilabert 2012: 47). two (different) types of human rights duty 103 leap 6 (2018) aims, can still be unfair. that is because one can ask whether allowing the burdens to fall unevenly on some citizens treats those citizens with equal concern. allowing some citizens more opportunities, or fewer burdens, to exercise their capacity to pursue their personal goals means treating them differently, and the differences have consequences for how they can pursue distinct lives. the need for fairness requires a positive account of how interests – both basic ones and those in pursuing distinct lives – can be balanced so that citizens are treated with equal concern, and thus fairly. an account of how to weigh interests fairly is, however, different from an account that disqualifies certain considerations for action. of course, there may be circumstances where fairness considerations are not pertinent. it might be argued that one ought to save a drowning child, even if one has saved many such children recently – just because one is confronted with the drowning child. introducing fairness here is out of place. however, what precisely matters about the interests in play in the cases i have identified is that they are not rescue cases triggered by special circumstances of direct confrontation with the jeopardy of specific sufferers. rescue cases are most plausible when considerations relating to a reasonable dispensation to prioritize one’s own aims to guide one’s life are absent, and so are considerations focused on the fair distribution of opportunities to pursue one’s life aims. this is ref lected in the number of authors working on rescue that look for characteristics to demarcate these cases in terms of the specificity of the circumstances – such as “being confronted” with another’s plight, or being in the “proximity” of someone in peril.13 certainly, any attempt to generalize from the mere fact that someone lacks basic interest satisfaction in a specific rescue case to a duty to contribute to basic interest satisfaction for all who need it, will introduce the need for a weighing reasons model. 3. accounts of weighing reasons if my above analysis is correct, then there are two types of duties, and two types of reasons that underpin them, corresponding to human rights standards. the point of this distinction is not to reject either type of duty but rather to invite ref lection on what these duties demand, in the form of theories that give them content. the distinction is also not intended to rule out either duty model as relevant to human rights, in the way that perhaps debates on whether human rights are (technically) rights are intended to 13 w hat triggers rescue duties is a matter of dispute. a number of theorists propose proximity, (miller 2010: 23 ff.; kamm 2007: 379) while others focus on ‘confrontation’ with a specific person’s case (dworkin 2010: 277 ff.) as the defining feature. 104 saladin meckled-garcia leap 6 (2018) do (cranston 1973; bedau 1979). i deal with the question of whether this disjunctive analysis challenges the status of human rights as rights below. for now, if there are genuine decisive and weighing reasons, then they will generate obligations. given the nature of the two types of claims, and any one human right will need both types of reasons and obligations to give it a well-articulated content. by introducing the complexity of types of duty and the reasons that underpin them i also introduce some necessary complexity in our understanding how human rights can or should be claimed. where the matter is simply one of decisive reasoning, certain actions or omissions are categorically ruled out because of the character of the considerations that support them. where weighing reasons are appropriate, adjudication will need more information about what it would take to provide different levels of provision, and it will also need a principle for weighing the provision against the cost. this can only mean that an account of distributive justice is required. for states seeking to comply in a principled way with their human rights obligations, determining a principled (reasonable and fair) way to carry out this balancing will be indispensable. that involves having a clear sense of what fairness can demand, in the form of a justifiable principle of fair distribution of benefits and burdens (a principle of distributive justice). whilst there is little or no literature on fairness for human rights, the literature for principles of distributive justice is much richer and more advanced. a rare exception to the lack of attention to, or even recognition of, this problem in human rights literature is david bilchitz, who argues that we should accept a “core obligations” model prioritizing certain demands for fulfilment of interests, and progressive taxation as a means to resource the provisions (bilchitz 2007: 88-89). bilchitz’s basic idea is that the more wealth people have, the more diminished are the returns on that wealth as utility for those that enjoy it (ibid). thus, requiring contributions from those with more wealth is a less demanding (and a more marginal) burden than from those at other income levels. this, he argues, supports a progressive taxation solution to the supply question. but, whilst it is commendable that bilchitz at least recognizes that there is a problem to be addressed, his response does not solve it. while the response explains where to prioritize contributions, it either fails to explain what constitutes a fair contribution or it implies an implausible account of fairness. to take contributions at the margin – i.e., from the better-off first – does not indicate any limit on how much should be contributed. it is possible, on this instruction, to simply keep on taking. two (different) types of human rights duty 105 leap 6 (2018) if there is no limit with an accompanying justification, then this not an account of fair contribution so much as an account of the order in which to collect contributions. one could come up with a limit, say of a certain level of wealth, but that would require justification as the right account of fair cost distribution. it would also imply that taking more was wrong, because unfair, and correspondingly right holders could only claim what was achievable with this level of contribution. bilchitz does not supply an account of this kind of fairness. but we can consider some alternatives. perhaps, implicit in the progressive tax idea is the view that people must contribute up to that point where their own rights are threatened. that is, they are allowed to keep enough resources to be marginally above basic interest satisfaction. however, it is unclear why that is what constitutes a fair contribution. bilchitz himself focuses on basic interests as setting a threshold of ‘core obligations’ for ecosoc human rights.14 but that threshold seems too low to act as the bottom limit to which contributions can acceptably take a contributor, as a matter of fairness – it gives little or no weight to the value of respecting people developing and pursuing distinct life-shaping aims. it would imply that where some people were below the threshold because of a deficit in resources, potential contributors would always forfeit opportunities to personally work towards obtaining resources to advance their life-shaping projects and aims. this seems to rule out the prospect of pursuing a meaningful life through one’s work and effort. it yokes the life of each individual, in the sense of developing and pursuing projects and goals that are one’s own, to the sole aim of achieving a certain wellbeing level for others. of course, the claim is not that people have unlimited rights to this pursuit, it is rather that it should have some fair weight. it is important to parse out the issues here. there is a level of treatment for people that is prohibited, and would be covered by an account of decisive reasons. that does not set a level of provision or contribution, except in so far as it rules out certain considerations (including some considerations about contribution or cost) as relevant to provision. when considering behavior such as the enslavement of others, cost considerations 14 bilchitz defines minimum core in terms of interest fulfilment that secures near bare survival (bilchitz 2007: 221). it is worth noting that bilchitz distinguishes implementation duties, what he calls “unconditional rights”, from the content of the rights themselves, which he calls “conditional rights” because their requirements being categorical depends on context and resources (77 ff. & 220 ff.). the latter, somehow, symbolically go beyond what is required at any one time by unconditional rights. this distinction is troubling in my view, given that the normative content of a right is precisely a matter of what can justifiably be demanded from others, and a right considered distinctly from its normative content seems a mysterious idea. however, in this paper i am only concerned with the justification of types of duty. 106 saladin meckled-garcia leap 6 (2018) (of spurning slavery) to those doing the enslaving are irrelevant. however, when considering weighing reasons, we must find a way to balance interests and determine fair limits for those contributing towards the fulfilment of human rights. the limits here are not the same as in decisive reasons – they are not set as limits on the kind of considerations that can count, but by deciding how much of one set of acceptable interests it is fair to give up for another set – and so what can fairly be expected of contributors. however, the proposal that we should set the limits on contribution at the point at which “basic” or “core” interests are affected indicates that no one has a right to pursue a distinct life of their ow n so long as they can contribute more towards others reaching the satisfaction of those basic or core interests, however many people may be in that position. here, reasonableness can still be preserved by not requiring people to prioritize the project of contributing to the raising of each and everyone’s wellbeing levels, as one’s life aim. that would be an illiberal consequence that made a person’s conscience and life aims an instrument for the improvement of wellbeing. but even avoiding that, it challenges fairness to require each potential contributor to limit their pursuit of personal aims (save those that benefit overall interest fulfilment) to zero until all others have their basic interest satisfaction secured. it means no one is permitted to pursue resource opportunities, for their personal goals, that diverge from contributing to that goal, which is a challenging conception of fairness given that it does not give any weight to the interest in living a distinct life. one could try to define the baseline differently, so that it captures those resources and opportunities needed to live a meaningful life, say. this might also solve associated problems, such as that in today’s world the above measure of contribution might consign everyone to a life where they cannot pursue any aims that require resources above those necessary for basic interest satisfaction. people, on that approach, should give up any resource that places them above the core interest satisfactions, so long as richer people were the first to give up their resources. this is a worrying implication. i am assuming that the advantages above basic interest satisfaction that people have are not all or even mostly due to exploiting or oppressing those below the basic interest satisfaction level, so we are not considering those more straightforward cases of just rectification for wronging others. in which case, the yoking of individual life opportunities solely to the aim of increasing wellbeing for others implies they cannot legitimately pursue meaningful purposes of their own. the only solution to this problem seems to be to allow that the limit on contribution is set so it allows enough resources to live a meaningful life. but that raises a set of serious problems too. any attempt at settling an two (different) types of human rights duty 107 leap 6 (2018) objective definition of a meaningful life that overrides subjective conceptions of what people find meaningful, will be illiberal in that it demands the state adopts a conception of a meaningful life for all, even those that reject the one proposed by the state. one could try to develop a conception at such a level of abstraction that it can encompass very many conceptions, say by focusing on a certain level of autonomy or reasonsensitivity in guiding one’s life.15 but such abstract conceptions are compatible with a wide variation in life projects and, consequently, a wide variation in the resources people should have the opportunity to pursue to put towards those goals. the idea of a compelling general conception of a meaningful life that inherently sticks to the resources needed to pursue it seems implausible. the alternative, of simply taking subjective understandings to define a meaningful life, is even less likely to establish a specific resource threshold to which they all subscribe. of course, in the sphere of debates about distributive justice theory, which is effectively where we find ourselves presently, there are views that seems to focus on a threshold as the basis for justice. sufficientarianism suggests we can have a threshold of resource distribution where each person has “enough”, and permits anyone above that level to have as much as they can obtain that is still compatible with everyone having at least as much as the threshold.16 importantly, however, these views do not limit sufficiency either to a fixed point, or at the level of basic interest satisfaction. the idea is that people should have enough for a decent human life, and what that implies can vary and expand depending on one’s social circumstances (see casal 2007: 313 ff. & 323 ff.). if sufficiency views simply asserted the threshold of sufficiency as basic interest satisfaction and mandated unconditional redistribution down to that, they would offer a categorical account of weighing reasons. but that approach would suffer from the very problem to which we are trying to respond – the unfairness of yoking everyone’s life aims and opportunities solely to the aim of increasing wellbeing up to certain level for everyone. instead, space for pursuing a meaningful life is needed. sufficientarian views also do not seem to offer a useful account of that (see casal 2007: 313 ff.). note that in now considering fair arrangements, and accounts of distributive justice, i have departed from the simple rights view justifiable on the decisive reasons model. for fair arrangements, we need a justified principle of distribution (within what decisive reasons permit). that is: we are engaged in considering the fairness of different possible principles 15 e.g., see sher’s reason-sensitivity view (sher 1997: esp. chapts. 3 & 4). 16 e.g., sufficientarianism in distributive justice (frankfurt 1987; crisp 2003) and as applied to human rights (brock 2009: 62 ff.). 108 saladin meckled-garcia leap 6 (2018) according to which relevant agencies can arrange benefits and burdens, opportunities and obstacles. these are typically defined and pursued through the allocation of socially recognized rights and duties to citizens, by an agency that can legitimately make such allocations. societal fairness here asks according to what principles should authoritative agents create cooperative arrangements between contributors and beneficiaries using allocations of rights and duties.17 where weighing reasons are appropriate, the principles do not mandate outcomes for beneficiaries at all possible costs, but instead offer principles for deciding what costs are acceptable in exchange for which benefits. the literature on such principles is rich and varied, and interestingly it has been significantly ignored by people proposing theories of human rights. yet, as we now see, if weighing reasons do characterize the content of well-known human rights duties, such as duties to fulfil, addressing the problem of how to weigh interests is unavoidable. i will consider some arguments for avoiding that model below. for now, i look at the implications of treating this as part of distributive societal justice theory. a significant category of principles of distributive justice address the above problem of a fair opportunity to pursue a meaningful life, even whilst redistributing to assist those who have less opportunities. some of these views allow certain freedoms and opportunities to pursue increased access to resources, but conditionally. people can pursue and achieve certain personal, resource-requiring goals on the condition that these opportunities and achievements are simultaneously of benefit to people with less opportunities to pursue resources for their own aims. these views differ from proposals that require contributions up to the point in which contributors’ own basic interests will cease to be satisfied because the latter exclude people pursuing additional resources over and above the basic threshold. conditional opportunity theories condition the opportunity to pursue such aims including by pursuing resources on their simultaneously contributing to the social good. so, opportunities to pursue extra resources towards advancing a musical or artistic project would only be permitted in so far as these pursuits also contribute to social benefits – in the form of redistribution of a component of their resources. for example, a rawlsian maximin principle requires social institutions to permit people to pursue inequality-producing resource aims, but only 17 i am not here limiting distributive justice to these institutional considerations, but rather stating an important role that distributive justice must play, and indeed does in the accounts of theorists as varied as rawls, dworkin, and g. a. cohen. for an extensive discussion of the distinctive role of the concept of distributive justice see (meckled-garcia 2016). two (different) types of human rights duty 109 leap 6 (2018) where this helps the least advantaged in society.18 similarly, dworkin’s account of justice as equal concern, and in turn of societal equal concern as equality of resources, allows people to pursue distinct life projects so long as society aims to guarantee equal starting resources for all to pursue their projects, and everyone who can, contributes to social insurance for those that might meet difficult resource circumstances (dworkin, 2000: pp. 73 ff.). accepting that some human rights duties or justified weighing reasons must apply, has the upshot that whilst the principles for weighing different interests will remain the same, their application will vary according to which interests are in play to be weighed against each other in any one context. fairness demands different things where pursuit of a personal end will simultaneously contribute to the social good compared to where that pursuit has no social dividend. the principle is the same in both cases, but the interest distribution and relation differs. with decisive reasons, one is not relating interests that might differ but rather determining what kind of considerations are acceptable or relevant to a course of action. moral reasons should be able to rule out a range of these a priori, and with them the actions they support. distributive justice principles, because of their conformity to the weighing reasons model, do not have this a priori consideration and action-focused component. of course, here i do not propose to support or advance any one theory of distributive justice. a whole range of candidate principles exist in the literature that try to answer the fairness problem, including utilitarian, egalitarian, prioritarian, and sufficientarian views. some function by introducing more specific opportunity-focused, resources-focused, welfarefocused, access-to-welfare-focused, maximin-focused, etc., frameworks. for my purposes, it is only necessary to highlight that the kind of distributional problem best framed in terms of weighing reasons is already recognized by a significant body of literature. that literature recognizes different facets that matter to distributive justice – including personal responsibility for opportunities, the significance of choices and abilities, the important role of a distributive agency, and the space for pursuing one’s own ends or meaningful projects. yet that literature (and the problems to which it responds) are not recognized as core discussions in human rights theory. one motivation for this might be the belief that human rights do not engage with weighing reasons but rather with categorical requirements. i consider arguments for this below. 18 rawls’ maximin principle is described in his theory of justice (revised edition) (rawls 1999: 72); some critiques of this view have questioned this permission as un-justified (cohen 2008: 151 ff.). 110 saladin meckled-garcia leap 6 (2018) for now, if human rights obligations include both weighing reasons and decisive reasons, then these must be parsed out when deliberating over the content of people’s entitlements as a matter of right. to give content to obligations that engage weighing reasons, some account of distributive fairness will be crucial.19 bilchitz’s (unsuccessful) attempt to provide such an account highlights that we need this kind of framework in settling the content of some human rights duties, such as those to fulfil. so, returning to the example of the greek government, taxing aff luent people is perfectly justified to protect crucial health provisions for the most vulnerable in society. a variety of principles of distributive fairness might support this. a maximin principle would say that where the wealth of the aff luent does not improve the condition of the worst off, and the simple existence of aff luent people did not do that for health in greece, contributions must be made by those who have greater advantages, but opportunities to pursue resources are nevertheless permitted only as long as pursuing them brings dividends to the least advantaged. there are no limits on what can be pursued that has this characteristic and taxation must not make the beneficial opportunities impossible. if, on the other hand, one were obliged to fulfil others’ basic interests at whatever cost, globally, allowing people to pursue additional resources would be ruled out, as they can be expected to work to fulfil global basic interests regardless of any opportunity to obtain resources for their aims (cf. cohen 2008: n. 10). treating human rights duties as unconditional requirements to fulfil basic interests misses this complexity. if the above is right, then when resolving the duty content of rights and adjudicating specific cases, we need to be aware of the different kinds of reasons that it makes sense to take into account. trying to apply decisive reasoning where weighing reasons are appropriate will create problems of resource and contribution sensitivity that decisive reasons do not tell us how to solve. treating human rights as generating categorical obligations also hides these differences leading to similar tangles. international standards recognize the need for resource sensitivity, as we shall soon see, but supply no principle for adjudicating these questions. when duty bearers appeal to lack of resources in fulfilling a right, a compelling response will need to appeal to a fair principle of distribution. weighing reasons are important for fulfilment duties because decisive reasons give no positive account of how much of any important provision or benefit people must supply. to be pertinent in any context, we must be 19 some theorists see human rights as a subset of justice, and distributive justice as on a par. they thus miss the possibility of these different types of duty and the different consequences of applying them (e.g., tasioulas 2010: 654 ff. & 659). two (different) types of human rights duty 111 leap 6 (2018) faced with valuable aims, in the form of interests that matter for persons, as well as countervailing, though legitimate, considerations in the form of t he a i ms a nd pu rsu its of t hose who wou ld have to forego t hose pu rsu its to satisfy the valuable aims. those two models of reasoning about considerations are pertinent to duties corresponding to both civpol and ecosoc rights. there is a difference between discriminatory or even neglectful considerations in deciding how police protections are to be distributed, and the question of how much police protection everyone should have, given the costs in a particular social context. the pertinence of both types of reasoning is as true of police protection budgets as of the decision over how many dialysis facilities a society should have. 4. decisive reasons whilst i have given some examples, i have not set out a general account of the kind of moral consideration that can constitute a decisive reason in the sphere of human rights. these are reasons to disqualify a given range of considerations as relevant to how a person should be treated – thus also ruling out a weighing reasons type deliberation on the basis of these considerations. that a person has important interests is not sufficient to establish reasoning as to the relevance or irrelevance of a consideration because that importance does not explain the kind of categorical decisiveness that can disqualify a consideration. the importance of an interest might, under certain circumstances, simply outweigh other interest considerations, depending on the numbers of interests in play. thus, the need to improve road safety can outweigh road users’ interests in efficient travel. however, to rule out or disqualify some considerations as relevant to how we ought to treat a person, we need reasons or values that are categorically superior so that other considerations do not count against them. that must be the case however many considerations of the disqualified kind could be stacked against this value. that an interest is important for a person’s wellbeing, even hugely important, does not have this categorical character unless one has a special reason to promote it categorically. an example of such a consideration might be the inherent value in a person being respected in exercising her capacity to adopt goals and commitments, to develop these, prioritize amongst them, and to pursue them as personal life projects – projects that give direction to and shape her life. to value that capacity is to respect it, and to respect it means not seeking to usurp its exercise, impose conditions on it exercise, or undermine the possibility of its exercise. failure to respect the sovereign exercise of this capacity in persons, for any reason other than upholding 112 saladin meckled-garcia leap 6 (2018) this very same respect, is wrongful because it treats their living distinct lives as subordinate to aims and priorities that are not their own. actions like enslavement and torture are in this way categorically wrongful; they disrespect a person as having sovereignty over the exercise of this capacity. the actions of slavery subordinate a person’s capacity to adopt, prioritize, and pursue her ends to the priorities, and pursuits of the slave owner. torture uses a person’s sense of wellbeing (in her aversion to pain) to alter her priorities and commitments – e.g., the commitment not to disclose the location of her colleagues, thus subordinating her capacity to prioritize and pursue these commitments to the aims of the torturer. imposing pain on someone may under certain circumstances be permissible, as in self-defense. there the permission to intervene is not a failure to respect self-sovereignty but rather an expression of it: upholding that it be respected for others. the value itself sets limits on its own exercise. where the considerations for imposing pain on another or constraining her freedom fail to respect this self-sovereignty value, they are discounted as having no weight; and the actions they support are ruled out as (pro tanto) wrongful. with the race-based exclusion case, mentioned at the beginning of this paper, the literature contains a number of theories of discrimination and though some of those analyses overlap with this question they are not limited to it (viz., wasserstrom 1995; lippertrasmussen 2006; gardner 2018). but the key question here is the narrower one of what kind of reason can not only outweigh, but also disqualify a race-based consideration for exclusion? some accounts focus on the demeaning of the target, others on thwarting of a key interest (hellman 2008; moreau 2010). some views focus on treating groups as less worthy of decent treatment (shin 2009). however, to disqualify the consideration itself even as an interest that should be balanced with others in a weighing exercise, we simply ref lect that it mistakenly uses the characteristic of race as grounds to dismiss the value in people exercising their capacity to form, develop, prioritize, and pursue commitments as the determinant of how they should be treated. the mistake disqualifies the consideration as having any weight against treating people in light of the capacity. where countervailing considerations are not open to disqualification in this way, but have independent importance as people’s interests, then the weighing reasons model is appropriate. 5. objections as i mentioned above, the decisive reasons versus weighing reasons distinction – and certainly the notion of principles of distributive societal two (different) types of human rights duty 113 leap 6 (2018) justice – are not commonly appealed to as sources for the content of human rights standards. one reason for this may be a tendency to treat the analysis of duties and justified burdens associated with human rights as categorical obligations, meaning they unconditionally demand a certain outcome for each person and would thus rule out weighing reasons as part of their analysis. i now respond to some arguments for this view. 5.1. weighing reasons as decisive reasons the first objection is that we can and should re-describe human rights duties in categorical terms. in saying people have a right to a certain amount of health care we are saying that this is obligatory in some nonnegotiable sense. one way this could be done is by introducing obligations that are categorical but worded in a conditional way.20 in fact, the use of conditional wording is present in international legal documents associated specifically with fulfilling ecosoc rights.21 the resources and infrastructure that should be present to fulfil these rights make the associated duties difficult to word unconditionally. instead, resource sensitivity is introduced in the form of a duty to “progressively realize” them. in carrying out progressive realization, states are charged with taking all “appropriate steps” and employing “all available resources” towards the goal of fulfilling these rights.22 thus, instead of a categorical obligation to supply certain outcomes, which would be resource insensitive, we have a duty to move towards those outcomes when certain conditions are met, which is thus sensitive to the resources that a state has available to it. a categorical reading of the fulfilment duties associated with ecosoc rights might imply an obligation to supply an outcome o that requires r resources. a duty to progressively realize o means that a state at any time t only has an obligation to realize o to the extent, no, that is possible with the resources, nr, that the state has available to it at t. there is a firm and categorical obligation here; yet it is not the obligation to fulfil the right, only to partially fulfil it to the extent, no, possible at t. the duty to entirely fulfil the right, categorically, would only occur at a point t^, where r resources were available to it. so, the duty is conditional on resource availability at any one time. if this analysis is correct, we should not have 20 cf. bilchitz’s distinction between conditional and unconditional rights, (bilchitz 2007: 78 ff.). 21 there is an important inconsistency in that ecosoc rights are explicitly subject to such conditionally in the un documents, such as general comments 3, 10, 14 (cescr 1990; 1998; 2000) where polsci rights are not, or at least not systematically, yet protection and fulfilment duties associated with the latter clearly should be as i have stressed above. 22 for “appropriate steps” see (cescr 2000: ss. 11 & 49); for “available resources” see (cescr 1990; 1998; 2000). 114 saladin meckled-garcia leap 6 (2018) to resort to weighing reasons to resolve how to resource the provision of human rights fulfilment. we can instead re-describe those duties in categorical, albeit conditional, terms in terms. the problem with this response is that the notion of “available resources” is being used as a descriptive term, when it could only be a normative concept. this is because what counts as “available” for a state to use depends on what it can legitimately extract from those who work for or within it. this will take the form of taxation, work contributions, or the configuring of property relations. any physical or natural resource will need to be turned into exchangeable or useable resources; any already exchangeable or useable materials that are owned will need to change ownership. that means a state will need to make decisions about appropriate levels of taxation, ownership, wealth, property rights, and even labor in order to decide what resources are genuinely “available” to it. of course, one could try restricting the notion of available resources to what a state has in its possession, or revenue, at any one time, to avoid these problems; but that would be an arbitrary choice given the point of using these resources. the plausible notion of an available resource will, then, depend on the burdens that a state can justifiably impose on people leading to benefits for others in terms of basic interest satisfaction. consequently, it is clear that the level at which we set availability depends on what citizen contribution level is justified – a moral normative question. some human rights literature takes a step in that direction by appealing to the concept of “reasonableness” in assessing what resources are “available” (chenwi, 2013). but no account of reasonableness has been provided to address the essential question of how to weigh conf licting interests in assigning burdens. this is the weighing reasons question: at any one time, t, what counts as a duty will depend on available resources, which in turn depends on the weighing reasons that apply to the fair social distribution of benefits and burdens. a component of the progressive realization doctrine that might be used to try to prescribe categorical requirements for states is the idea that ecosoc rights include “core obligations” associated (cescr 200: ss. 43 ff.). as i have said, my concern here is not with duties associated only with ecosoc rights but with obligations cutting across those kinds of distinctions. so, the claim some ecosoc obligations might be categorical does not threaten my analysis of two types of reasons at the heart of human rights obligations. however, if the claim is that a scheme for fulfilment provisions in which there are certain mandated outcomes is a categorical requirement, this does conf lict with the view of duties and justified burdens i have proposed. the international doctrine associated with core obligations, two (different) types of human rights duty 115 leap 6 (2018) however, either highlights rights that are easily accounted for as decisive reasons – based on the distinction i have proposed – e.g., that ecosoc services should not be provided in a discriminatory way, or would need to be somewhat sensitive to resource availability (bilchitz 2007: 220 ff.). 5.2. “rights” versus weighing reasons? some theorists associate human rights with a technical notion of “rights” that conceptually implies an entitlement to a specific content – whether it is an outcome or form of treatment – that must be known in advance. the weighing reasons analysis does not give us any definite content for the entitlement, only for the principle that will be employed to determine it in any specific case. so it seems to undermine human rights as rights (see bilchitz’s worry, ibid). in itself, this is not a strong point. for there is no reason to think that human rights have to be rights in that very technical sense, as opposed to important obligations states have towards their citizens.23 a feature more centrally associated with human rights, however, is their universality. some authors interpret this as human rights encompassing justified claims that can be claimed by all persons and claimed equally, regardless of circumstances or social membership (o’neill 1996: 130 ff.). onora o’neill uses this premise to argue that rights to goods and services cannot be human rights: to be able to claim them justifiably, and – for the purposes of this paper – fairly, one must claim them from a certain infrastructure with specific types of responsible agents (o’neill 1996: 130136). importantly, a state must have fairly allocated the duties to supply the content of the rights. however, what exactly a person is entitled to have as a matter of fulfilment of their rights, depends on what it is in any given context fair to impose as a burden on others. given that this may differ with context, the claim cannot be justifiably and equally made by all persons, regardless of circumstances or social membership. that, in turn, implies the right is not universal, so that on this view it is not a human right. yet, this objection does not deny that protection or fulfilment claims can ever be justifiably made. it simply says they are not universal in the right sense. institutional orders can be set up such that justifiable, fair, claims can be made. so, why is universality, in this particular sense of universality, essential to defining human rights? universality of this formal kind is just one dimension that might pick out what is special or distinctive in human rights; a different trait might be their importance or 23 james griffin, for example, rejects the need to use the technical sense of a right to analyze human rights (griffin 2014: 210). 116 saladin meckled-garcia leap 6 (2018) urgency, or even their ability to place limits on the legitimacy of political institutions. there is no obvious reason why all human rights should apply independently of institutional context – in fact, that very condition is challenged by “political theories” of human rights (e.g., beitz’s theory, beitz 2008). whatever the right answer as to the defining feature/s of human rights standards, the claim is not that standards based on weighing reasons, and thus lacking the requisite universality, fail to be normative standards at all. if it is admitted that such standards exist and under the right conditions they can justify normative claims, then whether we call these human rights or not seems more a matter of nomenclature than significant substance. 5.3. does this weaken ecosoc human rights? a final objection i will consider is that this approach, with its two models of reasoning underpinning different types of obligations, weakens ecosoc human rights claims. ecosoc rights rely more heavily on fulfilment as their core mission. which is to say that whilst there are cases where taking ecosoc opportunities away – e.g., by intentionally or negligently destroying a source of water – is a violation and one consistent with a decisive reasons approach, the key question for ecosoc rights is how to fulfil certain ecosoc conditions for people. by introducing weighing reasons, and with them the idea that an infrastructure of distribution that is capable of fairness is needed for these rights to apply, i would seem to have made ecosoc rights less easily claimable and less practically useful outside certain specific societal contexts. whilst this may be true, it is important to point out that any alternative formulation of the duties and justified burdens associated with human rights will suffer similar or equivalent problems. re-describing the duty to fulfil as a categorical requirement still faces the problem of how these requirements are to be supplied and by whom. one could indeed abandon the idea that there are countervailing considerations such that we must engage in weighing. but that means giving up an essential component of reasonableness and fairness in practical and political reason. it would be a victory by stipulation only, not one responding to the practical problem of the existence of legitimate conf licting considerations. if we accept the need to adjudicate between these different considerations, then weighing reasons do not weaken human rights duties but provide the only kind of solution that will give a significant portion of them some rational content. two (different) types of human rights duty 117 leap 6 (2018) 6. conclusion in conclusion, i have identified two types of reasons – or two models of reasoning – when determining the content of certain human rights obligations and justified burdens. the decisive reasons model offers us a way of understanding categorical duties, whereas the weighing reasons model is engaged when we must consider interests and considerations that need to be balanced. provisions and interpretations that are compatible with both models are present in international human rights documents, although these documents do not explicitly recognize the need for either model, or any model altogether. i have argued that these models are, however, both necessary to make sense of, and give content to, different types of human rights responsibilities. i stress, these two types of reasoning are not designed to undermine any one type of right or duty – instead, they cut across different traditional distinctions between types of rights (economic and social versus civil and political); and they are both ways of explaining the duties as genuine obligations. yet, without sensitivity to these forms of reasoning, trying to give content to our human rights obligations will lead to troubling confusions. not all human rights duties are categorical and we need an account of how to determine those duties when they are not. bibliography bedau, h. a., 1979: ‘human rights and foreign assistance programs’, in p. g. brown and d. maclean, eds., human rights and us foreign policy, lexington mass.: lexignton books bilchitz, d., 2007: poverty and fundamental rights, oxford: oxford university press buchanan, a., 2004: justice, legitimacy, and self-determination, oxford: oxford university press brock, g., 2009: global justice: a cosmopolitan account, oxford: oxford university press casal, p., 2007: ‘why sufficiency is not enough’, ethics 117(2): 296–326 charles, b., 2008: the idea of human rights. oxford: oxford university press chenwi, l., 2013: ‘unpacking “progressive realisation”, its relation to resources, minimum core and reasonableness, and some methodological considerations for assessing compliance’, de jure, 46(3): 742-769 christiansen, e. c., 2007: ‘adjudicating non-justiciable rights: socio-economic rights and the south african constitutional court’, 38(2): 321-386 cohen, g. a., 2008: rescuing justice and equality, camb. mass.: harvard university press committee on economic, social, and cultural rights (cescr), 1990: general comment 3, united nations 118 saladin meckled-garcia leap 6 (2018) committee on economic, social, and cultural rights (cescr), 1998: general comment 10, united nations committee on economic, social, and cultural rights (cescr), 1999a: general comment 12, united nations committee on economic, social, and cultural rights (cescr), 1999b: general comment 13, united nations committee on economic, social, and cultural rights (cescr), 2000: general comment 14, united nations committee on economic, social and cultural rights (cescr), 2015, 27 october: concluding observations, un doc. e/c.12/grc/co/2, united nations, e.g., paras 19 &20 cranston, m., 1973: what are human rights, taplinger publishing, new york crisp, r., 2003: ‘equality, priority, and compassion’, ethics 113(4): 745–763 dworkin, r., 1984: ‘rights as trumps’, in waldron, j., ed., 1984, theories of rights, oxford: oxford university press — 2000: sovereign virtue and the practice of equality, cam. mass: harvard university press — 2010: justice for hedgehogs, cambridge, ma: belknap press frankfurt, h., 1987: ‘equality as a moral ideal’, ethics 98(1): 21–43 gardner, j., 2018: ‘discrimination, the good, the bad, and the wrongful’, proceedings of the aristotelian society, cxviii(1) gilabert, p., 2012: from global poverty to global equality, oxford: oxford university press griffin, j., 2014 : ‘replies’, in crisp, r., ed., 2014, griffin on human rights, oxford: oxford university press hellman, deborah, 2008: why is discrimination wrong?, cambridge, ma: harvard university press kamm, f., 2007: intricate ethics, oxford university press lippert-rasmussen, k., 2006: ‘the badness of discrimination’, ethical theory and moral practice, 9: 167–185 mcdowell, j., 1998, originally published 1978: ‘are moral requirements hypothetical imperatives?’, mind, value, and reality, cambridge mass.: harvard university press meckled-garcia, s., 2016: ‘two concepts of justice, and of its scope’, critical review of international social and political philosophy, 19: 534-554 miller, r., 2010: globalizing justice, oxford: oxford university press, möller, k., 2009: ‘two concepts of positive liberty: against reason blocking’, oxford journal of legal studies, 29(4): 757–786 moreau, s., 2010: ‘what is discrimination?’ philosophy and public affairs 38: 143– 179 o’neill, o., 1996: towards justice and virtue, newyork: cambridge university press rawls, j., 1999: a theory of justice (revised edition), cambridge mass.: belknap press rawls, j., 2001: justice as fairness, a restatement, cam. mass.: belknap press sachs, a., 2000: ‘social and economic rights, can they be made justiciable?’, s. m. u. law rev., 53: 1381-1391 scanlon, t. m., 1998: what we owe each other, cambridge mass.: belknap press two (different) types of human rights duty 119 leap 6 (2018) — 2004: ‘reasons: a puzzling duality?’, in wallace, r. j., pettit, p., scheffler, s., & smith, m., eds., 2004: reason and value: themes from the moral philosophy of joseph raz, oxford: clarendon press sher, g., 1997: beyond neutrality. cambridge university press shin, patrick, 2009: ‘the substantive principle of equal treatment’, legal theory, 15: 149–172 shue, h., 1996 (2nd ed.): basic rights: subsistence, affluence, and us foreign policy, princeton: princeton university press stemplowska, s., 2009: ‘on the real worlds duties imposed on us by human rights’, j. social philosophy, 40(4): 466-487 tasioulas, j., 2010: ‘taking rights out of human rights, ethics, 120(4): 647-678 — 2015: ‘on the foundations of human rights’, in cruft, r., liao, s. m., renzo, m., eds., philosophical foundations of human rights, oxford: oxford university press waldron, j., 2000: ‘pildes on dworkin’s theory of rights’, the journal of legal studies, 29(1): 301-307 — 1989: ‘conflicts of rights’, ethics, 99(3): 503-519 wasserstrom, r., 1995: ‘preferential treatment, color-blindness, and the evils of racism’, in steven cahn, ed. the affirmative action debate, new york: routledge, pp. 153–168 united nations, 1966/76: international convenant on civil and political rights (iccpr) united nations, 1966/76: international covenant on economic, social, and cultural rights (icescr) _goback leap 6 (2018) natural resources, collective selfdetermination, and secession f r a n k di e t r ich heinrich-heine-university düsseldorf abstract international law grants states, as representatives of their peoples, the right to use and exploit the natural resources located on their territories. the aim of this paper is to clarify how the doctrine of peoples’ sovereignty over natural resources is related to their right to political self-determination. three different perceptions of this relationship are examined. first, the view that peoples have collective ownership rights over the natural resources to be found on their territories is criticized and rejected. thereafter, it is argued that instrumentalist reasons fail to explain why a people’s right to political self-determination implies sovereignty over natural resources. instead, it is suggested to consider sovereignty over natural resources a necessary component of a people’s authority over the territory where their right to self-determination is realized. the proposed solution provides a sensible framework for dealing with practical issues, as can be exemplified by post-secession conf licts over natural resources. keywords: collective self-determination, global justice, harm principle, natural resources, secession, territory. 1. introduction in international politics it is widely accepted that states are entitled to use the natural resources which are located on their territories to their own benefit. the many conf licts over natural resources we currently witness typically concern specific issues, such as the precise national borders between two countries. that states have sovereignty over natural resources – or rather the peoples represented by states – is hardly called into question by relevant international actors. furthermore, the assignment of special resource rights to territorially concentrated collectives has a secure basis in international law. most notably, article 1 of the t wo major human rights covenants from 1966 recognizes the right of peoples to political d oi : 10. 310 0 9/l e a p. 2018.v6.02 natural resources, collective self-determination, and secession 29 leap 6 (2018) self-determination. this right implies, as stated in the same article, the entitlement to freely dispose of the natural resources which are found within the respective territorial units. by contrast, the philosophical debate has been considering the principle of resource sovereignty mainly from a global justice perspective. several authors have called into question whether peoples can establish special claims to spatially defined shares of the world’s resources while excluding all other human beings. in their view, advantages gained from the unequal distribution of natural resources are morally arbitrary and in need of correction.1 however, what has received much less attention in the recent philosophical debate is the rationale for seeing resource sovereignty as an important component of the right to collective self-determination. the aim of this paper is to examine in some detail how both concepts – collective self-determination and authority over natural resources – relate to each other. by clarifying this conceptual link at the theoretical level i also hope to contribute to a better understanding of various practical problems. the argument is subject to two restrictions. first, within the scope of this paper i cannot address the fundamental objections global justice theorists have raised to the sovereignty rights of states or peoples. instead i start out from the assumption that the right of peoples to political selfdetermination can be justified and try to elucidate how this right relates to resource claims. the argument will, however, show that recognizing peoples’ authority over natural resources is in principle compatible with major demands of global justice.2 moreover, even the critics of the current state system may agree that attempts to establish global political institutions are not likely to succeed in the foreseeable future. thus, a thorough analysis of the concept of political self-determination may prove to be helpful for ref lecting on criteria of justice under non-ideal conditions. second, my argument relies on a rather conventional understanding of the term “natural resources”. i take natural resources to be materials or substances of some economic value, which exist without the actions of human beings, such as fertile land, minerals, or water. this is not to deny that more sophisticated models that have been recently proposed, e.g. tim hay ward’s (2006) “eco-space conception” or avery kolers’ (2012) “intentional conception”, may provide important insights. again, it would go beyond the scope of this paper to enter into the current debate on the adequate understanding of natural resources. although i expect my 1 criticism of the resource privilege of states or peoples has been offered inter alia by pogge (2008: 202-221) and armstrong (2015) and (2017: 132-149). 2 for an instructive discussion of how the ideal of global equality can be reconciled with the right of peoples to political self-determination, see armstrong (2010). 30 frank dietrich leap 6 (2018) discussion of the right to collective self-determination to be relevant for more refined conceptions, i cannot demonstrate this here. the argument proceeds by three steps. in the second section, i will explore the development of the right of peoples to political selfdetermination – with a special focus on the doctrine of permanent sovereignty over natural resources – in international law. thereafter, in the third section, i will discuss three possible explanations of how natural resources may be linked with a group’s entitlement to independently decide on its common future. first, they may be seen as the common property of a people; second, they may have an instrumental value for the achievement of a people’s collectively determined goals; or, third, resource sovereignty may be an essential component of a people’s claim to a territory of its own. after having advanced my arguments for the latter view, i will, in the fourth section, dwell on some of its implications. more precisely, i will ask what the proposed interpretation has to say on the handling of competing resource claims, which may emerge in the wake of secession or state dissolution. finally, in the last section i will brief ly summarize the main findings of my analysis. 2. resource sovereignty in international law the principle of people’s permanent sovereignty over natural resources has its roots in the period of decolonization. its development was characterized by a conf lict of interests between colonial peoples and newly independent states on the one hand and the prosperous states of the west on the other hand. the former actors were anxious to gain political independence and, if achieved, to expand their ability to pursue common goals. control over natural resources was, in their view, an important precondition for substantial self-determination and successful economic development (schrijver 2010b: sec. c2). the (former) colonial powers, by contrast, worried about a possible shortage of raw materials and, consequently, detrimental effects on the global economy. moreover, they feared that the decolonized states might nationalize foreign companies without offering sufficient compensation for their investments. the emergence of the concept of resource sovereignty in international law was closely connected with the development of a right to collective self-determination. the first significant legal document mentioning the political self-determination of peoples was the charter of the united natural resources, collective self-determination, and secession 31 leap 6 (2018) nations in 1945.3 article 1.2 of the charter states: “the purposes of the united nations are: … to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” there is wide agreement that at this time the self-determination of peoples had to be understood as a guiding principle for the peaceful coexistence of the community of states. however, in the years to come the principle of self-determination quickly developed into a legal right peoples under foreign rule could refer to. a crucial role in this process played resolution 1514 of the united nation’s general assembly (unga) from 1960, which called for bringing colonization to a speedy and unconditional end. in the so-called decolonization resolution the member states of the united nations unanimously recognized a right of all peoples to selfdetermination. although unga resolutions are not legally binding, they provide evidence of the predominant conception of international law. the view that a right to self-determination is existent in common law has been further substantiated in the process of decolonization, as many colonial peoples were able to gain political independence by appealing to their right to self-determination. in 1966, when the international covenant on civil and political rights (iccpr) and the international covenant on economic, social and cultural rights (icescr) were established, the right to self-determination was provided with a secure foundation in international treaty law. both human rights covenants stipulated identically in their arts. 1.1: “all peoples have the right of self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”4 in 1952 two unga resolutions for the first time linked the selfdetermination of under-developed countries or peoples with the right to exploit natural resources. resolution 523 stipulated “that the underdeveloped countries have the right to determine freely the use of their natural resources.” resolution 626 stated “that the right of peoples freely to 3 the principle has been discussed at least since president wilson’s famous “fourteen points“ and has been present in the thoughts of lenin and stalin but was not included in the regulations of the league of nations. 4 evidently, there is a tension between the right of peoples to self-determination and the right of states to territorial integrity as it is enshrined, most importantly, in art. 2.4 of the united nation’s charter. the entitlement of some part of a population, e.g. a colonial people, to freely determine its political status is difficult to reconcile with the inviolability of the established borders. 32 frank dietrich leap 6 (2018) use and exploit their natural wealth and resources is inherent in their sovereignty and is in accordance with the purposes and principles of the charter of the united nations.”5 for two reasons these resolutions met resistance by the usa, great britain, and other highly industrialized states. first, these states complained that the interests of prosperous economies to have access to raw materials were not sufficiently taken into account. second, they were concerned about the resolutions’ potential for legitimizing the expropriation of foreign companies and the annulment of concessions. this worry was fueled, most importantly, by the nationalization of the anglo-iranian oil company, enforced by the then socialist iranian government in 1951 (schrijver 1997: 37-49). the main reason for voting against resolution 626, given by the us delegation, was the lack of any provision for adequate compensation in the case of expropriation (hyde 1956: 860). the discussion on resource rights continued during the drafting process of the united nations’ two major human rights covenants. in 1958 the unga adopted resolution 1314, which confirmed “that the right of peoples and nations to self-determination … includes permanent sovereignty over their natural wealth and resources.” by this resolution a special commission was established in order to “conduct a full survey of this basic constituent of the right to self-determination.” the view that natural resources are a basic constituent of the right to self-determination was reaffirmed in the unga declaration 1803 on the permanent sovereignty over natural resources from 1962. primarily two provisions prompted the western states – with the exception of france – to vote in favor of this resolution. first, the declaration required of states which expropriate foreign holdings to pay the owner adequate compensation and, second, it stated that foreign investment agreements freely entered by signatory parties shall be observed in good faith (schwebel 1994: 401-415). the resolution on the permanent sovereignty over natural resources for the first time addressed an important aspect of internal self-determination, by commenting on the question of who is supposed to benefit from the extraction of resources. according to par. 1, the right to dispose of a country’s natural wealth and resources must be exercised in the interest of “the well-being of the people of the state concerned”. this is an important clarification, as experience has shown that in many cases the ruling elites 5 according to schrijver (2015: 23-24), the term “natural wealth” refers to the resource basis as distinguished from the natural resources themselves. for instance, the forest and the fertile soil constitute (part of ) a country’s natural wealth, whereas the timber of the trees and the tea or coffee plants count as natural resources. natural resources, collective self-determination, and secession 33 leap 6 (2018) have commercially exploited the raw materials to their own advantage.6 the resolution on peoples’ permanent sovereignty over natural resources paved the way for the inclusion of resource rights in the two human rights treaties of 1966. both the iccpr and the icescr state identically in their arts. 1.2: “all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. in no case may a people be deprived of its own means of subsistence”.7 in more recent debates on peoples’ permanent sovereignty over natural resources two topics have come into focus. first, the right to extract and make use of natural resources has increasingly been placed in the context of environmental protection. in 1972 the stockholm declaration of the un conference on the human environment for the first time specified obligations entailed by peoples’ resource sovereignty. principle 21 of the stockholm declaration specifies: “states have … the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”.8 while the stockholm declaration was mainly concerned with the prevention of external damage, later un documents entertained a more comprehensive view of environmental protection. a crucial role for the development of international environmental law played the concept of “sustainable development”, which was introduced by the so-called brundtland commission in 1987.9 the goal of sustainable development has been cited in many international legal documents, thereby constraining the right of peoples to exploit their natural wealth and resources (schrijver 2010a: 59-66). a telling example is the preamble of the un convention on 6 the moral responsibilities of other states with regard to governments who fail to manage natural resources in the interests of their peoples are discussed in wenar (2008) and (2016: 281-334), see also haugen (2014). 7 art. 25 (icescr) and art. 47 (iccpr) state in unison: “nothing in the present covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.” 8 the wording of this principle is reiterated – with only one slight alteration – in principle 2 of the rio declaration on environment and development from 1992. 9 the brundtland report defines sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” 34 frank dietrich leap 6 (2018) biological diversity from 1992, where the contracting parties reaffirm “that states have sovereign rights over their ow n biological resources [and …] are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner.”10 second, the intrastate allocation of the entitlement to exploit natural resources has become an important concern of international law. a growing body of legal documents has recognized that the doctrine of permanent sovereignty over natural resources applies to indigenous communities. most importantly, the united nations declaration on the rights of indigenous peoples from 2007 states in art. 3: “indigenous peoples have the right to self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” furthermore, art. 26.1 states: “indigenous peoples have the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” it is now a widely shared view in international law that different peoples within one state may possess rights over different territories and the respective resources (miranda 2012: 806-828, pereira and gough 2013: 20-34). thus, states are not only obliged to manage the natural resources which are located within their borders in their citizens’ interests; they must also take into account that the population may consist of several peoples, each with its own resource rights.11 3. resource rights as basic constituent of collective self-determination the previous section has shown that international law conceives of resource sovereignty as an integral part of peoples’ right to political selfdetermination. however, neither the relevant legal documents nor the drafting process that preceded their ratification make sufficiently clear how these concepts are connected with each other. in the following, i will discuss three possible explanations why an entitlement to collective selfdetermination might imply resource rights. first, i will deal with the understanding that self-determining entities have property rights (or similarly created sovereignty rights) to the natural resources of a given 10 a normative argument for the restriction of peoples’ permanent sovereignty over natural resources by environmental standards is presented in gümplová (2014). 11 as a further problem area one might mention resource sovereignty in occupied territories, which has been addressed by the international court of justice in several decisions, e.g. the israeli wall advisory opinion of 2004 and the armed activities case (congo v. uganda) of 2005. for a detailed analysis, see dam-de jong (2015). natural resources, collective self-determination, and secession 35 leap 6 (2018) territory. subsequently, i will explore instrumentalist accounts according to which a group’s capacity to exert its self-determination right crucially depends on the availability of natural resources. after having outlined the main shortcomings of these views, i will argue for considering sovereignty over natural resources a necessary component of a people’s authority over the territory where its self-determination takes place. finally, i will discuss two objections that may be raised to my position. 3.1. property and quasi-property rights the legal documents on peoples’ self-determination rights, which i discussed in the second section, recurrently speak of “their” natural resources. the use of the possessive pronoun “their” might indicate the existence of a collective property right, which predates the right to political selfdetermination. according to this assumption, sovereignty over natural resources is not to be understood as an enabling condition for the exercise of the right to political self-determination. the exploitation (or conservation) of natural resources is rather within the scope of issues on which a people, by virtue of its ownership, is entitled to decide. like an individual may determine the use of the goods she owns, the members of a people may jointly determine the use of their common possessions.12 an important challenge for an ownership account is to explain how collectives, such as peoples, acquire property rights over natural resources. in classical political thought, basically two mechanisms of how property rights come into existence – by first appropriation of previously unowned objects or by mixing one’s labor with such objects – are discussed. the historic versions of both theories start out from the assumption that god has devoted his creation to the whole of humanity. the original common possession of entire mankind is then, by a series of individual acts, transformed into a system of private ownership. according to a first appropriation account, as defended for instance by hugo grotius, a person who is first to settle on a hitherto uninhabited area acquires a property right to the land and its natural resources. by contrast, the core idea of the labor mixing account, which was initially advanced by john locke, is that from the very beginning everybody is the owner of herself. if a person invests labor in a natural good, she merges this good with a part of her body, which already constitutes her individual property. thereby she significantly increases the value of the good concerned and excludes the 12 to be clear, a collective ownership right – as i understand the term here – does not entitle each member of the collective to use the goods concerned at her discretion. instead the ownership right is held by the group as a whole: the individuals belonging to the group or their representatives must decide jointly – by a majority vote or some other procedure – on how to exercise this right. 36 frank dietrich leap 6 (2018) rights of all other people to make use of it.13 from the perspectives of both theories only individuals are capable of acquiring property rights – either by first seizing previously unowned goods or by investing labor in them. hence, the crucial question is how a people can come into the rightful possession of all natural resources located on the territory where it exercises its political self-determination. a possible answer is that the individuals who first acquired property rights over natural resources acted on behalf of the people. think, for instance, of a ship’s captain who discovers a previously unknown island and who declares, when going ashore, to take possession of this island in the name of, let us say, spain.14 although a first appropriation of natural resources by a people’s representative is conceivable, it can, at best, provide part of an explanation. the example of the ship’s captain presupposes the existence of a spanish state, which already has authority over a territory and its natural resources. even if one admits that the ship’s captain was entitled to seize the island on behalf of the spanish people, it is still unclear how this people’s claim to collectively own the natural resources of the spanish heartland could be justified. another response to the here discussed problem is that the individual members of a people voluntarily transferred their property rights over natural resources to the collective. seemingly, john locke (1960 [1689]: ii §120) comes close to such an idea when he declares: “by the same act … whereby any one unites his person, which was before free, to any commonwealth; by the same he unites his possessions, which were before free to it also.” however, what locke has in mind is – i think – that the persons concerned submit their property to the jurisdictional authority of the state. in his view, the individuals in the state of nature have strong reasons to enter into a political society in order to obtain protection for their possessions. therefore, they are prepared to vest the state with as much jurisdictional authority as necessary (and as little as possible) for the performance of its protective function. it is, however, hard to see why the persons who join a political society should transfer their property rights over natural resources completely to the state, or rather to the people constituting the state. they have no reason to relinquish their property rights because it is precisely the secure enjoyment of their possessions what motivates them to establish a state in the first place. at most, they might grant the state limited rights of intervention, such as the competence 13 for a recent revitalization of grotius’ theory, see risse (2012: 89-129); for a detailed examination of locke’s argument, see simmons (1992: 222-306). 14 in a different context, locke (1960 [1689]: ii §28) admits the acquisition of property at the behest of another person by stating: “(…) the turfs my servant has cut (…) become my property, without the assignation or consent of any body”. natural resources, collective self-determination, and secession 37 leap 6 (2018) to raise taxes in order to finance police services. however, since they would not assent to substantial intrusions into their private property, the state would not obtain anything close to a collective ownership right.15 more recently, an argument has been advocated that may be understood as a culturalist modification of locke’s labor mixing approach. so called liberal nationalist authors, such as david miller (1995: 21-27, 2007: 214-230 and 2012), chaim gans (2003: 97-123), and tamar meisels (2009), have pointed out to the formative inf luences the culture of a nation exerts on a territory.16 the members of a national community employ specific forms of agriculture, build roads and ports, and establish particular settlement structures. these cultural activities leave a lasting imprint on the territory, which distinguishes it from other geographical places. persons identifying with a national community typically have strong emotional bonds to the area they regard as their homeland. since the territory is shaped by their culture and closely connected to the nation’s history, they cannot imagine realizing their collective self-determination any where else.17 by analogy with locke, it has also been argued that the national community put the piece of land it traditionally occupies to an efficient use. over time, the various cultural activities of the group add material as well as symbolic value to the land (meisels 2009: 97-112 and miller 2012: 257-262).18 from a liberal nationalist perspective, the above considerations – cultural formation, emotional attachment, value enhancement – legitimize the claims of nations to “their” territories. it is important to note that, contrary to locke’s account, territorial rights are not conceived of as collective ownership rights. instead, national communities are thought to have an entitlement to exert jurisdictional authority over their traditional 15 for a critical examination of locke’s property theory of territorial rights, see beitz (1980). 16 it may be worth noting that the above-mentioned theorists speak of “nations” or “national communities” instead of “peoples”. for the question under discussion – the link between collective self-determination rights and sovereignty over natural resources – this terminological difference seems, however, irrelevant. 17 as regards personal attachment, miller (2007: 219) states: “the case for having rights over the relevant territory is (…) straightforward: it gives members of the nation continuing access to places that are especially significant to them, and it allows choices to be made over how these sites are to be protected and managed”. 18 the theory of resource rights advocated by cara nine (2012: 137-141) borrows from different aspects of locke’s political thought. in her view, a group acquires resource rights when it uses the resources concerned in a value-generating way, whereby she considers the achievement of political justice the relevant value. 38 frank dietrich leap 6 (2018) areas of settlement.19 the liberal nationalist’s argument has the advantage of avoid i ng t he problem w it h wh ich l ocke’s appropr iat ion t heor y ha s to grapple. since the labor, which needs to be “mixed” with the land, is understood as the joint activities of a culturally defined nation, the creation of a collective right seems more plausible. it is not the work of particular individuals but the common and ongoing efforts of a nation that shape some piece of land and, thereby, establish a claim to it. hence, the culturalist reinterpretation of locke’s account need not explain how individual rights can be transformed into collective rights of a nation or a people. the liberal nationalist’s argument for sovereignt y over natural resources faces, however, a serious problem. it needs to be shown how the cultural activities of national communities, on which their territorial claims depend, bear on natural resources. to be sure, the agricultural and settlement practices of national communities may shape the surface of the land and create strong feelings of belonging. moreover, certain natural resources, such as coal or diamonds, and the transgenerational project of their exploitation may play an important role for a national culture (miller 2012: 263-264). however, a people’s sovereignty over natural resources is generally understood to comprise the whole range of raw materials that are situated within the relevant territory. evidently, the members of a nation neither invest labor in every natural resource nor are they emotionally attached to every natural resource. for instance, the wood of an unmanaged forest and the water of a small, untouched river are not subject to any cultural activity. furthermore, it is hard to see on which grounds a people might claim a right to the future use of still undiscovered resources. the above-sketched reinterpretation of locke’s appropriation argument cannot extend to resources into which no cultural labor has been invested. in sum, the here discussed account may, at best, justify the claim of national communities to exert their right to political self-determination on a particular territory.20 however, even if territorial rights can be established in principle, the question which competences these rights include still has to be settled. in the philosophical debate it has been widely taken for granted that the justification of a territorial claim encompasses the whole 19 the jurisdictional authority of a people includes the competence to establish and modif y a system of property rights on the territory concerned. thus, a people (or its political representatives) may decide to nationalize natural resources or to allow private property rights. for an important critique of the conf lation of “property rights” and “sovereignty rights” in current nationalist debates, see fleischacker (2013). 20 for a critical examination of the liberal nationalist’s justification of territorial claims, see dietrich (2011: 87-89). natural resources, collective self-determination, and secession 39 leap 6 (2018) set of rights conventionally attributed to states.21 but the reasons that can be given for the substantiation of a territorial claim do not necessarily apply to each of its standard components. the liberal nationalist’s argument fails to explain why a group’s right to political self-determination entails an entitlement to dispose of (the full range of ) natural resources. 3.2. instrumentalist arguments as set out in the second section, the right of peoples to political selfdetermination emerged in the period of decolonization. at this time the freedom of newly created state communities to decide on their economic, social and cultural development was high on the agenda. against this background, important legal documents refer to natural resources as means for the achievement of peoples’ independently chosen goals. most notably, articles 1.2 of the iccpr and the icescr state: “all peoples may, for their own ends, freely dispose of their natural resources”. this formulation points to the instrumental value of natural resources for the exercise of the right to collective self-determination. contrary to the interpretation discussed above, peoples do not acquire property rights (or similarly created jurisdictional rights) over natural resources by the work they invest on a given territory. instead, they can claim authority over natural resources because their right to political self-determination would be void if an adequate material basis were lacking.22 the capacity of a people to make significant choices with regard to its common future depends, at least in part, on its prosperity. roughly speaking, the more aff luent a collective is, the more goals are attainable between which its member can freely decide. the revenues, which can be generated from the exploitation of natural resources, will normally enhance a people’s set of options. it seems, however, plausible to assume that the right to political self-determination only requires the availability of a minimum amount of alternatives. in order to make collective decisions, a people must be capable of choosing between different economic, social or cultural goals. meaningful self-determination does not require a particularly extensive set of options and is consistent with considerable 21 for a standard definition of territorial rights that encompasses authority over natural resources, see simmons (2001: 306). 22 a different instrumentalist argument for the permanent sovereignty of peoples over natural resources was presented by john rawls (1999: 38-39) in “a law of peoples”. according to rawls, a sustainable management of natural resources can best be achieved by assigning territorial rights to specific agents. if a people has exclusive responsibility for a certain piece of territory, it will be interested in the long-term exploitation of the resources concerned and refrain from overexploitation. since rawls is mainly concerned with the preservation of the environment – rather than the economic preconditions for collective self-determination – i will not discuss his argument in more detail. 40 frank dietrich leap 6 (2018) wealth disparities between the right-holders. in this context, it should be recalled that articles 1.2 of the two human rights covenants state: “in no case may a people be deprived of its means of subsistence”. the reference to the means of subsistence supports the view that the relevant regulations of international law focus on the basic prerequisites for the exercise of the right to self-determination. evidently, the instrumentalist interpretation must rely on an empirical assumption about the significance of natural resources for a people’s economic welfare. the research literature on the comparative development of resource-rich and resource-poor countries casts, however, doubts on the correctness of this thesis. to begin with, it seems questionable whether control over natural resources is necessary for achieving a minimum level of economic prosperity. there are other important factors, such as technological knowledge and the stability of political institutions, which contribute significantly to a people’s wealth.23 thus, even a political community that widely lacks valuable raw materials may be able to generate the necessary economic means for exerting its self-determination right. moreover, in the case of developing countries natural resources, such as oil and gemstones, have often proved to be a serious obstacle to economic progress. high resource income tends to increase government corruption and to help authoritarian regimes to ward off pressure for democratic reform. competition for resource revenues is also likely to trigger violent intrastate conf licts, which impede a country’s economic development. in sum, what has become known as “resource curse” speaks against a positive correlation between wealth in resources and a people’s capacity for self-determination.24 on a more theoretical level, the here considered interpretation of peoples’ permanent sovereignty over natural resources faces three closely related problems (armstrong 2017: 142-143). first, what the instrumentalist account can establish is, at best, that self-determining collectives are in need of a certain amount of economic means. it fails, however, to give any reason why peoples have special claims to the natural resources that can be found on their respective state territories. of course, it may appear obvious to specify the right holders’ claims in accordance with the existing state borders. but it is not the instrumental value of natural resources for the right to political self-determination that explains the link to a particular territory. the precise location of the natural resources a people has at its 23 john rawls (1999: 113-120) restricted duties of international assistance to the building of stable institutions because he deemed this to be the most important precondition for a country’s economic development. 24 the term “resource curse” has been introduced by richard auti (1993); an overview over recent research is given, for instance, in ross (2015) and venables (2016). natural resources, collective self-determination, and secession 41 leap 6 (2018) disposal is largely irrelevant for its capacity to take its own decisions. in principle, people a could be enabled to exercise its right to selfdetermination by granting it a claim to the resources of people b’s territory, and vice versa. second, i have argued above that the right to political self-determination should be understood as a threshold concept, requiring only the availability of a minimum amount of choices. if this is correct, the instrumentalist view can only succeed with explaining why peoples need natural resources (or other sources of income) to an extent necessary for realizing a basic set of options. it provides, however, no reason for granting self-determining collectives authority over the total amount of natural resources that are located on their territories. the claims of peoples to natural resources, which are, strictly speaking, not indispensable for exercising their rights to self-determination, must rely on a different justification. third, natural resources and the chances of profiting from their exploitation are very unequally distributed across the globe. according to the instrumentalist interpretation, peoples are entitled to the natural resources necessary for exercising their rights to political selfdetermination. this implies that each right holder should have access to a certain amount of valuable raw materials, even if the territory under its control lacks significant deposits. the instrumentalist account thus mandates the reallocation of natural resources, or of the revenues derived from their exploitation, in order to enable less well-equipped peoples to exert their rights to political self-determination. as a consequence, it cannot provide a general justification for peoples’ permanent sovereignty over the whole set of natural resources located on their state territories. peoples who have authority over more commodities than required for their self-determination are duty-bound to share their resource wealth with less fortunate right holders. 3.3. territorial rights a more promising interpretation of peoples’ permanent sovereignty over natural resources is suggested by the efforts of colonial peoples to effectively end their domination by western states. the independence movements were particularly concerned that the former colonial powers would continue to exert a strong inf luence on their newly established states. sovereignty over natural resources was a sensitive issue insofar as foreign state or private companies had made significant investments in their exploitation. the colonial peoples considered their political selfdetermination to be substantially impaired if other actors had decisionmaking powers over (some part of ) the natural resources situated within 42 frank dietrich leap 6 (2018) the borders of their designated state territories. their misgivings about a continued domination find, inter alia, expression in par. 2 of unga resolution 1803: “the exploration, development and disposition of … resources, as well as the import of the foreign capital required for these purposes should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities”. the colonial peoples’ demand for non-domination draws attention to the crucial interest the right to political self-determination aims to protect. by granting this right in international law, the collectives concerned are supposed to be enabled to take independent decisions on their common future. however, a people cannot freely pursue its particular social, economic and cultural goals unless it has control over some piece of territory. it needs a clearly defined space where it can – undisturbed by other actors – implement its political decisions. if third parties pursuing conf licting goals were entitled to decide on the use of the territory concerned, a people might be unable to accomplish its common objectives. the territorial dimension of the right to political self-determination provides the key for understanding the conceptual link to the principle of resource sovereignty. since a people’s right to political self-determination implies authority over some territory, it necessarily extends to the natural resources that are located within its borders (moore 2015: 173-176). to illustrate the argument outlined above, it may be helpful to imagine a situation when a people’s right to self-determination would not comprise full authority over a defined territory. think, for example, of an international company or some global institution having decision-making power over the extraction of coal within the state boundaries. the members of the people living on the territory may predominantly oppose coal mining, as it contradicts their own values, plans and projects. they may, for instance, attach great importance to the protection of the environment and the preservation of traditional settlements in the mining area. however, a majority decision to declare the region a natural reserve would be impossible to effectuate if some other actor were permitted to access the coal deposits. consequently, assigning the right to decide on the exploitation of natural resources to a third party would seriously impair a people’s capacity for self-determination. the here proposed interpretation has important consequences for the specification of the resource rights to which a self-determining collective is entitled. a people cannot exercise its right to political self-determination in a meaningful way unless it has authority over some piece of territory. natural resources, collective self-determination, and secession 43 leap 6 (2018) therefore, it must have decision-making power over the exploitation (or conservation) of the natural resources located on the territory concerned. however, a people’s right to political self-determination does not imply a claim to the total earnings that can be derived from the natural resources. thus, contrary to the conventional view in international law, a people’s right to political self-determination entails control rights over natural resources but fails to justify (the full set of ) income rights.25 restricting the scope of peoples’ permanent sovereignty over natural resources to control rights allows for reconciling this doctrine with demands of global justice. thomas pogge (2008: 210-214), for instance, has proposed to introduce a “global resource dividend” as a mechanism for reducing the unequal distribution of wealth within the world population. according to pogge, states should be permitted to make sovereign decisions on the exploitation of the natural resources that are located on their territories. however, if they decide to extract oil or other raw materials, they are required to transfer some percentage of their revenues to the global poor. since the “global resource dividend” does not deny the control rights of self-determining collectives, it is fully compatible with the abovesketched understanding of peoples’ permanent sovereignty over natural resources. it is important to note that i do not intend to make a case for the theory of global justice defended by pogge or some other author. within the scope of this paper, i cannot argue for or against a moral duty to redistribute wealth across national boundaries. i merely wish to point out that there is no fundamental contradiction between demands of global justice and the resource sovereignty of peoples. since control rights are at the core of the here defended view of resource sovereignty, it seems worthwhile to elaborate on their content and scope.26 the right of peoples to political self-determination has to be understood as a prima facie right which can be trumped by conf licting moral considerations, such as the harm principle (schuppert 2014: 76-77, angeli 2015: 98 and stilz 2016: 100). by way of illustration, imagine a state that tests nuclear weapons in a desert region in close vicinity to a densely populated neighboring country. clearly, the people’s right to take independent decisions on its defense policy does not include an entitlement to endanger the life and health of third parties. since control rights over natural resources are closely connected to the ideal of political self-determination, they must be subject to the same restrictions. 25 the distinction between control rights and income rights over natural resources has also been emphasized by angeli (2015: 131-132) and moore (2015: 173-176). 26 i am grateful to an anonymous referee of this journal for urging me to clarif y the concept of control rights. 44 frank dietrich leap 6 (2018) consequently, peoples lack authority over natural resources if their exploitation (or conservation) inf licts harm on persons living outside the country.27 of course, decisions on the extraction of raw materials normally do not cause immediate damage to third parties, as in the example of the nuclear weapons test. the use of natural resources can, however, substantially worsen the living conditions of other persons in an indirect manner. a people may, for instance, significantly contribute to the devastating effects of global warming by authorizing the deforestation of rainforests or the extraction of fossil fuels. in order to determine the restrictions that need to be placed on peoples’ control rights over natural resources more precisely, two goals have to be considered. first and foremost, third parties must be protected from the harm self-determining collectives may inf lict on them. the right to political self-determination includes neither a permit to damage other communities nor to expose them to serious risk. second, a people’s capacity to realize its specific social, economic and cultural ambitions should be maintained to the widest possible extent. if there are two or more options of how the control rights of a people can be effectively constrained, the one that has the least negative impact on its political autonomy should be adopted. for a proper understanding of the first goal, it is necessary to dwell on the concept of harm. joel feinberg (1986: 145-146, original emphasis) proposed to “think of harming as having two components: (1) it must lead to some kind of adverse effect, or create the danger of such an effect, on its victim’s interests; and (2) it must be inf licted wrongfully in violation of the victim’s rights”. regarding the first component, a curtailment of individual or collective autonomy can only be justified if the neglect of other parties’ interests is significant.28 as the self-determination of an individual would be overly reduced if it were not allowed to pose relatively small risks on other actors, e.g. by driving a car, the political self-determination of a collective would be unduly diminished if it were required to rule out any possible negative externalities. of course, it is difficult to state with any precision what extent of risk and damages other persons or groups must accept. it seems, however, to be clear that every assessment of the harm peoples may inf lict on third parties has to take three aspects into account. the evaluation has 27 moreover, the right to political self-determination does not license a people to violate the basic interests of minority groups who live within the state boundaries. 28 according to barboza (2011: 99-102), it is generally accepted in international law that an imposition of minor risks and damages has to be tolerated by the states concerned. natural resources, collective self-determination, and secession 45 leap 6 (2018) to consider the magnitude of the damage, the likelihood of its occurrence, and – in cases of several actors sharing responsibility – the contribution of a specific people. the higher a people’s resource utilization scores on these criteria, the stronger is the argument for limiting its control rights. regarding the second component, feinberg (1984: 218-221) emphasized that individuals often pursue competing goals, which they cannot realize without thwarting the interests of other parties. for instance, the successful sales strategy of shopkeeper a may cut the profits of shopkeeper b who loses a great number of customers. a’s conduct is, however, fully legitimate – she does not wrong b – and fails, therefore, to violate the harm principle. likewise, state decisions placing other actors at a competitive disadvantage normally do not constitute harm in the relevant sense. by way of illustration, think of a country c that hitherto has been the only exporter of a valuable raw material. if another country started to extract and sell the same resource, c would not be wronged, although its economic situation might deteriorate as a result of falling prices. finally, one may wonder whether peoples who refrain from extracting resources can inf lict harm on third parties. the standard case of harm involves an action of party a that has a negative effect on party b, e.g. by causing an injury. omitting an action, such as the extraction of resources, leaves the living conditions of other persons unchanged and does not worsen their situation. however, it is widely accepted that a’s omission of an action can harm b if a is obliged to perform this action. think, for example, of a physician who fails to provide a patient with an urgently needed treatment because she does not want to be late for her dancing class. in this case, the patient is put in a worse position compared with the counterfactual scenario in which the physician had fulfilled her duty (feinberg 1986: 148-150). consequently, a people could harm third parties by abstaining from the exploitation of natural resources if it had a duty to make these resources available.29 as regards the second goal, it has to be examined more closely how the different forms the restriction of its control rights might take can affect a people’s capacity for self-determination. above all, two aspects – the content of the limitation and the kind of competences which are conferred on other actors – need to be discussed. first, it makes an important difference whether a people is obliged to preserve or to extract (some part of ) the natural resources located on its territory. the forced conservation 29 one may think of a duty to provide the world economy with scarce resources (see section 2) or a duty to transfer resource revenues to the global poor. the substantiation of any such duty can, however, be expected to be much more controversial than the justification of the harm principle. 46 frank dietrich leap 6 (2018) of natural resources confines a people’s space of action but normally leaves many other options open. if a people is, for example, prohibited from exploiting a coal deposit, it still can take independent decisions on the use of the area concerned. typically, there will be several possibilities – declaring a natural reserve, erecting new settlements, establishing an industrial zone – the political representatives can choose from. by contrast, the forced extraction of natural resources requires a specific action that may exclude every other option. in particular, large-scale projects, such as coal mining, profoundly affect the relevant area and allow of no additional usages a people could decide on. although prohibitions on the extraction of natural resources are usually less detrimental to peoples’ capacity for self-determination, it should not go unnoticed that their impact can vary greatly. the forced conservation of raw materials tends to weaken the political autonomy of developing countries much more than those of highly industrialized countries. in many cases, the export of natural resources provides an important source of income for the inhabitants of developing countries. if they are banned from selling valuable raw materials, their revenues and consequently their set of options will be significantly reduced. by contrast, technologically advanced societies normally have other possibilities to generate the financial means in order to pursue important collective goals. therefore, the imposition of a duty to preserve (some) natural resources has to take the economic situation of the peoples concerned into consideration. if their potential for self-determination is impaired to a greater degree, prohibiting the exploitation of natural resources requires a stronger justification.30 second, a people’s political autonomy also depends on the kind of competences that are conferred to other actors. on the one hand, some global or multilateral institution could be authorized to establish rules regulating the use of raw materials. thereby, it would have decisionmaking power over the exploitation or conservation of the natural resources in question. the agents of the institution would, however, not be allowed to implement or enforce its regulations within the territory of a people. on the other hand, some external authority could be entitled to directly access the raw materials over which it enjoys control rights. in this case, its agents would be free to enter a people’s territory and to organize 30 although armstrong (2017: 233-238) is not much concerned with the political selfdetermination of peoples, he makes a similar point regarding the welfare of their members. poor societies who are required to leave (part of ) their natural resources unexploited can, in his view, legitimately claim compensation for the loss of development opportunities. natural resources, collective self-determination, and secession 47 leap 6 (2018) the extraction of natural resources or to safeguard their preservation.31 granting some global or multilateral institution the right to operate on the territory of a people would have the most negative impact on its capacity for self-determination. the application of norms regulating the use of natural resources normally leaves the political representatives of a people with some scope of discretion. this residual decision-making power would be lost if an external authority were directly responsible for the exploitation (or conservation) of the raw materials in question. moreover, the right to manage part of the natural resources on a people’s territory may entail additional competences in other policy fields. for instance, in order to successfully run a coal mining project it may be necessary to develop the transport infrastructure and to admit skilled workers. arguably, an external actor who is entitled to initiate the extraction of coal must also have a say in a country’s transport and migration policy. as a consequence, the self-determination of a people would be restricted in a number of spheres only indirectly related to the use of natural resources. if the relevant international authority is prohibited from entering a people’s territory, much depends on how its regulations are formulated. peoples who have to conform to general standards typically enjoy some degree of discretion, whereas peoples who have to follow more specific instructions widely lack decision making power. for instance, a country, which is required to produce a certain amount of natural gas per annum, may still be able to take independent decisions on the development of deposits or the prohibition of drilling technologies. likewise, a country, which is obliged to preserve eighty percent of its rainforests, can freely determine the areas where a protection zone shall be established. since general norms allow for different specifications, they enable (to some extent) the political representatives of a people to bring important collective goals and values to bear. by contrast, more detailed directives of an external authority deprive peoples of the possibility to decide in accordance with their own preferences. in sum, restrictions of control rights necessarily diminish a people’s political autonomy and require, therefore, a sufficiently strong justification. the most widely accepted reason for constraining control rights is provided by the harm principle, which prohibits a people from damaging third parties. arguments for (or against) the limitation of control rights have to consider the seriousness of the harm and possible impacts on a people’s capacity for self-determination. as explicated above, the forced extraction 31 in addition, schuppert (2014: 87-94) has proposed to establish an international court of the environment authorized to make binding judgements on disputes concerning the use of natural resources. 48 frank dietrich leap 6 (2018) of natural resources tends to reduce a people’s decision-making power to a greater extent than the forced conservation of natural resources. consequently, regulations imposing an obligation to exploit natural resources must be supported by stronger harm-related reasons. conferring to an external authority the right to access natural resources directly has the most negative impact on a people’s capacity for self-determination. such a curtailment of a country’s territorial integrity can only be justified in exceptional cases when peoples are constantly unwilling or unable to comply with international norms.32 3.4. two objections finally, i will discuss two objections that may be raised to the here defended interpretation of peoples’ sovereignty over natural resources. a weakness of the above given argument may, first, be seen in the fact that i have characterized the right to political self-determination as a threshold concept. in subsection 3.2, i have maintained that the members of a selfdetermining collective only need a minimum amount of alternatives between which they can freely decide. if a people lacks authority over the exploitation of (part of ) the natural resources on a given territory, its set of options is thereby restricted, but it may still be able to choose between a variety of competing goals. therefore, one may object that my understanding of the principle of resource sovereignty is compatible with assigning quite extensive control rights to other actors. even restrictions, which do not protect third parties from harm, may appear to be justified as long as they remain below the critical threshold.33 here it is important to note that the right to collective self-determination – like the right to individual self-determination – consists of two elements. the right holder must, first, possess a sufficient number of options and, second, be free from external coercion.34 for instance, the selfdetermination right of a patient would be seriously violated if a physician forced her to undergo a certain treatment. this would also be true if she were able to choose between many qualitatively different options outside the medical context. likewise, granting a third party authority over natural resources may leave a people with the opportunity to decide many other social, economic and cultural issues. however, the entitlement of some 32 for a brief examination of “ecological interventions”, see schuppert (2014: 84-85). 33 a related criticism is discussed and rejected in banai (2016: 17-18). 34 as regards the violation of individual autonomy, raz (1986: 377) states: “coercion diminishes a person’s options. it is sometimes supposed that that provides a full explanation of why it invades autonomy. it reduces the coerced person’s options below adequacy. but it need not. one may be coerced not to pursue one option while being left with plenty of others to choose from.” natural resources, collective self-determination, and secession 49 leap 6 (2018) foreign actor to control the use of raw materials located on the territory of a people runs contrary to this people’s right to collective self-determination. for instance, thwarting the goal to preserve natural habitats or traditional buildings by mandating the extraction of coal clearly amounts to a form of alien domination. a second objection that may be raised to the here proposed concept of resource sovereignty concerns the hogging of natural resources. peoples enjoying self-determination rights may decide against extracting raw materials that could be used to alleviate poverty in other world regions. in view of the plight of destitute persons, one may doubt whether peoples who control valuable resources should be entitled to abstain from their exploitation. in response to this concern i would like to emphasize that my understanding of resource sovereignty does not preclude a duty to extract natural resources. given the adverse effects of such a duty for the political autonomy of the people concerned, its imposition has to be supported by weighty reasons. whether or not the forced extraction of natural resources can be justified ultimately depends on issues of global justice i cannot discuss within the scope of this paper. moreover, it should be noted that my concept of peoples’ sovereignty over natural resources is in principle compatible with theories of global justice, which call for the taxation of resource ownership. most importantly, hillel steiner (1994: 266-282 and 2011) argued that states whose inhabitants appropriated more than an equal share of the world’s natural resources owe compensation to states whose members under-appropriated the world’s natural resources. these states are required to pay a tax to a global fund, which shall be based on the rental value of their territories.35 evidently, the authorization of a global fund to lev y taxes on resource ownership would interfere with peoples’ self-determination rights. however, the political representatives of a people would not be obliged to effect the extraction and sale of any raw materials located on the relevant territory. provided that they had other sources of income enabling them to pay the tax, they could still opt for the conservation of natural resources.36 it seems, however, worth noting that the establishment of a global fund, as proposed by steiner, meets with two criticisms. first, to what extent a tax on resource ownership would diminish a people’s capacity for selfdetermination depends very much on its economic situation. for poor 35 according to john locke’s theory of just appropriation, the tax disregards any improvements of the land and the natural resources located on it, which have been achieved through the investment of labor. 36 for a proposal to combine pogge’s and steiner’s theories by taxing the use and the ownership of natural resources, see casal (2011a and 2011b). 50 frank dietrich leap 6 (2018) peoples it may be difficult, if not impossible, to pay the tax unless they exploit (part of ) their natural resources, whereas rich peoples may still be able to decide in favor of resource conservation. hence, in terms of selfdetermination destitute peoples would be unfairly burdened by a global fund. second, the imposition of a tax on consumption, as advocated by pogge, would provide sensible incentives for a sustainable use of natural resources. by contrast, a tax on resource ownership would not encourage peoples to refrain from the exploitation of natural resources. consequently, establishing a global fund would fail to meet the challenges of environmental degradation and global warming (casal 2011a: 317-320 and pogge 2011: 336-337).37 4. how secession affects the sovereignty of peoples over natural resources in the preceding section, i have argued that the territorial interpretation of the permanent sovereignty of peoples over natural resources is not in contradiction to demands of global justice. if duties of assistance can be justified on a global scale, nothing stands in the way of reducing present inequalities by taxing resource-rich countries. a problem that has attracted much less interest in recent philosophical debates concerns the distribution of assets (and debts) after the break-up of states. although in the past three decades a rich literature on the normative assessment of secession has emerged, the process of “political divorce” has not been discussed in much detail.38 in order to clarify whether and to what extent separatist states are entitled to the natural resources found on their territories, the distinction between control rights and income rights proves to be helpful again. this distinction suggests a morally more plausible approach to post-secession conf licts than the concept of unlimited sovereignty over natural resources on which international law currently relies.39 a state, which results from a legitimate secession, must be granted 37 for a rejection of this criticism, see steiner (2011: 332-333); for a response to steiner’s defense, see casal (2011b: 354-355). 38 the few authors who have dealt with questions of distributive justice that arise in the wake of secession have not specifically elaborated on natural resources (dietrich 2014 and catala 2017). 39 according to the vienna convention on state succession of 1983, agreements of the predecessor state and the newly independent state regarding state property (art. 15.4) or state debts (art. 38.2) “shall not infringe the principle of the permanent sovereignty of every people over its wealth and natural resources”. see also zimmermann (2007). natural resources, collective self-determination, and secession 51 leap 6 (2018) control rights over the natural resources that are found within its borders.40 if the rump state still had decision making power over the use of these raw materials, the self-determination right of the newly constituted people would be seriously impaired. for the reasons given above, the population of a separatist state might be unable to pursue its specific aims if a third party would be entitled to require the extraction or preservation of natural resources located within its borders. however, income rights are not a precondition for collective self-determination and, therefore, not implied in peoples’ sovereignty over natural resources. contrary to international law, a newly created state is not necessarily entitled to the full amount of intakes, which can be generated from the natural resources located on its territory. by limiting the concept of resource sovereignty to control rights, important interests of the rump state’s population can be taken into account. both parts of the now divided country may have made large investments in the development of raw material deposits situated in the break-away region. if the exploitation of resources was made possible by joint efforts of the “divorcees”, the population of the rump state has a legitimate claim to benefit from the gains. consequently, the inhabitants of the separatist state are bound to share their resource revenues in a fair manner with their former fellow-citizens. the duty to transfer an appropriate part of the resource revenues to the rump state is, however, limited in two respects. first, the citizens of the rump state are not entitled to benefit from the utilization of raw materials that were still undeveloped or undiscovered at the time of secession. since their claim to receive some part of the earnings is based on their contribution to the exploitation, it cannot extend to these resources. second, the duty of the separatist state to share its resource revenues with the rump state will presumably decrease over time. the exploitation of raw materials requires ongoing investments in the technological equipment and the infrastructure that need to be maintained and modernized. the higher the expenditures of the separatist state are, the more diminishes the relative weight of the rump state’s former contributions. hence, the share of the resource revenues to which the citizens of the rump state are entitled will usually shrink in the course of time.41 to the first-mentioned qualification it may be objected that the citizens 40 of course, the question of what requirements a secession must meet to be considered legitimate is a matter of dispute. different views are expressed, for instance, in buchanan (2004: 331-400), miller (1995: 81-118) and wellman (2005). 41 since it will be difficult to exactly determine the changing shares of the resource revenues, the second qualification is best understood as a normative guideline for a negotiated settlement of both parties. 52 frank dietrich leap 6 (2018) of the rump state had a legitimate expectation to benefit in the future from the exploitation of still undeveloped or undiscovered raw materials located on the separatist territory. therefore, one may argue, they should receive an appropriate share of the earnings that will be generated from these resources. here it is important to recall that i only consider cases when the population of the break-away regions had a moral right to create an independent state. although the inhabitants of the remaining regions may not have reckoned with the secession, they have not been wronged by it. generally speaking, the expectation of an actor a that some other actor b will not choose an option to which she is entitled cannot ground a moral claim against b. a may perhaps have good epistemic reasons, given her experience or knowledge, not to anticipate b’s decision. however, a is not normatively justified in expecting b to forego a morally permissible action.42 hence, if the secession was legitimate, the rump state’s population cannot substantiate a claim to benefit from the exploitation of undeveloped or undiscovered resources. finally, the question needs to be addressed whether a separatist state has compensatory duties even if it terminates the exploitation of profitable resources. the citizens of the rump state may have made large financial contributions to the development of some raw materials and may, therefore, feel entitled to a fair share of the revenues that would have been generated had the secession not occurred. in my view, in the situation described compensatory claims are for two reasons unwarranted. first, the separatist state might be compelled to continue the exploitation of resources in order to be able to meet its financial obligations. the forced extraction of natural resources might make it extremely difficult, or even impossible, to realize important societal goals. consequently, the self-determination right of the newly constituted people would be severely undermined by the rump state’s monetary claims.43 second, it is generally assumed that sovereign states may reassess and change their energy policies over time. thereby they do not incur compensatory duties against taxpayers for lost profits, although they may have contractual duties towards private investors. given that the secession was legitimate, the same moral criteria must apply to the newly independent state as to any other state. hence, the separatist state can be under a duty to share its resource revenues (to a diminishing degree) with the rump state, but it need not make compensatory payments if it decides to end the extraction and to forego potential gains. 42 for a brief discussion of the distinction between justified epistemic and justified normative expectations, see meyer and sanklecha (2014: 370-372). 43 as explicated in section 3.3, the forced extraction of natural resources is likely to have a more negative impact on a people’s capacity for self-determination than the forced conservation of natural resources. natural resources, collective self-determination, and secession 53 leap 6 (2018) in sum, the here proposed interpretation of peoples’ permanent sovereignty over natural resources enables the international community to respond to post-secession conf licts in a balanced way. by granting the separatist state substantial control rights over the natural resources located on its territory the political self-determination of the newly created people can be effectively protected. by restricting the resource-related income rights of the separatist state the justified demands of the rump state’s population can be taken into account. the separatists’ duty to share their resource revenues with the rump state’s population has the additional advantage to provide sensible incentives. although this duty is qualified in two important respects, it will tend to discourage secessions, which are primarily motivated by economic reasons. hence, the concept of the permanent sovereignty of peoples over natural resources defended above promises a stabilizing effect on the international order. 5. conclusion in the penultimate section, i have examined three possible explanations for the close connection between a people’s right to political selfdetermination and its permanent sovereignty over natural resources as established in international law. i have, first, argued against the attribution of property rights (or similarly acquired jurisdictional rights) to the collectives concerned and i have, second, criticized an instrumentalist view of the relationship between natural resources and political selfdetermination. instead, i have proposed to understand peoples’ sovereignty over natural resources as an aspect of their territorial authorit y, which is a necessary precondition for actualizing the right to political self-determination. based on this interpretation, an important distinction between control rights and income rights can be established. a self-determining people is – within the limits set by the harm principle – entitled to decide on the utilization or conservation of the natural resources located on its territory. however, it has not necessarily a claim to the full amount of intakes that can be generated from the exploitation of these resources. the restriction of income rights allows for reconciling the permanent sovereignty of peoples over natural resources with demands of global justice. in addition, as i have shown in the last section, the here defended interpretation provides a sensible answer to resource conf licts that may arise in the wake of secession. if the population of a rump state has made a significant contribution to the development of natural resources situated in the 54 frank dietrich leap 6 (2018) breakaway region, it can be granted a claim to a fair share of the separate state’s revenues. 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philosophy 2: 98-127. venables, a. j., 2016: “using natural resources for development: why has it proven so difficult?”, journal of economic perspectives 30: 161-183. wellman, c. h., 2005: a theory of secession. the case for political self-determination, cambridge: cambridge university press. wenar, l., 2008: “property rights and the resource curse”, philosophy & public affairs 36: 2-32. — 2016: blood oil. tyrants, violence, and the rules that run the world, oxford: oxford university press. zimmerman, a., 2007: “state succession in other matters than treaties”, in: max planck encyclopedia of public international law, http://mpepil.com. leap 6 2018 law, ethics and philosophy leap frank dietrich mariano garreta leclerq saladin meckled-garcia julio montero leticia morales eduardo rivera-lópez cynthia a. stark leap law, ethics and philosophy law, ethics and philosophy (leap) online issn: 2341-1465 leap is a peer-reviewed, open access international journal dedicated to work in ethics, legal theory, and social and political philosophy. it welcomes clear, rigorous and original submissions that address concrete issues of public concern as well as more abstract theoretical questions. it also has the distinctive aims of (a) fostering work drawing on a variety of disciplines within the social and natural sciences, including biology, economics, history, and psychology; and (b) promoting dialogue between the anglophone and non-anglophone worlds. we invite submissions of articles up to 10,000 words, discussion notes up to 6,000 words, and replies and exchanges not exceeding 3,000 words. please send an anonymized version of the submission, along with a cover letter, to:leap.journal@upf.edu. all published submissions will have undergone blind review, and the journal will notify authors of submitted pieces about the progress of their submission within six weeks. although leap accepts exclusively submissions in english, the journal strongly encourages submissions from authors who also write in languages other than english, and will always strive to ensure that their work is assessed on the basis of its content and not primarily its mode of expression. where necessary the editorial process provides authors with guidance regarding matters of english style. the journal is published by pompeu fabra university and hosted by raco, the catalan repository of open access journals (http://raco.cat/index.php/leap)enquiries regarding the journal may be directed to: leap.journal@upf.edu. mailto:%20leap.journal%40upf.edu?subject= http://raco.cat/index.php/leap mailto:%20leap.journal%40upf.edu?subject= leap law, ethics and philosophy vol. 6 2018 editorial board editors paul bou-habib, university of essex paula casal, icrea & pompeu fabra university iñigo gonzález-ricoy, university of barcelona josé luis martí, pompeu fabra university serena olsaretti, icrea & pompeu fabra university hugo seleme, national university of córdoba, argentina andrew williams, icrea & pompeu fabra university. associate editors ingvild almås, norwegian school of economics samantha besson, fribourg university jordi ferrer, university of girona ernesto garzón valdés, johannes gutenberg university, mainz cristina lafont, northwestern university genoveva martí, icrea & university of barcelona lukas meyer, university of graz josé juan moreso, pompeu fabra university félix ovejero, university of barcelona zofia stemplowska, university of oxford editorial board aulis aarnio, tampere university lucy allais, university of the witwatersrand elizabeth anderson, university of michigan richard arneson, university of california, san diego gustaf arrhenius, stockholm university michael baurmann, university of düsseldorf juan carlos bayón, autonomous university, madrid carmen bevia, autonomous university, barcelona david bilchitz, south african institute for advanced constitutional, public, human rights, and international law geoffrey brennan, university of north carolina at chapel hill ian carter, university of pavia joseph chan, university of hong kong thomas christiano, university of arizona bruno celano, university of palermo antony duff, university of minnesota john ferejohn, new york university víctor ferreres, pompeu fabra university roberto gargarella, university of buenos aires robert goodin, australian national university axel gosseries, university of louvain lori gruen, wesleyan university riccardo guastini, genova university alon harel, hebrew university of jerusalem daniel hausman, university of wisconsinmadison jános kis, central european university matthew kramer, university of cambridge david lefkowitz, university of richmond kasper lippert-rasmussen, aarhus university frank lovett, washington university in st. louis stephen macedo, princeton university jeff mcmahan, rutgers university jane mansbridge, harvard university adèle mercier, queens university, ontario liam murphy, new york university ingmar persson, university of gothenburg philip pettit, princeton university thomas pogge, yale university wlodek rabinowicz, lund university joseph raz, columbia university debra satz, stanford university julian savulescu, university of oxford seana shiffrin, university of california, los angeles anna stilz, princeton university victor tadros, university of warwick larry temkin, rutgers university jeffrey tulis, university of texas at austin philippe van parijs, university of louvain georgia warnke, university of california, riverside ruth zimmerling, johannes gutenberg university mainz pompeu fabra university http://www.raco.cat/index.php/leap http://www.raco.cat/index.php/leap contents law, ethics and philosophy (leap) vol. 6, 2018 page 1. the presumption of equality............................................................ 7 cynthia a. stark d oi : 10. 310 0 9/l e a p. 2018.v6.01 2. natural resources, collective self-determination, and secession ...... 28 frank dietrich d oi : 10. 310 0 9/l e a p. 2018.v6.02 symposium on the philosophy of social and economic human rights 3. the philosophy of social and economic human rights ................. 58 julio montero d oi : 10. 310 0 9/l e a p. 2018.v6.03 4. socioeconomic human rights, autonomy and the cost of error ....... 64 mariano garreta leclercq d oi : 10. 310 0 9/l e a p. 2018.v6.0 4 5. social rights and deontological constraints .................................. 76 eduardo rivera-lópez d oi : 10. 310 0 9/l e a p. 2017.v6.0 5 6. two (different) types of human rights duty .................................. 92 saladin meckled-garcia d oi : 10. 310 0 9/l e a p. 2018.v6.0 6 7. the democratic case for a basic income ......................................... 120 leticia morales d oi : 10. 310 0 9/l e a p. 2018.v6.07 acknowledgments this issue of law, ethics and philosophy has been possible thanks to the ministerio de economía y competitividad de españa (mineco), the agencia estatal de investigación (aei) and the fondo europeo de desarrollo regional (feder), sponsors of justicia, legitimidad e instituciones globales, der2016-80471-c2-2-r (aei/feder/ue) (pi1: paula casal, pi2: josé luís martí), which has funded the correction, proofreading, copy editing, and typesetting of this volume. we also wish to thank peter josse and martín comesaña, respectively, for their proofreading and typesetting work. leap 5 (2017) the presumption of equality* c y n t h i a a . sta r k university of utah abstract many distributive egalitarians do not endorse strict equality of goods. rather, they treat an equal division as having a special status such that departures from equality must be justified. they claim, then, that an equal division is “presumptively” just. though the idea that equality is presumptively just and that departures from it may be just has intuitive appeal, making a case for this idea proves difficult. i argue, first, that extant “presumption arguments” are unsound. second, i distill two general philosophical morals: luck egalitarians have not adequately defended the presumption of equality and they face serious obstacles in doing so; rawls has defended it, but only indirectly via the contract apparatus. this approach narrows the presumption’s appeal. third, i consider and reject two alternative ways of understanding the presumption of equality that might avoid the problems revealed by my examination of extant views. the first appeals to the idea of value pluralism. the second treats the presumption as a view about the burden of proof. i conclude, ultimately, that it is misleading to think of distributive egalitarianism as typically having the form of a presumption argument. keywords: equality, distributive justice, rawls, luck egalitarianism. d oi : 10. 310 0 9/l e a p. 2018.v6.01 * i am grateful to the following people for helpful feedback on this paper or earlier versions of it: daniel halliday, jiewuh song, mathias iser, darrel moellendorf, rainer forst, catherine lu, merton reglitz, david rondell, christian schemmel, jahel queralt lange, eszter kollar, mara marin, elizabeth kahn, stefan gosepath, kit wellman and bruce landesman. i am also grateful to my audiences at goethe university, washington university and the free university of berlin where i presented this work. i owe thanks also to the london institute of philosophy and the forschungskolleg humanwissenschaften for providing me facilities in which to work on this project and to jonathon wolff for the conversation that prompted me to write this paper. 8 cynthia a. stark leap 6 (2018) 1. introduction many distributive egalitarians do not endorse strict equality of goods.1 rather, they treat an equal division as having a special status such that departures from equality must be justified. they claim, then, that an equal division is “presumptively” just. rawls, for instance, argues that inequalities in wealth are just only if they make everyone better off than they would be at a “benchmark of equality”. many luck egalitarians hold that distributive equality is the “moral default” and that departures from this default caused by brute luck2 are unjust while those produced by choice are just. though the idea that equality is presumptively just and that departures from it may be just has intuitive appeal, making a case for this idea proves difficult. in this paper i first show that extant “presumption arguments”, as i shall call them, are unsound. some of the arguments i canvas are given in a critical vein, so not in all instances do i make an original case against the presumption. the point of this canvasing is to demonstrate the difficulties besetting presumption arguments. second, i distill two general philosophical morals: luck egalitarians have not defended the presumption and they face serious obstacles in doing so; rawls has, but only via the contract apparatus, which narrows the presumption’s appeal. third, i consider and reject two alternative ways of understanding the presumption of equality that might avoid the problems revealed by my examination of extant views. the first appeals to the idea of value pluralism. the second treats the presumption as a view about the burden of proof. i conclude that it is misleading to think of distributive egalitarianism as typically having the form of a presumption argument. 2. getting to and departing from equality here are the bones of the presumption arguments i will consider: 1. equality is presumptively just because it eliminates the inf luence of luck on distribution. departures produced by choice are just because they hold people responsible for their choices. 2. equality is presumptively just because it distributes the effects of luck equally. departures produced by choice are just because they hold people responsible for their choices. 1 i use “goods” here as a neutral term for whatever distribuenda particular theories endorse. 2 luck egalitarians distinguish between brute luck and option luck. see dworkin (1981: 293). throughout my discussion, i will use “luck” to mean “brute luck”. the presumption of equality 9 leap 6 (2018) 3. equality is presumptively just because it is demanded by the equal worth of persons. departures produced by choice are just because they hold people responsible for their choices, which is necessary for recognizing their capacity for agency. 4. equality is presumptively just because it contains no inequalities caused by morally arbitrary factors. departures from equality are just when and because they increase everyone’s wealth and maximize the wealth of the least wealthy. 5. equality is presumptively just because it contains no inequalities justified by morally arbitrary factors. departures from equality are just when and because they increase everyone’s wealth and maximize the wealth of the least wealthy. 6. equality is presumptively just because it is demanded by the equal worth of persons. departures from equality are just when and because they increase everyone’s wealth and maximize the wealth of the least wealthy. before outlining the arguments listed above, i must explain, in order to avert confusion, an idiosyncratic way in which “equality” is sometimes used by luck egalitarians. ronald dworkin (1981: 285-304), who is arguably the father of luck egalitarianism, maintains than an equal division of resources is not f latly equal but is, rather, one that meets the “env y test”. according to this test, a div ision is equal if no one prefers someone else’s bundle of resources – which includes both material goods and natural talents – to her own. this division, dworkin states, ensures that each person pays the cost to others of her choices and is, to that extent, just. one might think that changes over time to such an equal division are themselves just whenever people freely engage in production and exchange. however, dworkin argues, this is not the case, for some will confront good luck and others bad, in particular with respect to their mental and physical powers – some will, luckily, have highly marketable talents and others less marketable talents. because of the inf luence of luck, subsequent distributions will not be env y-free. dworkin argues that those who suffer bad luck are owed compensation via a tax and transfer system, which is based upon a hypothetical insurance market, the details of which need not detain us. the point is that such a system is necessary to ensure that the distribution of resources in a market economy remains env y-free and, hence, equal and just. dworkin’s argument is not a presumption argument because equality of resources is not presumptively just on his view – it is just full stop. distributive justice is preserved, he thinks, so long as production and 10 cynthia a. stark leap 6 (2018) exchange continually produce distributions that meet the env y test. i assume that “equality” in the presumption arguments i discuss below refers to f lat equality and not to dworkinian equality because dworkinian equality is not, by the lights of luck egalitarianism, merely presumptively just. 2.1. eliminating the influence of luck susan hurley (2003: 146-58; see also eyal 2005) has proposed that luck egalitarians endorse the presumption of equality because they believe that an equal division eliminates the inf luence of luck on distribution, which is required by justice. they then endorse departures from this division that are produced by choice alone, as these inequalities hold people responsible for their choices, which is also required by justice. but, hurley notes, this argument does not work because an equal division of goods might also be a matter of luck. she reasons as follows. if we redistribute equally all the goods that people have acquired as a matter of luck, then what share people have is still a matter of luck, at least insofar as people do not have the share for which they are responsible. it follows that an equal division does not extinguish the effects of luck, it merely rearranges them. so, an equal division cannot stand as the moral default on the ground that it neutralizes the effects of luck. suppose that the luck egalitarian can, contra hurley, found the presumption of equality upon the demand to eliminate the inf luence of luck on distribution. in this case, the luck egalitarian would, nonetheless, not have a sound argument for the presumption of equality.3 this is because (re)distributing equally all the goods that people have gotten as a matter of luck would not create f lat equality. the resulting distribution would instead contain inequalities produced by choice; people’s shares would be composed of whatever goods they acquired through their choices and an equal portion of the luck-tainted redistributed goods. it is hard to see how this division should serve, for the luck egalitarian, (merely) as a moral default. by luck egalitarian lights, this division does not require departing from since it contains inequalities that are just, namely those caused by choice, and (ex hypothesi) it extinguishes the effects of luck. there are two problems, then, with founding the presumption of equality on the idea that this will neutralize the inf luence of luck. the first is that equalizing the goods gotten by luck does not necessarily eliminate the inf luence of luck. the second is that even if it did, equalizing the goods 3 though they would have a sound argument for dworkinian equality, in which case, they would not be making an argument for a presumptively just division, but for a just division. the presumption of equality 11 leap 6 (2018) gotten by luck does not produce equality overall. 2.2. equally distributing the effects of luck samuel freeman (2007: 120-21, 151; see also vallentyne 2003: 170, 177) has defended the luck egalitarian against hurley’s charge by suggesting that the luck egalitarian is justified in demanding that the inf luence of luck be equalized. if we assume, he says, that everyone’s natural endowments are equally a matter of luck, then a principle of equity requiring us to treat like cases alike enjoins us to distribute the goods produced by our natural endowments equally rather than to let them fall into the hands of people according to their particular talents.4 the default justice of equality is founded, then, not upon the aim to neutralize luck, but rather on the demand to distribute the effects of luck equally.5 the problem with this amendment is that it does not address the second of the two problems identified above. redistributing the effects of luck equally does not produce a f latly equal distribution. it produces one in which the goods initially acquired by luck are distributed equally and the goods attributable to people’s choices are distributed unequally. and so, according to luck egalitarianism, there is no obligation of justice to depart from this division. 2.3. equal moral status and responsibility for one’s choices critics of hurley claim that she proposes the luck neutralizing aim as a possible ground for the presumption of equality because she confuses the luck egalitarian demand to eliminate the effects of luck on inequality with a demand to eliminate the effects of luck on distribution (vallentyne 2003, 2006; lippert-rasmussen 2005; cohen 2006; segall 2012). for luck egalitarians, what should be neutralized is not the effects of luck but rather the differential effects of luck. it follows that if equality were caused by luck, it would not be unjust on that ground. in this sense, equality has a special status for luck egalitarians: it is immune from moral condemnation 4 presumably this argument would hold mutatis mutandis for other instances of luck that tend to affect people’s distributive shares, such as their class position at birth, their health, etc. 5 cohen (2006: 445) holds a similar view, although he does not offer it as an argument for an egalitarian default. he says, “[s]uppose…that we could divide goods up into those for which people are responsible and those for which they are not responsible. then…we might use only the goods for which people are not responsible as the currency of justice… if it is fair for people to keep, before any redistribution is set in train, what and only what they are responsible for, because they are responsible for it, then the same conception of fairness also requires that the rest be distributed equally, because to distribute otherwise is to benefit people in disaccord with their exercises of responsibility”. 12 cynthia a. stark leap 6 (2018) even if it is caused by luck. hurley calls this approach “the equality default view”, suggesting that this immunity is unfounded. kok-chor tan (2012: 89-90) counters hurley’s suggestion by providing a sketch of an argument for the presumption of equality and for departing from equality on grounds of choice. he reasons as follows: 6 1) persons have equal moral worth as agents. 2) therefore, distributive equality is the “moral default”: it is the distribution from which departures must be justified. 3) departures from equality are justified when they are expressions of agency. 4) therefore, departures produced by choice are justified. 5) “distributive arrangements” that ref lect luck and not choice fail to treat people as moral equals. 6) therefore, distributions that ref lect luck and not choice are unjustified. as it stands, this argument is invalid: given that equality is a distribution that ref lects luck (barring very unusual circumstances), it would, by the lights of this argument, be unjust and so it cannot be presumptively just. however, this version of the argument makes hurley’s mistake. it treats distributions as such, rather than unequal distributions, as susceptible to the luck egalitarian criterion. this problem can be solved with the following changes: 1) persons have equal moral worth as agents. 2) therefore, distributive equality is the “moral default”: it is the distribution from which departures must be justified. 3) departures from equality are justified when they are expressions of moral agency. 4) therefore, departures produced by choice are justified. 5) departures from equality that ref lect luck and not choice fail to 6 tan (2012: 89-90) claims that he is not in fact arguing for the egalitarian default. he says, “[i]n explicating what i take to be the implicit starting point of luck egalitarianism, that of equal moral agency and how that ideal is interpreted to support equal distribution as a default independent of luck but subject to choice, i have not provided any argument for it. i take this ideal of equal moral agency and its egalitarian entailment to be a basic and starting intuition common to most accounts of luck egalitarianism”. the presumption of equality 13 leap 6 (2018) treat people as moral equals7. 6) therefore, departures that ref lect luck and not choice are unjustified. this version of the argument is valid but not sound. the ultimate reason for this is that the same principle that grounds equality also grounds departing from equality to inequality caused by choice. so, the argument provides no grounds for departing (or not departing, for that matter) from equality. to see this, notice that the equal worth of persons does not entail distributive equality. in fact, the equal worth of persons is compatible with a number of distributions, including a winner-take-all lottery, the division that recognizes persons’ rights of self-ownership, and the division in which each gets what he deserves. indeed, tan’s argument implies that the equal worth of persons is also compatible with the ultimately just distribution to which he believes we should depart. this is because, given that luck and choice exhaust the possible cause-types of inequality, premise 5) entails that inequalities caused by choice treat people as moral equals. so, both equality and inequality caused by choice have the virtue of treating people as moral equals. however, if both distributions recognize persons’ equal moral worth, it is not clear, without further argument, why one is merely presumptively just while the other is completely or ultimately just. perhaps the further argument runs as follows: even though an equal division and an unequal division caused by choice both treat people as moral equals, the latter has the additional virtue of recognizing people’s moral agency. so, an unequal division caused by choice is, in the end, just. the problem with this suggestion is that if recognizing people’s agency is a distinct virtue from recognizing their moral equality, then it is not clear how departures from equality caused by luck fail to recognize people’s moral equality, as tan proposes. indeed, it turns out that they do this by ignoring people’s moral agency. tan (2012: 89) states, “[f ]or luck egalitarians, a distributive arrangement that ref lects not agents’ free decisions and choices, but the circumstances that are forced on them, such as their good or bad luck, fails to treat them as moral equals”. the manner in which departures produced by choice succeed in treating people as moral equals, then, is by recognizing their moral agency and the manner in which departures produced by luck fail to treat people as moral equals is by ignoring their moral agency. so, in the end, that it treats people as moral equals is what justifies equality as the default and what justifies departures 7 insofar as lotteries treat people as moral equals, this claim is false. lotteries are not, as such, matters of option luck. they are only so if one has a choice about whether to enter them. if the state were to distribute the fruits of cooperation, say, each year, by a winner-takes-all lottery, the outcome would be a matter of brute luck and it would treat people as moral equals insofar as everyone had the same odds of winning. 14 cynthia a. stark leap 6 (2018) from equality that are traceable to choice. thus, the puzzle of why inequality based upon choice is preferable to equality remains. (one might wonder, at this point, how it is that equality treats people as moral equals given that it fails to recognize people’s moral agency due to its lacking inequalities caused by choice. i believe the luck egalitarian answer must be this: the egalitarian moral default is immune from any condemnation that appeals to what causes it: it is not unjust even if caused by luck (as we saw above) and it is not unjust even if caused by a failure to incorporate choice.8) to summarize, then, the problem with tan’s approach is that because the same principle grounds both the default and departures from it, there is no reason to think of the default as merely presumptively just and departures based on choice as just full stop.9 2.4. morally arbitrary factors and mutual benefit another presumption argument can be found in brian barry’s interpretation of an argument given by john rawls that g.a. cohen calls “the pareto argument for inequality”. cohen contends that this argument, which is not only reconstructed but also endorsed by barry, is in fact internally inconsistent (rawls 1971: 60-75; barry 1989: 213-34; cohen 2008: 87-97, 151168; see also cohen 1995 and shaw 1999). some background: rawls offers the pareto argument, which is distinct from his well-known social contract argument, to support the “difference principle”. the difference principle governs the distribution of income and wealth and says that only inequalities that benefit everyone and maximize the income of the worst off are just. the argument identifies an equal division as a presumptively just “benchmark” and states that we should depart from this benchmark only when inequalities fulfill the difference principle. rawls assumes, in this argument, that there may exist strong pareto improvements on equality so that it will be possible to increase the income of everyone if inequality is permitted. he assumes this on the ground that the sum total of wealth may be greater when inequality is permitted because these inequalities provide incentives for people to work more, or at harder tasks, than they would under equality. rawls’s aim in the pareto argument is to single out the difference principle as the pareto improvement on equality that qualifies as just. though the reasoning is somewhat 8 for discussion, see segall (2016: 48-73). 9 a related issue is whether the two “conjuncts” of the luck egalitarian ideal can be grounded in the same principle. these are the claims that departures produced by choice are just and that departures caused by luck are unjust. see sher (2014: 2-19). the presumption of equality 15 leap 6 (2018) murky, it is clear that the idea that people’s natural talents are “arbitrary from a moral point of view” and hence should not “improperly inf luence” their incomes figures prominently. according to the barry/cohen interpretation, rawls founds the benchmark of equality upon the morally arbitrary status of natural talents and he founds the difference principle upon the irrationality of prohibiting mutually beneficial inequalities. rawls’s reasoning for the benchmark, on this account, is as follows: inequalities in wealth that have morally arbitrary causes – including those caused by differences in natural talent – are unjust. therefore, an equal distribution of wealth is prima facie just.10 cohen identifies a problem with this inference: a division lacking inequalities with morally arbitrary causes will nonetheless contain inequalities with morally non-arbitrary causes (which, as cohen sees it, are inequalities caused by choice). so, prohibiting inequalities caused by something morally arbitrary does not produce equality. so, it looks like the benchmark of equality cannot be grounded on the claim that inequalities with morally arbitrary causes are unjust. cohen concludes from this problem with barry’s reconstruction not that the reconstruction is wrong, but that rawls must hold that differences in income caused by choice are not inequalities. so, the benchmark, cohen says, is, for rawls, not a f latly equal distribution. (as odd as this idea might seem to a rawlsian, the notion that a division containing differences in shares produced by choice is an equal division has a precedent in luck egalitarianism, as we saw above. this may explain cohen’s willingness to regard rawls’s benchmark of equality as containing choice-produced differences in shares.) rawls reasons further, according to this interpretation, that it would be irrational to settle for equality if there exist (strongly) pareto superior unequal distributions – unequal distributions, that is, that benefit everyone. of these distributions, the one that maximizes the income of the least well off – who have (again, as this interpretation goes) the strongest complaint against inequality – is just. hence the difference principle is just. cohen maintains that rawls’s case for the benchmark undermines his case for departing from it. if the benchmark is prima facie just on the ground that it contains no income inequalities with morally arbitrary causes, and if, as rawls concedes, income differences that maximize the income of the least wealthy are caused by differences in natural talent, 10 this is cohen’s terminolog y. rawls himself does not refer to the benchmark of equality as “prima facie just”. 16 cynthia a. stark leap 6 (2018) then the inequalities sanctioned by the difference principle are unjust. in other words, if equality is prima facie just on the ground that it is devoid of inequalities with morally arbitrary causes, then a pareto improvement on equality that contains inequalities with morally arbitrary causes cannot be all things considered just. cohen’s observation about rawls argument is, though, trivial given the way in which he sets the argument up. because differences in shares of wealth with morally non-arbitrary causes are, by definition, not inequalities, then inequalities are, by definition, differences in shares with morally arbitrary causes. so, on cohen’s account, rawls’s argument for the benchmark amounts to the claim that equality is just because it contains no inequalities. naturally, any departure from the benchmark would be unjust on this account. only if the benchmark is f latly equal and all differences in shares, regardless of their cause, count as inequalities, does cohen’s objection have force. for in this case, it would be a substantive claim to say that the difference principle is inconsistent with the justification for the benchmark on the ground that the difference principle allows inequalities that have morally arbitrary causes. in summary, then, there are two problems with rawls’s argument as cohen interprets it (via barry). the first is that eliminating inequalities with morally arbitrary causes does not in fact produce equality. the second is that if eliminating inequalities with morally arbitrary causes did (somehow) produce equality, the ideal justifying equality would be violated by departures to the difference principle. there is a way of avoiding this second problem, cohen says, but it ends up vitiating the case for the benchmark. suppose we interpret rawls as claiming not that morally arbitrary causes make inequalities unjust but that morally arbitrary causes cannot make inequalities just. if this is the case, then, departures from the benchmark to the difference principle are indeed just: though the inequalities allowed by the difference principle are caused by differences in natural talent, they are not justified by their being so caused. they are justified by the fact that they maximize the wealth of the least wealthy. however, cohen argues, this approach provides no ground for the benchmark of equality. if what makes a distribution prima facie just is that it contains no inequalities justified by their morally arbitrary causes, then equality is not the only distribution that can stand as a benchmark. indeed, the principle of utility, cohen says, can be the benchmark on this account, for it justifies inequalities on the ground that they are necessary to maximize the sum total of goods. so, on this second reconstruction of the pareto argument, cohen claims, departures from the benchmark of the presumption of equality 17 leap 6 (2018) equality to the difference principle are justified but the benchmark itself is not. however, the problem is not merely that the ideal justifying equality does not single out equality as the benchmark, as cohen observes, it is that the difference principle can also qualify as the benchmark since it shares the virtue of containing no inequalities justified by the morally arbitrary. as cohen sets up this second version of the pareto argument, it seems that there is no reason to prefer departures from equality to equality, as long as those departures contain no inequalities justified by their morally arbitrary causes, because it is sufficient for qualifying as just (albeit, prima facie just) that a distribution contains no such inequalities. this would make the problem with the second pareto argument similar to the problem with tan’s account. on his view, recall, the same principle – the equal worth of persons – justifies both equality and departures from it and, therefore, there is no reason to see one distribution as presumptively just and the other as fully just. on this second pareto argument, separate principles justify equality and inequality: equality is justified by the fact that it contains no inequalities justified by something morally arbitrary and inequality is justified by the ideal of mutual benefit. hence it is not as clear as it is on tan’s account that there is no reason to see an equal division as presumptively just and see the proposed departure from equality as ultimately just; perhaps the ideal justifying inequality can defeat the ideal justifying equality. yet the second pareto argument is vulnerable to tan’s problem, but for a different reason. the reason is that what makes equality just is the same thing that makes departing to the difference principle just: the absence of inequalities justified by their morally arbitrary causes. indeed, that the difference principle shares the just-making property of equality is what keeps the second pareto argument from making the mistake of the first pareto argument. what we learned from that argument was that in order for a departure from equality to be just, the departure distribution cannot violate the principle that justifies the equal division. so, if equality is just because it contains no inequalities justified by the morally arbitrary, then the just unequal division must also contain no inequalities justified by the morally arbitrary. (if it contained such inequalities it would be unjust.) it follows that, on the second pareto argument, it is not obvious how we can distinguish, from the point of view of justice, between the benchmark of equality and the difference principle because they both contain a property that is sufficient for making them just. hence the second pareto argument, like tan’s argument, appears not to be able to explain why equality is merely presumptively just while the proposed departure from equality is 18 cynthia a. stark leap 6 (2018) ultimately just. however, cohen’s second pareto argument may be salvageable on grounds not available to tan precisely because separate principles are invoked to justify the benchmark and difference principle inequality. perhaps the argument cohen has in mind is this: equality is, let us say, sufficiently just because it contains no inequalities justified by differences in natural talent, and so no inequalities justified by something morally arbitrary. difference principle inequality is more just than equality because it also contains no inequalities justified by something morally arbitrary and, on top of that, it is mutually beneficial relative to equality. (another option would be to say that difference principle inequality is not more just than equality but is in some other way morally preferable. this interpretation is suggested by barry’s claim that it would be irrational to insist on equality if mutually beneficial inequality that maximally benefits the worst off is available.) on this interpretation, then, the second pareto argument is stronger than tan’s argument but it is not immune from cohen’s original criticism of that argument, namely, that other divisions (besides equality) that lack inequalities justified by something morally arbitrary (though not the division to which we should depart) can qualify as the benchmark. 2.5 equal moral standing and moral arbitrariness a further problem with the first version of the pareto argument outlined above is not noticed by cohen. it is that if the benchmark of equality contains inequalities produced by choice, as cohen claims it must, it is unclear why strong pareto improvements on equality might be possible and it is unclear why departing from equality is required to avoid leveling down. after all, if people already have different shares of wealth at the benchmark that are produced by their choices about work, they do not need the promise of incentives inequality in order to work harder. the incentives inequality is already present at the benchmark. this observation suggests that the barry/cohen account of rawls’s presumption argument the presumption of equality 19 leap 6 (2018) is incorrect.11 so, i offer below an alternative account of rawls’s argument for the benchmark of equality. however, before outlining that account, which is different in its structure from the arguments i have thus far examined, let me identify three general desiderata for constructing presumption arguments that can be gleaned from the analysis above. it turns out that these cannot be simultaneously fulfilled, so presumption arguments must have a different structure than those discussed above. 1. the thing that allegedly produces and justifies equality must actually produce equality. otherwise genuine equality is not the default, and in some cases, it is not clear why the alleged default requires departing from. 2. the thing that produces and justifies equality must entail equality. otherwise, it is not clear why equality is the default, rather than some other distribution, including in some cases, the distribution departure to which is recommended. 3. the unequal departure distribution must fulfill the principle that justifies equality. otherwise, that distribution cannot be just. the second two of these cannot be mutually satisfied. if what justifies equality entails it, then no departures can be justified. and if what justifies equality does not entail it, then departures can be justified, but equality is not uniquely justified as the default. as we will see below, this problem is traceable to the following feature of the above arguments: the presumptive justice of equality and the ultimate of justice of inequality are thought to hold in all circumstances. rawls’s pareto argument, though not sound as it stands, avoids this problem. it runs (as i interpret it) as follows: 1) persons have equal moral worth. 2) therefore, an equal division stands as a “benchmark for measuring improvements”. 3) suppose strong pareto improvements on equality (e.g., unequal 11 the idea that the moral arbitrariness claim is deployed by rawls in the argument for the benchmark is not well supported by the text of the pareto argument. but it may be supported by rawls’s reason for rejecting the bargaining theorist’s use of the nonagreement point as the “status quo”: “[i]t is to avoid the appeal to force and cunning that the principles of right and justice are accepted. thus, i assume that to each according to his threat advantage is not is not a conception of justice. it fails to establish an ordering in the required sense, an ordering based on certain relevant aspects of persons and their situation which are independent from their social position and their capacity to intimidate and coerce”. rawls says, further, in a footnote to this passage, “[w]hat is lacking is a suitable definition of a status quo that is acceptable from a moral point of view. we cannot take various contingencies as known and individual preferences as given and expect to elucidate the concept of justice (or fairness) by theories of bargaining. the conception of the original position is designed to meet the problem of the appropriate status quo” (1971: 134). 20 cynthia a. stark leap 6 (2018) distributions that increase everyone’s share) are possible. 4) then, of the two main candidates for the just strong pareto improvement – laissez-faire and the difference principle – the one that minimizes the inf luence of morally arbitrary factors on people’s income shares is just. 5) the difference principle minimizes the inf luence of morally arbitrary factors on people’s income shares. 6) so, the difference principle is just. this is merely a skeleton of rawls’s account, but the details are not important for assessing its form qua presumption argument. i wish to make two points about its structure. the first is that, as in tan’s case, the second premise does not follow from the first without further argument. as i have already observed, many distributions can be grounded in the equal standing of persons. indeed, if this were not case, there would be little disagreement among theorists of distributive justice. the second point about the structure of rawls’s argument concerns the status of the presumption. the sense in which equality is presumptively just is that it is just unless inequality can be mutually beneficial (rawls 1971: 62,76; see also cohen 2008: 156-60). for rawls (1971: 78), it is an open question as to whether or not this is the case. the answer depends upon the plausibility of certain economic theories and on controversial ideas about human motivation – for instance, the claim that people, as a rule, will work less hard in the absence of incentives to acquire extra wealth.12 at the end of the day, for rawls, whether or not equality or the difference principle is just depends on the circumstances.13 for this reason, an entailment relation between the justifier of equality and equality, which rawls does not provide and which is necessary to single out equality as the benchmark, does not prevent departures: we can say that justice demands equality, and only equality, in some circumstances and it demands a departure from equality in others. compare this approach to tan’s. on his account, both equality and inequality generated by choice are just (in the way in which they are just) in any circumstance. the difference is in the way in which they are just – presumptively or ultimately. this gives us a clue as to how we might salvage tan’s argument. it can be reinterpreted to have the same structure as rawls’s.14 this interpretation 12 for criticism, see cohen (1997). 13 for discussion, see cohen (2003). 14 thanks to christopher wellman for pointing out that the luck egalitarian argument might have this structure. the presumption of equality 21 leap 6 (2018) solves the main problem with tan’s view, which is that because the same principle grounds both equality and choice-generated departures from it, there is no reason to treat equality as merely presumptively just and departures generated by choice as ultimately just. if circumstances change, however, then the same grounding principle might entail a different distribution. it might be that equal moral worth demands equality if choices do not produce inequality and otherwise demands inequalities produced by choice. nevertheless, it is unlikely that this interpretation is what luck egalitarians have in mind when they invoke the presumption, because it commits them to the idea that it is an open question as to whether or not choice will produce inequality. but there are strong reasons to think that inequalities produced by choice are simply inevitable. this is because differences in shares based upon choice depend, not on complex theoretical claims or controversial empirical claims, but on nothing more than the laws of physics: if you and i have the same capabilities and are gathering nuts in the same place, if i choose to gather for ten minutes and you choose to gather for twenty, you will (ceteris paribus) have more nuts than i. if inequality produced by choice is inevitable, then it is implausible to treat the presumption as endorsing equality on the condition that choice might not produce inequality. to summarize, then, rawls’s pareto argument contains a plausible justification for departing from equality, to the extent that that departure precludes levelling down. (one may not agree with his account of which unequal distribution is just, but the idea that mutually beneficial inequality is, at least pro tanto, preferable to equality is reasonable.) however, rawls’s account fails insofar as it does not single out equality as the just benchmark. we can now draw two general conclusions about presumption arguments. first, luck egalitarians have not successfully defended the presumption of equality, because their distinction between presumptively and ultimately just describes two different ways in which distributions are just, rather than two different circumstances under which distributions are just. they are therefore vulnerable to the dilemma identified above: whatever justifies equality must entail it, or else equality is not uniquely justified, but if it does entail it, all departures are precluded. second, rawls (1971: 118-83) is entitled to the presumption of equality, but the pareto argument does not do the necessary work. in order to move from the claim of equal moral standing to the benchmark, rawls needs the contract argument. in this argument, he models the equal standing of persons in his description of the parties to the contract and in his description of the hypothetical circumstances (the “original position”) in 22 cynthia a. stark leap 6 (2018) which the parties deliberate about the distribution of wealth (among other “primary social goods”). the parties would opt for equality he argues, given their equal claim to social goods (derived from their equal status) and their lack of knowledge of their particular capabilities, unless they can all have more under inequality. in this case, rawls argues, they would opt to maximize the wealth of the least wealthy, given their inability to predict their ultimate place in the distribution of wealth. while this approach arguably supplies a justification for equality as the benchmark (and, indeed, a justification for departing to the difference principle) it is controversial qua hypothetical consent argument.15 one last consideration: perhaps there are alternative ways of understanding the presumption of equality that i have not considered. below, i brief ly discuss two. i argue that neither is a strong candidate. 3. value pluralism the idea of value pluralism is frequently invoked by egalitarians, especially luck egalitarians.16 this doctrine says that equality is one among many values that bear upon the assessment of distributive arrangements.17 one proposal is that the presumption of equality is simply an expression of the notion of value pluralism. to say that an equal distribution is presumptively just is simply to say that, while there is something to be said for equality in assessing distributive arrangements, there is something to be said for other values as well and that these values permit or require deviations from equality. the presumption of equality, then, simply expresses the sensible view that equality is not the only thing that matters. but notice that this way of putting the point presupposes the idea that 15 for discussion, see dworkin (1975); stark (2000); enoch (2017). 16 larry temkin (2003: 63), for example, says, “any reasonable egalitarian will be a pluralist. equality is not the only thing that matters to an egalitarian. it may not even be the ideal that matters most. but it is one ideal among others that has independent moral significance”. see also, temkin (2002); parfit (2002); segall (2007); eyal (2007); cohen (2008: 4). 17 there are several notions of value pluralism proposed by egalitarians and several contexts in which value pluralism is said to apply. some theorists, such as temkin, parfit and cohen, hold that equality is one among many values bearing upon the goodness or the badness of a distribution. others, such as segall, hold that distributive justice (understood as the fulfillment of the luck egalitarian ideal of equality) is one among many values bearing upon the justice of the design of social institutions. segall holds, further, that justice is one among many values bearing upon the morality of institutional design. another view, advanced by eyal, claims that luck egalitarian equality is one among many values bearing upon both the moral and non-moral goodness of a policy of compensating victims of bad luck. (see the references in the previous footnote.) the presumption of equality 23 leap 6 (2018) equality has a special status. the proposal states that because equality is not the only thing that matters, we are sometimes justified in departing from it. but that assumes that equality has some sort of priority – it is the division that other values might justify deviating from. if equality really were simply one among many values pertinent to distributive ethics, then there are no grounds for positioning it as the distribution that other values might defeat. on a genuinely value pluralist view, we would take equally into account the ideals of, say, utility, mutual benefit and equality.18 that is to say, we would not assign a special weight or status to any of these values. a genuinely pluralist approach, then, represents an alternative to the idea that equality is presumptively just. hence this approach cannot stand as an interpretation of the presumption. 4. the burden of proof another way to interpret the notion that distributive equality is presumptively just is as a claim about the burden of proof: the burden of proof, the argument goes, is upon those favoring an unequal division and not upon those favoring equality. equality simply requires no justification.19 as a preliminary point it is worth noting that as a matter of social practice, the burden of proof tends to be assigned simply to those who hold the more unusual view. for instance, vegetarians are often expected by meat-eaters to justify their refraining from eating animals, where meat-eaters generally do not see themselves as owing anyone a justification for their practice, in spite of the fact that their practice is arguably more harmful. though most people may not believe in distributive equality, most political philosophers do.20 yet this would surely be a f limsy ground for assigning the burden of proof to the non-egalitarian. so, let us assume that claims about the burden of proof can stand on sturdier ground than the mere prevalence of a view. to assess the idea that distributive equality demands no justification let us compare that claim to some views about the burden of proof that are widely accepted. one such view is the legal presumption of innocence in some systems of criminal law. another is the idea that the atheist is not required to disprove the existence of god in order to be justified in believing that god does not exist. the notion that the burden of proof falls upon those who support distributive inequality, i argue, is relevantly different from these two cases. 18 see parfit (2002: 87-88.) 19 thanks to david rondell for proposing this interpretation. see gosepath (2011); wollheim and berlin (1955-56). 20 many theorists of distributive justice are either rawlsians or luck egalitarians. 24 cynthia a. stark leap 6 (2018) so, we have reason to doubt the claim that distributive equality demands no justification. i argue, further, that even if the presumption of equality were relevantly similar to the presumption of innocence, the idea that equality should be presumed just demands justification, for those who say that the accused should be presumed innocent can offer reasons for their view. yet providing a justification for the idea that distributive equality requires no justification is tantamount to providing a justification for the idea that equality should be presumed to be just. and, depending on how that argument goes, it will be subject to the pitfalls i identified above in arguments for the presumption. here is how the presumptive innocence of the accused differs from the presumptive justice of distributive equality: where the former is a strictly epistemic notion, the latter is not. the demand to presume the accused innocent says that we must treat the accused as though they are innocent until there is sufficient evidence of their guilt. that is, until we know whether or not they are innocent, we treat them as though they are. we are not required to believe that they are innocent, or, alternatively, we do not ascribe to them the property of being innocent. to presume that an equal division is just, however, is not to treat equality as though it is just until we have sufficient evidence to think it unjust. rather it is to say that equality is just, but that its justice can be defeated by other considerations. the presumption of innocence tells us what we should do when we do not know what to believe. the presumption of equality tells us what we should believe, namely that equality is just in a certain circumstance or that equality is initially just. even if i am mistaken about this difference, however, it seems reasonable for someone to demand reasons for assigning the burden of proof in a particular way. and, in fact, proponents of the idea that the burden of proof should be borne by the prosecutor to establish the guilt of the accused have offered reasons for their view. for example, one line of defense appeals to the serious harm of wrongful conviction. placing the burden of proof on the prosecution to establish the guilt of the accused tends to produce more improper acquittals than improper convictions. the improper acquittals are seen as the legitimate price of avoiding wrongful convictions given the power imbalance between the accused individual and the state and the serious consequences of wrongful conviction. another view, proposed by hamish stewart (2014: 410), is that the accused have a right to be presumed innocent simply in virtue of being persons. the basic idea is that the moral status of persons includes being “without reproach”; it includes the right to not be “…found to have done wrong merely on the basis being a person”. therefore, to judge someone the presumption of equality 25 leap 6 (2018) legally in the wrong that person must have done something legally wrong. so, persons have a legal right to be presumed innocent until proven guilty. the continuity between this argument and both tan’s and rawls’s arguments for the presumption of equality is striking and lends credence to the notion that the presumption in favor of distributive equality must itself be justified; it is not adequate to simply assert that distributive equality needs no justification. the idea that the burden of proof falls upon the theist is similar in one respect to the idea that the burden of proof falls upon the non-egalitarian. both are views about what one should take to be true. one should believe that god does not exist in the absence of evidence that he does exist and one should judge equality to be just in the absence of reasons that it is not just. however, the case involving god’s existence hinges on the fact that the theist formulates the thesis that god exists in way that ensures that it cannot be disproved and then claims that the fact that god’s existence cannot be disproved justifies belief in god. this is the point of russell’s teapot analogy. russell says that if he were to claim that a china teapot, too small to be detected by the most powerful telescopes, is orbiting the sun, it would be ludicrous to claim that the teapot non-believer must disprove the existence of the teapot in order to be justified in believing in its non-existence.21 the dis-analogy between this case and the presumption of equality is plain. the theist says that because we cannot prove the non-existence of a thing the non-existence of which is virtually impossible to prove we must believe in the existence of that thing. this is indeed a strong reason for thinking that the burden of proof does not rest upon the atheist. yet no such sleight of hand is present in the case of the presumption of equality. we cannot say that the burden of justification falls upon advocates of distributive inequality because those individuals have formulated their account of distributive justice in such a way that there are no reasons that count against it and then claim that egalitarians must accept their view on the ground that they (egalitarians) can provide no reasons against it. so, just as the presumption of equality is not analogous to the presumption of innocence, it is likewise not analogous to the presumption of the non-existence of god. 21 to this, theists claim that absence of evidence is not evidence of absence – even if evidence cannot be provided for the existence of something it might still exist. and, moreover, theists say, the basis for their belief in god is not the absence of evidence for his non-existence but rather evidence for his existence. just as there is evidence that there is not a china teapot orbiting the sun, there is evidence that there is a god, for the postulate that god exists can explain e.g., the origins of universe, the complexity of life on earth and so on. to this the atheist replies that the things that the postulate allegedly explains can be explained without the postulate. 26 cynthia a. stark leap 6 (2018) 5. summary the idea that distributive equality enjoys a special status such that departures from it require justification is indeed attractive. it allows us to endorse equality, in some sense, and, at the same time, avoid some major criticisms of equality, including the claim that it requires levelling down or fails to hold people responsible for their economic choices. nevertheless, characterizing this special status and showing how it can be overridden or defeated proves difficult. i argued above that despite their endorsement of the presumptive justice of equality, luck egalitarians have not successfully shown equality to be presumptively just. this failure is due to the structure of their presumption arguments. in order to assign a special status to equality, then, luck egalitarians must fashion an argument that takes a different form. rawls, on the other hand, can assign a special status to equality. its special status takes this form: it is the just division if, as a matter of fact, inequality does not increase the social pie in a way that benefits everyone. otherwise it is unjust and the mutually beneficial division that maximizes the wealth of the least wealthy is just. to make this case, however, rawls cannot rely upon the pareto argument alone because that argument does not explain why equality stands as a benchmark. it explains only why departing from the benchmark to the difference principle is justified. rawls must rely on the social contract argument to justify the special status of equality: equality is the benchmark because it is what people who know nothing of their natural talents and initial social position would choose (unless mutually beneficial inequalities are an empirical possibility). a weakness of rawls’s approach is that it is limited in its appeal, given the controversial nature of social contract arguments. bibliography barry, b., 1989: theories of justice, berkeley: university of california press. cohen, g.a., 1995: “the pareto argument for inequality”, social philosophy and policy 12: 160-85. — 1997: “where the action is: on the site of distributive justice”, philosophy & public affairs 26: 3-30. — 2003: “facts and principles”, philosophy & public affairs 31: 211-45. — 2006: “luck and equality: a reply to hurley”, philosophy and phenomenological research 72: 439-46. — 2008: rescuing justice and equality, cambridge, ma: harvard university press. dworkin, r., 1975: “the original position”, in reading rawls, ed. n. daniels, 16-53, stanford: stanford university press. the presumption of equality 27 leap 6 (2018) — 1981: “what is equality? part 2: equality of resources”, philosophy & public affairs 10: 283-345. enoch, d., 2017: “hypothetical consent and the value(s) of autonomy”, ethics 128: 6-36. eyal, n., 2005: “review: justice luck and knowledge”, economics and philosophy 21: 164-71. — 2007: “egalitarian justice and innocent choice”, journal of ethics and social philosophy 2: 1-18. freeman, s., 2007: justice and the social contract: essays on rawlsian political philosophy, oxford: oxford university press. gosepath, s., “equality” the stanford encyclopedia of philosophy (spring 2011 edition) e.n. zalta (ed.), url = <http://plato.stanford.edu/archives/spr2011/entries/equality/>. hurley, s., 2003: justice, luck and knowledge, cambridge, ma: harvard university press. lippert-rasmussen, k., 2005: “hurley on egalitarianism and the luck-neutralizing aim”, politics, philosophy and economics 4: 249-65. parfit, d., 2002: “equality or priority?”, in the ideal of equality, ed. m. clayton and a. williams, 81-125, new york: palgrave macmillan. rawls, j., 1971: a theory of justice, cambridge, ma: harvard university press. segall, s., 2007: “in solidarity with the imprudent: a defense of luck egalitarianism”, social theory and practice 33: 177-98. — 2012: “why egalitarians should not care about equality”, ethical theory and moral practice 15: 507-19. — 2016: why inequality matters: luck egalitarianism, its meaning and value, cambridge: cambridge university press. shaw, p., 1999: “the pareto argument and inequality”, the philosophical quarterly 49: 353-68. sher, g., 2014: equality for inegalitarians, cambridge: cambridge university press. stark, c.a., 2000: “hypothetical consent and justification”, journal of philosophy 97: 313-34. stewart, h., 2014: “the right to be presumed innocent”, criminal law and philosophy 8: 407-420. tan, kc., 2012: justice institutions and luck: the site, ground and scope of equality, oxford: oxford university press. temkin, l.s., 2002: “equality, priority and the leveling down objection”, in the ideal of equality, ed. m. clayton and a. williams, 126-61, new york: palgrave macmillan. — 2003: “equality, priority or what?”, economics and philosophy 19: 61-87. vallentyne, p., 2003: “brute luck equality and desert”, in desert and justice ed. s. olsaretti, 169-86, oxford: oxford university press. — 2006: “hurley on justice and responsibility”, philosophy and phenomenological research 72: 433-38. wollheim, r. and berlin, i., 1955-56: “equality”, proceedings of the aristotelian society, new series 56: 281-326. leap 6 (2018) natural resources, collective selfdetermination, and secession f r a n k di e t r ich heinrich-heine-university düsseldorf abstract international law grants states, as representatives of their peoples, the right to use and exploit the natural resources located on their territories. the aim of this paper is to clarify how the doctrine of peoples’ sovereignty over natural resources is related to their right to political self-determination. three different perceptions of this relationship are examined. first, the view that peoples have collective ownership rights over the natural resources to be found on their territories is criticized and rejected. thereafter, it is argued that instrumentalist reasons fail to explain why a people’s right to political self-determination implies sovereignty over natural resources. instead, it is suggested to consider sovereignty over natural resources a necessary component of a people’s authority over the territory where their right to self-determination is realized. the proposed solution provides a sensible framework for dealing with practical issues, as can be exemplified by post-secession conf licts over natural resources. keywords: collective self-determination, global justice, harm principle, natural resources, secession, territory. 1. introduction in international politics it is widely accepted that states are entitled to use the natural resources which are located on their territories to their own benefit. the many conf licts over natural resources we currently witness typically concern specific issues, such as the precise national borders between two countries. that states have sovereignty over natural resources – or rather the peoples represented by states – is hardly called into question by relevant international actors. furthermore, the assignment of special resource rights to territorially concentrated collectives has a secure basis in international law. most notably, article 1 of the t wo major human rights covenants from 1966 recognizes the right of peoples to political d oi : 10. 310 0 9/l e a p. 2018.v6.02 natural resources, collective self-determination, and secession 29 leap 6 (2018) self-determination. this right implies, as stated in the same article, the entitlement to freely dispose of the natural resources which are found within the respective territorial units. by contrast, the philosophical debate has been considering the principle of resource sovereignty mainly from a global justice perspective. several authors have called into question whether peoples can establish special claims to spatially defined shares of the world’s resources while excluding all other human beings. in their view, advantages gained from the unequal distribution of natural resources are morally arbitrary and in need of correction.1 however, what has received much less attention in the recent philosophical debate is the rationale for seeing resource sovereignty as an important component of the right to collective self-determination. the aim of this paper is to examine in some detail how both concepts – collective self-determination and authority over natural resources – relate to each other. by clarifying this conceptual link at the theoretical level i also hope to contribute to a better understanding of various practical problems. the argument is subject to two restrictions. first, within the scope of this paper i cannot address the fundamental objections global justice theorists have raised to the sovereignty rights of states or peoples. instead i start out from the assumption that the right of peoples to political selfdetermination can be justified and try to elucidate how this right relates to resource claims. the argument will, however, show that recognizing peoples’ authority over natural resources is in principle compatible with major demands of global justice.2 moreover, even the critics of the current state system may agree that attempts to establish global political institutions are not likely to succeed in the foreseeable future. thus, a thorough analysis of the concept of political self-determination may prove to be helpful for ref lecting on criteria of justice under non-ideal conditions. second, my argument relies on a rather conventional understanding of the term “natural resources”. i take natural resources to be materials or substances of some economic value, which exist without the actions of human beings, such as fertile land, minerals, or water. this is not to deny that more sophisticated models that have been recently proposed, e.g. tim hay ward’s (2006) “eco-space conception” or avery kolers’ (2012) “intentional conception”, may provide important insights. again, it would go beyond the scope of this paper to enter into the current debate on the adequate understanding of natural resources. although i expect my 1 criticism of the resource privilege of states or peoples has been offered inter alia by pogge (2008: 202-221) and armstrong (2015) and (2017: 132-149). 2 for an instructive discussion of how the ideal of global equality can be reconciled with the right of peoples to political self-determination, see armstrong (2010). 30 frank dietrich leap 6 (2018) discussion of the right to collective self-determination to be relevant for more refined conceptions, i cannot demonstrate this here. the argument proceeds by three steps. in the second section, i will explore the development of the right of peoples to political selfdetermination – with a special focus on the doctrine of permanent sovereignty over natural resources – in international law. thereafter, in the third section, i will discuss three possible explanations of how natural resources may be linked with a group’s entitlement to independently decide on its common future. first, they may be seen as the common property of a people; second, they may have an instrumental value for the achievement of a people’s collectively determined goals; or, third, resource sovereignty may be an essential component of a people’s claim to a territory of its own. after having advanced my arguments for the latter view, i will, in the fourth section, dwell on some of its implications. more precisely, i will ask what the proposed interpretation has to say on the handling of competing resource claims, which may emerge in the wake of secession or state dissolution. finally, in the last section i will brief ly summarize the main findings of my analysis. 2. resource sovereignty in international law the principle of people’s permanent sovereignty over natural resources has its roots in the period of decolonization. its development was characterized by a conf lict of interests between colonial peoples and newly independent states on the one hand and the prosperous states of the west on the other hand. the former actors were anxious to gain political independence and, if achieved, to expand their ability to pursue common goals. control over natural resources was, in their view, an important precondition for substantial self-determination and successful economic development (schrijver 2010b: sec. c2). the (former) colonial powers, by contrast, worried about a possible shortage of raw materials and, consequently, detrimental effects on the global economy. moreover, they feared that the decolonized states might nationalize foreign companies without offering sufficient compensation for their investments. the emergence of the concept of resource sovereignty in international law was closely connected with the development of a right to collective self-determination. the first significant legal document mentioning the political self-determination of peoples was the charter of the united natural resources, collective self-determination, and secession 31 leap 6 (2018) nations in 1945.3 article 1.2 of the charter states: “the purposes of the united nations are: … to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” there is wide agreement that at this time the self-determination of peoples had to be understood as a guiding principle for the peaceful coexistence of the community of states. however, in the years to come the principle of self-determination quickly developed into a legal right peoples under foreign rule could refer to. a crucial role in this process played resolution 1514 of the united nation’s general assembly (unga) from 1960, which called for bringing colonization to a speedy and unconditional end. in the so-called decolonization resolution the member states of the united nations unanimously recognized a right of all peoples to selfdetermination. although unga resolutions are not legally binding, they provide evidence of the predominant conception of international law. the view that a right to self-determination is existent in common law has been further substantiated in the process of decolonization, as many colonial peoples were able to gain political independence by appealing to their right to self-determination. in 1966, when the international covenant on civil and political rights (iccpr) and the international covenant on economic, social and cultural rights (icescr) were established, the right to self-determination was provided with a secure foundation in international treaty law. both human rights covenants stipulated identically in their arts. 1.1: “all peoples have the right of self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”4 in 1952 two unga resolutions for the first time linked the selfdetermination of under-developed countries or peoples with the right to exploit natural resources. resolution 523 stipulated “that the underdeveloped countries have the right to determine freely the use of their natural resources.” resolution 626 stated “that the right of peoples freely to 3 the principle has been discussed at least since president wilson’s famous “fourteen points“ and has been present in the thoughts of lenin and stalin but was not included in the regulations of the league of nations. 4 evidently, there is a tension between the right of peoples to self-determination and the right of states to territorial integrity as it is enshrined, most importantly, in art. 2.4 of the united nation’s charter. the entitlement of some part of a population, e.g. a colonial people, to freely determine its political status is difficult to reconcile with the inviolability of the established borders. 32 frank dietrich leap 6 (2018) use and exploit their natural wealth and resources is inherent in their sovereignty and is in accordance with the purposes and principles of the charter of the united nations.”5 for two reasons these resolutions met resistance by the usa, great britain, and other highly industrialized states. first, these states complained that the interests of prosperous economies to have access to raw materials were not sufficiently taken into account. second, they were concerned about the resolutions’ potential for legitimizing the expropriation of foreign companies and the annulment of concessions. this worry was fueled, most importantly, by the nationalization of the anglo-iranian oil company, enforced by the then socialist iranian government in 1951 (schrijver 1997: 37-49). the main reason for voting against resolution 626, given by the us delegation, was the lack of any provision for adequate compensation in the case of expropriation (hyde 1956: 860). the discussion on resource rights continued during the drafting process of the united nations’ two major human rights covenants. in 1958 the unga adopted resolution 1314, which confirmed “that the right of peoples and nations to self-determination … includes permanent sovereignty over their natural wealth and resources.” by this resolution a special commission was established in order to “conduct a full survey of this basic constituent of the right to self-determination.” the view that natural resources are a basic constituent of the right to self-determination was reaffirmed in the unga declaration 1803 on the permanent sovereignty over natural resources from 1962. primarily two provisions prompted the western states – with the exception of france – to vote in favor of this resolution. first, the declaration required of states which expropriate foreign holdings to pay the owner adequate compensation and, second, it stated that foreign investment agreements freely entered by signatory parties shall be observed in good faith (schwebel 1994: 401-415). the resolution on the permanent sovereignty over natural resources for the first time addressed an important aspect of internal self-determination, by commenting on the question of who is supposed to benefit from the extraction of resources. according to par. 1, the right to dispose of a country’s natural wealth and resources must be exercised in the interest of “the well-being of the people of the state concerned”. this is an important clarification, as experience has shown that in many cases the ruling elites 5 according to schrijver (2015: 23-24), the term “natural wealth” refers to the resource basis as distinguished from the natural resources themselves. for instance, the forest and the fertile soil constitute (part of ) a country’s natural wealth, whereas the timber of the trees and the tea or coffee plants count as natural resources. natural resources, collective self-determination, and secession 33 leap 6 (2018) have commercially exploited the raw materials to their own advantage.6 the resolution on peoples’ permanent sovereignty over natural resources paved the way for the inclusion of resource rights in the two human rights treaties of 1966. both the iccpr and the icescr state identically in their arts. 1.2: “all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. in no case may a people be deprived of its own means of subsistence”.7 in more recent debates on peoples’ permanent sovereignty over natural resources two topics have come into focus. first, the right to extract and make use of natural resources has increasingly been placed in the context of environmental protection. in 1972 the stockholm declaration of the un conference on the human environment for the first time specified obligations entailed by peoples’ resource sovereignty. principle 21 of the stockholm declaration specifies: “states have … the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”.8 while the stockholm declaration was mainly concerned with the prevention of external damage, later un documents entertained a more comprehensive view of environmental protection. a crucial role for the development of international environmental law played the concept of “sustainable development”, which was introduced by the so-called brundtland commission in 1987.9 the goal of sustainable development has been cited in many international legal documents, thereby constraining the right of peoples to exploit their natural wealth and resources (schrijver 2010a: 59-66). a telling example is the preamble of the un convention on 6 the moral responsibilities of other states with regard to governments who fail to manage natural resources in the interests of their peoples are discussed in wenar (2008) and (2016: 281-334), see also haugen (2014). 7 art. 25 (icescr) and art. 47 (iccpr) state in unison: “nothing in the present covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.” 8 the wording of this principle is reiterated – with only one slight alteration – in principle 2 of the rio declaration on environment and development from 1992. 9 the brundtland report defines sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” 34 frank dietrich leap 6 (2018) biological diversity from 1992, where the contracting parties reaffirm “that states have sovereign rights over their ow n biological resources [and …] are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner.”10 second, the intrastate allocation of the entitlement to exploit natural resources has become an important concern of international law. a growing body of legal documents has recognized that the doctrine of permanent sovereignty over natural resources applies to indigenous communities. most importantly, the united nations declaration on the rights of indigenous peoples from 2007 states in art. 3: “indigenous peoples have the right to self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” furthermore, art. 26.1 states: “indigenous peoples have the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” it is now a widely shared view in international law that different peoples within one state may possess rights over different territories and the respective resources (miranda 2012: 806-828, pereira and gough 2013: 20-34). thus, states are not only obliged to manage the natural resources which are located within their borders in their citizens’ interests; they must also take into account that the population may consist of several peoples, each with its own resource rights.11 3. resource rights as basic constituent of collective self-determination the previous section has shown that international law conceives of resource sovereignty as an integral part of peoples’ right to political selfdetermination. however, neither the relevant legal documents nor the drafting process that preceded their ratification make sufficiently clear how these concepts are connected with each other. in the following, i will discuss three possible explanations why an entitlement to collective selfdetermination might imply resource rights. first, i will deal with the understanding that self-determining entities have property rights (or similarly created sovereignty rights) to the natural resources of a given 10 a normative argument for the restriction of peoples’ permanent sovereignty over natural resources by environmental standards is presented in gümplová (2014). 11 as a further problem area one might mention resource sovereignty in occupied territories, which has been addressed by the international court of justice in several decisions, e.g. the israeli wall advisory opinion of 2004 and the armed activities case (congo v. uganda) of 2005. for a detailed analysis, see dam-de jong (2015). natural resources, collective self-determination, and secession 35 leap 6 (2018) territory. subsequently, i will explore instrumentalist accounts according to which a group’s capacity to exert its self-determination right crucially depends on the availability of natural resources. after having outlined the main shortcomings of these views, i will argue for considering sovereignty over natural resources a necessary component of a people’s authority over the territory where its self-determination takes place. finally, i will discuss two objections that may be raised to my position. 3.1. property and quasi-property rights the legal documents on peoples’ self-determination rights, which i discussed in the second section, recurrently speak of “their” natural resources. the use of the possessive pronoun “their” might indicate the existence of a collective property right, which predates the right to political selfdetermination. according to this assumption, sovereignty over natural resources is not to be understood as an enabling condition for the exercise of the right to political self-determination. the exploitation (or conservation) of natural resources is rather within the scope of issues on which a people, by virtue of its ownership, is entitled to decide. like an individual may determine the use of the goods she owns, the members of a people may jointly determine the use of their common possessions.12 an important challenge for an ownership account is to explain how collectives, such as peoples, acquire property rights over natural resources. in classical political thought, basically two mechanisms of how property rights come into existence – by first appropriation of previously unowned objects or by mixing one’s labor with such objects – are discussed. the historic versions of both theories start out from the assumption that god has devoted his creation to the whole of humanity. the original common possession of entire mankind is then, by a series of individual acts, transformed into a system of private ownership. according to a first appropriation account, as defended for instance by hugo grotius, a person who is first to settle on a hitherto uninhabited area acquires a property right to the land and its natural resources. by contrast, the core idea of the labor mixing account, which was initially advanced by john locke, is that from the very beginning everybody is the owner of herself. if a person invests labor in a natural good, she merges this good with a part of her body, which already constitutes her individual property. thereby she significantly increases the value of the good concerned and excludes the 12 to be clear, a collective ownership right – as i understand the term here – does not entitle each member of the collective to use the goods concerned at her discretion. instead the ownership right is held by the group as a whole: the individuals belonging to the group or their representatives must decide jointly – by a majority vote or some other procedure – on how to exercise this right. 36 frank dietrich leap 6 (2018) rights of all other people to make use of it.13 from the perspectives of both theories only individuals are capable of acquiring property rights – either by first seizing previously unowned goods or by investing labor in them. hence, the crucial question is how a people can come into the rightful possession of all natural resources located on the territory where it exercises its political self-determination. a possible answer is that the individuals who first acquired property rights over natural resources acted on behalf of the people. think, for instance, of a ship’s captain who discovers a previously unknown island and who declares, when going ashore, to take possession of this island in the name of, let us say, spain.14 although a first appropriation of natural resources by a people’s representative is conceivable, it can, at best, provide part of an explanation. the example of the ship’s captain presupposes the existence of a spanish state, which already has authority over a territory and its natural resources. even if one admits that the ship’s captain was entitled to seize the island on behalf of the spanish people, it is still unclear how this people’s claim to collectively own the natural resources of the spanish heartland could be justified. another response to the here discussed problem is that the individual members of a people voluntarily transferred their property rights over natural resources to the collective. seemingly, john locke (1960 [1689]: ii §120) comes close to such an idea when he declares: “by the same act … whereby any one unites his person, which was before free, to any commonwealth; by the same he unites his possessions, which were before free to it also.” however, what locke has in mind is – i think – that the persons concerned submit their property to the jurisdictional authority of the state. in his view, the individuals in the state of nature have strong reasons to enter into a political society in order to obtain protection for their possessions. therefore, they are prepared to vest the state with as much jurisdictional authority as necessary (and as little as possible) for the performance of its protective function. it is, however, hard to see why the persons who join a political society should transfer their property rights over natural resources completely to the state, or rather to the people constituting the state. they have no reason to relinquish their property rights because it is precisely the secure enjoyment of their possessions what motivates them to establish a state in the first place. at most, they might grant the state limited rights of intervention, such as the competence 13 for a recent revitalization of grotius’ theory, see risse (2012: 89-129); for a detailed examination of locke’s argument, see simmons (1992: 222-306). 14 in a different context, locke (1960 [1689]: ii §28) admits the acquisition of property at the behest of another person by stating: “(…) the turfs my servant has cut (…) become my property, without the assignation or consent of any body”. natural resources, collective self-determination, and secession 37 leap 6 (2018) to raise taxes in order to finance police services. however, since they would not assent to substantial intrusions into their private property, the state would not obtain anything close to a collective ownership right.15 more recently, an argument has been advocated that may be understood as a culturalist modification of locke’s labor mixing approach. so called liberal nationalist authors, such as david miller (1995: 21-27, 2007: 214-230 and 2012), chaim gans (2003: 97-123), and tamar meisels (2009), have pointed out to the formative inf luences the culture of a nation exerts on a territory.16 the members of a national community employ specific forms of agriculture, build roads and ports, and establish particular settlement structures. these cultural activities leave a lasting imprint on the territory, which distinguishes it from other geographical places. persons identifying with a national community typically have strong emotional bonds to the area they regard as their homeland. since the territory is shaped by their culture and closely connected to the nation’s history, they cannot imagine realizing their collective self-determination any where else.17 by analogy with locke, it has also been argued that the national community put the piece of land it traditionally occupies to an efficient use. over time, the various cultural activities of the group add material as well as symbolic value to the land (meisels 2009: 97-112 and miller 2012: 257-262).18 from a liberal nationalist perspective, the above considerations – cultural formation, emotional attachment, value enhancement – legitimize the claims of nations to “their” territories. it is important to note that, contrary to locke’s account, territorial rights are not conceived of as collective ownership rights. instead, national communities are thought to have an entitlement to exert jurisdictional authority over their traditional 15 for a critical examination of locke’s property theory of territorial rights, see beitz (1980). 16 it may be worth noting that the above-mentioned theorists speak of “nations” or “national communities” instead of “peoples”. for the question under discussion – the link between collective self-determination rights and sovereignty over natural resources – this terminological difference seems, however, irrelevant. 17 as regards personal attachment, miller (2007: 219) states: “the case for having rights over the relevant territory is (…) straightforward: it gives members of the nation continuing access to places that are especially significant to them, and it allows choices to be made over how these sites are to be protected and managed”. 18 the theory of resource rights advocated by cara nine (2012: 137-141) borrows from different aspects of locke’s political thought. in her view, a group acquires resource rights when it uses the resources concerned in a value-generating way, whereby she considers the achievement of political justice the relevant value. 38 frank dietrich leap 6 (2018) areas of settlement.19 the liberal nationalist’s argument has the advantage of avoid i ng t he problem w it h wh ich l ocke’s appropr iat ion t heor y ha s to grapple. since the labor, which needs to be “mixed” with the land, is understood as the joint activities of a culturally defined nation, the creation of a collective right seems more plausible. it is not the work of particular individuals but the common and ongoing efforts of a nation that shape some piece of land and, thereby, establish a claim to it. hence, the culturalist reinterpretation of locke’s account need not explain how individual rights can be transformed into collective rights of a nation or a people. the liberal nationalist’s argument for sovereignt y over natural resources faces, however, a serious problem. it needs to be shown how the cultural activities of national communities, on which their territorial claims depend, bear on natural resources. to be sure, the agricultural and settlement practices of national communities may shape the surface of the land and create strong feelings of belonging. moreover, certain natural resources, such as coal or diamonds, and the transgenerational project of their exploitation may play an important role for a national culture (miller 2012: 263-264). however, a people’s sovereignty over natural resources is generally understood to comprise the whole range of raw materials that are situated within the relevant territory. evidently, the members of a nation neither invest labor in every natural resource nor are they emotionally attached to every natural resource. for instance, the wood of an unmanaged forest and the water of a small, untouched river are not subject to any cultural activity. furthermore, it is hard to see on which grounds a people might claim a right to the future use of still undiscovered resources. the above-sketched reinterpretation of locke’s appropriation argument cannot extend to resources into which no cultural labor has been invested. in sum, the here discussed account may, at best, justify the claim of national communities to exert their right to political self-determination on a particular territory.20 however, even if territorial rights can be established in principle, the question which competences these rights include still has to be settled. in the philosophical debate it has been widely taken for granted that the justification of a territorial claim encompasses the whole 19 the jurisdictional authority of a people includes the competence to establish and modif y a system of property rights on the territory concerned. thus, a people (or its political representatives) may decide to nationalize natural resources or to allow private property rights. for an important critique of the conf lation of “property rights” and “sovereignty rights” in current nationalist debates, see fleischacker (2013). 20 for a critical examination of the liberal nationalist’s justification of territorial claims, see dietrich (2011: 87-89). natural resources, collective self-determination, and secession 39 leap 6 (2018) set of rights conventionally attributed to states.21 but the reasons that can be given for the substantiation of a territorial claim do not necessarily apply to each of its standard components. the liberal nationalist’s argument fails to explain why a group’s right to political self-determination entails an entitlement to dispose of (the full range of ) natural resources. 3.2. instrumentalist arguments as set out in the second section, the right of peoples to political selfdetermination emerged in the period of decolonization. at this time the freedom of newly created state communities to decide on their economic, social and cultural development was high on the agenda. against this background, important legal documents refer to natural resources as means for the achievement of peoples’ independently chosen goals. most notably, articles 1.2 of the iccpr and the icescr state: “all peoples may, for their own ends, freely dispose of their natural resources”. this formulation points to the instrumental value of natural resources for the exercise of the right to collective self-determination. contrary to the interpretation discussed above, peoples do not acquire property rights (or similarly created jurisdictional rights) over natural resources by the work they invest on a given territory. instead, they can claim authority over natural resources because their right to political self-determination would be void if an adequate material basis were lacking.22 the capacity of a people to make significant choices with regard to its common future depends, at least in part, on its prosperity. roughly speaking, the more aff luent a collective is, the more goals are attainable between which its member can freely decide. the revenues, which can be generated from the exploitation of natural resources, will normally enhance a people’s set of options. it seems, however, plausible to assume that the right to political self-determination only requires the availability of a minimum amount of alternatives. in order to make collective decisions, a people must be capable of choosing between different economic, social or cultural goals. meaningful self-determination does not require a particularly extensive set of options and is consistent with considerable 21 for a standard definition of territorial rights that encompasses authority over natural resources, see simmons (2001: 306). 22 a different instrumentalist argument for the permanent sovereignty of peoples over natural resources was presented by john rawls (1999: 38-39) in “a law of peoples”. according to rawls, a sustainable management of natural resources can best be achieved by assigning territorial rights to specific agents. if a people has exclusive responsibility for a certain piece of territory, it will be interested in the long-term exploitation of the resources concerned and refrain from overexploitation. since rawls is mainly concerned with the preservation of the environment – rather than the economic preconditions for collective self-determination – i will not discuss his argument in more detail. 40 frank dietrich leap 6 (2018) wealth disparities between the right-holders. in this context, it should be recalled that articles 1.2 of the two human rights covenants state: “in no case may a people be deprived of its means of subsistence”. the reference to the means of subsistence supports the view that the relevant regulations of international law focus on the basic prerequisites for the exercise of the right to self-determination. evidently, the instrumentalist interpretation must rely on an empirical assumption about the significance of natural resources for a people’s economic welfare. the research literature on the comparative development of resource-rich and resource-poor countries casts, however, doubts on the correctness of this thesis. to begin with, it seems questionable whether control over natural resources is necessary for achieving a minimum level of economic prosperity. there are other important factors, such as technological knowledge and the stability of political institutions, which contribute significantly to a people’s wealth.23 thus, even a political community that widely lacks valuable raw materials may be able to generate the necessary economic means for exerting its self-determination right. moreover, in the case of developing countries natural resources, such as oil and gemstones, have often proved to be a serious obstacle to economic progress. high resource income tends to increase government corruption and to help authoritarian regimes to ward off pressure for democratic reform. competition for resource revenues is also likely to trigger violent intrastate conf licts, which impede a country’s economic development. in sum, what has become known as “resource curse” speaks against a positive correlation between wealth in resources and a people’s capacity for self-determination.24 on a more theoretical level, the here considered interpretation of peoples’ permanent sovereignty over natural resources faces three closely related problems (armstrong 2017: 142-143). first, what the instrumentalist account can establish is, at best, that self-determining collectives are in need of a certain amount of economic means. it fails, however, to give any reason why peoples have special claims to the natural resources that can be found on their respective state territories. of course, it may appear obvious to specify the right holders’ claims in accordance with the existing state borders. but it is not the instrumental value of natural resources for the right to political self-determination that explains the link to a particular territory. the precise location of the natural resources a people has at its 23 john rawls (1999: 113-120) restricted duties of international assistance to the building of stable institutions because he deemed this to be the most important precondition for a country’s economic development. 24 the term “resource curse” has been introduced by richard auti (1993); an overview over recent research is given, for instance, in ross (2015) and venables (2016). natural resources, collective self-determination, and secession 41 leap 6 (2018) disposal is largely irrelevant for its capacity to take its own decisions. in principle, people a could be enabled to exercise its right to selfdetermination by granting it a claim to the resources of people b’s territory, and vice versa. second, i have argued above that the right to political self-determination should be understood as a threshold concept, requiring only the availability of a minimum amount of choices. if this is correct, the instrumentalist view can only succeed with explaining why peoples need natural resources (or other sources of income) to an extent necessary for realizing a basic set of options. it provides, however, no reason for granting self-determining collectives authority over the total amount of natural resources that are located on their territories. the claims of peoples to natural resources, which are, strictly speaking, not indispensable for exercising their rights to self-determination, must rely on a different justification. third, natural resources and the chances of profiting from their exploitation are very unequally distributed across the globe. according to the instrumentalist interpretation, peoples are entitled to the natural resources necessary for exercising their rights to political selfdetermination. this implies that each right holder should have access to a certain amount of valuable raw materials, even if the territory under its control lacks significant deposits. the instrumentalist account thus mandates the reallocation of natural resources, or of the revenues derived from their exploitation, in order to enable less well-equipped peoples to exert their rights to political self-determination. as a consequence, it cannot provide a general justification for peoples’ permanent sovereignty over the whole set of natural resources located on their state territories. peoples who have authority over more commodities than required for their self-determination are duty-bound to share their resource wealth with less fortunate right holders. 3.3. territorial rights a more promising interpretation of peoples’ permanent sovereignty over natural resources is suggested by the efforts of colonial peoples to effectively end their domination by western states. the independence movements were particularly concerned that the former colonial powers would continue to exert a strong inf luence on their newly established states. sovereignty over natural resources was a sensitive issue insofar as foreign state or private companies had made significant investments in their exploitation. the colonial peoples considered their political selfdetermination to be substantially impaired if other actors had decisionmaking powers over (some part of ) the natural resources situated within 42 frank dietrich leap 6 (2018) the borders of their designated state territories. their misgivings about a continued domination find, inter alia, expression in par. 2 of unga resolution 1803: “the exploration, development and disposition of … resources, as well as the import of the foreign capital required for these purposes should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities”. the colonial peoples’ demand for non-domination draws attention to the crucial interest the right to political self-determination aims to protect. by granting this right in international law, the collectives concerned are supposed to be enabled to take independent decisions on their common future. however, a people cannot freely pursue its particular social, economic and cultural goals unless it has control over some piece of territory. it needs a clearly defined space where it can – undisturbed by other actors – implement its political decisions. if third parties pursuing conf licting goals were entitled to decide on the use of the territory concerned, a people might be unable to accomplish its common objectives. the territorial dimension of the right to political self-determination provides the key for understanding the conceptual link to the principle of resource sovereignty. since a people’s right to political self-determination implies authority over some territory, it necessarily extends to the natural resources that are located within its borders (moore 2015: 173-176). to illustrate the argument outlined above, it may be helpful to imagine a situation when a people’s right to self-determination would not comprise full authority over a defined territory. think, for example, of an international company or some global institution having decision-making power over the extraction of coal within the state boundaries. the members of the people living on the territory may predominantly oppose coal mining, as it contradicts their own values, plans and projects. they may, for instance, attach great importance to the protection of the environment and the preservation of traditional settlements in the mining area. however, a majority decision to declare the region a natural reserve would be impossible to effectuate if some other actor were permitted to access the coal deposits. consequently, assigning the right to decide on the exploitation of natural resources to a third party would seriously impair a people’s capacity for self-determination. the here proposed interpretation has important consequences for the specification of the resource rights to which a self-determining collective is entitled. a people cannot exercise its right to political self-determination in a meaningful way unless it has authority over some piece of territory. natural resources, collective self-determination, and secession 43 leap 6 (2018) therefore, it must have decision-making power over the exploitation (or conservation) of the natural resources located on the territory concerned. however, a people’s right to political self-determination does not imply a claim to the total earnings that can be derived from the natural resources. thus, contrary to the conventional view in international law, a people’s right to political self-determination entails control rights over natural resources but fails to justify (the full set of ) income rights.25 restricting the scope of peoples’ permanent sovereignty over natural resources to control rights allows for reconciling this doctrine with demands of global justice. thomas pogge (2008: 210-214), for instance, has proposed to introduce a “global resource dividend” as a mechanism for reducing the unequal distribution of wealth within the world population. according to pogge, states should be permitted to make sovereign decisions on the exploitation of the natural resources that are located on their territories. however, if they decide to extract oil or other raw materials, they are required to transfer some percentage of their revenues to the global poor. since the “global resource dividend” does not deny the control rights of self-determining collectives, it is fully compatible with the abovesketched understanding of peoples’ permanent sovereignty over natural resources. it is important to note that i do not intend to make a case for the theory of global justice defended by pogge or some other author. within the scope of this paper, i cannot argue for or against a moral duty to redistribute wealth across national boundaries. i merely wish to point out that there is no fundamental contradiction between demands of global justice and the resource sovereignty of peoples. since control rights are at the core of the here defended view of resource sovereignty, it seems worthwhile to elaborate on their content and scope.26 the right of peoples to political self-determination has to be understood as a prima facie right which can be trumped by conf licting moral considerations, such as the harm principle (schuppert 2014: 76-77, angeli 2015: 98 and stilz 2016: 100). by way of illustration, imagine a state that tests nuclear weapons in a desert region in close vicinity to a densely populated neighboring country. clearly, the people’s right to take independent decisions on its defense policy does not include an entitlement to endanger the life and health of third parties. since control rights over natural resources are closely connected to the ideal of political self-determination, they must be subject to the same restrictions. 25 the distinction between control rights and income rights over natural resources has also been emphasized by angeli (2015: 131-132) and moore (2015: 173-176). 26 i am grateful to an anonymous referee of this journal for urging me to clarif y the concept of control rights. 44 frank dietrich leap 6 (2018) consequently, peoples lack authority over natural resources if their exploitation (or conservation) inf licts harm on persons living outside the country.27 of course, decisions on the extraction of raw materials normally do not cause immediate damage to third parties, as in the example of the nuclear weapons test. the use of natural resources can, however, substantially worsen the living conditions of other persons in an indirect manner. a people may, for instance, significantly contribute to the devastating effects of global warming by authorizing the deforestation of rainforests or the extraction of fossil fuels. in order to determine the restrictions that need to be placed on peoples’ control rights over natural resources more precisely, two goals have to be considered. first and foremost, third parties must be protected from the harm self-determining collectives may inf lict on them. the right to political self-determination includes neither a permit to damage other communities nor to expose them to serious risk. second, a people’s capacity to realize its specific social, economic and cultural ambitions should be maintained to the widest possible extent. if there are two or more options of how the control rights of a people can be effectively constrained, the one that has the least negative impact on its political autonomy should be adopted. for a proper understanding of the first goal, it is necessary to dwell on the concept of harm. joel feinberg (1986: 145-146, original emphasis) proposed to “think of harming as having two components: (1) it must lead to some kind of adverse effect, or create the danger of such an effect, on its victim’s interests; and (2) it must be inf licted wrongfully in violation of the victim’s rights”. regarding the first component, a curtailment of individual or collective autonomy can only be justified if the neglect of other parties’ interests is significant.28 as the self-determination of an individual would be overly reduced if it were not allowed to pose relatively small risks on other actors, e.g. by driving a car, the political self-determination of a collective would be unduly diminished if it were required to rule out any possible negative externalities. of course, it is difficult to state with any precision what extent of risk and damages other persons or groups must accept. it seems, however, to be clear that every assessment of the harm peoples may inf lict on third parties has to take three aspects into account. the evaluation has 27 moreover, the right to political self-determination does not license a people to violate the basic interests of minority groups who live within the state boundaries. 28 according to barboza (2011: 99-102), it is generally accepted in international law that an imposition of minor risks and damages has to be tolerated by the states concerned. natural resources, collective self-determination, and secession 45 leap 6 (2018) to consider the magnitude of the damage, the likelihood of its occurrence, and – in cases of several actors sharing responsibility – the contribution of a specific people. the higher a people’s resource utilization scores on these criteria, the stronger is the argument for limiting its control rights. regarding the second component, feinberg (1984: 218-221) emphasized that individuals often pursue competing goals, which they cannot realize without thwarting the interests of other parties. for instance, the successful sales strategy of shopkeeper a may cut the profits of shopkeeper b who loses a great number of customers. a’s conduct is, however, fully legitimate – she does not wrong b – and fails, therefore, to violate the harm principle. likewise, state decisions placing other actors at a competitive disadvantage normally do not constitute harm in the relevant sense. by way of illustration, think of a country c that hitherto has been the only exporter of a valuable raw material. if another country started to extract and sell the same resource, c would not be wronged, although its economic situation might deteriorate as a result of falling prices. finally, one may wonder whether peoples who refrain from extracting resources can inf lict harm on third parties. the standard case of harm involves an action of party a that has a negative effect on party b, e.g. by causing an injury. omitting an action, such as the extraction of resources, leaves the living conditions of other persons unchanged and does not worsen their situation. however, it is widely accepted that a’s omission of an action can harm b if a is obliged to perform this action. think, for example, of a physician who fails to provide a patient with an urgently needed treatment because she does not want to be late for her dancing class. in this case, the patient is put in a worse position compared with the counterfactual scenario in which the physician had fulfilled her duty (feinberg 1986: 148-150). consequently, a people could harm third parties by abstaining from the exploitation of natural resources if it had a duty to make these resources available.29 as regards the second goal, it has to be examined more closely how the different forms the restriction of its control rights might take can affect a people’s capacity for self-determination. above all, two aspects – the content of the limitation and the kind of competences which are conferred on other actors – need to be discussed. first, it makes an important difference whether a people is obliged to preserve or to extract (some part of ) the natural resources located on its territory. the forced conservation 29 one may think of a duty to provide the world economy with scarce resources (see section 2) or a duty to transfer resource revenues to the global poor. the substantiation of any such duty can, however, be expected to be much more controversial than the justification of the harm principle. 46 frank dietrich leap 6 (2018) of natural resources confines a people’s space of action but normally leaves many other options open. if a people is, for example, prohibited from exploiting a coal deposit, it still can take independent decisions on the use of the area concerned. typically, there will be several possibilities – declaring a natural reserve, erecting new settlements, establishing an industrial zone – the political representatives can choose from. by contrast, the forced extraction of natural resources requires a specific action that may exclude every other option. in particular, large-scale projects, such as coal mining, profoundly affect the relevant area and allow of no additional usages a people could decide on. although prohibitions on the extraction of natural resources are usually less detrimental to peoples’ capacity for self-determination, it should not go unnoticed that their impact can vary greatly. the forced conservation of raw materials tends to weaken the political autonomy of developing countries much more than those of highly industrialized countries. in many cases, the export of natural resources provides an important source of income for the inhabitants of developing countries. if they are banned from selling valuable raw materials, their revenues and consequently their set of options will be significantly reduced. by contrast, technologically advanced societies normally have other possibilities to generate the financial means in order to pursue important collective goals. therefore, the imposition of a duty to preserve (some) natural resources has to take the economic situation of the peoples concerned into consideration. if their potential for self-determination is impaired to a greater degree, prohibiting the exploitation of natural resources requires a stronger justification.30 second, a people’s political autonomy also depends on the kind of competences that are conferred to other actors. on the one hand, some global or multilateral institution could be authorized to establish rules regulating the use of raw materials. thereby, it would have decisionmaking power over the exploitation or conservation of the natural resources in question. the agents of the institution would, however, not be allowed to implement or enforce its regulations within the territory of a people. on the other hand, some external authority could be entitled to directly access the raw materials over which it enjoys control rights. in this case, its agents would be free to enter a people’s territory and to organize 30 although armstrong (2017: 233-238) is not much concerned with the political selfdetermination of peoples, he makes a similar point regarding the welfare of their members. poor societies who are required to leave (part of ) their natural resources unexploited can, in his view, legitimately claim compensation for the loss of development opportunities. natural resources, collective self-determination, and secession 47 leap 6 (2018) the extraction of natural resources or to safeguard their preservation.31 granting some global or multilateral institution the right to operate on the territory of a people would have the most negative impact on its capacity for self-determination. the application of norms regulating the use of natural resources normally leaves the political representatives of a people with some scope of discretion. this residual decision-making power would be lost if an external authority were directly responsible for the exploitation (or conservation) of the raw materials in question. moreover, the right to manage part of the natural resources on a people’s territory may entail additional competences in other policy fields. for instance, in order to successfully run a coal mining project it may be necessary to develop the transport infrastructure and to admit skilled workers. arguably, an external actor who is entitled to initiate the extraction of coal must also have a say in a country’s transport and migration policy. as a consequence, the self-determination of a people would be restricted in a number of spheres only indirectly related to the use of natural resources. if the relevant international authority is prohibited from entering a people’s territory, much depends on how its regulations are formulated. peoples who have to conform to general standards typically enjoy some degree of discretion, whereas peoples who have to follow more specific instructions widely lack decision making power. for instance, a country, which is required to produce a certain amount of natural gas per annum, may still be able to take independent decisions on the development of deposits or the prohibition of drilling technologies. likewise, a country, which is obliged to preserve eighty percent of its rainforests, can freely determine the areas where a protection zone shall be established. since general norms allow for different specifications, they enable (to some extent) the political representatives of a people to bring important collective goals and values to bear. by contrast, more detailed directives of an external authority deprive peoples of the possibility to decide in accordance with their own preferences. in sum, restrictions of control rights necessarily diminish a people’s political autonomy and require, therefore, a sufficiently strong justification. the most widely accepted reason for constraining control rights is provided by the harm principle, which prohibits a people from damaging third parties. arguments for (or against) the limitation of control rights have to consider the seriousness of the harm and possible impacts on a people’s capacity for self-determination. as explicated above, the forced extraction 31 in addition, schuppert (2014: 87-94) has proposed to establish an international court of the environment authorized to make binding judgements on disputes concerning the use of natural resources. 48 frank dietrich leap 6 (2018) of natural resources tends to reduce a people’s decision-making power to a greater extent than the forced conservation of natural resources. consequently, regulations imposing an obligation to exploit natural resources must be supported by stronger harm-related reasons. conferring to an external authority the right to access natural resources directly has the most negative impact on a people’s capacity for self-determination. such a curtailment of a country’s territorial integrity can only be justified in exceptional cases when peoples are constantly unwilling or unable to comply with international norms.32 3.4. two objections finally, i will discuss two objections that may be raised to the here defended interpretation of peoples’ sovereignty over natural resources. a weakness of the above given argument may, first, be seen in the fact that i have characterized the right to political self-determination as a threshold concept. in subsection 3.2, i have maintained that the members of a selfdetermining collective only need a minimum amount of alternatives between which they can freely decide. if a people lacks authority over the exploitation of (part of ) the natural resources on a given territory, its set of options is thereby restricted, but it may still be able to choose between a variety of competing goals. therefore, one may object that my understanding of the principle of resource sovereignty is compatible with assigning quite extensive control rights to other actors. even restrictions, which do not protect third parties from harm, may appear to be justified as long as they remain below the critical threshold.33 here it is important to note that the right to collective self-determination – like the right to individual self-determination – consists of two elements. the right holder must, first, possess a sufficient number of options and, second, be free from external coercion.34 for instance, the selfdetermination right of a patient would be seriously violated if a physician forced her to undergo a certain treatment. this would also be true if she were able to choose between many qualitatively different options outside the medical context. likewise, granting a third party authority over natural resources may leave a people with the opportunity to decide many other social, economic and cultural issues. however, the entitlement of some 32 for a brief examination of “ecological interventions”, see schuppert (2014: 84-85). 33 a related criticism is discussed and rejected in banai (2016: 17-18). 34 as regards the violation of individual autonomy, raz (1986: 377) states: “coercion diminishes a person’s options. it is sometimes supposed that that provides a full explanation of why it invades autonomy. it reduces the coerced person’s options below adequacy. but it need not. one may be coerced not to pursue one option while being left with plenty of others to choose from.” natural resources, collective self-determination, and secession 49 leap 6 (2018) foreign actor to control the use of raw materials located on the territory of a people runs contrary to this people’s right to collective self-determination. for instance, thwarting the goal to preserve natural habitats or traditional buildings by mandating the extraction of coal clearly amounts to a form of alien domination. a second objection that may be raised to the here proposed concept of resource sovereignty concerns the hogging of natural resources. peoples enjoying self-determination rights may decide against extracting raw materials that could be used to alleviate poverty in other world regions. in view of the plight of destitute persons, one may doubt whether peoples who control valuable resources should be entitled to abstain from their exploitation. in response to this concern i would like to emphasize that my understanding of resource sovereignty does not preclude a duty to extract natural resources. given the adverse effects of such a duty for the political autonomy of the people concerned, its imposition has to be supported by weighty reasons. whether or not the forced extraction of natural resources can be justified ultimately depends on issues of global justice i cannot discuss within the scope of this paper. moreover, it should be noted that my concept of peoples’ sovereignty over natural resources is in principle compatible with theories of global justice, which call for the taxation of resource ownership. most importantly, hillel steiner (1994: 266-282 and 2011) argued that states whose inhabitants appropriated more than an equal share of the world’s natural resources owe compensation to states whose members under-appropriated the world’s natural resources. these states are required to pay a tax to a global fund, which shall be based on the rental value of their territories.35 evidently, the authorization of a global fund to lev y taxes on resource ownership would interfere with peoples’ self-determination rights. however, the political representatives of a people would not be obliged to effect the extraction and sale of any raw materials located on the relevant territory. provided that they had other sources of income enabling them to pay the tax, they could still opt for the conservation of natural resources.36 it seems, however, worth noting that the establishment of a global fund, as proposed by steiner, meets with two criticisms. first, to what extent a tax on resource ownership would diminish a people’s capacity for selfdetermination depends very much on its economic situation. for poor 35 according to john locke’s theory of just appropriation, the tax disregards any improvements of the land and the natural resources located on it, which have been achieved through the investment of labor. 36 for a proposal to combine pogge’s and steiner’s theories by taxing the use and the ownership of natural resources, see casal (2011a and 2011b). 50 frank dietrich leap 6 (2018) peoples it may be difficult, if not impossible, to pay the tax unless they exploit (part of ) their natural resources, whereas rich peoples may still be able to decide in favor of resource conservation. hence, in terms of selfdetermination destitute peoples would be unfairly burdened by a global fund. second, the imposition of a tax on consumption, as advocated by pogge, would provide sensible incentives for a sustainable use of natural resources. by contrast, a tax on resource ownership would not encourage peoples to refrain from the exploitation of natural resources. consequently, establishing a global fund would fail to meet the challenges of environmental degradation and global warming (casal 2011a: 317-320 and pogge 2011: 336-337).37 4. how secession affects the sovereignty of peoples over natural resources in the preceding section, i have argued that the territorial interpretation of the permanent sovereignty of peoples over natural resources is not in contradiction to demands of global justice. if duties of assistance can be justified on a global scale, nothing stands in the way of reducing present inequalities by taxing resource-rich countries. a problem that has attracted much less interest in recent philosophical debates concerns the distribution of assets (and debts) after the break-up of states. although in the past three decades a rich literature on the normative assessment of secession has emerged, the process of “political divorce” has not been discussed in much detail.38 in order to clarify whether and to what extent separatist states are entitled to the natural resources found on their territories, the distinction between control rights and income rights proves to be helpful again. this distinction suggests a morally more plausible approach to post-secession conf licts than the concept of unlimited sovereignty over natural resources on which international law currently relies.39 a state, which results from a legitimate secession, must be granted 37 for a rejection of this criticism, see steiner (2011: 332-333); for a response to steiner’s defense, see casal (2011b: 354-355). 38 the few authors who have dealt with questions of distributive justice that arise in the wake of secession have not specifically elaborated on natural resources (dietrich 2014 and catala 2017). 39 according to the vienna convention on state succession of 1983, agreements of the predecessor state and the newly independent state regarding state property (art. 15.4) or state debts (art. 38.2) “shall not infringe the principle of the permanent sovereignty of every people over its wealth and natural resources”. see also zimmermann (2007). natural resources, collective self-determination, and secession 51 leap 6 (2018) control rights over the natural resources that are found within its borders.40 if the rump state still had decision making power over the use of these raw materials, the self-determination right of the newly constituted people would be seriously impaired. for the reasons given above, the population of a separatist state might be unable to pursue its specific aims if a third party would be entitled to require the extraction or preservation of natural resources located within its borders. however, income rights are not a precondition for collective self-determination and, therefore, not implied in peoples’ sovereignty over natural resources. contrary to international law, a newly created state is not necessarily entitled to the full amount of intakes, which can be generated from the natural resources located on its territory. by limiting the concept of resource sovereignty to control rights, important interests of the rump state’s population can be taken into account. both parts of the now divided country may have made large investments in the development of raw material deposits situated in the break-away region. if the exploitation of resources was made possible by joint efforts of the “divorcees”, the population of the rump state has a legitimate claim to benefit from the gains. consequently, the inhabitants of the separatist state are bound to share their resource revenues in a fair manner with their former fellow-citizens. the duty to transfer an appropriate part of the resource revenues to the rump state is, however, limited in two respects. first, the citizens of the rump state are not entitled to benefit from the utilization of raw materials that were still undeveloped or undiscovered at the time of secession. since their claim to receive some part of the earnings is based on their contribution to the exploitation, it cannot extend to these resources. second, the duty of the separatist state to share its resource revenues with the rump state will presumably decrease over time. the exploitation of raw materials requires ongoing investments in the technological equipment and the infrastructure that need to be maintained and modernized. the higher the expenditures of the separatist state are, the more diminishes the relative weight of the rump state’s former contributions. hence, the share of the resource revenues to which the citizens of the rump state are entitled will usually shrink in the course of time.41 to the first-mentioned qualification it may be objected that the citizens 40 of course, the question of what requirements a secession must meet to be considered legitimate is a matter of dispute. different views are expressed, for instance, in buchanan (2004: 331-400), miller (1995: 81-118) and wellman (2005). 41 since it will be difficult to exactly determine the changing shares of the resource revenues, the second qualification is best understood as a normative guideline for a negotiated settlement of both parties. 52 frank dietrich leap 6 (2018) of the rump state had a legitimate expectation to benefit in the future from the exploitation of still undeveloped or undiscovered raw materials located on the separatist territory. therefore, one may argue, they should receive an appropriate share of the earnings that will be generated from these resources. here it is important to recall that i only consider cases when the population of the break-away regions had a moral right to create an independent state. although the inhabitants of the remaining regions may not have reckoned with the secession, they have not been wronged by it. generally speaking, the expectation of an actor a that some other actor b will not choose an option to which she is entitled cannot ground a moral claim against b. a may perhaps have good epistemic reasons, given her experience or knowledge, not to anticipate b’s decision. however, a is not normatively justified in expecting b to forego a morally permissible action.42 hence, if the secession was legitimate, the rump state’s population cannot substantiate a claim to benefit from the exploitation of undeveloped or undiscovered resources. finally, the question needs to be addressed whether a separatist state has compensatory duties even if it terminates the exploitation of profitable resources. the citizens of the rump state may have made large financial contributions to the development of some raw materials and may, therefore, feel entitled to a fair share of the revenues that would have been generated had the secession not occurred. in my view, in the situation described compensatory claims are for two reasons unwarranted. first, the separatist state might be compelled to continue the exploitation of resources in order to be able to meet its financial obligations. the forced extraction of natural resources might make it extremely difficult, or even impossible, to realize important societal goals. consequently, the self-determination right of the newly constituted people would be severely undermined by the rump state’s monetary claims.43 second, it is generally assumed that sovereign states may reassess and change their energy policies over time. thereby they do not incur compensatory duties against taxpayers for lost profits, although they may have contractual duties towards private investors. given that the secession was legitimate, the same moral criteria must apply to the newly independent state as to any other state. hence, the separatist state can be under a duty to share its resource revenues (to a diminishing degree) with the rump state, but it need not make compensatory payments if it decides to end the extraction and to forego potential gains. 42 for a brief discussion of the distinction between justified epistemic and justified normative expectations, see meyer and sanklecha (2014: 370-372). 43 as explicated in section 3.3, the forced extraction of natural resources is likely to have a more negative impact on a people’s capacity for self-determination than the forced conservation of natural resources. natural resources, collective self-determination, and secession 53 leap 6 (2018) in sum, the here proposed interpretation of peoples’ permanent sovereignty over natural resources enables the international community to respond to post-secession conf licts in a balanced way. by granting the separatist state substantial control rights over the natural resources located on its territory the political self-determination of the newly created people can be effectively protected. by restricting the resource-related income rights of the separatist state the justified demands of the rump state’s population can be taken into account. the separatists’ duty to share their resource revenues with the rump state’s population has the additional advantage to provide sensible incentives. although this duty is qualified in two important respects, it will tend to discourage secessions, which are primarily motivated by economic reasons. hence, the concept of the permanent sovereignty of peoples over natural resources defended above promises a stabilizing effect on the international order. 5. conclusion in the penultimate section, i have examined three possible explanations for the close connection between a people’s right to political selfdetermination and its permanent sovereignty over natural resources as established in international law. i have, first, argued against the attribution of property rights (or similarly acquired jurisdictional rights) to the collectives concerned and i have, second, criticized an instrumentalist view of the relationship between natural resources and political selfdetermination. instead, i have proposed to understand peoples’ sovereignty over natural resources as an aspect of their territorial authorit y, which is a necessary precondition for actualizing the right to political self-determination. based on this interpretation, an important distinction between control rights and income rights can be established. a self-determining people is – within the limits set by the harm principle – entitled to decide on the utilization or conservation of the natural resources located on its territory. however, it has not necessarily a claim to the full amount of intakes that can be generated from the exploitation of these resources. the restriction of income rights allows for reconciling the permanent sovereignty of peoples over natural resources with demands of global justice. in addition, as i have shown in the last section, the here defended interpretation provides a sensible answer to resource conf licts that may arise in the wake of secession. if the population of a rump state has made a significant contribution to the development of natural resources situated in the 54 frank dietrich leap 6 (2018) breakaway region, it can be granted a claim to a fair share of the separate state’s revenues. bibliography angeli, o., 2015: cosmopolitanism, self-determination and territory. justice with borders, basingstoke, new york: palgrave macmillan. armstrong, c., 2010: “national self-determination, global equality and moral arbitrariness”, the journal of political philosophy 18: 313-334. — 2015: “against ‘permanent sovereignty’ over natural resources”, politics, philosophy & economics 14: 129-151. — 2017: justice and natural resources. an egalitarian theory, oxford: oxford university press. auty, r. m., 1993: sustaining development in the mineral economies. the resource curse thesis, london: routledge. banai, a., 2016: “self-determination and resource rights: in defence of territorial jurisdiction over natural resources”, res publica 22: 9-20. barboza, j., 2011: the environment, risk and liability in international law, leiden, boston: martinus nijhoff publishers. beitz, c. r., 1980: “tacit consent and property rights”, political theory 8: 487-502. buchanan, a., 2004: justice, legitimacy, and self-determination. moral foundations for international law, oxford: oxford university press. casal, p., 2011a: “global taxes on natural resources”, journal of moral philosophy 8: 307-322. — 2011b: “rejoinder to pogge and steiner”, journal of moral philosophy 8: 353-365. catala, a., 2017: “secession and distributive justice”, philosophical studies 174: 529-552. dam-de jong d., 2015: international law and governance of natural resources in conflict and post-conflict situations, cambridge: cambridge university press. dietrich, f., 2011: “changing borders by secession: normative assessment of territorial claims” in the ashgate research companion on secession, ed. a. pavković and p. radan, aldershot: ashgate, 81-95. — 2014: “secession of the rich: a qualified defense”, politics, philosophy & economics 13, 62-81. feinberg, j., 1984: the moral limits of the criminal law. vol. 1: harm to others, oxford: oxford university press. — 1986: “wrongful life and the counterfactual element in harming”, social philosophy & policy 4: 145-178. fleischacker, s., 2013: “owning land versus governing a land: property, sovereignty, and nationalism”, social philosophy & policy 30: 373-403. gans, c., 2003: the limits of nationalism, cambridge: cambridge university press. gümplová, p., 2014: “restraining permanent sovereignty over natural resources”, enrahonar. quaderns de filosofia 53: 93-114. haugen, h. m., 2014: “peoples’ right to self-determination and self-governance over natural resources: possible and desirable?”, nordic journal of applied ethics 8: 3-21. natural resources, collective self-determination, and secession 55 leap 6 (2018) hay ward, t., 2006: “global justice and the distribution of natural resources”, political studies 54: 349-369. hyde, j. n., 1956: “permanent sovereignty over natural wealth and resources”, the american journal of international law 50: 854-867. kolers, a., 2012: “justice, territory and natural resources”, political studies 60: 269-286. locke, j., 1960 [1689]: two treatises of government, ed. p. laslett, cambridge: cambridge university press. meisels, t., 2009: territorial rights, 2nd ed., heidelberg et al.: springer. meyer, l. and sanklecha, p., 2014: “how legitimate expectations matter in climate justice”, politics, philosophy & economics 13: 369-393. miller, d., 1995: on nationality, oxford: oxford university press. — 2007: national responsibility and global justice, oxford: oxford university press. — 2012: “territorial rights: concept and justification”, political studies 60: 252268. miranda, l. a., 2012: “the role of international law in intrastate natural resource allocation: sovereignty, human rights, and peoples-based development”, vanderbilt journal of transnational law 45: 785-840. moore, m., 2015: a political theory of territory, oxford: oxford university press. nine, c., 2012: global justice and territory, oxford: oxford university press. pereira, r. and gough, o., 2013: “permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to selfdetermination of indigenous peoples under international law”, melbourne journal of international law 14: 1-45. pogge, t., 2008: world poverty and human rights: cosmopolitan responsibilities and reforms, 2nd ed., cambridge: polity press. — 2011: “allowing the poor to share the earth”, journal of moral philosophy 8: 335352. rawls, j., 1999: the law of peoples, cambridge (mass.), london: harvard university press. raz, j., 1986: the morality of freedom, oxford: oxford university press. risse, m., 2012: on global justice, princeton, oxford: princeton university press. ross, m. l., 2015: “what have we learned about the resource curse?”, annual review of political science 18: 239-259. schrijver, n., 1997: sovereignty over natural resources. balancing rights and duties, cambridge: cambridge university press. — 2010a: development without destruction. the un and global resource management, bloomington (in.): indiana university press. — 2010b: “permanent sovereignty over natural resources”, max planck encyclopedia of public international law, http://mpepil.com. — 2015: “fifty years permanent sovereignty over natural resources” in permanent sovereignty over natural resources, ed. m. bungenberg and s. hobe, heidelberg et al.: springer, 15-28. schuppert, f., 2014: “beyond the national resource privilege: towards an international court of the environment”, international theory 6: 68-97. schwebel, s. m., 1994: justice in international law, cambridge: cambridge university press. 56 frank dietrich leap 6 (2018) simmons, a. j., 1992: the lockean theory of rights, princeton: princeton university press. — 2001: “on the territorial rights of states”, philosophical issues 11: 300-326. 1994: an essay on rights. oxford, cambridge: blackwell. — 2011: “the global fund: a reply to casal”, journal of moral philosophy 8: 328-334 stilz, a., 2016: “the value of self-determination”, oxford studies in political philosophy 2: 98-127. venables, a. j., 2016: “using natural resources for development: why has it proven so difficult?”, journal of economic perspectives 30: 161-183. wellman, c. h., 2005: a theory of secession. the case for political self-determination, cambridge: cambridge university press. wenar, l., 2008: “property rights and the resource curse”, philosophy & public affairs 36: 2-32. — 2016: blood oil. tyrants, violence, and the rules that run the world, oxford: oxford university press. zimmerman, a., 2007: “state succession in other matters than treaties”, in: max planck encyclopedia of public international law, http://mpepil.com. leap 6 (2018) symposium on the philosophy of social and economic human rights guest edited by julio montero the philosophy of social and economic human rights julio montero national research council of argentina the essays included in this volume are the result of a series of workshops organized by the united kingdom-latin america network for political philosophy (uklappn). the network is sponsored by the british academy of the united kingdom and brings together academics from argentina, brazil, chile, colombia, costa rica, mexico, spain and the united kingdom, who work in the field of contemporary political philosophy. as the title suggests, the main topic the volume addresses has to do with the nature, justification and implementation of socioeconomic human rights. the normative relevance of socioeconomic human rights cannot be overlooked. according to the world bank, 736 million people are situated below the poverty line of usd 1,90 per day and many of them die every year due to poverty-related causes (world bank 2015). severe poverty is thus one the most serious threats to human dignity of our time and the aim of socioeconomic human rights is precisely to conquer that threat. international human rights law proclaims a wide array of socioeconomic rights, including rights to nutritious food, shelter, medical care, housing, education and social security (un 1966). in the academic literature, there is some consensus that the fulfillment of these rights is essential if we want individuals to f lourish as human persons. the reasonable assumption underpinning this view is that someone who is starving, illiterate or seriously ill becomes materially unable to make a valuable use of her freedoms and to lead a distinctively human life. so if we think that individuals have a fundamental right to develop their agency, we have decisive moral reasons to care about the satisfaction of their socioeconomic needs. in spite of this consensus, there are also deep controversies about the normative justification of socioeconomic human rights. some think that they are not genuine human rights because they are not universal: individuals can only claim them against modern political institutions and they would have no clear addresses in alternative scenarios. instead, other authors insist that the list of socioeconomic rights proclaimed by current instruments is too demanding. in their opinion, people may have a human d oi : 10. 310 0 9/l e a p. 2018.v6.03 leap 6 (2018) the philosophy of social and economic human rights 59 leap 6 (2018) right to the resources they need for subsistence but they should not be recognized rights to the highest attainable standard of physical and mental health, free higher education, maternity leave or periodic holidays with pay (un 1966). international instruments may have gone too far by placing societies under extremely burdensome or even unfeasible obligations. finally, some liberal theorists argue that socioeconomic rights are secondary and less important than other categories of rights. from a legal point of view, socioeconomic human rights enjoy the same status as civil and political ones. as the 1993 vienna declaration sustains, all human rights are indivisible, interdependent and equally important (un 1993). in consequence, governments cannot pick and choose; they have a strict legal obligation to satisfy all our human rights at once. however, there are a number of crucial theoretical issues that must be urgently addressed if we want socioeconomic human rights to live up to their aspirations. fundamentally, this is because international instruments provide no clear guidelines as to what states must do in order to honor their responsibilities in this respect. the 1966 international covenant on economic, social and cultural rights defines its party’s obligations in the following terms: “each state party to the present covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively, the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures” (un 1966, article 2). the evident problem with this key article is that the idea of progressive realization up to the maximum of available resources is extremely opaque. what are the resources available to a state? does this clause only refer to its annual budget or it also includes all the resources governments could potentially collect through more progressive fiscal schemes and the full use of their natural resources? in practice, this vague language became a major obstacle for the effective realization of socioeconomic human rights as it makes almost impossible to decide when states have done enough to honor their commitments under the covenant. in a number of additional documents, the un committee on economic, social and cultural rights tried to specify the extent of states’ obligations. in its general comment 3 (1991), it establishes the existence of a “minimum core obligation” to ensure the satisfaction minimum essential levels of 60 julio montero leap 6 (2018) each of the rights: “thus, for example, a state party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the covenant. if the covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être” (#10). nevertheless, the notion of a “minimum core” is once more presented as dependent on the availability of resources: “by the same token, it must be noted that any assessment as to whether a state has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned” (#10). finally, the committee’s analysis of the clause of “progressive realization” is considerably abstract and offers no operative orientation as to how to make sense of such requirement: “it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the covenant and in the context of the full use of the maximum available resources” (#9). unfortunately, the committee never spells out what may count as a legitimate reason to postpone the satisfaction of socioeconomic rights or to justify the adoption of retrogressive measures. in the specialized literature there is also an intense ongoing debate about the judicial enforcement of socioeconomic rights. many authors argue that courts lack the legitimacy and the technical expertise required to make decisions about the allocation of scarce resources. their claim is that socioeconomic human rights are not rights in the technical sense; they should rather be regarded as non-justiciable standards that governments must observe when designing their public policies and economic plans. in recent years courts have developed some interesting strategies to deal with the difficulties that motivate these objections. in its inf luential sentence government of the republic of south africa vs. grootboom and others, the supreme court of south africa sustained that the housing program implemented by the local government of cape town was unsatisfactory (constitutional court of south africa 2000). its main the philosophy of social and economic human rights 61 leap 6 (2018) argument was that while the government was investing a significant amount of resources in the program, the plan included no special measures to address the situation of those people who lacked even a precarious shelter for their families. two aspects of the sentence make it particularly interesting. first, the court recognizes that resources are limited and that judges have no authority to make decisions about their allocation. second, the sentence does not order the government to provide any particular individual with immediate access to housing, but simply insists that the executive should develop an alternative program that incorporates its recommendations. the grootboom sentence is certainly innovative. it shows that courts have some promissory resources to enforce the satisfaction of socioeconomic rights without invading the competences of democratic institutions. yet, many critics object that the strategy adopted by the court was too weak both because it established no clear standards for policy makers and because it failed to provide immediate relief to thousands of people living in miserable conditions. as we see, socioeconomic human rights raise a number of questions of critical import for human rights theory and practice: what concrete measures must nations undertake to fulfill the socioeconomic rights of their inhabitants? when can a state legitimately claim that it is promoting their satisfaction up the maximum of its available resources? to what extent can their effective implementation be monitored by courts and what specific judicial techniques should they apply when supervising the conduct of governments? can courts force elected functionaries to advance certain public policies instead of the plans supported by the people through electoral processes? do they have the authority and skills to supervise the social programs chosen by democratic governments? the essays in this volume explore some of these issues from a philosophical perspective. mariano garreta leclercq argues against the constitutionalization and judicial implementation of socioeconomic human rights. in his view, when courts or expert committees unilaterally implement complex economic plans that are not approved through democratic mechanisms, they undermine the autonomy of the citizenry. this conclusion is backed by three general assumptions. the first one claims that there are deep controversies about the kinds of policies that could maximize the satisfaction of socioeconomic rights; the second one asserts that if those policies go wrong they could impose significant costs on the population and may even have a negative impact on the satisfaction of the essential needs of thousands of individuals; and the third assumption claims that treating persons as fully autonomous agents implies refraining 62 julio montero leap 6 (2018) from imposing risks on them, unless the potential victims have freely agreed to undertake those risks. as a result, it is up to the people to decide what concrete measures to implement in order to bring about the satisfaction of socioeconomic human rights. the essays by eduardo rivera lópez and saladin mackled-garcía investigate the normative structure of socioeconomic rights and human rights in general. eduardo rivera lópez claims that socioeconomic rights differ from classical liberal rights in a relevant aspect. the normative core of liberal rights is composed by “deontological constraints” not to treat people in certain ways. in this sense, the government cannot infringe the freedom of expression of an individual just by arguing that this will maximize the overall satisfaction of that same right. by contrast, socioeconomic rights are sensitive to aggregative considerations: governments may legitimately refuse to satisfy my right to an adequate diet if this implies that more people will have access to nutritious food in the immediate future. according to the author, this conceptual asymmetry between liberty rights and socioeconomic rights has important implications in terms of their enforcement by courts. in essence, while judges can protect individuals from discriminatory policies or order that some particular individuals be granted access to certain goods or services, they should refrain from sanctioning or recommending the implementation of specific public policies aimed at maximizing the overall fulfillment of socioeconomic rights. in turn, saladin meckled-garcía sustains that all categories of human rights involve two distinct kinds of obligations: “decisive obligations” and “weighting obligations”. decisive obligations are obligations not to take certain considerations into account when we decide how to treat an individual. so governments have a decisive obligation not to curtail people’s access to certain public services or freedoms based on their gender, religion or ethnic origin. on the other hand, weighting obligations are obligations to give a fair weight to the needs and interests of separate persons. for example, when deciding what to do in order to promote my right to medical care, the government must balance my interest in enjoying that service versus the interests of other members of society in not paying higher taxes. the conclusion of the paper is that because human rights cannot be reduced to purely decisive obligations but also involve weighting ones, then any plausible account of human rights must include concrete principles as to how burdens and benefits must be distributed among members of a human community. otherwise, the view would be seriously incomplete as it would fail to guide the action of political institutions. finally, leticia morales develops an original argument in favor of the philosophy of social and economic human rights 63 leap 6 (2018) adopting a universal basic income scheme that allows people to satisfy their most essential needs. her main ambition is to show that this kind of policy is valuable and morally mandatory not because it promotes the freedom of individuals, but because it improves the legitimacy of democratic institutions. the reasonable assumption that underlies this claim is that poverty constitutes a major obstacle to political participation and seriously discourages it. as a result, the implementation of a basic income scheme is not only a plausible strategy to advance the fulfillment of socioeconomic rights; it is also an integral component of a well-ordered democratic society. in sum, the essays in this volume offer a comprehensive introduction to the philosophy of socioeconomic human rights and try to come up with concrete answers to some of the most important questions they raise. our hope is that these contributions will stimulate the debate about their nature and precise implications and ultimately contribute to their universal realization. bibliography constitutional court of south africa, 2000: government of the republic of south africa and others v grootboom and others (cct11/00) [2000] zacc 19; 2001 (1) sa 46; 2000 (11) bclr 1169 (4 october 2000), url = <http://w w w.saflii.org/za/ cases/zacc/2000/19.html>. un, 1993: vienna declaration and programme of action, url = <https://w w w. ohchr.org/en/professionalinterest/pages/vienna.aspx>. un, 1966: international covenant on economic, social and cultural rights, url = <https://w w w.ohchr.org/en/professionalinterest/pages/cescr.aspx>. world bank, 2015: “poverty overview”, url = <https://w w w.worldbank.org/en/ topic/poverty/overview>. un committee on economic, social and cultural rights, 1991 general comment 3: the nature of states parties obligations, ur l = <ht t ps ://tbinternet.ohchr.org/layouts/treat ybodyexterna l/tbsearch. aspx?lang= en&treatyid =9&doctypeid =11>. http://www.saflii.org/za/cases/zacc/2000/19.html http://www.saflii.org/za/cases/zacc/2000/19.html https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx https://www.worldbank.org/en/topic/poverty/overview https://www.worldbank.org/en/topic/poverty/overview https://tbinternet.ohchr.org/_layouts/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypeid=11 https://tbinternet.ohchr.org/_layouts/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypeid=11 leap 6 (2018) socioeconomic human rights, autonomy and the cost of error m a r i a no g a r r e ta l ecl e rcq universidad de buenos aires consejo nacional de investigaciones científicas y técnicas de argentina abstract one of the most inf luential strategies to justify human rights available in the specialized literature is centered on the notion of autonomy. such a strategy assumes that civil and political and socioeconomic human rights are equally essential to lead a minimally autonomous human life. this article examines whether the ideal of autonomy can really provide support to the view proclaimed in the covenant that socioeconomic human rights must be realized progressively, according to “the maximum of available resources”. to do so, i focus on the conceptual relation between the ideal of autonomy and a fundamental dimension of moral deliberation which is often overlooked in the debate, namely: the cost of error in decision making. in a nutshell, i argue that once this key variable considered, it becomes evident that any measures governments may implement to promote the realization of social and economic human rights must be subject to democratic control. keywords: economic and social human rights, autonomy, progressive realization, cost of error, democratic legitimacy. 1. introduction one of the most common philosophical strategies used to justify human rights – including both civil and political rights (cphr) and socioeconomic ones (eshr) – appeals to the notion of autonomy. cécile fabre provides a d oi : 10. 310 0 9/l e a p. 2018.v6.0 4 socioeconomic human rights, autonomy and the cost of error 65 leap 6 (2018) particularly persuasive example of such strategy (fabre 1998), 1 which may be appl ied to t he nor mat ive just i f icat ion a nd ju r id ica l i nter pretat ion of t he un covenant on economic, social and cultural rights (1966).2 her ultimate aim is to prove that socioeconomic rights must be constitutionalized because both socioeconomic human rights and civil and political ones perform the very same normative function: they preserve the value of personal autonomy. following authors such as john rawls (1993), joel feinberg (1972) and gerald dworkin (1988), fabre insists that in spite of its obvious liberal origins, the principle that individuals have a fundamental interest in personal autonomy may be accepted by people holding the most diverse doctrines of the good. in her own words: “autonomy captures an essential characteristic of human beings, which distinguishes them from other beings, namely their ability rationally and morally to decide what to do with their life, and to implement these decisions, over long periods of time, so as to lead a meaningful existence and through it develop an awareness of the kind of persons they are” (fabre 1998, 265). so we have reason to respect people’s autonomy because autonomy is an essential component of the human condition: only autonomous persons can fully develop their human nature. in this vein, fabre sustains that civil and political rights have normative importance precisely because they are necessary to preserve our autonomy: freedom of expression, freedom of conscience, freedom of association and freedom of movement are obviously crucial to enjoying control over one’s own life. in fact, when such freedoms are not protected, individuals become unable to choose and revise their own life-plans in the most fundamental sense. the same is true of political rights: “if it is important that i have some degree of control over my life, then surely it is important that i have some degree of control over the social and political environment within which i lead my life: electing representatives in parliament, voting in referenda and running for office myself are means to acquire that control” (fabre 1998, 266). 1 although human rights can undoubtedly be derived from other normative ideals, fabre’s argument is particularly relevant. this is because autonomy, under different formulations, has played a central role in liberal thought from kant and mill down to the most significant thinkers in the 20th century, with john rawls’ theory of justice (1971 and 1993) in the front line. on the other hand, the notion of autonomy has played a crucial role in the specific field of human rights justification: the theories of alan gewirth (1982) and james griffin (2008) are excellent examples. 66 mariano garreta leclercq leap 6 (2018) according to fabre, the above considerations explain why civil and political rights must be constitutionalized and protected from majoritarian decision making. importantly, fabre insists that socioeconomic rights are equally important to preserve the autonomy of individuals: “giving these resources –income, education, housing, etc.– to people is important because without them they would be unable to develop the physical and mental capacities necessary to become autonomous. if we are hungry, thirsty, cold, ill and illiterate, if we constantly live under the threat of poverty, we cannot decide on a meaningful conception of the good life, we cannot make long-term plans, in short we have very little control over our existence” (fabre 1998, 267). the main goal of this paper is to suggest that even if socioeconomic human rights are relevant to preserving the autonomy of individuals, there are cogent autonomy-based reasons to resist their constitutionalization. of course, this does not mean that the satisfaction of socioeconomic human rights should not be regarded as a political priority by democratic societies. it simply means that any specific decisions about their implementation must remain under ordinary democratic control: neither courts, nor experts are authorized to make unilateral decisions to ensure their fulfillment under the clause of progressive realization according to the maximum of available resources. in this sense, the paper provides support for one particular understanding of what specific obligations governments have under current international law: while the fulfillment of subsistence needs is certainly a high priority mandate, they cannot be enforced by courts or public policy experts. how to implement them must be decided by the people. the paper is structured as follows. in section 2 i discuss a demanding interpretation of article 2 (1) of the covenant and explain why it is problematic, at least if we accept that human rights are grounded on the value of autonomy. in section 3 i develop an original argument in favor of adopting a more modest interpretation of state’s commitments under present international law. such argument sustains that when our actions involve serious risks for the interests of others, they cannot be implemented unless their implementation is authorized through democratic or representative mechanisms. otherwise, the autonomy of those affected by our actions is seriously compromised. in section 4 i discuss an important objection to my view, according to which lack of expert knowledge on the part of citizens may render democratic authorization unpalatable in the context of extremely poor societies. finally, in section 5 i present some concluding remarks. socioeconomic human rights, autonomy and the cost of error 67 leap 6 (2018) 2. autonomy and the progressive realization of socioeconomic human rights the view that value of autonomy may justify the authority of both civil and political human rights and at least some socioeconomic ones, appears to be plausible in principle. in this vein, the 1966 un covenant proclaims human rights to adequate food, decent housing, fair and just conditions of work, health and education. nevertheless, because in present conditions their immediate satisfaction may be unfeasible, the covenant also asserts that their realization should be progressive and that states must invest the maximum of their available resources to achieve their realization. this is how article 2(1) is framed: “each state party to the present covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures”. as we see, article 2(1) constitutes and attempt to re-articulate the idea that socioeconomic human rights are of major normative importance even in contexts where resources are scarce: although some states may lack the resources required to bring about their immediate realization, they must nevertheless use all the resources at their disposal to ensure their satisfaction in the shortest period of time. otherwise, they would be failing to live up to their international commitments. however, the very notion of progressive realization according to the maximum of its available resources is opaque. it can be interpreted in a number of ways. on a demanding interpretation, article 2(1) implies that states must devote all their resources to promoting socioeconomic rights, unless this implies undermining the satisfaction of other human rights, such as civil and political ones. in the context of developing countries, this account is vulnerable to two interrelated objections. the first objection is that it may seriously undermine the political autonomy of citizens. to see why, imagine that a government elected by a majority of votes proposes to implement a number of political reforms in order to improve the economic performance of the country. the nation is poor and the government wants to achieve a reasonable level of economic development. if the plan is incompatible with the progressive realization of eshr in the terms mandated by the covenant, then it will be indefinitely blocked, even though it is supported by a majority of citizens. of course, this does not imply that economic development is more valuable than eshr; rather, the 68 mariano garreta leclercq leap 6 (2018) point is that on the demanding interpretation, the covenant may erode the political autonomy of the people, understood as their freedom to make collectively free decisions about their social environment. predictably, such restriction of political agency will have a negative impact over individuals’ personal autonomy as their capacity to control important aspects of their lives would be curtailed. the second problem has to do with the burdens that bringing about the realization of eshr may have over the population. on the demanding interpretation, governments are obliged to use all the resources they can find to ensure their progressive satisfaction. in many cases, this will force them to impose heav y taxes on their most productive sectors at the expense of economic growth. so even if such measures increase the present capacity of the government to deliver on socioeconomic human rights, this strategy may nevertheless render the society poorer in the long run. furthermore, there are persistent disagreements as to what measures can most effectively promote the realization of eshr. most likely, liberals, social democrats and socialists will propose alternative programs to achieve that goal and insist that the rival strategies are problematic as they may end up eroding the very values they aspire to promote. as a result, the demanding interpretation of article 2(1) is seriously incomplete as societies have no clear orientation about the exact policies it calls for. 3. autonomy and the cost of error the above considerations point to another problem which is often overlooked in contemporary debate: in scenarios where the costs of undertaking mistaken courses of action are particularly high, the ideal of personal autonomy involves some particularly stringent demands. to see this, consider the following example: imagine that two scientists, a and b, plan to carry out some experiments that prove necessary for the development of different technological appl icat ions of a pa r t icu la r t heor y. t he cha nces of success a re ident ica l ly high in both projects. the scientists’ work is not moved by prudential reasons, but by moral ones: both are persuaded that the result of their work will imply a significant improvement in the quality of life of their community. assume also that a and b have equally sound reasons to make such moral judgment. therefore, they both have a fallible moral knowledge that provides a pro tanto reason to act. there is, however, an important difference between both cases: the cost of error. if a’s research fails, this poses no substantial costs to the wellbeing of third parties. the situation is very different in b’s case: should her socioeconomic human rights, autonomy and the cost of error 69 leap 6 (2018) research fail, it will cause serious and irreparable harms to a substantial number of people – say, b’s research requires a kind of experimentation, which may be extremely dangerous for the environment and for people’s health.3 this thought experiment suggests that when a moral agent deliberates on how to act, she must not only make a moral assessment of the various courses of action at her disposal; rather, she must also consider the cost of error each alternative involves – such as those of making a false moral or factual judgments.4 so how are we to interpret the situation of scientists a and b from a moral perspective? both are in similar conditions to think that they know – albeit fallibly – that the following statement is true: “proceeding with my research is the best alternative from a moral point of view, since the result of such decision will bring about a significant improvement in life-quality for members of the community.” consequently, they also seem to be equally morally justified to act on the basis of such judgment and continue their work on their research projects. the latter statement, however, is deeply problematic: there are cogent reasons to believe that while a is effectively justified to act on the basis of her factual and moral knowledge, such is not the case with b. the above conclusion may be thus backed. it is obvious that a is morally justified to act based on her knowledge. from an epistemic perspective, a is justified in subscribing the factual and moral tenets we attribute to her, and they constitute enough reason to act accordingly. should something go wrong, neither a nor any other persons involved would endure any damage. yet, the analysis varies as we move to a context in which the costs of error are drastically high. to see this, imagine for a moment that one aspect of b’s situation is different from what we described above: error-cost is very high but it only concerns the scientist’s welfare, not that of third parties. although b firmly believes that her research will be successful, she is aware that in cases of error her experiments could be dangerous for her own wellbeing. b might decide that it is not worth running the risk, even if the chances of failure are very low; or she might alternatively decide to run the risk and proceed with his research. both courses of action appear equally acceptable from a moral perspective. but what happens when, as in the original example described, other people could be seriously harmed 3 this example, applied to the moral field, is modeled after some well-known cases in the epistemological debate around contextualism and pragmatic encroachment: derose’s bank case, cohen’s airport case and fantl and mcgrath’s train case. see derose (1992), cohen (1999), and fantl and mcgrath (2002). 4 interesting exceptions to the tendency to overlook the relevance of the cost of error in the process of moral deliberation are thomson (1986), mckerlie (1986), lockhart (2000), hansson and peterson (2001), and hansson (2003). 70 mariano garreta leclercq leap 6 (2018) if b is mistaken? b may research further and try to diminish the probability of error. however, since time is limited examining all potential sources of mistake is impossible. from an epistemic perspective, there is no way out of this situation. no matter how solid the arguments and evidence displayed by b, those who could be harmed have the right to refuse taking the risk: b is not entitled to decide in their name as this would undermine their equal moral status. in other words, in case b did so, she would fail from a moral perspective in her relationship with those agents. why should b arrogate herself the special prerogative of deciding in the name of others, without their consent or some kind of authorization? why might b deprive these people of their right to make a decision that may prove crucial for their lives? if b neglects such fundamental moral right, she would be treating those involved as mere instruments for the achievement of her own goals, rather than agents whose interests and projects have a weight of their own and are irreducible to interests and projects of other individuals. in essence, if b acted unilaterally in the way she judges best from a moral perspective – despite having good reason to presume her judgment is correct – she would infringe the autonomy of the potential victims – in fabre’s terms, this would entail depriving them of holding significant control over their existence. with this in mind, we can now reexamine the problem of implementing eshr. as we saw, it is plausible to hold that the moral reason why eshr must be fulfilled is that they prove just as indispensable as cphr to respect people’s autonomy. however, in view of the large amount of economic resources required – particularly within unfavorable contexts – complying with eshr demands launching dangerous economic experiments; and in case of error, this may bring about substantial damage to the people (both those who lacked the chance to have access to the resources necessary to enjoy those rights and those who did have access to them prior to the implementation of the necessary redistributive policies). so as in the case with scientist b, when the state unilaterally decides to enact risky economic measures, it undermines its citizens’ autonomy. consequently, at least at first sight, we have reached a dead end: while eshr are grounded on respect for people’s autonomy, implementing them in contexts such as those described proves incompatible with such very grounds, namely: respect for the autonomy of individuals. fortunately, there is a solution to the paradox. let us assume that b manages to persuade all the potential victims to allow her to proceed with her research: they all decide to voluntarily run the risk, having received sufficient information about its potential costs. in such case, should b decide to carry out her experiment she will not be acting unilaterally, nor socioeconomic human rights, autonomy and the cost of error 71 leap 6 (2018) violating the autonomy of others. she is not running the risk in their name; all share responsibility for the decision. similarly, it is reasonable to hold that, under certain conditions, democratic resolutions with a high level of legitimacy may have the same result. we can imagine in this vein that b’s decision to proceed with her research results from a free and open deliberation process in which all the relevant information was circulated, all those concerned were part of the process, and the decision was backed by a majority. whenever these conditions obtain it is reasonable to say that, through their participation in the political process, all those concerned have authorized the decision – or, at least, none can protest that the decision was arrived at with no previous consultation. of course, the kind of authorization provided by democratic procedures may not amount to unanimous consent. yet neither unanimous consent nor the effective consent of all concerned is expectable within the context of ideological pluralism that pervades contemporary democratic societies. but it is generally accepted that a democratic procedure governed by majority rule is an adequate substitute of unanimous consent – at least when it complies with stringent legitimacy standards. now if we admit the legitimacy of the democratic system in general, then we must also accept that such system offers an appropriate instrument of authorization, both in the case of scientist b and, more broadly, in the selection of public policies in which the cost of error is significantly high. a committee of experts, or members of a tribunal, may certainly believe that a certain policy will promote the welfare of the people better than the others. however, if the cost of error is highly significant, they will not be morally justified to act unilaterally based on their (fallible) knowledge. for if they did so, they would be deciding in the name of others, thereby undermining their autonomy and their status as independent moral agents. in cases where fallibility is combined with the high cost of error for the wellbeing of those concerned, knowledge is not enough to justify action from a moral point of view. by contrast, the situation is radically different when that kind of decision results from an inclusive democratic process: even if not everyone agrees, implementing the policy that receives a majority vote is not comparable to a unilateral decision. in sum: if we assume that democracy is a valuable political system, we must also accept that it constitutes an adequate tool to authorize the implementation of risky measures in way that respects the autonomy and equal status of individuals. similar considerations apply in the case of decisions about the amount of resources to be devoted to comply with the eshr included in the covenant. if the measures to put them into practice are the end result of a 72 mariano garreta leclercq leap 6 (2018) process of democratic authorization with high levels of legitimacy, the cost of error will not have the moral implications described above. plus the fact that it cancels the plausibility of the notion that implementing eshr, no matter how risky, violates the autonomy of those concerned. 4. democracy, political autonomy and scarcity there is an important potential objection i need to tackle before concluding.5 the argument i am suggesting is grounded on a connection between autonomy and democratic deliberation. however, it could be countered that although such connection is plausible in conceptual terms, it is nevertheless unrealistic in the context of most developing nations. this is because citizens of such nations may lack the capacities or resources to engage in sophisticated economic debates. as a result, their autonomy could perhaps be better promoted through alternative means, such as decision making by courts or technical experts. in the example of the scientists, it was argued that b has no right to decide in the name of others because this would be incompatible with honoring their equal moral status. yet one may recognize the equal moral status of individuals while at the same time insisting that they have no capacity to understand or contribute to complex technical debates. so if scientist b enjoys genuine expertise on the subject matter, she may legitimately refuse to take into account the views of others. along the same lines, it could also be argued that when basic human needs are not secured and people lack adequate education and reasonable access to information, democratic debate and democratic authorization may not be the best option to promote the autonomy and wellbeing of individuals. nevertheless, the argument i have offered precludes the kind of epistocratic view underpinning this objection. as david estlund points out, epistocracy tends to rely on three fundamental tenets: the truth tenet: there are true (at least in the minimal sense) procedure-independent normative standards by which political decisions ought to be judged. the knowledge tenet: some (relatively few) people know those normative standards better than others. the authority tenet: the normative political knowledge of those who know better is a warrant for their having political authority over others. (estlund 2008: 30) 5 i am thankful to an anonymous reviewer for law, ethics and philosophy for raising this key objection. socioeconomic human rights, autonomy and the cost of error 73 leap 6 (2018) the case of the scientists accepts the first two tenets, which look more or less plausible. it accepts the second tenet because it assumes that scientist b enjoys some privileged expert knowledge by virtue of which she knows that a certain course of action is the better one; and it accepts the first tenet as the claim that b’s knowledge is independent of any particular decision making mechanism. however, my account firmly rejects the authority tenet: since knowledge is in principle fallible, and the experiment involves high costs in case of mistake, then b is not morally allowed to act on her own personal assessments of merit. this is because even though her potential victims may lack relevant technical knowledge, they have a fundamental right to veto any unilateral decisions on the part of b. to enjoy such right they just need to know that the costs of a mistake are high for themselves and that the chance that the scientist is mistaken is significant. thus, the only solution is to achieve the consensus of those who may be potentially affected by the experiment or, alternatively, to setup reliable mechanisms of democratic authorization. the same is true of citizens living in poor countries: they are entitled to resist any unilateral decisions adopted by epistemic elites, ranging from courts of justice to expert policy makers. on the other hand, it is worth emphasizing that, contrary to what the objection appears to presuppose, these kinds of decisions hamper the moral autonomy of individuals rather than just their political autonomy. if scientist b unilaterally decides to go on with her experiment under the assumption that this will significantly benefit her community, she not only undermines the political autonomy of the potential victims but also fails to respect their status as separate moral persons endowed with an intrinsic dignity. and the same is obviously true of an elite of experts who make unilateral public policy decisions that may compromise the interests of those in their power. to illustrate the point, imagine that after considering a set of alternative economic policies – p1, p2, p3 – a group of economic experts concludes that p1 is the best option. if p1 is successfully implemented, it will considerably improve the life prospects of the people. yet, if the strategy fails, it will have a devastating impact on low and medium income classes. it is evident that in such case the experts are not morally allowed to impose their views on the citizenry. for even if the experts know that p1 is the best policy, they have a fundamental moral duty not to impose serious risks on others or decide in their name on matters that may seriously compromise their vital interests. of course, the existence of a minimally legitimate democratic system requires that at least the most basic socioeconomic needs of the people are 74 mariano garreta leclercq leap 6 (2018) fulfilled. in this sense, the duty to satisfy certain eshr is supported by distinctively democratic considerations: such rights are preconditions for a genuine democratic deliberation. in fact, when people lack adequate education and are deprived of the means of subsistence, political autonomy is a chimera. yet, even if the satisfaction of eshr constitutes a political priority, this does not imply that courts or experts can make unilateral decisions as to how to implement them. since any such decision would presumably involve considerable risks, they call for democratic authorization. naturally, when a nation is desperately poor, or when minimally reliable democratic frameworks are absent, we may have to consider other options. but in most present developing democracies, it is up to the people to figure out what specific policies must be implemented in order to promote their satisfaction and honor their commitment with human rights instruments. 5. concluding remarks the conclusion of my argument is that even if we admit that eshr are essential to the development and enjoyment of genuine autonomous agency, their unilateral implementation by governments or courts may be morally unjustifiable in many contemporary societies. fundamentally, this is because in view of the extreme costs their implementation may involve, unilateral implementation violates the autonomy of individuals. it is important to emphasize, however, that this implies no skeptical view about the feasibility of eshr or about their normative status. on the contrary, the account i propose suggests that governments and citizens are morally obligated to engage in democratic conversation about what measures to undertake in order to fulfill eshr and grant this issue a privileged role in public debate. within such political processes, people must compare rival interpretations of the “progressiveness” and “maximum available resources” clauses and their precise implications. yet, if they want their human rights policies to be legitimate, they must result from democratic decisions about what risks the political community is willing to run to fulfill them. bibliography cohen, s., 1999: “contextualism, skepticism and the structure of reasons”, in philosophical perspectives, ed. j. tomberlin, 57-89, cambridge: blackwell. estlund, d., 2008: democratic authority, princeton: princeton university press. socioeconomic human rights, autonomy and the cost of error 75 leap 6 (2018) derose, k., 1992: “contextualism and knowledge attributions”, philosophy and phenomenological research 52: 913–29. dworkin, g., 1988: the theory and practice of autonomy, cambridge: cambridge university press. fabre, c., 1998: “constitutionalising social rights”, the journal of political philosophy 6, 3: 263-284. fantl, j., and mcgrath, m., 2002: “evidence, pragmatics, and justification”, the philosophical review 111: 67-94. feinberg, j., 1972: “the idea of a free man”, in education and the development of reason, ed. r. f. dearden, london: routledge&kegan paul. gewirth, a., 1982: human rights: essays on justification and applications, chicago: university of chicago press. griffin, j., 2008: on human rights, oxford: oxford university press. hansson, s. o., 2003: “ethical criteria of risk acceptance”, erkenntnis 59: 291-309. hansson, s. o. and peterson, 2001: “rights, risks, and residual obligations”, risk decision and policy 6: 1-10. lockhart, t., 2000: moral uncertainty and its consequence, new york, oxford university press. mckerlie, d., 1986: “rights and risk”, canadian journal of philosophy 16, 239-251. rawls, j., 1971: a theory of justice, cambridge, ma: the belknap press of harvard university press. — 1993: political liberalism, new york: columbia university press. thomson, j. j., 1986: rights, restitution and risk, cambridge, harvard university press. leap 6 (2018) social rights and deontological constraints* e dua r do r i v e r a-l ópe z universidad torcuato di tella/conicet abstract assuming that there is not terminological or conceptual impediment to call social and economic rights “human rights”, this paper argues that social and economic human rights are normatively different from classical civil and political human rights, and that this may have some significant institutional implications. following mainstream opinion, i presuppose that both classical liberal rights and socioeconomic human rights are bundles of negative and positive “incidents” (concrete rights). my first claim is that in both cases negative incidents can plausibly be constructed as “deontological constraints.” that means that such constraints must be observed even if infringing them could maximize the satisfaction of the interests those rights seek to preserve. my second claim is that, contrary to classical human rights, the fulfillment of the negative incidents of socioeconomic rights, albeit necessary, does not represent a significant contribution to their fulfillment. since in the case of socioeconomic human rights positive incidents play such crucial role, there is a relevant asymmetry between classical and socioeconomic human rights. the paper concludes by showing some institutional implications of this asymmetry. keywords: human rights, deontological constraints, social and economic rights. 1. introduction there are several arguments for holding that economic and social human rights (which, for simplicity, i will call “social rights”) are not “genuine” d oi : 10. 310 0 9/l e a p. 2018.v6.0 5 * for helpful comments and criticisms i am grateful to marcelo alegre, mariano garreta, jeffrey howard, ignacio mastroleo, saladin meckled-garcia, julio montero, leticia morales, two anonymous reviewers, and the audience of the i workshop “the political philosophy of economic and social human rights”, uk-latin america political philosophy research network (buenos aires, 2017). social rights and deontological constraints 77 leap 6 (2018) human rights. in this vein, it could be argued that they are simple goals or aspirations; that they count as principles of social justice rather than rights we enjoy just because we are human persons; that they are not enforceable due to the complexity of their effective implementation; that they are unfeasible; and that, as opposed to other human rights, they cannot be claimed against courts or enforced by them.1 the contrast is obviously with classical civil and political human rights (which i will stipulatively call “classical rights”). on this view, only these amount to genuine (human) rights. my aim in this paper is not to argue that social rights are not genuine rights as i do not think there is anything like a “true” notion of human rights. there may be different kinds of norms, ideals, and moral or political principles that can be conveyed in the language of human rights, and this can be plausible or defensible, both politically and conceptually. what i want to show instead is that, beyond terminology and political use, social rights are normatively different from classical rights and that this may have some significant institutional implications: while classical rights (or relevant aspects of them) can plausibly be conceived as “deontological constraints” (in a sense to be explained), social rights (or relevant aspects of them) cannot. although they can be conceived in that way (in the sense of there not being any conceptual impossibility), it is not plausible to do so, except (perhaps) in very specific or exceptional cases. importantly, the concept of human rights i will use throughout the paper is philosophical. so i will not be speaking about legal human rights such as those enacted at the international body of treaties and declarations. rather, my concern is how we should conceive human rights from the viewpoint of strict moral analysis. while the way judges and other national or international authorities understand legal human rights may well be relevant to building a philosophical view of human rights, such relevance is only due to the fact that we want our philosophical theories of human rights to keep some ref lective equilibrium with the practice, not because we are merely describing the practice. the paper is structured as follows. in section 2, i elucidate the concept of “deontological constraint” and provide some examples that show how human rights sometimes operate in that way. the key point of a right being a deontological constraint is that, in principle, it cannot be violated even if it doing so would maximize the satisfaction of the interest the right seeks to preserve. section 3 advances a view about how to understand the relationship between classical and socioeconomic rights on the one hand, 1 for some of these objections, see cranston (2001); o’neill (2005). 78 eduardo rivera-lópez leap 6 (2018) and negative or positive rights on the other. i reject the traditional identification of classical rights with negative rights and of social rights with positive rights, and endorse instead the widely accepted account that both classical and social rights are bundles of negative and positive “incidents” (concrete rights). nevertheless, i also claim that in specific way the negative incidents of classical rights are more fundamental than the negative incidents of social rights. section 4 focuses on the relationship between deontological constraints and classical rights. in this respect, my claim is not that only negative rights or classical rights can operate as deontological constraints. the point is more nuanced and complex: while negative incidents of classical rights can plausibly be (and usually are) conceived as deontological constraints, positive incidents of classical rights may sometimes function as deontological constraints. in section 5 i sustain that the positive incidents of social rights cannot plausibly be understood as deontological constraints, except for some very specific cases – such as the right to be rescued from imminent death. this completes my main argument: there is a normative asymmetry between classical rights and social rights because relevant incidents of classical rights (which are negative in kind) can plausibly be conceived as deontological constraints, while relevant incidents of social rights (which are positive in kind) cannot be conceived in such way. in section 6 i explain why the alleged asymmetry may have some significant implications in terms of the role judges can play in the enforcement of human rights. 2. the concept of deontological constraint the notion of rights as deontological constraints (hereafter dc) i will use is not necessarily the most common one. in my sense, a moral right works as a dc when the fundamental moral reason to fulfill the correlative duty is focused on the individual holding that right. if john has a dc right against me that i do x, then i ought to do x because (and, in principle, only because) he has that right. that he has that right is the (in principle, sufficient) reason why i should do x. that a right (and its correlative duty) is a dc does not necessarily imply that it is absolute, or a “trump,” or a “side constraint.”2 but it does imply that it does not follow a strictly consequentialist logic, according to which fulfilling the correlative duty would be purely instrumental in achieving (or optimizing) some valuable social goal, whether aggregative or distributive. let me clarify the idea through some examples. consider the (human) 2 see dworkin (1977) for the concept of rights as “trumps,” and nozick (1974: 29) for the concept of rights as “side-constraints.” social rights and deontological constraints 79 leap 6 (2018) right not to be tortured and the correlative duty of state officers (or the state) to never use torture as a method of obtaining information or confessions from detained or accused persons. since there is broad agreement on the absolute (or quasi-absolute) character of this right (and of the correlative duty), the example is simple (as we will see, other examples may be more complex). claiming that a has a human right not to be tortured means that no state officer is allowed to torture a. this right is a dc because the fundamental reason why a state officer is not allowed to torture a is that a has a right not to be tortured. such reason is sufficient to justify the prohibition. this implies that the state officer is not allowed to torture a, even if torturing a would optimize what we may consider morally valuable goals (such as human life). more importantly (and crucially), the state officer is not allowed to torture a, even if not torturing a would imply that more instances of torture will occur in the future. the dc feature of some rights can be noted even more clearly with another example: the right of innocent people not to be convicted and punished. when the judge releases an innocent person, her reasoning is not (or should not be) that acquitting this person is instrumental for the good of society or for some valuable social goal. the reasonable belief that the accused person is innocent is (at least in principle) sufficient reason to release her. the innocent must be acquitted. this is the only relevant consideration. as i said, it is not necessary for a right to be absolute to constitute a dc. there could be some threshold of social harm above which the duty not to torture or not to condemn an innocent might yield. even if consequentialist considerations (for example, about potential social harm) might be thought to be relevant, it may still be correct to say that there is a dc right not to be tortured or not to be wrongly convicted. however, at the point where considerations of consequence alone become relevant, it would start to be doubtful that we are dealing with a right not to be tortured or not to be wrongly convicted. certainly, we might still use the terminology of rights, insofar as, in general, the state would have a duty not to torture or to convict innocent people. but, beyond terminology, we are dealing with a qualitatively different kind of norm, namely: a rule aiming to minimize tortures or wrongful convictions. this, in turn, could only be understood as part of a more general norm aiming to optimize some more basic value, such as the well-being of people or the minimization of suffering (where minimizing instances of torture or wrongful convictions would be instrumental to the optimization of that value). there is a third more complex example, which nevertheless illustrates the dc feature of some human rights: the right to democratic participation 80 eduardo rivera-lópez leap 6 (2018) (to vote and be elected). the state violates the right to be elected by, for instance, proscribing or coercively preventing a candidate or a party from participating in free democratic elections. this is so, even if it were true that not proscribing a certain candidate would lead to a deterioration of democracy, or to more people being wrongfully proscribed in the future. as in the previous examples (actually, more so than in the previous examples), this dc character of the right to democratic participation may be subject to certain limitations (such as the duty to tolerate the intolerant). where to draw such limitation may of course ben controversial. yet, if the human right not to be proscribed is a dc right, the limit must be more demanding than the limit would adopt if we simply wanted to optimize political freedom. in sum, a right to x is a dc right only if we are prepared (at least to some extent) to sacrifice the satisfaction of important values (including, crucially, the fulfillment of more cases of the right to x) to honor the right to x in particular cases. the right not to be tortured or wrongly convicted and the right to be allowed to participate in free elections are examples of rights that can plausibly be conceived as dc rights. 3. positive and negative incidents of human rights the idea that certain rights (typically, classical rights) are dc must not be confused with the idea that classical rights are negative rights (rights that correlate with duties of omission), whereas social rights are positive ones. let me clarify this point. in this respect, i follow ideas from cecile fabre and david bilchitz on social rights that capture our common sense intuitions about the relationship between the positive-negative distinction vis a vis the classical-social distinction (fabre 1998: 267-270; bilchitz 2007: 90-91).3 the main idea is that human rights are clusters of more specific rights (to which i will refer as “incidents,” or “aspects” of a human right).4 some incidents of a human right are negative while others are positive; or, in other words, 3 although similar, what i am defending is not exactly henry shue’s view. he claims that any basic right conceptually involves the existence of negative and positive duties (shue 1980: 52-53). i just claim that classical rights (such as the right to political participation) usually include positive incidents (such as the right not to be prevented from voting) and that social rights (such as the right to subsistence) usually include negative incidents (such as not to eliminate the only available means of subsistence). for a discussion on shue’s view, see cohen 2004. 4 i borrow the use of the term “incident” from honoré’s classical work on ownership (honoré 1961). social rights and deontological constraints 81 leap 6 (2018) some require only abstentions from the state, while others require actions and the provision of resources from the state. even though we may speak of a right to free expression (a typical classical right) as an “abstract” right (to use bilchitz’s terminology),5 this abstract human right brings together a set of “concrete” rights or incidents, which in practice make up the right to freedom of expression. within this set, there are usually negative rights as well as positive rights. similarly, abstract social rights (such as the right to subsistence or to adequate housing) are clusters of incidents that correlate with specific duties, including both positive and negative ones. now that the complex nature of rights has been clarified, the next step is determine the role that negative and positive incidents play in classical rights as opposed to social ones. in this respect, i want to highlight an important asymmetry that will be crucial for my overall argument. i have admitted that both classical and social rights have negative and positive incidents that can be violated both by action and omission (by the state). the operation of both kinds of rights is symmetrical in the case of the violation of a right. for example, the social right to adequate housing is violated both when the state evicts members of a community from a certain territory over which they have a right and when the state does not provide adequate housing to homeless people. in this sense, positive and negative incidents of the social right to adequate housing operate in the same way as positive and negative incidents of classical rights. in both cases, we can safely say that the (abstract) right (be it classical or social) is being violated. however, such symmetry breaks down when we focus, not on the violation but on the fulfillment of the right. so imagine that the state meets a negative incident of a classical right. for example, it abstains from censoring the press. in that case, we can plausibly say that the state fulfills at least one important, relevant or substantial part of the abstract classical right to freedom of speech. and we can plausibly say so even if the state, at the same time, fails to fulfill positive incidents of the same classical right, say, because it does not promote the public expression of minorities or disadvantaged groups. to be sure, we might say that in such case the fulfillment of the right to free speech is deficient or insufficient. still, if the state does not actively censor or in any way prohibit or restrict public expressions, we would surely conclude that a relevant, substantial, part of the right to free speech is being fulfilled. on the contrary, imagine that the state meets the negative incidents of a social right: the government does not evict persons from their houses or territories. in such case, we may think that this is not enough to fulfill the most important, relevant, or 5 bilchitz (2007: 91). 82 eduardo rivera-lópez leap 6 (2018) substantial aspect of the social right to adequate housing, in particular when the state fails to fulfill the positive incidents of that same social right.6 consider a further example: imagine that the state simply refrains from actively obstructing people’s access to nutritious food. would we say that the state is fulfilling the social right to subsistence, in the most relevant sense? i think the answer is no. the only way for the state to guarantee the satisfaction of the social right to subsistence or adequate housing is to actively guarantee that people who lack access to nutritious food or decent housing enjoy secure access to the objects of their rights. in other words, while in some cases this may turn out to be insufficient, fulfilling just the negative incidents of a classical right makes a substantial contribution to its satisfaction. contrariwise, in most relevant cases, fulfilling just the negative incidents of a social right makes only a secondary contribution to its full satisfaction. in fact, the point and purpose of social rights is to make sure that everyone enjoys secure access to their objects. to illustrate the point, let us take a closer look at the negative incidents of social rights. those incidents are negative rights that can be violated (only) by actions. imagine a community living from fishing at sea (a common property). at some point, the government grants a private company an exclusive fishing license which deprives the community of its only means of subsistence. in such case we could certainly claim that the state has actively violated the social right to subsistence.7 the state has violated a negative incident of that right by performing an action that renders community unable to obtain sufficient food. now imagine that at some point the government changes its mind and decides to fulfill the community’s social right to subsistence. an obvious way of doing so would be to cancel the company’s exclusive license so that members of the community can fish again. since this solution cancels its previous active intervention, it restores the fulfillment of the negative 6 thomas pogge would disagree at this point. according to his view, when social rights are not fulfilled, the state is violating negative rights, not (just) positive rights (see pogge 2002: 203 ff; pogge 2011). the correlative duty to that (negative) right is the (negative) duty not to impose an unjust institutional scheme that causes social rights to remain unfulfilled. i do not want to discuss this view here, but it seems to me that the discussion is rather terminological. the important point is whether those duties are dc duties or just goals. it seems to me clear that the duty to reduce global poverty is (at least partially) an aggregative goal, and the measures that pogge suggests to achieve that goal (such as his “global resources dividend”) is not a dc duty. proof of that is that we (and pogge, i assume) would not be prepared to defend the global resources dividend if it were foreseeable that, while rescuing some people from extreme poverty, it will pull more people into extreme poverty. this implies that the duty (and the correlative right) involved in fighting against extreme poverty is not a dc, in contrast with what happens with (negative incidents of ) classical rights. i thank an anonymous reviewer for raising this point. 7 i thank julio montero and mariano garreta for this example. social rights and deontological constraints 83 leap 6 (2018) incident of the right to subsistence. however, there are other options the state may try. in this vein, it may choose to transfer money to the victims so that they can buy the food they need. or else, it may directly distribute food among the victims. if so, the state is not fulfilling a negative incident of the right to adequate food.8 rather, it is fulfilling the right by undertaking a positive action, that is by fulfilling a positive incident of the right. i take this to prove that fulfillment of negative incidents are less relevant in the case of social rights than in the case of classical ones. this is not to deny that infringing negative incidents of a social right may amount to a very serious wrong. however, my impression is that, in such cases, the incident will also constitute an independent negative right (or a negative incident of a classical right). to see why, consider a perfect and rich libertarian society in which all human needs are satisfied through market transactions. if at some point the state starts confiscating some people’s food, we would not (primarily) say that the state is violating the social right to subsistence, or at least not only that right. instead, we would most likely insist that the state is (primarily) infringing the property rights of the victims, that is: a classical right. on the other hand, if the state does not intervene and everyone happily satisfies their food needs, we would not say that state fulfills the social rights of citizens by omission (say, because the state does not coercively stop people from satisfying their needs). we would rather say that social rights are spontaneously satisfied though not officially guaranteed. all this shows that there is an asymmetry between the fulfillment of classical rights and of social rights. to repeat: the fulfillment of the negative incidents of classical rights is a substantial part of their satisfaction, whereas the fulfillment of the negative incidents of social rights is much less substantial (unless that negative incident has an independent justification, for example, as negative incident of a classical right). 4. dc and classical rights the claim that rights are dc, or that at least some rights work as dc, is admittedly controversial. i do not want to defend that claim here, or the associated claim that to qualify as a right (or as a “true” right), any interest or claim must have this feature. i want to argue instead that classical rights (or, as we will see, at least certain aspects of classical rights) seem to have the feature of being dc as defined in the previous section. so let us explore more 8 except in the trivial sense that the state is not actively impeding to use the money or the food that the very state has provided. 84 eduardo rivera-lópez leap 6 (2018) carefully how the negative and positive incidents of abstract classical human rights behave with respect to their having or not having a dc character. negative incidents of classical rights can plausibly be conceived as dc rights. the correlative duties of abstention held by state officers not to kill or torture, censor the press, persecute religious minorities or specific associations, imprison people without trial, or proscribe candidates, are duties that the state must (at least in principle) strictly honor irrespective of the consequences of honoring them, including the consequences in terms of the satisfaction of the very same rights. it is important to emphasize that what distinguishes classical from social rights is not that the former are negative. for as i have explained, both classical and social rights involve negative and positive incidents. rather, my point is just that the negative incidents of classical rights can plausibly be regarded as dc. this means, again, that the state is not allowed to violate the negative incidents of classical rights (in this case, actively) to optimize some valuable social goal, including the social goal of optimizing the satisfaction of the very classical right in question. classical rights, i have assumed, also have positive incidents which call for active state policies or allocation of the relevant resources. so the right to due process requires that the state spends resources to establish impartial courts, jurors, and prosecutors, and to guarantee a public law yer to the defendant. likewise, the right to democratic participation implies that the state must provide resources to organize free elections and guarantee polling stations across its territory or jurisdiction, among other things. assuming that the negative incidents of classical rights are dc rights, we can wonder whether the positive incidents of classical rights are dc rights as well. the question is not directly relevant to my argument, but it merits some attention. although i have no conclusive views about this issue, i am inclined to think that whether the positive incidents of classical rights are in fact dc depends on the particularities of the case we consider. so let us consider the example of the classical right to a fair trial. this abstract human right involves clear negative incidents: the state must refrain from actively inf luencing judges, organizing summary trials that violate the right of defense, or coercively preventing the defendant from hiring a law yer. all these negative duties are plausibly dc, which implies that the state must respect them even if refusing to do so would bring about social benefits, such as that future trials would be more impartial or that terrorism would decrease significantly. on the other hand, the right to a fair trial also involves some obvious social rights and deontological constraints 85 leap 6 (2018) positive incidents: it requires that the state takes over the defense if the accused lacks the resources to pay for a law yer. may this incident count as a dc right? even though the answer is not completely clear to me, it is not unreasonable to think that its satisfaction may legitimately factor in consequentialist considerations. in such case, the state might be allowed refuse to guarantee an official defender if some alternative allocation of (scarce) resources (say, redirecting official defenders to some other jurisdiction) would optimize this specific aspect of the right to a fair trial. alternatively, it could also be argued that this positive incident (the right to a law yer) is in fact a dc right: if the state is unable to provide the service, then the trial should be suspended until it can do so.9 in any case, no definitive answer to this controversial issue is necessary for my argument; all i need to claim is that negative incidents of classical rights can plausibly be conceived as dc rights, whatever we believe about their positive incidents.10 in sum: classical rights have both negative and positive incidents. while the negative incidents may be plausibly regarded as dc rights, it is unclear whether their positive incidents are dc too. 5. dc and social rights what about social rights? as in the case of the right to a law yer in a criminal trial, there is no conceptual obstacle for a positive right to be a dc. in that sense, there is no conceptual impediment for both negative and positive incidents of social rights to be dc rights. but conceptual possibility is not the same as philosophical plausibility. the key question here is whether social rights (as conceived by international human rights conventions) can plausibly be considered dc rights equivalent to the negative incidents (and perhaps some positive incidents) that classical rights involve. there is at least one important positive right that can plausibly be conceived as a dc right: the right to be rescued from imminent death. in fact, it seems reasonable to claim that we have a moral duty to aid someone at dire straits, even if this means that fewer people in a similar situation will be rescued. these kinds of normative scenarios are familiar during health emergencies: in order to save a child who requires a heart transplant, we may need to invest a large amount of money which we will render unable to invest in saving many children at risk. if we assume that concrete 9 i thank marcelo alegre for discussion on this point. 10 in fact, the claim that positive incidents of classical rights are dc would support my (main) thesis that there is a normative asymmetry between classical and social rights, since, as we will see, it is not plausible to take positive incidents of social rights as dc rights. 86 eduardo rivera-lópez leap 6 (2018) lives take priority over statistical ones (and i am not saying that this is necessarily the case), then it is plausible to conclude that the right to be rescued (and the corresponding positive duty to rescue) is a dc.11 having conceded that positive rights can well be dc, the next question is whether positive incidents of social rights (which, if my argument in section ii is correct, constitute a crucial aspect of social rights) should be understood as dc. this is, i insist once more, not a conceptual question, but normative one. in other words, the relevant question is whether we are prepared to consider all (or most) social rights in the same way as (dc) rescue rights (and, of course, as negative incidents of classical rights), namely: in a way that implies that we have the obligation to fulfill the social right to x in one particular case, even if doing so would reduce the overall satisfaction of the social right to x. to anticipate my view: i think this is not plausible because social rights are better constructed as mandates to optimize certain goals. social rights are optimizing mandates in two senses. first, they allow for intra-subjective trade-offs. they form an interrelated set of interests, the joint satisfaction of which enables the individual to lead a minimally satisfactory life. take the rights to decent housing and to health. it is clear that most persons will rationally seek to optimize the joint satisfaction of both rights; or else they may decide to give up some degree of satisfaction of one of them to increase the satisfaction of the other one. the same is true for all social rights. in essence, the substantial normative claim that underlies them is the enjoyment the set of goods we need to lead a minimally autonomous or dignifying life (let us call this set “basic needs”). the state’s correlative duty is an optimization mandate as well, in the sense that it requires the provision of that set of goods that allows the optimal satisfaction of basic needs. furthermore, each of the individual duties correlative to specific rights (to housing, health, nutritious food and so on) stands in some sort or tension or trade-off with the rest. note that this is not the case with classical rights. even if individuals may rationally want to sacrifice a certain degree of freedom of speech or vote in exchange for an improved satisfaction of her basic needs (better housing or health care), we would not accept that the authorities engage in these kinds of trade-offs. social rights are also inter-subjectively optimizing. the aim of social rights public polies is to satisfy social rights for an entire population and in the long run. this means trying to achieve something like a state of affairs in which the satisfaction of basic needs is given to as many people as possible, or a state of affairs in which the satisfaction of basic needs of 11 on the controversy between saving identified versus statistical lives, see cohen, daniels and eyal (2015). social rights and deontological constraints 87 leap 6 (2018) those who are worse off increases to the greatest extent possible, or some other optimal state of affairs in terms of justice. these two optimizing features of social rights do not necessarily imply that social rights are not genuine rights. insofar they can be legitimately constructed as priority goals which take care of essential interests, rights language is not inadequate. still, whatever preeminence or importance we are willing to give to social rights, it is important to stress that they operate as social goals, that is: goals the state must promote according to some criterion of justice or efficiency to be optimized through an adequate set of public policies. such policies may be constrained by classical rights, but not by the same social rights. to determine to what extent social rights can be dc, let us brief ly consider henry shue’s discussion of a thesis sustained by garret hardin. according to hardin, humanitarian aid to the global poor is self-defeating because, given the limited carrying capacity of the planet, it will only produce more global poverty in the future (shue 1980: 97-104). although hardin’s theory has lost its appeal because it has proven empirically false, it is nevertheless interesting as it helps us to test if we we are willing to consider the human right to subsistence as a dc it has proven empirically false (see drèze and sen 1989). if the social right to subsistence generates a dc duty, then we should take action to satisfy it, even if this would undermine its satisfaction for a greater number of people in the future. on the other hand, if the social right to subsistence only the expresses a principle of justice that seeks to minimize (or eradicate) extreme poverty, then we should refrain from helping the poor now to avoid more poverty in the future – provided hardin’s thesis were true. of course this is a false dilemma, but it is remarkable that shue’s discussion focuses primarily on showing that the empirical basis of the theory is false, not that we should satisfy the right to subsistence regardless of what may happen in the future.12 this does not prove that shue was thinking of social rights as optimizing goals, but it suggests he was. and plausibly so. when we think of extreme poverty, our concern is to reduce or eradicate poverty, and we are willing to appeal to any means to achieve that goal (compatible with the fulfillment of some fundamental classical rights). we would not be willing to advance policies that, in the name of helping the poor (or satisfying their social rights), increase 12 “the dilemma suggested by the population objections dissolves entirely, provided that in fact poor countries have, or can obtain, means of controlling population growth that are compatible with the protection of subsistence rights” (shue 1980: 101). 88 eduardo rivera-lópez leap 6 (2018) the number of poor people (or the non-satisfaction of their social rights).13 these arguments do not show, as i said at the beginning, that social rights cannot be considered human rights. what they show is that social rights have a different normative structure vis à vis classical rights. the latter have a relevant dc component: we are willing to sacrifice valuable social goals (including the satisfaction of classical rights; including the satisfaction of that very classical right) to fulfill classical rights in each relevant occasion. social rights, on the other hand, cannot be plausibly conceived in this way. i repeat: we would not be willing to allow more people to remain in poverty if this were the consequence of actively bringing fewer people out of poverty. 6. some insitutional implications the conceptual distinction between liberal and social rights that i explored may have significant practical implications in terms of the judicialization of social rights, which i will now try to sketch though maintaining a considerable level of abstraction. schematically, there are three kinds of procedures judges may use to make a decision in the field of social rights. the first kind of decision takes the claim of the right holder as a dc right. in the case of classical rights, this is obviously the rule. for example, when a judge declares that an act of censorship is unconstitutional and cancels the closure of a newspaper, she does so to satisfy the right to free speech. importantly, the judge’s duty correlates to a dc right, since she is not allowed to consider the social consequences of reopening the newspaper. similarly, in the realm of social rights, a judge can order the executive to grant a specific indigent family adequate housing or a specific patient an expensive medicine.14 in these cases, she follows the same kind of reasoning: she is not calculating the burdens and benefits her decision may entail for society as a whole. a second kind of intervention is familiar in the realm of social rights and should not be confused with the first one.15 suppose there is a governmental policy that provides some service to the population, say 13 in the terminolog y coined by guido pincione and fernandotesón, publicly defending that kind of policy would be a case of “discourse failure” (pincione and tesón 2006: 142 ff.). 14 for example, in q. c., s. y. v. gobierno de la ciudad autónoma de buenos aires, a judge ordered the government of buenos aires to provide adequate housing to an indigent family with a disabled child. the decision was reversed by the superior court of buenos aires. 15 leticia morales has made me aware of this kind of intervention. social rights and deontological constraints 89 leap 6 (2018) basic education for every child. imagine now that one specific child (or set of children) is denied the service (for reasons of scarcity or for any other reason). in such case, the judge might order the executive to provide the service to that particular child (or set of children). in one sense, the intervention works as if the child had a dc right to basic education, because her claim is taken as a sufficient reason (for the judge) to deliver that order. still, i do not think a dc right to education is necessary involved, but rather a dc right to equal treatment. given that there is a policy providing some service, it must be provided to all. similar examples can be provided for the case of health-care services. finally, there is a third kind of judicial intervention which is qualitatively different in nature. in this kind of case, the judge orders the executive simply to deal with housing shortage, or to clean a polluted river, or to provide education, or to have some kind of social security plan, etc. so she is intervening in public policy in order to promote some valuable social goal, such as the goal that no one lacks housing, food or education, or that the river is clean. this is the intervention path followed, for instance, by the south african supreme court in the well-known “grootboom” and “t.a.c.” cases, which required that the government implemented a “reasonable” policy to provide adequate housing and essential hiv drugs to its population.16 along the same lines, in the case “mendoza” the argentine supreme court urged the executive to issue an “integrated plan” to improve the environmental situation of the polluted river “riachuelo”.17 naturally, i am not claiming that this type of intervention is not justified or that the judiciary should not make this kind of decisions; my sole claim is rather that this is an essentially different sort of intervention. from a strictly normative point of view, the relevant question is whether the judiciary should intervene only in the first (and the second) way, or we want it to intervene in the third way as well. for only the first kind of intervention implies granting social rights a dc status. instead, the second one is not essentially about social rights, while third one does not deliver on a dc right. one relevant conclusion we may draw from the above argument is that when courts behave in the third way, they are doing something conceptually and normatively different from what they do when they behave in the first one. we can of course say that they are enforcing social rights in both cases; but they are not doing the exactly same in the most fundamental 16 see government of the republic of south africa v grootboom 2001 (1) sa 46 (cc); minister of health v treatment action campaign 2002 (5) sa 721 (cc). 17 see mendoza, beatriz silvia y otros c /estado nacional y otros s/daños y perjuicios (daños derivados de la contaminación ambiental del río matanza-riachuelo)” (m.1569.xl). 90 eduardo rivera-lópez leap 6 (2018) conceptual sense: whereas in the first case the court is treating the social right as a dc right, in the third one, it is treating the social right as a normatively prioritarian policy goal (based on considerations of justice). this being so, we may wonder whether it is normatively acceptable or plausible that judges make the first kind of decision, taking (positive incidents of ) social rights as dc rights (assuming, of course, that we find acceptable that they treat negative incidents of classical rights as dc rights). i cannot pursue this question here, but i think there are reasons to be skeptical. as i mentioned before, taking social rights as dc rights seems plausible only in exceptional cases, such as those which involve rescuing people from imminent, serious and irreparable harm (typically death). beyond this, judicial intervention to provide specific solutions to specific problems (lack of housing, lack of medical care, lack of adequate education, etc.) is highly problematic. this is so because fulfilling a certain right (to adequate housing or health care, for example) in a particular case fails to factor in relevant social consequences; and when these kinds of measures are not taken in truly exceptional cases they may end up being detrimental to the satisfaction of the very right involved (they result, for instance in less people having adequate housing or health services).18 even though we are prepared to face such paradoxical result in the case of classical rights, it is much less clear that we want to do so with social ones. 7. concluding remarks i conclude brief ly. i wanted to bring to light a feature that at least some essential aspects of classical rights have. my question was whether that feature (which i called dc) also operates plausibly in the case of social rights. my response was cautiously negative. conceiving of social rights as dc rights might be reasonable in extreme situations or catastrophes, in which we have a very strong intuition in favor of saving concrete people with partial or total independence of the subsequent consequences of that decision. but this conceptual framework is inadequate to think about social rights in general, which are rather mandates to satisfy certain minimum in the satisfaction of basic needs of the whole population. this seems rather a mandate for optimization and, therefore, is qualitatively different from what happens with classical rights. 18 this is not just a speculation. see wang 2015, where wang describes how courts decisions to provide medical treatments to specific persons have become an important factor of the health policy in brazil. wang very plausibly claims that this has negative consequences in terms of distributive justice of the access to health services. the reason is, following my terminolog y, that judges enforce the right to medical treatment as dc rights, without looking at the consequences. social rights and deontological constraints 91 leap 6 (2018) bibliography bilchitz, d., 2007: poverty and fundamental rights. the justification and enforcement of socio-economic rights. oxford: oxford university press. cohen, a., 2004: “must rights impose enforceable positive duties?” journal of social philosophy 35 (2), pp. 264–276. cohen, g., n. daniels, and n, eyal, (eds.) 2015: identified versus statistical lives. an interdisciplinary perspective. oxford: oxford university press. cranston, m., 2001: “human rights, real and supposed”, in p. hayden (ed.) the philosophy of human rights (st paul: paragon house). drèze, j. and a. sen, 1989: hunger and public action. oxford: oxford university press. dworkin, r., 1977: taking rights seriously. london: duckworth. fabre, c., 1998: “constitutionalising social rights”, journal of political philosophy, vol. 6, no 3, pp. 263-284. honoré, t., 1961: “ownership,” in a. g. guest (ed.), essays in jurisprudence. london: oxford university press, 1961. nozick, r., 1974: anarchy, state, and utopia, new york: basic books. o’neill, o., 2005: “the dark side of human rights,” international affairs 81. pogge, t., 2002: world poverty and human rights. second edition. cambridge. polity. pogge, t., 2011: “are we violating the human rights of the world’s poor?,” yale human rights & development law journal, vol. 14, no 2, pp. 1-33. shue, h., 1980: basic rights. subsistence, affluence, and u.s. foreign policy. princeton: princeton university press. wang, d., 2015: “right to health litigation in brazil: the problem and the institutional responses”, human rights law review, vol 15, no 4, pp. 617–641. leap 6 (2018) two (different) types of human rights duty s a l a di n m eck l e d g a rci a university college london abstract in this paper i introduce a (new) distinction in human rights theory, between two types of genuine obligations corresponding to human rights: a) obligations that require us to rule out specific considerations for treating people in a certain way, such as the obligation not to consider jane’s skin color when deciding whether she should be permitted to enter a shop or the obligation not to take political expediency as a consideration relevant to whether political opponents should be silenced, and b) an obligation to give some weight to different interests: those interests people have in enjoying certain conditions and those of people who must carry burdens to create these conditions, when deciding what must be done for rights holders. for example, we must weigh the interest jane has in seeing certain improved access to secured health care versus the interests of other members of jane’s society in not facing significantly-increasing tax burdens, or seeing reduced social opportunities for their ends, as these will impact on their abilities to pursue their own personal life projects. both types of interest matter, so to resolve how much health provision jane is entitled to have we need to know how to weigh them against each other – we need an index. these different types of obligations, with their basis in different forms of reasoning, cut across categories of human rights and can both exist for any one human right. accepting the distinction means accepting that we must pay careful attention to how a human right is given content in the form of obligations. it also re-introduces conceptions of distributive justice as a necessary component in solving how conf licting interests should be weighed an “index” for such weighing. keywords: human rights; responsibilities; obligations; conf licting interests; weighing; categorical reasons; excluded reasons; distributive justice; fairness. d oi : 10. 310 0 9/l e a p. 2018.v6.0 6 two (different) types of human rights duty 93 leap 6 (2018) 1. introduction a slogan adopted by the united nations, echoing an account by henry shue, says that the duties corresponding to human rights are to “respect, protect, and fulfil” those rights (shue 1996: 52; cescr 1999a: s. 15; cescr 1999b: s. 46; cescr 2000: s. 33). this, of course, means the duties are to respect, protect, and fulfil people’s secure enjoyment of the content or objects of those rights as described in international instruments. however, a problem with these headings is that they do not explain how we should allocate the burdens of these different types of duties and justify the allocation for those that will execute them or bear the costs of their execution – ultimately the citizens of each society. in this paper, i introduce a different categorization of duties. this cuts across, rather than underpinning, traditional distinctions between types of human rights – such as civil and political (civpol) rights versus economic and social (ecosoc) rights, liberty rights versus benefit rights, or even rights with positive obligations versus those with negative obligations, distinctions that have been debated in the literature.1 this new categorization is not intended to map onto debates where authors defend or dispute that such distinctions exist or use a categorization to undermine the importance of any specific group of rights. instead, the argument lies within the sphere of genuine obligations. it neither challenges the existence of the two categories of obligations i set out, nor questions the rights to which they give substance. indeed, for many traditionally understood rights in either of the above civpol or ecosoc categories, both of my types of duty will apply. the point of the distinction i introduce is rather to help us think about what it means to satisfy obligations and when it is appropriate to satisfy an obligation in one way rather than the other. the distinction focuses practically on how to adjudicate or claim different elements of a right, given the different obligations it can imply. as will become clear, when i set out the two different types of duty, adjudicating what it means to act on these two types of duties or to breach them amounts to very different things, implying very different tests. the distinction i have in mind is between a) obligations that require us to rule out specific considerations for treating people in a certain way, such 1 the civil & politial v economic & social distinction is a de facto description of rights appearing in different instruments of the un bill of rights (iccpr v icescr); liberty v goods and benefits rights is a terminolog y introduced by onora o’neill (1996:131 ff.); negative v positive rights are discussed in (bedau 1979); and positive v negative duties later by shue (1996: 35 ff.); other attempts to distinguish human rights that are thought genuine from those that are not include the justiciable versus non-justiciable distinction, justice sachs (2000); see also christiansen (2007). 94 saladin meckled-garcia leap 6 (2018) as the obligation not to consider jane’s skin color when deciding whether she should be permitted to enter a shop or the obligation not to take political expediency as a relevant consideration to whether political opponents should be silenced; and b) an obligation to give some weight to different interests people have in enjoying certain conditions and those interests of the individuals who must carry burdens to create such conditions. for example, we must weigh the interest jane has in seeing certain improved access to health care secured versus the interests of other members of jane’s society in not facing significantly-increasing tax burdens, as these will impact on their abilities to pursue their own personal life projects.2 both types of interest matter, so to resolve how much health provision jane is entitled to have we need to know how to weigh them against each other – that is, we need an index. consider an example. in 2015, the government of greece was criticized review of the committee for economic social and cultural rights (cescr) of the un for failings in its ecosoc rights provisions, such as basic health provisions (cescr 2015: e.g., paras. 19 & 20). specifically, provision of health resources and access to them had been curtailed by government policy during an economic emergency, principally ref lected in a sovereign debt crisis. the greek government responded that it did not have the resources to keep those ecosoc provisions at the prior level given the conf licting priority of f loating the economy. critics of greece point out that it had options as to where to find resources to address the crisis: health provision was not the only one. it could have increased taxation of the aff luent instead as a concrete response that is more specific than the cescr’s chide that the government could “do more”. however, a question arises as to what the right way to understand the duty to fulfil the right might be, in terms of how burdens can be allocated to resource that provision without being unreasonable (imposing unacceptable levels of burden). answering that question, i will argue, requires us to adopt the second model of obligations (b) above in that it calls for an index in weighing different and conf licting interests none of which are disqualified as irrelevant considerations to what we should do. that is a different question from the categorical one of whether the greek government was appealing to unacceptable, irrelevant considerations, in distributing burdens the way it did. in part 2 below, i set out this distinction in types of duties more clearly. 2 throughout this paper i refer to “duties” and “justified burdens” as comprising the costs that people may have to shoulder to secure the satisfaction of certain interests for others. duties are just one type of burden, whereas lost opportunities (opportunity costs) involving no obligatory action are another, thus the need to specif y both elements. i also use duty and obligation interchangeably. two (different) types of human rights duty 95 leap 6 (2018) in 3, i focus on the second obligations model, underpinned as it is by reasons relating to how one should weigh competing but legitimate interests and which i call ‘weighing reasons’. in 4 i return to the other model of obligations, those based in what i call ‘decisive reasons’. in 5 i show why some key objections to this distinction between the two models and its application to human rights duties do not work. 2. the distinction another way to frame the distinction among types of duties i have in mind is in terms of reasons and actions.3 on the one hand, we consider a specific action type in terms of the considerations for it and whether there are reasons to rule out those considerations – and with them the action. this might also work with omissions where a specific action should not be omitted for certain considerations.4 the government omitting to distribute food aid because it does not want to develop an aid plan for the poor, viz. poor citizens will not generally bring electoral dividends, makes it wrongfully neglectful of those citizens. in such cases, we have reasons to rule out the consideration, the electoral calculations, supporting the omission and with it the omission itself.5 however, ruling out omissions requires ruling out the positive considerations entertained in favor of wrongfully omitting the action. on the other hand, we have reasons to give a certain weight to some considerations when determining what action should be carried out, given the different competing considerations. the proposal to increase contributions towards educational provision must be considered by weighing the benefits the provision brings to those who can access it against what it requires in burdens for those who must, say, be taxed to finance it. we do not have a categorical reason to provide a given amount of education for any person, in this case, until we have found a 3 for one theorist, a practical reason is something “that counts in favour of some attitude or action” (scanlon 2004: 231). for clarity in the text when referring to “reasons” i shall exclusively be referring to obligation-generating moral considerations, and by “considerations” i shall mean any candidate reasons (in scanlon’s sense), moral or nonmoral, for acting or omitting to act. 4 i make no fundamental distinction between actions and omissions (the failure to perform a given action) in this paper. one can have an obligation to perform specific actions as well as an obligation not to perform certain specific actions (to omit). 5 the idea that there are special moral reasons that indicate considerations we can disqualify or exclude as reasons in moral deliberation is present in a number of authors (dworkin 1984; waldron 2000: 302 ff.; dworkin 2010: 330). scanlon identifies a special brand of ‘complex reasons’: those reasons we have to not take certain other considerations into account. these can include reasons not to weigh or promote a given aim (scanlon 1998: 50 ff.). the general idea that moral reasons can ‘silence’ other considerations is present in john mcdowell (1998, originally published in 1978: see 92). 96 saladin meckled-garcia leap 6 (2018) justified way to weigh the different interests against each other and arrived at the amount that is mandated by this weighing. we can call the first kind of reasons “decisive”: decisive: no considerations within a range, r, such as considerations a, b, or c, etc., is admitted as a (pro tanto) reason in deciding how to treat someone. actions based on those considerations are ruled out. considerations can here include people’s interests, which can be disqualified as having no weight in our deliberations. for example, consider a state claiming an interest for itself or its citizens in allowing slavery to take place. that interest should be given no weight because it demeans and diminishes human beings, treating them as objects of ownership. weighing the interests of one group (the slavers) versus another (the potential victims) is itself decisively ruled out because of what the pro-slavery interest implies about other human beings.6 where we have reason to weigh interests against each other, we can call this “weighing”: weighing: for a range of beneficial outcomes o that persons might enjoy, such as p, q, r, etc., the securing of which depends on others persons limiting their enjoyment of a range of outcomes, s, such as t, u, v, etc., we must assign a certain weight to these outcomes such that we know how much curtailment of s-type outcomes it is justified to assign to those that will experience the curtailment, given the o-type outcomes this will produce. simply, “weighing” assigns obligations according to some idea of appropriate weighing and balancing between certain benefits for persons and those burdens required to produce/secure the benefits. i will come to what such weighing amounts to and how it might be done below. for now, consider that the fact that we can increase street lighting by 50%, and with it personal security by 5%, does not by itself tell us whether we should do so. first, we must look at the costs, in terms of lost opportunities or outcomes to others. a proposal to reduce road traffic speed limits down to 20mph on all roads, even if it improves safety outcomes gained, has to be weighed against the losses it would bring in many other areas of life; and that weighing, done right, might indicate that a global 20mph speed limit 6 by “interest” here i mean an element of people’s wellbeing, in the sense of what does or can make their lives go better if satisfied. some theorists claim that one cannot have an interest in unjust things, and that is why some “interests” do not count for the purpose of grounding rights (tasioulas 2015: 49). however, if we are justif ying human rights this would be circular, appealing to a right (justice) to explain a right. not only that, there is an important sense in which interests relate to a person’s life plans, even mistaken life plans, rather than what is good per se. two (different) types of human rights duty 97 leap 6 (2018) constitutes too much of a loss in ways that matter for people’s lives, even if it would avoid a certain amount of death-risk on the roads. the weighing must be done to determine what we should do. we would not, however, accept similar reasoning when considering killing of one’s unhelpful boss, say, such that we weigh the benefits to us against her personal losses, assign weights to each on some scale, and then calculate what to do. rather, entertaining that very calculation smacks of psychopathy – we have a compelling reason not to treat such considerations as operative reasons at all, because treating people as part of such a calculation is excluded by their status as persons. secondly, where weighing is appropriate we need to introduce a way to weigh the securing of this range of people’s interests given the costs of doing so to others. that might be done by introducing a certain index to do this weighing, such as that for every gain x, a certain amount or type of cost y is acceptable for others, but no more. i will shortly come to how to weigh. weighing reasons allow both that the amount of provision towards satisfying a given interest for each person is determined according to the fair burdens that can be imposed on others in providing it. it might also allow that the numbers of persons having access to that provision are also limited, according to the fairness of the required burdens, as where people in the worst conditions are prioritized given what can fairly be imposed in the form of taxes at a certain juncture. fairness is a value that itself needs setting out, and there are different accounts. some see fairness as equivalent to reciprocity, others to focusing on the least well-off.7 for now, i am using it to indicate what burdens people may be expected to accept given the benefits, where no reason exists to cancel out the burdens as a valid consideration in deciding the correct course of action. the question of how we should weigh costs against benefits works along both axes (individual provision/numbers of individuals provided for). i will leave open the question as to along which axis balancing is permitted, in the sense set out above. if one accepts a basic equality restriction that no person can receive less provision than any other – which would require a special justification – then only one kind of balancing will be permitted. i am also leaving aside the question of weighing or deciding what to do when rights themselves (as opposed to the interests underpinning rights claims) clash. for my case that two types of reasons exist it is enough that 7 w hilst rawlsian fairness may have started out as hartian reciprocity, it is not clear that rawls’ theory of distributive justice, and especially his “difference principle”, is a reciprocal version of fairness. the original position models fairness in terms of what people would reasonably accept as a potential outcome for them: “…the idea of fair terms of cooperation: these are terms each participant may reasonably accept, and sometimes should accept, provided that everyone else likewise accepts them.” (rawls 2001: 6). 98 saladin meckled-garcia leap 6 (2018) sometimes we must weigh competing interests and sometimes competing interests are silenced. decisive reasons are pro tanto moral reasons or obligations. that is, there may be circumstances where one is forced by other moral reasons or obligations to go against these reasons. that would not, however, be a case where the reasons were extinguished. so, suppose a police officer was forced to act in a racially discriminatory way in order to prevent a murder (thus mollifying the murderer until backup arrived): that would not render the reasons to not racially discriminate invalid in such a case. there are other overriding reasons all-things-considered take priority in these circumstances. this is important because the mere existence of potentially overriding reasons all-things-considered, as in the above example, does not turn all decisive reasons into weighing reasons. that would be the case if weighing reasons were only, or principally, triggered where we had to adjudicate between pro tanto obligations. but weighing reasons exist where no pro tanto moral obligations exist, mandating us to act, but where valid considerations are nevertheless weighed and balanced. no obligation survives this balancing or weighing, all-things-considered, and we wrong no one by fairly adjudicating between the competing interests. thus, consider the benefits of university education and the cost of taxes to provide it. if we decide on a certain amount of taxation, and resulting university provision is acceptable, we are not thereby deciding to breach a pre-existing pro tanto moral reason not to tax. the question of whether we should tax or not is always posed in relation to the benefits that might be derived from taxation. the interests people may have against taxing at this level may be outweighed by the interests in university provision. in which case, we would have a resulting reason to tax, which is a pro tanto reason, not a group of separate pro tanto reasons. the focus on disqualifying considerations in decisive reasoning may be thought to imply that reasoning is wholly about intentions, versus the objective features of the actions themselves; indeed that has been raised as an objection to one version of this approach (möler 2009: 762 ff.). the objection poses a dilemma: either we focus on subjective states in pursuing an action or we focus on objective reasons of the action. focusing on subjective states is problematic because we may be unable to determine them, and part of what one can acceptably intend will any way depend on what an action objectively does – intentions deriving their moral acceptability form the actions they intend. focusing on objective effects, however, will focus on how interests are affected and that goes beyond the specific reasons the agent may have for carrying out the action. for my purposes, here we can refuse the dilemma. the objection runs together two (different) types of human rights duty 99 leap 6 (2018) “intention behind” with “reasons for”. we can consider what can best explain the action in its context in terms of the considerations that might support it, the reasons for it, and decide from those if any could plausibly render the action permissible because they are not disqualified considerations but genuine reasons. indeed, some types of action are already differentiated by their inherent incorporation of a certain kind of purpose that can never be an acceptable consideration for acting. the action of enslaving a person inherently incorporates extreme purposes with regard to human instrumentalization such that they cannot be divorced from a proper interpretation of the action. below i will identify the kind of moral basis one might cite to exclude reasons of this kind; but for now, we can see that it is not the subjective intention, but the publicly defensible interpretation of an action and its plausible supporting reasons that matters for decisive reasons. now, it might be objected here that there are moral theories that not only permit weighing, but endorse it, in all cases, meaning the cases i have described as decisive are only ever provisionally decisive. some forms of consequentialism, such as those incorporating an unconstrained wellbeing-maximizing instruction, might indeed assign weights to the option of murdering my boss, as well as reducing speed limits on the road. they arrive at both conclusions about what can or should be done by weighing. a significant attraction in rights thinking, however, which is also present in the aspirations for human rights standards, is to limit that kind of reasoning. rights are seen variously as limits, side constraints, or as invoking interests that are “qualitatively” different from other interests that can be simply weighed against each other.8 how, or why, such qualitative limits exist depends on one’s theory of individual-centered imperatives, but one thing any such theory would need to do is explain certain considerations as peremptory, such that certain considerations, including those relating to satisfying other people’s interests, cannot count against them even in very large numbers. to do that, those other considerations must have a weighting of zero in confrontations with these interests. examples of such, pro tanto, weightless considerations would be justifying the political exclusion of others on the basis of race or the sacrifice a person’s life on the grounds that it brings satisfaction in terms of (whatever number of ) other people’s life projects. to be able to do this, we need a reason to set the relevant considerations to zero in these confrontations, and that kind of reason needs explaining beyond an appeal to an unexplained terminology of qualitative differences between 8 for latter see waldron (1989: e.g., pp. 509, 512, & 519). 100 saladin meckled-garcia leap 6 (2018) interests.9 if one accepts that there are such rights, then one needs that reason-based explanation. now, if this is right, it means that, whilst decisive reasons focus on what counts as an acceptable consideration for an action (or omission), weighing reasons are index-focused. they concern what should be weighed against what and on what basis, as an index for negotiating between different and valid competing interests, in order to arrive at normative conclusions about what can or should happen. decisive reasons are more straightforward. key human rights or basic rights include rights not to be arbitrarily detained, arbitrarily killed, tortured, or enslaved, for example.10 it is important to note that what is ruled out by such rights relates to certain types of treatment, distinguishable not simply by the interests that they affect, but also by the basis for the treatment. we must not simply look at the impact on certain interests of being detained to determine whether it is morally acceptable, but must also consider whether it is arbitrary: meaning there is no compelling reason for it. if the non-arbitrariness test is passed, then detention can be permissible. it is also possible that negative impacts on interests such as one’s interest in being free from coercive force, from having one’s bodily integrity attacked, or from having one’s life threatened are not by themselves the basis for ruling out certain actions. killing in self-defense, forcibly coercing a detainee to prevent them carrying out a crime or from escaping justice, would both seem to be compatible with human rights standards. killing for personal advantage, coercing someone with the aim of convenience, interfering with bodily integrity for material advantage or for no good reason, are all ruled out. with some human rights, the disqualified purpose is already built-into the description of the right. so, torture incorporates the purpose of using attacks on a person’s wellbeing (inf liction of grave pain) to either break their resolve in order to extract something from them against their prior conviction, such as information, punish them, or enjoy their suffering. slavery incorporates the notion of ownership or control such that one person’s exercise of her will in directing her life and person is subordinated to the aims of another. the attack on the interests in question, on being free from pain or being free from restraint or free to do as one wishes, is not by itself obviously prohibited. one might legitimately apply very serious pain to prevent an attacker harming another person, and that would not constitute a violation of a 9 waldron, for example, never explains the notion of ‘qualitatively’ different interests that he takes to underpin rights (op cit). 10 these are clear core candidates for moral human rights, also ref lected in international instruments (viz. iccpr 1966/1978: arts. 9, 6, 7, 8). two (different) types of human rights duty 101 leap 6 (2018) human right, even pro tanto. this indicates that it is the way that interests are attacked – on the basis of what consideration or purpose that this is done – that determines the acceptability of the actions. here, one could object that the interest in question is the interest in being free from slavery, for example, such that it is an attack on these and not the considerations behind the attack that matters. that way, the effect on interests, and not the reasons behind the action affecting them is what matters in explaining human rights obligations. but not only is this an ad hoc move, introducing sui generis interests identified by type of treatment; this response still needs to explain why some interests are special, in the sense of being capable of disqualifying other considerations and not merely outweighing them. the slave owner’s interest in holding slaves should have a weight of zero in deliberating on what to do if many slave owners are not to skew the figures on whether slavery is acceptable. in which case, we need a reason to disqualify them and the interest taken on its own will not explain that reason. it is worth emphasizing here that decisive reasons do not only exclude actions. their focus is on disqualifying certain types of considerations as relevant to deciding how to act. they can also disqualify consideration that apply to omissions – as when a government neglects the safety of its citizens. decisive reasons cut across negative-positive rights or even negative-positive duties distinctions because they are reasons to disqualify considerations; and they rule out actions or omissions in so far as they are supported by disqualified considerations. these can include considerations that fail to sufficiently take into account the effect of a policy on citizens, and thereby imply neglect of their interests. decisive reasons do not only apply to civpol rights as traditionally understood. they can apply to considerations in the way ecosoc rights are distributed. a state that prevents jay from accessing a hospital because of her race or gender, where the hospital is not dedicated to group-specific ailments, will thereby breach a decisive reason. such considerations are disqualified when determining how to distribute social goods. what decisive reasons cannot tell us is how to fairly determine the balance between interests, benefits and burdens when weighing these is appropriate, and consequently how much of a given social good is to be provided. that question concerns the correct index for weighing these interests against each other in determining what to do, implying a different kind of moral consideration. weighing reasons are more complex because considerations against providing certain outcomes for people can include interests that are not easily dismissed or disqualified as inherently invalid, yet do not themselves ground decisive reasons. so, for example, the human right to health or 102 saladin meckled-garcia leap 6 (2018) education are often taken as entitling people to fulfilment in the form of a certain amount of benefit provision in these categories of (health and education) interest (cescr 1999b: s. 47; cescr 2000: ss. 33, 36, 37, & 44; also bilchitz 2007: 195). but it cannot be the case that a person has a claim against grounding an unconditional duty for others to provide n amount of health provision or n* amount of educational provision, given that providing these requires those others to take on burdens to do so that would represent personal costs in pursuing life aims. consider a level of resource requirement, n, needed to achieve educational provision n, that imposes on fellow citizens a duty to give up pursuing any personal life aims not dedicated to advancing n, but instead to adopt life-shaping aims around achieving n. they would have to decide their career choices and personal goals in terms of a personal commitment to what better achieves n. achieving n might require citizens to further restrict their personal lives, limiting their friendships in number so as to maximize resource and time towards contribution. untrammeled, obligatory dedication to n would reach deep into their lives as separate persons that would otherwise be guided by a sense of their own projects and pursuits. these requirements are unreasonable in the sense of undermining one of the points of a liberal and egalitarian morality: individuals living the lives according to their values and best lights. unlimited instrumentalization should be an unreasonable demand, even for egalitarians.11 so, we need some clear sense of the limits of reasonableness. whilst many authors mention reasonableness as a limit, or concede that no “excessive”, “unreasonable”, or “overly burdensome” requirements can be expected, these views always leave the criteria for reasonableness or excessiveness un-specified. nor do they even supply a decision-procedure or principle that we might use to arrive at such an answer.12 in addition to reasonableness problems, there are also matters of fairness. demanding large contributions from some citizens, even if these demands are consistent with allowing them to choose and pursue personal 11 in the words of g. a. cohen, they would turn each person into an “engine for the welfare of other people” or “slaves to social justice”. cohen says that this requirement would be “excluded by a legitimate personal prerogative [that] grants each person the right to be something other” than this (cohen 2008: 10). 12 viz. whilst cohen, supra, accepts a balance between other-regarding contributions and a personal prerogative (11), but gives no indication on how to determine the proper and just balance between the two (other than to claim we intuitively understand it [6 ff. and 354 ff.]). other examples of accepting limits but giving no account include buchanan (2004: 89, 92, 94 n.8), stemplowska, who concedes duties to provide resources apply “if such resources can be provided at a reasonable cost to the provider”(stemplowska 2009: 468), and gilabert, who also acknowledges there are limits to contribution but gives no account of those limits (gilabert 2012: 47). two (different) types of human rights duty 103 leap 6 (2018) aims, can still be unfair. that is because one can ask whether allowing the burdens to fall unevenly on some citizens treats those citizens with equal concern. allowing some citizens more opportunities, or fewer burdens, to exercise their capacity to pursue their personal goals means treating them differently, and the differences have consequences for how they can pursue distinct lives. the need for fairness requires a positive account of how interests – both basic ones and those in pursuing distinct lives – can be balanced so that citizens are treated with equal concern, and thus fairly. an account of how to weigh interests fairly is, however, different from an account that disqualifies certain considerations for action. of course, there may be circumstances where fairness considerations are not pertinent. it might be argued that one ought to save a drowning child, even if one has saved many such children recently – just because one is confronted with the drowning child. introducing fairness here is out of place. however, what precisely matters about the interests in play in the cases i have identified is that they are not rescue cases triggered by special circumstances of direct confrontation with the jeopardy of specific sufferers. rescue cases are most plausible when considerations relating to a reasonable dispensation to prioritize one’s own aims to guide one’s life are absent, and so are considerations focused on the fair distribution of opportunities to pursue one’s life aims. this is ref lected in the number of authors working on rescue that look for characteristics to demarcate these cases in terms of the specificity of the circumstances – such as “being confronted” with another’s plight, or being in the “proximity” of someone in peril.13 certainly, any attempt to generalize from the mere fact that someone lacks basic interest satisfaction in a specific rescue case to a duty to contribute to basic interest satisfaction for all who need it, will introduce the need for a weighing reasons model. 3. accounts of weighing reasons if my above analysis is correct, then there are two types of duties, and two types of reasons that underpin them, corresponding to human rights standards. the point of this distinction is not to reject either type of duty but rather to invite ref lection on what these duties demand, in the form of theories that give them content. the distinction is also not intended to rule out either duty model as relevant to human rights, in the way that perhaps debates on whether human rights are (technically) rights are intended to 13 w hat triggers rescue duties is a matter of dispute. a number of theorists propose proximity, (miller 2010: 23 ff.; kamm 2007: 379) while others focus on ‘confrontation’ with a specific person’s case (dworkin 2010: 277 ff.) as the defining feature. 104 saladin meckled-garcia leap 6 (2018) do (cranston 1973; bedau 1979). i deal with the question of whether this disjunctive analysis challenges the status of human rights as rights below. for now, if there are genuine decisive and weighing reasons, then they will generate obligations. given the nature of the two types of claims, and any one human right will need both types of reasons and obligations to give it a well-articulated content. by introducing the complexity of types of duty and the reasons that underpin them i also introduce some necessary complexity in our understanding how human rights can or should be claimed. where the matter is simply one of decisive reasoning, certain actions or omissions are categorically ruled out because of the character of the considerations that support them. where weighing reasons are appropriate, adjudication will need more information about what it would take to provide different levels of provision, and it will also need a principle for weighing the provision against the cost. this can only mean that an account of distributive justice is required. for states seeking to comply in a principled way with their human rights obligations, determining a principled (reasonable and fair) way to carry out this balancing will be indispensable. that involves having a clear sense of what fairness can demand, in the form of a justifiable principle of fair distribution of benefits and burdens (a principle of distributive justice). whilst there is little or no literature on fairness for human rights, the literature for principles of distributive justice is much richer and more advanced. a rare exception to the lack of attention to, or even recognition of, this problem in human rights literature is david bilchitz, who argues that we should accept a “core obligations” model prioritizing certain demands for fulfilment of interests, and progressive taxation as a means to resource the provisions (bilchitz 2007: 88-89). bilchitz’s basic idea is that the more wealth people have, the more diminished are the returns on that wealth as utility for those that enjoy it (ibid). thus, requiring contributions from those with more wealth is a less demanding (and a more marginal) burden than from those at other income levels. this, he argues, supports a progressive taxation solution to the supply question. but, whilst it is commendable that bilchitz at least recognizes that there is a problem to be addressed, his response does not solve it. while the response explains where to prioritize contributions, it either fails to explain what constitutes a fair contribution or it implies an implausible account of fairness. to take contributions at the margin – i.e., from the better-off first – does not indicate any limit on how much should be contributed. it is possible, on this instruction, to simply keep on taking. two (different) types of human rights duty 105 leap 6 (2018) if there is no limit with an accompanying justification, then this not an account of fair contribution so much as an account of the order in which to collect contributions. one could come up with a limit, say of a certain level of wealth, but that would require justification as the right account of fair cost distribution. it would also imply that taking more was wrong, because unfair, and correspondingly right holders could only claim what was achievable with this level of contribution. bilchitz does not supply an account of this kind of fairness. but we can consider some alternatives. perhaps, implicit in the progressive tax idea is the view that people must contribute up to that point where their own rights are threatened. that is, they are allowed to keep enough resources to be marginally above basic interest satisfaction. however, it is unclear why that is what constitutes a fair contribution. bilchitz himself focuses on basic interests as setting a threshold of ‘core obligations’ for ecosoc human rights.14 but that threshold seems too low to act as the bottom limit to which contributions can acceptably take a contributor, as a matter of fairness – it gives little or no weight to the value of respecting people developing and pursuing distinct life-shaping aims. it would imply that where some people were below the threshold because of a deficit in resources, potential contributors would always forfeit opportunities to personally work towards obtaining resources to advance their life-shaping projects and aims. this seems to rule out the prospect of pursuing a meaningful life through one’s work and effort. it yokes the life of each individual, in the sense of developing and pursuing projects and goals that are one’s own, to the sole aim of achieving a certain wellbeing level for others. of course, the claim is not that people have unlimited rights to this pursuit, it is rather that it should have some fair weight. it is important to parse out the issues here. there is a level of treatment for people that is prohibited, and would be covered by an account of decisive reasons. that does not set a level of provision or contribution, except in so far as it rules out certain considerations (including some considerations about contribution or cost) as relevant to provision. when considering behavior such as the enslavement of others, cost considerations 14 bilchitz defines minimum core in terms of interest fulfilment that secures near bare survival (bilchitz 2007: 221). it is worth noting that bilchitz distinguishes implementation duties, what he calls “unconditional rights”, from the content of the rights themselves, which he calls “conditional rights” because their requirements being categorical depends on context and resources (77 ff. & 220 ff.). the latter, somehow, symbolically go beyond what is required at any one time by unconditional rights. this distinction is troubling in my view, given that the normative content of a right is precisely a matter of what can justifiably be demanded from others, and a right considered distinctly from its normative content seems a mysterious idea. however, in this paper i am only concerned with the justification of types of duty. 106 saladin meckled-garcia leap 6 (2018) (of spurning slavery) to those doing the enslaving are irrelevant. however, when considering weighing reasons, we must find a way to balance interests and determine fair limits for those contributing towards the fulfilment of human rights. the limits here are not the same as in decisive reasons – they are not set as limits on the kind of considerations that can count, but by deciding how much of one set of acceptable interests it is fair to give up for another set – and so what can fairly be expected of contributors. however, the proposal that we should set the limits on contribution at the point at which “basic” or “core” interests are affected indicates that no one has a right to pursue a distinct life of their ow n so long as they can contribute more towards others reaching the satisfaction of those basic or core interests, however many people may be in that position. here, reasonableness can still be preserved by not requiring people to prioritize the project of contributing to the raising of each and everyone’s wellbeing levels, as one’s life aim. that would be an illiberal consequence that made a person’s conscience and life aims an instrument for the improvement of wellbeing. but even avoiding that, it challenges fairness to require each potential contributor to limit their pursuit of personal aims (save those that benefit overall interest fulfilment) to zero until all others have their basic interest satisfaction secured. it means no one is permitted to pursue resource opportunities, for their personal goals, that diverge from contributing to that goal, which is a challenging conception of fairness given that it does not give any weight to the interest in living a distinct life. one could try to define the baseline differently, so that it captures those resources and opportunities needed to live a meaningful life, say. this might also solve associated problems, such as that in today’s world the above measure of contribution might consign everyone to a life where they cannot pursue any aims that require resources above those necessary for basic interest satisfaction. people, on that approach, should give up any resource that places them above the core interest satisfactions, so long as richer people were the first to give up their resources. this is a worrying implication. i am assuming that the advantages above basic interest satisfaction that people have are not all or even mostly due to exploiting or oppressing those below the basic interest satisfaction level, so we are not considering those more straightforward cases of just rectification for wronging others. in which case, the yoking of individual life opportunities solely to the aim of increasing wellbeing for others implies they cannot legitimately pursue meaningful purposes of their own. the only solution to this problem seems to be to allow that the limit on contribution is set so it allows enough resources to live a meaningful life. but that raises a set of serious problems too. any attempt at settling an two (different) types of human rights duty 107 leap 6 (2018) objective definition of a meaningful life that overrides subjective conceptions of what people find meaningful, will be illiberal in that it demands the state adopts a conception of a meaningful life for all, even those that reject the one proposed by the state. one could try to develop a conception at such a level of abstraction that it can encompass very many conceptions, say by focusing on a certain level of autonomy or reasonsensitivity in guiding one’s life.15 but such abstract conceptions are compatible with a wide variation in life projects and, consequently, a wide variation in the resources people should have the opportunity to pursue to put towards those goals. the idea of a compelling general conception of a meaningful life that inherently sticks to the resources needed to pursue it seems implausible. the alternative, of simply taking subjective understandings to define a meaningful life, is even less likely to establish a specific resource threshold to which they all subscribe. of course, in the sphere of debates about distributive justice theory, which is effectively where we find ourselves presently, there are views that seems to focus on a threshold as the basis for justice. sufficientarianism suggests we can have a threshold of resource distribution where each person has “enough”, and permits anyone above that level to have as much as they can obtain that is still compatible with everyone having at least as much as the threshold.16 importantly, however, these views do not limit sufficiency either to a fixed point, or at the level of basic interest satisfaction. the idea is that people should have enough for a decent human life, and what that implies can vary and expand depending on one’s social circumstances (see casal 2007: 313 ff. & 323 ff.). if sufficiency views simply asserted the threshold of sufficiency as basic interest satisfaction and mandated unconditional redistribution down to that, they would offer a categorical account of weighing reasons. but that approach would suffer from the very problem to which we are trying to respond – the unfairness of yoking everyone’s life aims and opportunities solely to the aim of increasing wellbeing up to certain level for everyone. instead, space for pursuing a meaningful life is needed. sufficientarian views also do not seem to offer a useful account of that (see casal 2007: 313 ff.). note that in now considering fair arrangements, and accounts of distributive justice, i have departed from the simple rights view justifiable on the decisive reasons model. for fair arrangements, we need a justified principle of distribution (within what decisive reasons permit). that is: we are engaged in considering the fairness of different possible principles 15 e.g., see sher’s reason-sensitivity view (sher 1997: esp. chapts. 3 & 4). 16 e.g., sufficientarianism in distributive justice (frankfurt 1987; crisp 2003) and as applied to human rights (brock 2009: 62 ff.). 108 saladin meckled-garcia leap 6 (2018) according to which relevant agencies can arrange benefits and burdens, opportunities and obstacles. these are typically defined and pursued through the allocation of socially recognized rights and duties to citizens, by an agency that can legitimately make such allocations. societal fairness here asks according to what principles should authoritative agents create cooperative arrangements between contributors and beneficiaries using allocations of rights and duties.17 where weighing reasons are appropriate, the principles do not mandate outcomes for beneficiaries at all possible costs, but instead offer principles for deciding what costs are acceptable in exchange for which benefits. the literature on such principles is rich and varied, and interestingly it has been significantly ignored by people proposing theories of human rights. yet, as we now see, if weighing reasons do characterize the content of well-known human rights duties, such as duties to fulfil, addressing the problem of how to weigh interests is unavoidable. i will consider some arguments for avoiding that model below. for now, i look at the implications of treating this as part of distributive societal justice theory. a significant category of principles of distributive justice address the above problem of a fair opportunity to pursue a meaningful life, even whilst redistributing to assist those who have less opportunities. some of these views allow certain freedoms and opportunities to pursue increased access to resources, but conditionally. people can pursue and achieve certain personal, resource-requiring goals on the condition that these opportunities and achievements are simultaneously of benefit to people with less opportunities to pursue resources for their own aims. these views differ from proposals that require contributions up to the point in which contributors’ own basic interests will cease to be satisfied because the latter exclude people pursuing additional resources over and above the basic threshold. conditional opportunity theories condition the opportunity to pursue such aims including by pursuing resources on their simultaneously contributing to the social good. so, opportunities to pursue extra resources towards advancing a musical or artistic project would only be permitted in so far as these pursuits also contribute to social benefits – in the form of redistribution of a component of their resources. for example, a rawlsian maximin principle requires social institutions to permit people to pursue inequality-producing resource aims, but only 17 i am not here limiting distributive justice to these institutional considerations, but rather stating an important role that distributive justice must play, and indeed does in the accounts of theorists as varied as rawls, dworkin, and g. a. cohen. for an extensive discussion of the distinctive role of the concept of distributive justice see (meckled-garcia 2016). two (different) types of human rights duty 109 leap 6 (2018) where this helps the least advantaged in society.18 similarly, dworkin’s account of justice as equal concern, and in turn of societal equal concern as equality of resources, allows people to pursue distinct life projects so long as society aims to guarantee equal starting resources for all to pursue their projects, and everyone who can, contributes to social insurance for those that might meet difficult resource circumstances (dworkin, 2000: pp. 73 ff.). accepting that some human rights duties or justified weighing reasons must apply, has the upshot that whilst the principles for weighing different interests will remain the same, their application will vary according to which interests are in play to be weighed against each other in any one context. fairness demands different things where pursuit of a personal end will simultaneously contribute to the social good compared to where that pursuit has no social dividend. the principle is the same in both cases, but the interest distribution and relation differs. with decisive reasons, one is not relating interests that might differ but rather determining what kind of considerations are acceptable or relevant to a course of action. moral reasons should be able to rule out a range of these a priori, and with them the actions they support. distributive justice principles, because of their conformity to the weighing reasons model, do not have this a priori consideration and action-focused component. of course, here i do not propose to support or advance any one theory of distributive justice. a whole range of candidate principles exist in the literature that try to answer the fairness problem, including utilitarian, egalitarian, prioritarian, and sufficientarian views. some function by introducing more specific opportunity-focused, resources-focused, welfarefocused, access-to-welfare-focused, maximin-focused, etc., frameworks. for my purposes, it is only necessary to highlight that the kind of distributional problem best framed in terms of weighing reasons is already recognized by a significant body of literature. that literature recognizes different facets that matter to distributive justice – including personal responsibility for opportunities, the significance of choices and abilities, the important role of a distributive agency, and the space for pursuing one’s own ends or meaningful projects. yet that literature (and the problems to which it responds) are not recognized as core discussions in human rights theory. one motivation for this might be the belief that human rights do not engage with weighing reasons but rather with categorical requirements. i consider arguments for this below. 18 rawls’ maximin principle is described in his theory of justice (revised edition) (rawls 1999: 72); some critiques of this view have questioned this permission as un-justified (cohen 2008: 151 ff.). 110 saladin meckled-garcia leap 6 (2018) for now, if human rights obligations include both weighing reasons and decisive reasons, then these must be parsed out when deliberating over the content of people’s entitlements as a matter of right. to give content to obligations that engage weighing reasons, some account of distributive fairness will be crucial.19 bilchitz’s (unsuccessful) attempt to provide such an account highlights that we need this kind of framework in settling the content of some human rights duties, such as those to fulfil. so, returning to the example of the greek government, taxing aff luent people is perfectly justified to protect crucial health provisions for the most vulnerable in society. a variety of principles of distributive fairness might support this. a maximin principle would say that where the wealth of the aff luent does not improve the condition of the worst off, and the simple existence of aff luent people did not do that for health in greece, contributions must be made by those who have greater advantages, but opportunities to pursue resources are nevertheless permitted only as long as pursuing them brings dividends to the least advantaged. there are no limits on what can be pursued that has this characteristic and taxation must not make the beneficial opportunities impossible. if, on the other hand, one were obliged to fulfil others’ basic interests at whatever cost, globally, allowing people to pursue additional resources would be ruled out, as they can be expected to work to fulfil global basic interests regardless of any opportunity to obtain resources for their aims (cf. cohen 2008: n. 10). treating human rights duties as unconditional requirements to fulfil basic interests misses this complexity. if the above is right, then when resolving the duty content of rights and adjudicating specific cases, we need to be aware of the different kinds of reasons that it makes sense to take into account. trying to apply decisive reasoning where weighing reasons are appropriate will create problems of resource and contribution sensitivity that decisive reasons do not tell us how to solve. treating human rights as generating categorical obligations also hides these differences leading to similar tangles. international standards recognize the need for resource sensitivity, as we shall soon see, but supply no principle for adjudicating these questions. when duty bearers appeal to lack of resources in fulfilling a right, a compelling response will need to appeal to a fair principle of distribution. weighing reasons are important for fulfilment duties because decisive reasons give no positive account of how much of any important provision or benefit people must supply. to be pertinent in any context, we must be 19 some theorists see human rights as a subset of justice, and distributive justice as on a par. they thus miss the possibility of these different types of duty and the different consequences of applying them (e.g., tasioulas 2010: 654 ff. & 659). two (different) types of human rights duty 111 leap 6 (2018) faced with valuable aims, in the form of interests that matter for persons, as well as countervailing, though legitimate, considerations in the form of t he a i ms a nd pu rsu its of t hose who wou ld have to forego t hose pu rsu its to satisfy the valuable aims. those two models of reasoning about considerations are pertinent to duties corresponding to both civpol and ecosoc rights. there is a difference between discriminatory or even neglectful considerations in deciding how police protections are to be distributed, and the question of how much police protection everyone should have, given the costs in a particular social context. the pertinence of both types of reasoning is as true of police protection budgets as of the decision over how many dialysis facilities a society should have. 4. decisive reasons whilst i have given some examples, i have not set out a general account of the kind of moral consideration that can constitute a decisive reason in the sphere of human rights. these are reasons to disqualify a given range of considerations as relevant to how a person should be treated – thus also ruling out a weighing reasons type deliberation on the basis of these considerations. that a person has important interests is not sufficient to establish reasoning as to the relevance or irrelevance of a consideration because that importance does not explain the kind of categorical decisiveness that can disqualify a consideration. the importance of an interest might, under certain circumstances, simply outweigh other interest considerations, depending on the numbers of interests in play. thus, the need to improve road safety can outweigh road users’ interests in efficient travel. however, to rule out or disqualify some considerations as relevant to how we ought to treat a person, we need reasons or values that are categorically superior so that other considerations do not count against them. that must be the case however many considerations of the disqualified kind could be stacked against this value. that an interest is important for a person’s wellbeing, even hugely important, does not have this categorical character unless one has a special reason to promote it categorically. an example of such a consideration might be the inherent value in a person being respected in exercising her capacity to adopt goals and commitments, to develop these, prioritize amongst them, and to pursue them as personal life projects – projects that give direction to and shape her life. to value that capacity is to respect it, and to respect it means not seeking to usurp its exercise, impose conditions on it exercise, or undermine the possibility of its exercise. failure to respect the sovereign exercise of this capacity in persons, for any reason other than upholding 112 saladin meckled-garcia leap 6 (2018) this very same respect, is wrongful because it treats their living distinct lives as subordinate to aims and priorities that are not their own. actions like enslavement and torture are in this way categorically wrongful; they disrespect a person as having sovereignty over the exercise of this capacity. the actions of slavery subordinate a person’s capacity to adopt, prioritize, and pursue her ends to the priorities, and pursuits of the slave owner. torture uses a person’s sense of wellbeing (in her aversion to pain) to alter her priorities and commitments – e.g., the commitment not to disclose the location of her colleagues, thus subordinating her capacity to prioritize and pursue these commitments to the aims of the torturer. imposing pain on someone may under certain circumstances be permissible, as in self-defense. there the permission to intervene is not a failure to respect self-sovereignty but rather an expression of it: upholding that it be respected for others. the value itself sets limits on its own exercise. where the considerations for imposing pain on another or constraining her freedom fail to respect this self-sovereignty value, they are discounted as having no weight; and the actions they support are ruled out as (pro tanto) wrongful. with the race-based exclusion case, mentioned at the beginning of this paper, the literature contains a number of theories of discrimination and though some of those analyses overlap with this question they are not limited to it (viz., wasserstrom 1995; lippertrasmussen 2006; gardner 2018). but the key question here is the narrower one of what kind of reason can not only outweigh, but also disqualify a race-based consideration for exclusion? some accounts focus on the demeaning of the target, others on thwarting of a key interest (hellman 2008; moreau 2010). some views focus on treating groups as less worthy of decent treatment (shin 2009). however, to disqualify the consideration itself even as an interest that should be balanced with others in a weighing exercise, we simply ref lect that it mistakenly uses the characteristic of race as grounds to dismiss the value in people exercising their capacity to form, develop, prioritize, and pursue commitments as the determinant of how they should be treated. the mistake disqualifies the consideration as having any weight against treating people in light of the capacity. where countervailing considerations are not open to disqualification in this way, but have independent importance as people’s interests, then the weighing reasons model is appropriate. 5. objections as i mentioned above, the decisive reasons versus weighing reasons distinction – and certainly the notion of principles of distributive societal two (different) types of human rights duty 113 leap 6 (2018) justice – are not commonly appealed to as sources for the content of human rights standards. one reason for this may be a tendency to treat the analysis of duties and justified burdens associated with human rights as categorical obligations, meaning they unconditionally demand a certain outcome for each person and would thus rule out weighing reasons as part of their analysis. i now respond to some arguments for this view. 5.1. weighing reasons as decisive reasons the first objection is that we can and should re-describe human rights duties in categorical terms. in saying people have a right to a certain amount of health care we are saying that this is obligatory in some nonnegotiable sense. one way this could be done is by introducing obligations that are categorical but worded in a conditional way.20 in fact, the use of conditional wording is present in international legal documents associated specifically with fulfilling ecosoc rights.21 the resources and infrastructure that should be present to fulfil these rights make the associated duties difficult to word unconditionally. instead, resource sensitivity is introduced in the form of a duty to “progressively realize” them. in carrying out progressive realization, states are charged with taking all “appropriate steps” and employing “all available resources” towards the goal of fulfilling these rights.22 thus, instead of a categorical obligation to supply certain outcomes, which would be resource insensitive, we have a duty to move towards those outcomes when certain conditions are met, which is thus sensitive to the resources that a state has available to it. a categorical reading of the fulfilment duties associated with ecosoc rights might imply an obligation to supply an outcome o that requires r resources. a duty to progressively realize o means that a state at any time t only has an obligation to realize o to the extent, no, that is possible with the resources, nr, that the state has available to it at t. there is a firm and categorical obligation here; yet it is not the obligation to fulfil the right, only to partially fulfil it to the extent, no, possible at t. the duty to entirely fulfil the right, categorically, would only occur at a point t^, where r resources were available to it. so, the duty is conditional on resource availability at any one time. if this analysis is correct, we should not have 20 cf. bilchitz’s distinction between conditional and unconditional rights, (bilchitz 2007: 78 ff.). 21 there is an important inconsistency in that ecosoc rights are explicitly subject to such conditionally in the un documents, such as general comments 3, 10, 14 (cescr 1990; 1998; 2000) where polsci rights are not, or at least not systematically, yet protection and fulfilment duties associated with the latter clearly should be as i have stressed above. 22 for “appropriate steps” see (cescr 2000: ss. 11 & 49); for “available resources” see (cescr 1990; 1998; 2000). 114 saladin meckled-garcia leap 6 (2018) to resort to weighing reasons to resolve how to resource the provision of human rights fulfilment. we can instead re-describe those duties in categorical, albeit conditional, terms in terms. the problem with this response is that the notion of “available resources” is being used as a descriptive term, when it could only be a normative concept. this is because what counts as “available” for a state to use depends on what it can legitimately extract from those who work for or within it. this will take the form of taxation, work contributions, or the configuring of property relations. any physical or natural resource will need to be turned into exchangeable or useable resources; any already exchangeable or useable materials that are owned will need to change ownership. that means a state will need to make decisions about appropriate levels of taxation, ownership, wealth, property rights, and even labor in order to decide what resources are genuinely “available” to it. of course, one could try restricting the notion of available resources to what a state has in its possession, or revenue, at any one time, to avoid these problems; but that would be an arbitrary choice given the point of using these resources. the plausible notion of an available resource will, then, depend on the burdens that a state can justifiably impose on people leading to benefits for others in terms of basic interest satisfaction. consequently, it is clear that the level at which we set availability depends on what citizen contribution level is justified – a moral normative question. some human rights literature takes a step in that direction by appealing to the concept of “reasonableness” in assessing what resources are “available” (chenwi, 2013). but no account of reasonableness has been provided to address the essential question of how to weigh conf licting interests in assigning burdens. this is the weighing reasons question: at any one time, t, what counts as a duty will depend on available resources, which in turn depends on the weighing reasons that apply to the fair social distribution of benefits and burdens. a component of the progressive realization doctrine that might be used to try to prescribe categorical requirements for states is the idea that ecosoc rights include “core obligations” associated (cescr 200: ss. 43 ff.). as i have said, my concern here is not with duties associated only with ecosoc rights but with obligations cutting across those kinds of distinctions. so, the claim some ecosoc obligations might be categorical does not threaten my analysis of two types of reasons at the heart of human rights obligations. however, if the claim is that a scheme for fulfilment provisions in which there are certain mandated outcomes is a categorical requirement, this does conf lict with the view of duties and justified burdens i have proposed. the international doctrine associated with core obligations, two (different) types of human rights duty 115 leap 6 (2018) however, either highlights rights that are easily accounted for as decisive reasons – based on the distinction i have proposed – e.g., that ecosoc services should not be provided in a discriminatory way, or would need to be somewhat sensitive to resource availability (bilchitz 2007: 220 ff.). 5.2. “rights” versus weighing reasons? some theorists associate human rights with a technical notion of “rights” that conceptually implies an entitlement to a specific content – whether it is an outcome or form of treatment – that must be known in advance. the weighing reasons analysis does not give us any definite content for the entitlement, only for the principle that will be employed to determine it in any specific case. so it seems to undermine human rights as rights (see bilchitz’s worry, ibid). in itself, this is not a strong point. for there is no reason to think that human rights have to be rights in that very technical sense, as opposed to important obligations states have towards their citizens.23 a feature more centrally associated with human rights, however, is their universality. some authors interpret this as human rights encompassing justified claims that can be claimed by all persons and claimed equally, regardless of circumstances or social membership (o’neill 1996: 130 ff.). onora o’neill uses this premise to argue that rights to goods and services cannot be human rights: to be able to claim them justifiably, and – for the purposes of this paper – fairly, one must claim them from a certain infrastructure with specific types of responsible agents (o’neill 1996: 130136). importantly, a state must have fairly allocated the duties to supply the content of the rights. however, what exactly a person is entitled to have as a matter of fulfilment of their rights, depends on what it is in any given context fair to impose as a burden on others. given that this may differ with context, the claim cannot be justifiably and equally made by all persons, regardless of circumstances or social membership. that, in turn, implies the right is not universal, so that on this view it is not a human right. yet, this objection does not deny that protection or fulfilment claims can ever be justifiably made. it simply says they are not universal in the right sense. institutional orders can be set up such that justifiable, fair, claims can be made. so, why is universality, in this particular sense of universality, essential to defining human rights? universality of this formal kind is just one dimension that might pick out what is special or distinctive in human rights; a different trait might be their importance or 23 james griffin, for example, rejects the need to use the technical sense of a right to analyze human rights (griffin 2014: 210). 116 saladin meckled-garcia leap 6 (2018) urgency, or even their ability to place limits on the legitimacy of political institutions. there is no obvious reason why all human rights should apply independently of institutional context – in fact, that very condition is challenged by “political theories” of human rights (e.g., beitz’s theory, beitz 2008). whatever the right answer as to the defining feature/s of human rights standards, the claim is not that standards based on weighing reasons, and thus lacking the requisite universality, fail to be normative standards at all. if it is admitted that such standards exist and under the right conditions they can justify normative claims, then whether we call these human rights or not seems more a matter of nomenclature than significant substance. 5.3. does this weaken ecosoc human rights? a final objection i will consider is that this approach, with its two models of reasoning underpinning different types of obligations, weakens ecosoc human rights claims. ecosoc rights rely more heavily on fulfilment as their core mission. which is to say that whilst there are cases where taking ecosoc opportunities away – e.g., by intentionally or negligently destroying a source of water – is a violation and one consistent with a decisive reasons approach, the key question for ecosoc rights is how to fulfil certain ecosoc conditions for people. by introducing weighing reasons, and with them the idea that an infrastructure of distribution that is capable of fairness is needed for these rights to apply, i would seem to have made ecosoc rights less easily claimable and less practically useful outside certain specific societal contexts. whilst this may be true, it is important to point out that any alternative formulation of the duties and justified burdens associated with human rights will suffer similar or equivalent problems. re-describing the duty to fulfil as a categorical requirement still faces the problem of how these requirements are to be supplied and by whom. one could indeed abandon the idea that there are countervailing considerations such that we must engage in weighing. but that means giving up an essential component of reasonableness and fairness in practical and political reason. it would be a victory by stipulation only, not one responding to the practical problem of the existence of legitimate conf licting considerations. if we accept the need to adjudicate between these different considerations, then weighing reasons do not weaken human rights duties but provide the only kind of solution that will give a significant portion of them some rational content. two (different) types of human rights duty 117 leap 6 (2018) 6. conclusion in conclusion, i have identified two types of reasons – or two models of reasoning – when determining the content of certain human rights obligations and justified burdens. the decisive reasons model offers us a way of understanding categorical duties, whereas the weighing reasons model is engaged when we must consider interests and considerations that need to be balanced. provisions and interpretations that are compatible with both models are present in international human rights documents, although these documents do not explicitly recognize the need for either model, or any model altogether. i have argued that these models are, however, both necessary to make sense of, and give content to, different types of human rights responsibilities. i stress, these two types of reasoning are not designed to undermine any one type of right or duty – instead, they cut across different traditional distinctions between types of rights (economic and social versus civil and political); and they are both ways of explaining the duties as genuine obligations. yet, without sensitivity to these forms of reasoning, trying to give content to our human rights obligations will lead to troubling confusions. not all human rights duties are categorical and we need an account of how to determine those duties when they are not. bibliography bedau, h. a., 1979: ‘human rights and foreign assistance programs’, in p. g. brown and d. maclean, eds., human rights and us foreign policy, lexington mass.: lexignton books bilchitz, d., 2007: poverty and fundamental rights, oxford: oxford university press buchanan, a., 2004: justice, legitimacy, and self-determination, oxford: oxford university press brock, g., 2009: global justice: a cosmopolitan account, oxford: oxford university press casal, p., 2007: ‘why sufficiency is not enough’, ethics 117(2): 296–326 charles, b., 2008: the idea of human rights. oxford: oxford university press chenwi, l., 2013: ‘unpacking 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— 2015: ‘on the foundations of human rights’, in cruft, r., liao, s. m., renzo, m., eds., philosophical foundations of human rights, oxford: oxford university press waldron, j., 2000: ‘pildes on dworkin’s theory of rights’, the journal of legal studies, 29(1): 301-307 — 1989: ‘conflicts of rights’, ethics, 99(3): 503-519 wasserstrom, r., 1995: ‘preferential treatment, color-blindness, and the evils of racism’, in steven cahn, ed. the affirmative action debate, new york: routledge, pp. 153–168 united nations, 1966/76: international convenant on civil and political rights (iccpr) united nations, 1966/76: international covenant on economic, social, and cultural rights (icescr) leap 6 (2018) the democratic case for a basic income1 l e t ici a mor a l e s universidad austral de chile abstract while most of its advocates justify the right to a basic income because it promotes individual freedom, autonomy and human development, an alternative line of argumentation insists that a universal basic income is a core component of a well-functioning democratic society. in this article i examine the democratic case for a basic income by engaging with the work of carole pateman and michael goodhart. more concretely, i argue that although their proposals offer interesting insights, they ultimately fail to properly justify the importance of a basic income on democratic grounds. i develop an alternative argument based on the right to political participation and explain why a universal basic income scheme may promote such right. keywords: democracy, political participation, material preconditions, social rights, income security, basic income. 1. introduction the right to income security poses something of a conundrum. while it is universally accepted that income is very important for the lives of human beings, the main international human rights treaties do not explicitly recognize a right to income security. neither the universal declaration of human rights nor the international covenant on economic, social and cultural rights directly proclaim a right to income security. however, they appear to do so indirectly through the right to social security, the right to 1 previous versions of the paper were presented at the 8th summer-school in political philosophy & public policy (university of minho), the 17th bien congress in lisbon, the seminario austral de la universidad austral de chile, and the 2nd international conference of the uk-latin america network for political philosophy (ukl appn) in mexico city. i am grateful to the audiences at these events and to jurgen de wispelaere, felicitas holzer, julio montero and two anonymous referees for this journal for helpful comments and suggestions. d oi : 10. 310 0 9/l e a p. 2018.v6.07 the democratic case for a basic income 121 leap 6 (2018) an adequate standard of living and the right to work.2 income security can be established in various ways (de wispelaere and morales 2016). the most common view links income to a wage obtained from work, social security payments or other state benefits, often subject to certain eligibility criteria and past contribution. in recent years, however, the proposal to grant each individual citizen a regular cash payment, without insisting on a means test or work requirements, has become popular in both academic and public policy debates (van parijs and vanderborght 2017). the advocates of “basic income” – as the proposal is most commonly known – argue that granting each citizen or long-term resident an unconditional cash payment is the most effective way to ensure income security for all. unsurprisingly, this proposal is regarded as deeply controversial and there intense debate about its normative justification is ongoing. the most inf luential view tries to ground the right to basic income on the ideal of individual freedom. in this vein, philippe van parijs – one of the pioneers in the basic income debate – famously sustained that basic income is a condition for securing real freedom, understood as the freedom to do whatever one might want to do (van parijs 1995; also van parijs and vanderborght 2017). while freedom-based justifications have dominated the debate for years, some authors have emphasized the limitations of this approach. such dissenters do not necessarily object to basic income as such; they merely reject the freedom-based justification because they think it fails to take into account some key structural features of contemporary societies.3 one such view proposes that, instead of freedom, we focus on democracy as the political value that could justify an unconditional basic income (pateman 2002, 2003, 2004; goodhart 2007, 2008; van damme, 2017). in this article i explore the relationship between basic income and democracy. i start my analysis by focusing on the critique of carole pateman and michael goodhart against freedom-based justifications and 2 the universal declaration of human rights (udhr) recognizes the right to social security (art. 22), the right to work (art. 23), and the right to a standard of living (art. 25). the international covenant on economic, social and cultural rights (icescr) establishes the right to work (art. 7), the right to social security (art. 9), and the right to a minimum standard of living (art. 11). 3 although some have argued against basic income on precisely such grounds. see, for instance, gourevitch (2016). 122 leticia morales leap 6 (2018) their attempt at grounding a democratic case for basic income.4 the writings of pateman and goodhart offer many interesting insights but in my view end up conf lating a number of different democratic arguments. a first task of this article is to disentangle the strands of their argumentative web and separate out what i believe are importantly different mechanisms through which basic income could have a democratic impact. upon ref lection, it turns out not all of these different pathways to a democratic justification of basic income are convincing. i offer a two-fold critique of pateman and goodhart by first suggesting that both authors are unnecessarily wedded to an over-expansive ideal of democracy and, secondly, arguing that a basic income in many cases would fail to deliver on the democratic outcome they anticipate. the final section of this article constructs what i believe to be a more plausible democratic case for an unconditional basic income. adapting a line of argument already found in pateman and building on my earlier work on the democratic justification for social rights (morales 2016), i examine the extent to which basic income constitutes a material precondition for the effective political participation of all citizens. 2. basic income: from individual freedom to democracy? a basic income is usually defined as an individual entitlement to receive a regular payment, independent of other sources of income, employment or willingness to work, or living situation (see van parijs and vanderborght 2017: 5). it is very tempting to articulate the main value of such a basic income in terms of expanding a person’s individual freedom as advocated most forcefully by philippe van parijs (van parijs 1995). of course, some authors reject van parijs’ particular conception of freedom; instead, they value basic income because it promotes republican freedom (pettit 2012b; taylor 2017), rawlsian political liberalism (birnbaum 2012), or “independentarian” status freedom (widerquist 2013). however, all these views share a crucial feature: they ground basic income on a certain account of individual freedom. carole pateman – a leading democratic theorist – embraces the idea of an unconditional basic income, but firmly objects to the dominant 4 one restriction of this article is that i deliberately focus on the democratic case for basic income within a single state. in contrast to goodhart (2007) i remain agnostic on the need to establish a global basic income or the role of basic income within single polities as a mechanism to further global democracy. the reason for this restricted focus is my emphasis on the role of democratic participation in the political system as typically represented in electoral democracies. the democratic case for a basic income 123 leap 6 (2018) freedom-based justification (pateman 2003; 2004).5 her main concern is that because this justification is entirely focused on social justice, liberal autonomy and individual freedom, it overlooks the impact a basic income may have on fundamental democratic values: “little attention has been paid in recent academic debates to the democratic significance of […] a basic income. participants have tended to focus on such questions as social justice, relief of poverty, equality of opportunity, or promotion of f lexible labor markets, rather than democracy” (pateman 2004: 91). at the core of a democratic society, pateman holds, lies the idea that “all citizens, women and men alike, have full standing and enjoy democratic rights and individual freedom” (pateman 2003: 130). however, the reference to individual freedom should not be misinterpreted; it refers to self-government or autonomy and explicitly denotes “a political form of freedom in contrast to an economic form of freedom as individual opportunity” (pateman 2003: 132). pateman insists that political freedom must be prioritized: while individual opportunity has an important place within a democratic society, it is nevertheless “insufficient for democratization, the political process through which all citizens obtain full standing, and become first-class democratic citizens” (pateman 2003: 132, added emphasis). by focusing on self-government and political freedom and its capacity to bring about the “necessary social and political change to create a robust democracy for all citizens” (pateman 2003: 136), pateman moves the justificatory goal posts away from excessively individualist approaches and towards a more structural perspective. in fact, her decisive objection against freedom-based justifications insists that “individual self-government depends not only on the opportunities available but also on the form of authority structure within which individuals interact with one another in their daily lives” (pateman 2004: 91). how does basic income feature within this democratic theory? i believe pateman provides a patchwork of distinct arguments to answer this question. in the remainder of this section i brief ly distinguish four of them. first, pateman highlights the democratic significance of a universal basic income by analogy to the historical and institutional role played by universal suffrage. suggesting that basic income and the right to vote are comparable, she writes “a basic income should be seen as a fundamental 5 at the time, pateman’s focus was primarily on van parijs (1995) and the debate his work inspired in political philosophy. pateman’s critique thus predates the “new wave” of freedom-based justifications of basic income, such as pettit (2012b) or widerquist (2013). 124 leticia morales leap 6 (2018) or democratic right, like universal suffrage” (pateman 2003: 131). universal suffrage means that every member of a polity is entitled to participate in the electoral process, perhaps subject to certain minimal qualifications, such as age or residence. the key aspect here is that any barriers that make it harder for citizens to demonstrate their qualification to vote – e.g., cumbersome voting registration laws – are deemed undemocratic. similarly, pateman sustains that all citizens must be entitled to a basic income because they are adult members of the polity (pateman 2003: 146).6 the right to basic income and the right to vote are analogous in the sense that both are entitlements that every citizen must enjoy as such. when their enjoyment is subject to further conditions they turn into a privilege rather than a right (pateman 2003: 146; 2004: 102). in pateman’s view, just like adding strict voting registration requirements frustrates access to voting, adding work requirements or means testing hampers access to the basic income citizens are entitled to. second, pateman suggests that a basic income is necessary because it “provides the lifelong security that helps safeguard other rights” (pateman 2004: 94). michael goodhart has defended this view in more detail. his starting point is a justification of social and economic rights – including a right to guaranteed subsistence – as essential to secure emancipation and the enjoyment of other basic rights (goodhart 2007: 94, 2008). he maintains that the fundamental right to guaranteed subsistence requires the social provision of a basic income (goodhart 2007: 106) and insists that such income is an integral part of a democratic perspective because “its primary justification is its role in achieving and securing emancipation for all members of society” (goodhart 2007: 107). in goodhart’s view, basic income therefore is a desirable scheme because it “satisfies the fundamental economic right to a guaranteed subsistence that democracy demands” (goodhart 2007: 109). third, pateman insists that democratic citizenship requires equal social standing, understood as a relational notion that captures “the form of authority structure within which individuals interact with one another in their daily lives” (pateman 2004: 91). democratic standing informs both how individuals perceive themselves in relation to others and how they perceive others. in this respect, pateman (2004: 94) finds inspiration in the writings of sociologist t.h. marshall (1950), who divides citizenship into three different components – civil rights, political rights and social rights – and maintains that social citizenship involves an equality of status which requires “a direct sense of community membership based on loyalty to a 6 in many proposals children and adults are covered by slightly different schemes (van parijs and vanderborght 2017). the democratic case for a basic income 125 leap 6 (2018) civilization which is a common possession” (marshall 1950: 40-41). basic income presents an appealing way to guarantee equally social standing: unconditionally securing a basic income to everyone avoids a person who would otherwise be subject to a controlling sanctioning welfare regime to be treated as “second-class citizens”. in a similar vein, pateman argues that a universal basic income is valuable because it helps “to remove the temptation for some citizens to see others as less worthy of respect, and so as lesser citizens, because of their lack of economic resources” (pateman 2003: 146). pateman famously extends this idea of democratic citizenship to emphasize its potential in advancing the freedom and full social standing of women (pateman 2004: 90). this implies revisiting the social institutions of family, marriage and employment, and the extent to which these traditionally frustrated “the standing of wives as citizens” (pateman 2004: 98). critically, a basic income “is a crucial part of any strategy for democratic social change” by virtue of its capacity to “break the long-standing link between income and employment and end the mutual reinforcement of the institutions of marriage, employment, and citizenship” (pateman 2004: 90). in other words, for pateman, basic income plays an important democratic role by promoting full social standing of citizens in general, and women in particular, in the different spheres of life. fourth, pateman argues for the democratic potential of a universal basic income by reference to an important opportunity it creates, namely the freedom not to be employed (pateman 2004: 92). the reason why basic income has a significant democratic potential is that it improves the capacity of individuals “to refuse to enter or to leave relationships that violate individual self-government or that involve unsafe, unhealthy, or demeaning conditions” (pateman 2004: 96). furthermore, basic income also promotes citizens’ participation in collective self-government by opening up “opportunities for citizens to develop their political capacities and skills” and ensuring “that participation in social and political life would not require heroic efforts on the part of any citizens” (pateman 2004: 96).7 the focus on increased opportunities allows pateman to explicitly link basic income with the ideal of democratization: “by opening up this range of opportunities and uncoupling income and standard of life from employment, a basic income has the potential both to encourage critical reassessment of the mutually reinforcing structures of marriage, employment, and citizenship and to open the 7 pateman (2004: 97) writes: “a basic income would allow individuals at any time to do voluntary or political work, for example, to learn to surf, to write or paint, to devote themselves to family life, or to have a quiet period of self-reassessment or contemplation.” 126 leticia morales leap 6 (2018) possibility that these institutions could be remade in a new, more democratic form” (pateman 2004: 97). in sum, the democratic case for basic income, as outlined in the writings of carole pateman (2003, 2004) and michael goodhart (2007, 2008) can be understood as the mutually reinforcing combination of four distinct arguments. together these paint a picture by which an unconditional basic income represents the economic analogy of universal suffrage which, by securing the equal enjoyment of fundamental human rights, promotes the full social standing and equal range of political and social opportunities for all citizens. 3. democracy and basic income: a critical assessment pateman and goodhart justify basic income from a democratic perspective by assuming a substantive conception of democracy. however, substantive conceptions of democracy often fail to appreciate “value pluralism by neglecting the constitutive role of democratic decision-making processes for groups of individual agents who try to determine how they should act together” (peter 2009: 2-3). a set of valuable outcomes is posited in advance and constrains the decision-making process (e.g., goodhart 2008: 150), neglecting other alternative goals that citizens may reasonably want to advance. as waldron (1999) has forcefully pointed out, this view fails to take deep political and moral disagreement seriously. furthermore, substantive conceptions of democracy also blur the lines between democracy and social justice, failing to give proper due to democratic legitimacy as a distinct political value (pettit 2012a: 59; morales 2015). michael goodhart insists that because substantive conceptions of democracy highlight the democratic importance of human rights, they contribute to the revival of “democracy itself, which in its atrophied electoral and procedural forms can seem like a fairly moribund and uninspiring ideal” (goodhart 2007: 98). but in order to avoid the kind of “atrophied” democracy represented by procedural models of aggregative democracy that give primacy to the formal right to vote and schumpeterian elite competition, it is not necessary to turn democracy into a substantive conception of social justice with predetermined social outcomes. as phillip pettit explains: “normative thinking about legal, political, and social institutions has been dominated over the past quarter century or more by the ideal of justice, in particular social or distributive justice. this focus on justice the democratic case for a basic income 127 leap 6 (2018) is unfortunate, because it has suggested that there is only one basic ideal that we need to think about in our normative projects. it is unfortunate, in particular, because it puts out of the picture the very different sort of ideal to which i give the name of legitimacy — specifically, political legitimacy” (pettit 2012a: 59). michael goodhart, for instance, clearly adopts such an unfortunate position when he suggests that democracy is only instrumentally justified as a means to achieving emancipation through the enjoyment of fundamental rights (goodhart 2007: 103; 2008: 150). in the next section i propose an alternative democratic model centered on political participation that avoids atrophied proceduralism without collapsing political legitimacy into social justice. the pateman-goodhart approach to democratization is also problematic because they explicitly extend democracy to the family, the workplace and the economy (pateman 2003, 2004). goodhart holds that “certain institutions are more democratic than others, precisely because they are instrumental in securing fundamental human rights”; yet this also implies that “many rights can be secured differently in different contexts” (goodhart 2008: 150). unfortunately, this view overlooks that democracy is mainly a framework for collective decision making within a political system: its fundamental aim is to ensure that collective decisions are legitimate (peter 2009). these theoretical difficulties pose a practical and strategic problem: the sort of basic income scheme required to satisfy the goals that pateman and goodhart have in mind may be too radical or too demanding under present-day socio-economic conditions. the more moderate basic income schemes currently under consideration around the world are not likely to have the democratic impact pateman and goodhart are hoping for. to illustrate this problem, i re-examine the four arguments outlined in the previous section. to begin with, the analogy between a universal right to vote and a universal right to basic income has some initial plausibility.8 however, these rights differ in important aspects. the right to vote is often explained through the egalitarian formula “one person, one vote”. similarly, basic income may also be articulated through the formula “one person, one basic income”. but is there any deeper reason to accept the analogy between both rights? pateman observes that “universal suffrage is the 8 pateman, along with many others, views basic income as a right but see the discussion of why conceiving basic income as a right is problematic in de wispelaere and morales (2016). 128 leticia morales leap 6 (2018) emblem of equal citizenship”, which is further explained by reference to “an orderly change of government through free and fair elections” (pateman 2004: 94). it is generally accepted that a person cannot be a citizen without the right to vote (king and waldron 1988). along similar lines, pateman tries to argue that “a basic income is the emblem of full citizenship”, because “basic income as a democratic right is necessary for individual freedom as self-government” (pateman 2004: 94-95). however, it is dubious that granting people a modest basic income will suffice to ensure the kind of equal citizenship pateman proposes. even though basic income offers a f loor (van parijs and vanderborght 2017), it may fail to block the vast differentials in income and wealth – and, therefore, of power – that characterize contemporary societies (casassas and de wispelaere 2016). second, pateman and especially goodhart maintain that basic income is meant to help to secure the equal enjoyment of universal human rights across different social spheres, including the family, employment and citizenship. through the secure enjoyment of human rights, basic income helps to change the structure of oppressive institutions. yet the kind of basic income that could secure the enjoyment of fundamental rights – “the minimum necessary to secure rights and emancipation” (goodhart 2007: 105) – would most likely be unfeasible under current conditions.9 however, the tenet that a basic income may promote the emancipation of women within the family is subject to considerable debate (e.g., robeyns 2001; zelleke 2011). some feminist authors argue that a basic income may end up reinforcing traditional gender roles as it may cause women to disproportionately exit the labor market (robeyns 2001: 100-102).10 similarly, the view that basic income will emancipate workers has also been challenged (gourevitch 2016; birnbaum and de wispelaere 2016). the argument advanced by pateman and goodhart relies on basic income improving the bargaining position of workers vis-a-vis employers by granting workers an exit option. but on realistic assumptions of how 9 additionally, goodhart’s democratic argument appears to be circular. if all fundamental basic rights must be achieved in order to obtain emancipation, and if basic income’s failure to protect one right means no single right is protected (because of their interdependence), then the securement of other fundamental rights never could be justified if not by a democratic decision-making process where the fundamental basic right to participation is secured. but for goodhart the right to participation can be left aside if there is another political organization that can guarantee other rights, such as an absolutist government, destroying the very notion of interdependent fundamental rights. 10 robeyns concludes that basic income does not reduce gender injustice, and it is necessary for it to be “supplemented with other social policy measures that liberate women”, including “the transformation of certain cultural and social patterns, like gender roles and gender hierarchies, which are now constraining individuals in their freedom” (robeyns 2001: 103). the democratic case for a basic income 129 leap 6 (2018) contemporary labor markets work, “an exit strategy might end up worsening rather than strengthening the opportunity set and bargaining position of the most vulnerable workers” (birnbaum and de wispelaere 2016: 61). a democratic case for basic income that relies on basic income being able to substantially secure a set of fundamental rights in order to promote genuine emancipation and democratization appears too tall an order for a realistic basic income scheme to satisfy. this puts pateman and goodhart at risk of being caught between the rock of downgrading the fulfillment of fundamental rights and the hard place of insisting on an utterly impractical basic income ideal.11 third, as i have already mentioned, pateman views democratic citizenship as a form of social standing. building on the work of t.h. marshall allows her to extend citizenship into the economic sphere by arguing that social and economic rights play a constitutive role in the equal standing of citizens. being denied this equal standing amounts to a person being relegated to second-class citizenship or even denizenship (standing 2012). importantly, equal social standing requires independence and freedom from oppression and domination within the prevailing institutions of marriage, family, and employment. once more, this idea is problematic because the sort of basic income policy that would promote such genuine independence would be unfeasible under current conditions. without a clear sense of what level of basic income would be deemed sufficient to ensure the required independence it is difficult to assess whether a feasible basic income scheme contributes to democratization in the desired manner. finally, pateman insists that basic income promotes a bundle of social and political opportunities, including those that follow from the freedom not to be employed. this includes opportunities to support individuals’ political participation in the decision making-process, opportunities for citizens to develop their political capacities and skills, and opportunities to do political work. these are all very relevant and important opportunities that directly connect basic income with democracy. however, two problems remain. on the one hand, pateman offers no clear account of how precisely a basic income would improve political participation or democratic skills. what social or institutional levers does basic income 11 goodhart appears to bite the bullet when proposing basic income not as a welfare or poverty reduction program, but rather as a democratic entitlement that “costs more and delivers more; the value of what it delivers is ultimately a measure of our political commitments” (goodhart 2008: 155). of course this does not make basic income politically feasible. 130 leticia morales leap 6 (2018) pull and how does this impact on democratic opportunities? on the other hand, for pateman basic income appears to impact primarily by granting workers the opportunity to refuse employment. as mentioned before, recent research casts doubt on whether basic income is able to achieve such a robust “right to exit” or even have any meaningful impact on the democratic nature of employment relations (birnbaum and de wispelaere 2016). but even if that were the case, there is something fundamentally f lawed about a view that depends on freedom from employment as a mediating mechanism to make a democratic argument stick. what about the democratic impact of basic income on workers’ political opportunities? if indeed freedom from work was the main pathway through which basic income secures democratic values and objectives, this would surely reduce its scope and democratic impact. when considered together, these objections suggest that in spite of its initial plausibility, the freedom to exit the labor market may make no real contribution to individual self-government. what we need is an argument that explains why a basic income may improve individuals’ opportunities to participate in the political process that does not exclusively depend on the freedom to exit employment. i provide such argument in the next section. 4. the democratic argument for basic income revisited in this final section i offer a democratic argument for basic income that builds on the work of pateman but avoids the pitfalls i have discussed previously. collective decisions are considered legitimate if they result from a decision-making process that satisfies the necessary formal and material conditions that secure the participation of all citizens (peter 2009: 4). on this view, political participation is the foundation of legitimate political authority because it respects the equal moral agency of each citizen. political citizenship essentially refers to the right to political participation in the decision-making processes of the polity (waldron 1999). this right must be universally realized: no citizen should be excluded either on formal or material grounds (morales 2015, 2017). formal exclusion occurs when institutional rules prevent some citizens from exercising their right to political participation. material exclusion takes place when citizens fail to participate because they lack certain material resources even if no formal rule prevents them from doing so. in liberal democratic theory, the right to political participation is typically interpreted in formal the democratic case for a basic income 131 leap 6 (2018) terms. however, the legal recognition of a formal right to political participation is insufficient to guarantee the effective political participation of all. this raises a fundamental question: why must a citizen accept the authority of a political decision when she is materially unable to exercise her formal right to participate? why should citizens accept political authority in cases where they are formally included but practically excluded from participation in the decision-making process? real life examples of such a disjunction between formal and material right to political participation are plentiful, especially regarding the right to vote. some political systems impose burdensome requirements of voter registration, which effectively disenfranchise otherwise eligible voters. other systems may facilitate registration but many voters are unable to reach the polling booth because of a lack of transport or inability to take time off work. a formal interpretation of the right to vote – understood as a subset of the broader right to political participation – appears too weak to establish the legitimacy of a political system. the tenet that democratic decisions are legitimate because every citizen has an effective opportunity to participate in the decision making process does not imply that individuals must be treated equally in all domains of life – be it the family, the workplace, or the marketplace. although all domains of life can be considered as political – as feminists such as pateman have rightly argued – there are relevant differences between the political domain and other social spheres. several arguments may justify a more extensive or generous conception of equality in the social and economic realm; yet this is fully compatible with thinking that the political system is where legitimate processes of collective decision-making take place under conditions that must ensure the political participation of all citizens. importantly, this view implies no commitment to the sort of atrophied electoral proceduralism that pateman and goodhart have criticized. legitimate political participation is not restricted to voting in a formal election, campaigning for a candidate, or having the opportunity to run for public office, as schumpeterians maintain. the concept of political participation must be broadened to include a host of other political acts provided they are “structurally embedded in the political system” (cicatiello, ercolano and gaeta 2015: 448-449). thus, the actions of public interest groups, civil organizations or social movements aimed at lobbying political decision-makers are rightly regarded as instances of political participation. even acts of civil disobedience and protest at the margins of the social order – such as boycotts or the occupation of public offices – can be considered forms of political participation, for they too are aimed at 132 leticia morales leap 6 (2018) directly or indirectly inf luencing decision-makers.12 what unites this wide range of political activities is that they all contribute to the democratic process “by which citizens can communicate information about their interests, preferences and needs to the government” (bovens and wille 2010: 395). adopting a broad view of political participation that includes both “conventional” and “unconventional” forms of political action (cicatiello, ercolano and gaeta 2015) situates my account of political democracy between advocates of a schumpeterian electoral democracy and the more expansive emancipatory democratic model advocated by pateman and goodhart. the intermediate model i propose implies that a genuine democracy must ensure that citizens have access to the full range of political participation activities, not merely a right to vote or stand in an election. contestatory measures such as access to courts to challenge legislation or to engage in social protest are equally important (pettit 2012b). that said, since most citizens engage in unconventional participation when they feel excluded from conventional forms of participation – e.g., people protest when they feel they have no real voice in an election – we should focus on conventional political participation in the first instance. securing access to unconventional political participation is a second-best solution to a political system that has failed to include all citizens in conventional politics. with these building blocks in place, let us now examine the role of an unconditional basic income. the democratic case for basic income depends on establishing a firm link between basic income and its expected impact on political participation. the idea that citizens need a guaranteed income to effectively participate in the legitimate democratic process is hardly a novel thought: “almost all of the great theorists of citizenship [...] have believed that in order to be a citizen of a polis, in order to be able to participate fully in public life, one needed to be in a certain socio-economic position. [...] people, it was said, could not act as citizens at all, or could not be expected to act well in the political sphere and to make adequate decisions, unless some attention was paid to matters of their wealth, their well-being and their social and economic status” (king and waldron 1988: 425-426). contemporary democratic societies do not restrict the formal political 12 political participation at the margin of the social order may skirt what is deemed legal at any given time. the legality of protest and other unconventional political acts is a complicated matter. the democratic case for a basic income 133 leap 6 (2018) participation of poor or economically disadvantaged people any longer: political rights are accorded to all citizens equally and no one can be politically excluded on the basis of social and economic status. nevertheless, lack of money or income inequality continue to affect political participation even today. should income be regarded as a material precondition for political participation? the role of money in politics is indisputable: “money is an important political resource for any group, but it takes special significance for people who live at or near poverty levels” (verba, schlozman, and brady 1995: 288-303). a recent study confirms this view: “[t]he higher (lower) individual income is, the higher (lower) individual engagement in conventional and unconventional political activities is” (cicatiello, ercolano and gaeta 2015: 451). in fact, “income may be considered the most important individual-level determinant of political participation; all political activities are costly because resources (time, money, skills) must be invested in order to carry them out” (cicatiello, ercolano and gaeta 2015: 450). of course, the relevance of money should not lead us to underestimate other important structural obstacles to political participation.13 a universal basic income may be unable to eradicate many structural barriers that continue to exist in contemporary societies – including those related to religion, ethnicity, or gender. basic income is only a partial solution to practical disenfranchisement in contemporary politics. still, poverty and income inequality are also important structural obstacles that prevent those at the bottom of the income distribution from exercising their equal right to political participation. to the extent that poverty and income inequality undermine political participation, the democratic case for a basic income is a promising avenue to explore. the main question is why money matters more for the political participation of those living at or near poverty, which presumably is where we would expect a basic income scheme to have its most pronounced effect? in other words, what is the mechanism that allows basic income to impact on a citizen’s ability to participate in political life? first, we might expect basic income to have a direct effect on the sort of costly actions that active citizens must engage in. for instance, basic income may help people afford the costs of voting registration or transport to the polling booth. likewise, it may help to finance political campaigns: obama’s presidential campaign was famously funded through numerous small donations from poor supporters. in spite of this, we might ask why a basic income is the best response to the reduced participation of the poor. perhaps more targeted policies, such as subsidized registration or free public transport 13 i thank a referee for this journal for pressing me to clarif y this point. 134 leticia morales leap 6 (2018) during the election day, are better. furthermore, when resources are scarce, using money to promote participation involves significant opportunity costs for the poor because such money could be invested in providing them secure access to nutritious food, housing or medical care. finally, any moderate basic income scheme will most likely not suffice to support a number of important instances of political participation, thereby failing to fully satisfy the requirements of political inclusion. so it seems that when it comes to direct costs, more targeted solutions may perform better than a universal basic income. the democratic value of a basic income is better appreciated when we consider the indirect effects that (the lack of ) money has on political participation. for instance, a basic income may create incentives to participate through conventional channels because citizens will most probably want to defend a public policy that benefits them (campbell 2003). in other words, a basic income might politicize citizens because it gives them a stake in society (dowding, de wispelaere and white 2003). relatedly, those who cannot “live the lives of a civilized being according to the standards prevailing in the society risk marginalization and shame”, which translates in political distrust and subsequently in reduced participation (soss 2005: 306, citing marshall 1964: 72). unlike highly selective and conditional programs, a basic income would avoid negative experiences with case workers and other “representatives” of the state, therefore boosting political participation (soss 2005; bruch, ferree and soss 2010).14 in addition, “the daily struggle to make ends meet leaves individuals with little time or energy to follow the public debate, participate in political organizations, or hold elected representatives accountable” (soss 2005: 306). recent research has even suggested that poverty implies a genuine “scarcity mindset” with cognitive bandwidth restricted to survival activities (mani et al. 2013). finally, political decision-makers respond differently to distinct “target populations”, such that “policies for disadvantaged groups will isolate or stigmatize their targets, setting them apart from the majority as an object of pity or scorn” (soss 2005: 294). one expected effect of the universalism of a basic income policy is that it might escape such easy targeting by decision-makers. in sum, through a variety of pathways basic income could have indirect positive effects on poor citizens’ political participation by freeing up time, energy and “cognitive bandwidth”, and by positively affecting their status 14 however, a recent study of the bolsa familia program in brazil suggests much also depends on how selective programs themselves are framed (hunter and borges sugiyama 2014). the democratic case for a basic income 135 leap 6 (2018) and beliefs about themselves and others. the democratic hope is that basic income can generate a virtuous circle, through which an increased participation of the poor will bring about more responsiveness to their plights; and this will in turn reinforce participation. 5. conclusion in this article i have examined the democratic case for basic income. the idea that basic income should be justified not by reference to individual freedom but because of its impact on democratic citizenship was pioneered by carole pateman and developed by michael goodhart. however, i find that their approach fails to establish a robust case for basic income on democratic grounds. one major issue is that neither pateman nor goodhart offer a clear account of the pathways by which a basic income produces democratic value. another major obstacle is that the kind of basic income their expansive model of democracy calls for is unfeasible under present conditions. i sustain that a more modest model of democracy that prioritizes broad and effective political participation in decision-making processes, offers a more plausible democratic case for a universal basic income. recent research by political scientists has established a number of mechanisms through which low income and poverty negatively impacts on political participation. granting each citizen an unconditional and secure basic income is a promising remedy to rectify this problem. bibliography birnbaum, s., 2012: basic income reconsidered: social justice, liberalism and the demands of equality, new york, palgrave macmillan. birnbaum, s. and de wispelaere, j. 2016: “basic income in the capitalist economy: the mirage of ‘exit’ from employment”, basic income studies 11(1): 61–74. bovens, m. and a. wille, 2010:”the education gap in participation and its political consequences”, acta politica 45: 393-422. bruch s., ferree, m. and soss, j., 2010: “from policy to polity: democracy, paternalism, and the incorporation of disadvantaged citizens”, american sociological review 75(2): 205-226. casassas, d. and de wispelaere, j., 2016: “republicanism and the political economy of democracy”, european journal of social theory 19(2): 283-300. cicatiello, l., ercolano, s. and gaeta, g., 2015: “income distribution and political participation: a multilevel analysis”, empirica 42: 447–479. de wispelaere, j. and morales, l., 2016: “is there (or should there be) a right to basic income?”, philosophy and social criticism 42(9): 920-936. dowding, k., de wispelaere, j. and white, s. (eds.), 2003: the ethics of stakeholding, basingstoke, palgrave macmillan. 136 leticia morales leap 6 (2018) goodhart, m., 2007: “‘none so poor that he is compelled to sell himself’; democracy, subsistence, and basic income”, in l. minkler and s. hertel (eds.), economic rights, cambridge, cambridge university press. — 2008: “a democratic defense of universal basic income”, in i. m. young, m. l. shanley, and d. i. o’neill (eds.), illusion of consent: essays after carole pateman, state college, pa, pennsylvania state university press. gourevitch, a., 2016: “the limits of a basic income: means and ends of workplace democracy”, basic income studies 11(1): 17–28. hunter, w. and borges sugiyama, n., 2014: “transforming subjects into citizens: insights from brazil’s bolsa familia”, perspectives on politics 12(4): 829–45. king, d. and waldron, j., 1988: “citizenship, social citizenship and the defense of welfare provision”, british journal of political science 18(4): 415-443. mani, a, mullainathan, s., shafir, e., and zhao, j., 2013: “poverty impedes cognitive function”, science 341(6149): 976–980. marshall, t.h., 1950: citizenship and social class, cambridge, cambridge university press. morales, l., 2015: derechos sociales constitucionales y democracia, barcelonamadrid, marcial pons. — 2017: “the discontent of social and economic rights”, res publica 24(2): 257272. pateman, c., 2002: “self-ownership and property in the person: democratization and a tale of two concepts”, journal of political philosophy 10(1): 20-53. — 2003: “freedom and democratization: why basic income is to be preferred to basic capital”, in k. dowding et al. (eds.), the ethics of stakeholding, palgrave macmillan, london. — 2004: “democratizing citizenship: some advantages of a basic income”, politics and society 32(1): 89-105. peter, f., 2009: democratic legitimacy, new york, rutledge studies in social and political thought. pettit, p., 2012a: “legitimacy and justice in republican perspective”, current legal problems 65: 59–82. — 2012a: on people terms. a republican theory and model of democracy, cambridge, cambridge university press. robeyns, i., 2001: “will a basic income do justice to women?”, analyse und kritik 23(1): 88–105. soss, j., 2005: “making clients and citizens: welfare policy as a source of status, belief, and action”, in anne l. schneider and helen m. ingram (eds.), deserving and entitled. social constructions and public policy, new york, state university of new york press. standing, g., 2012: “the precariat: from denizens to citizens?”, polity 44(4): 588– 608. taylor, r.s., 2017: exit left: markets and mobility in republican thought, oxford, oxford university press. van parijs, p., 1995: real freedom for all: what (if anything) can justify capitalism, oxford, oxford political theory. van parijs, p. and vanderborght, y. 2017: basic income. a radical proposal for a free society and a sane economy, cambridge, harvard university press. the democratic case for a basic income 137 leap 6 (2018) verba, s., schlozman, k., and brady, h.e., 1995: voice and equality: civic voluntarism in american politics, cambridge, harvard university press. waldron, j., 1999: law and disagreement, oxford, oxford university press. widerquist, k., 2013: independence, propertylessness and basic income, basingstoke, palgrave macmillan. zelleke, a. 2011: “feminist political theory and the argument for an unconditional basic income”, policy and politics 39(1): 27–42. leap law, ethics and philosophy leap_6.3_montero.pdf _goback leap_6.4_garreta.pdf _goback leap_6.6_meckled.pdf _goback leap 2 2014 richard j. arneson íñigo gonzález-ricoy charles goodman nicole hassoun oscar horta ingmar persson peter stone kok-chor tan larry temkin laura valentini law, ethics and philosophy law, ethics and philosophy leap is a new peer-reviewed international journal dedicated to work in ethics, legal theory, and social and political philosophy. it welcomes clear, rigorous and original submissions that address concrete issues of public concern as well as more abstract theoretical questions. it also has the distinctive aims of (a) fostering work drawing on a variety of disciplines within the social and natural sciences, including biology, economics, history, and psychology; and (b) promoting dialogue between the anglophone and non-anglophone worlds. we invite submissions of articles up to 10,000 words, discussion notes up to 5,000 words, and replies and exchanges not exceeding 3,000 words. all published submissions will have undergone blind review, and the journal will notify authors of submitted pieces about the progress of their submission within six weeks. although leap accepts exclusively submissions in english, the journal strongly encourages submissions from authors who also write in languages other than english, and will always strive to ensure that their work is assessed on the basis of its content and not primarily its mode of expression. where necessary the editorial process provides authors with guidance regarding matters of english style. enquiries regarding the journal may be directed to: leap.journal@upf.edu. mailto:leap.journal%40upf.edu?subject= law, ethics and philosophy vol. 2 2014 editorial board editors paula casal, icrea-pompeu fabra university josé luis martí, pompeu fabra university serena olsaretti, icrea-pompeu fabra university hugo seleme, national university of córdoba, argentina andrew williams, icrea-pompeu fabra university associate editors ingvild almås, norwegian school of economics samantha besson, fribourg university jordi ferrer, university of girona ernesto garzón valdés, johannes gutenberg university, mainz cristina lafont, northwestern university genoveva martí, icrea-university of barcelona lukas meyer, university of graz josé juan moreso, pompeu fabra university félix ovejero, university of barcelona zofia stemplowska, university of oxford editorial board aulis aarnio, tampere university lucy allais, university of the witwatersrand elizabeth anderson, university of michigan richard arneson, university of california, san diego gustaf arrhenius, stockholm university michael baurmann, university of düsseldorf juan carlos bayón, autonomous university, madrid carmen bevia, autonomous university, barcelona david bilchitz, south african institute for advanced constitutional, public, human rights, and international law geoffrey brennan, university of north carolina at chapel hill ian carter, university of pavia joseph chan, university of hong kong thomas christiano, university of arizona bruno celano, university of palermo antony duff, university of minnesota john ferejohn, new york university víctor ferreres, pompeu fabra university roberto gargarella, university of buenos aires robert goodin, australian national university axel gosseries, university of louvain lori gruen, wesleyan university riccardo guastini, genova university alon harel, hebrew university of jerusalem daniel hausman, university of wisconsinmadison jános kis, central european university matthew kramer, university of cambridge david lefkowitz, university of richmond kasper lippert-rasmussen, aarhus university frank lovett, washington university in st. louis stephen macedo, princeton university jeff mcmahan, rutgers university jane mansbridge, harvard university adèle mercier, queens university, ontario liam murphy, new york university ingmar persson, university of gothenburg philip pettit, princeton university thomas pogge, yale university wlodek rabinowicz, lund university joseph raz, columbia university debra satz, stanford university julian savulescu, university of oxford seana shiffrin, university of california, los angeles anna stilz, princeton university victor tadros, university of warwick larry temkin, rutgers university jeffrey tulis, university of texas at austin philippe van parijs, university of louvain georgia warnke, university of california, riverside ruth zimmerling, johannes gutenberg university mainz pompeu fabra university http://raco.cat/index.php/leap contents law, ethics and philosophy vol. 2, 2014 page 1. what do we owe to poor families? .................................................... 7 richard j. arneson 2. firms, states, and democracy: a qualified defense of the parallel case argument ...................................................................................... 32 íñigo gonzález-ricoy symposium on larry temkin’s rethinking the good 3. rethinking the good a small taste .................................................. 58 larry temkin 4. in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions .......... 87 oscar horta 5. reply to horta: spectrum arguments, the “unhelpfulness” of rejecting transitivity, and implications for moral realism ............ 108 larry temkin 6. internal or external grounds for the nontransitivity of “better/ worse than” ........................................................................................... 120 ingmar persson 7. reply to persson: intransitivity and the internal aspects view ....................................................................................................... 139 larry temkin symposium on global justice and coercion 8. globalization and global justice in review ..................................... 153 nicole hassoun 9. libertarian welfare rights: can we expel them? ........................... 166 charles goodman 10. social contract theory in the global context ................................ 177 peter stone 11. sufficiency, equality and the consequences of global coercion ... 190 kok-chor tan 12. legitimate coercion: what consent can and cannot do ............. 210 nicole hassoun 13. two pictures of the global-justice debate: a reply to tan ............ 219 laura valentini 14. a brief rejoinder to valentini ............................................................ 227 kok-chor tan 7 issn 2341-1465 leap 2 (2014): 7-31 what do we owe to poor families? richard j. arneson university of california, san diego abstract this essay argues that when there is a moral duty to procreate, nonprocreators owe assistance in the task of providing for children, even if their presence renders nonprocreators worse off. when new children bring benefits to nonprocreators, they have a duty of reciprocity owed to cooperating parents. if there is a moral duty to provide meaningful work opportunities, especially to the worse off, we have special duties to help poor people enjoy opportunities for the meaningful work of raising children. given the benefits of stable families for both their adult and child members, justice requires facilitating the enjoyment of stable faily life by poor people. keywords: procreative duties, reciprocity, meaningful work, marriage promotion, social justice. 1. introduction 1 women in economically advanced societies and in some other locales have gained increased opportunities to participate in the market economy and public life in the past century. 2 these gains are undeniably great advances in social justice. they have been accompanied by strains. it’s unlikely that so far we have anywhere evolved the right mix of institutional adjustments and changes in social norms and practices to facilitate the transition to a world in which men and women contribute on equal terms in the labor market and the entrepreneurial arena. in this essay i try to offer a perspective on what we owe to poor families in the context of recent social changes, especially women’s increasing participation in economic life outside the home. 3 “poor families” refers to adults and children living in a household with low income and wealth, 1. for helpful comments and criticism i thank serena olsaretti and andrew williams. 2. fuchs 1988; also esping-andersen 2009. 3. although my discussion stays at an abstract level above social policy choice, i suspect my thinking tends to focus on u.s. problems and circumstances. on the differences between welfare state policy in the u.s. and in europe, see garfkinkel et al., 2010; also alesina and glaezer 2004. 8 richard j. arneson leap 2 (2014) roughly the bottom quintile. “we” refers to the nonpoor. 4 of course what we owe to people we fundamentally owe to individual persons not groups; focus on families is a heuristic for public policy guidance. offering a perspective is here a distinct and separate enterprise from assessing candidate fundamental moral principles. the aim is to identify appealing mid-level norms that might gain wide allegiance among people who differ in their fundamental moral allegiances. offering a perspective is also distinct and separate from advancing public policy proposals. in order to be in a position to advance and defend a specific public policy proposal, one needs to be able to show that if implemented in our actual circumstances the policy would lead to outcomes that are morally desirable (without violating moral constraints). doing that requires a comprehensive empirical understanding of relevant actual circumstances to which this essay does not aspire. my procedure is to suggest how to think about how to fulfill our obligations to people in disadvantaged families on the assumption that what we owe to others by way of cooperating on fair terms or lending a helping hand depends on what policies would do to help people live genuinely better lives, have richer and more fulfilled lives rather than bleak or squalid ones. john rawls once wrote that his proposed theory of justice, justice as fairness, does not look behind the uses that people make of their resources and opportunities in order to measure, much less maximize, the satisfactions they gain (rawls 1993). provided basic institutions are arranged so that the distribution of resources and opportunities turns out to be fair, what individuals do with their resources and what quality of life they fashion for themselves is their business, not the business of society. so rawls urges. in contrast, i assume that determining what policies would be fair requires us always to be looking past the distribution of liberties and opportunities to see what impact the policies are having on the quality of the lives of the individuals who are affected. (the fact that’s what just and fair depends on what’s good in this way is fully compatible with paying attention to personal responsibility in the all-things-considered determination of morally desirable policy.) i do not attempt to come up with a complete set of norms regulating what we owe to poor families. i urge that when a poor person becomes the parent of a child and is willing to assume childrearing responsibilities for that child, the rest of us acquire strong obligations to help bring it about 4. for the most part i confine my attention to relations between poor and nonpoor in a single political society. this scope restriction sets aside duties that people have to poor people anywhere, and at any time, regardless of who inhabits what society. this is just a simplification for purposes of discussion; i don’t in fact believe people within a single political society owe more to fellow members than to outsiders. what do we owe to poor families? 9 leap 2 (2014) that the child starts adult life well socialized and with good prospects. in one range of cases, the new child expectedly depletes available resources and hence her arrival renders the rest of us worse off. nonetheless, the persons responsible for bringing the child into existence may be acting to fulfill a moral obligation that falls collectively on each generation to “be fruitful, and multiply” and that places duties on each member individually to contribute a fair share to the project of procreation and childrearing and adequate provisioning. the extent of what is owed depends on the amount of burden that childbearing and childrearing place on procreators and in part on the amount of burden that helping more or helping less would place on others. in another range of cases, an additional moral obligation falls on nonprocreators. when the addition of a new child to the world expectedly leads to increase of wealth and culture and tends to make those living in the vicinity of the new child better off, the project of childbearing and childrearing is morally comparable to a beneficial cooperative practice and those who benefit from the operation of the practice are duty bound not to free ride on the cooperative efforts of others but rather to contribute their fair share of the burdens of the practice. an additional consideration that generates a duty on the part of the nonpoor to aid the childrearing efforts of poor parents is that for people whose labor market prospects are poor, the opportunity to raise children is a very significant, perhaps the only feasible opportunity they have to engage in creative and fulfilling work. in this situation, assisting people to undertake and successfully complete a parenting project may be a requirement of distributive justice owed to them. finally, and tentatively, i suggest that people have a defeasible moral right to stable nurturing family arrangements. children have a right to a decent home environment. adults have rights to freedom to date and mate on mutually agreeable terms, and a right to a social environment that facilitates successful steady family arrangements. such a social environment will educate youth to be disposed to seek long-term steady family arrangements and to have the skills and personal traits needed for success in this venture. these family-oriented rights and obligations do not negate the entitlements to fair treatment of those who will avoid family entanglements as adults, but these entitlements properly construed are consistent with society’s implementing policies and promoting norms that nudge individuals toward stable nurturing family arrangements. 2. duties to procreators when a poor person has a child, what, if anything, is owed to the childbearer in virtue of this event? let’s back up. when any person has a child, what, if 10 richard j. arneson leap 2 (2014) anything, is owed to the childbearer in virtue of this event? a robust libertarianism holds that the new child has a right to decent prospects in life, but that the duty to supply these decent prospects falls only on the individuals responsible for bringing this child into existence and on no one else. a variant of this view holds that the duty to care for a child falls in the first instance only on these responsible individuals, and duties fall on others only as a second-best back-up responsibility that comes into play only if the responsible procreators fail to do what they ought. this is a possible view, but here i set it aside without comment (steiner and vallentyne 2009). suppose instead that we all have a duty to do our fair share to help provide each new child with decent life prospects. that means that nonprocreators have a duty to contribute to fair shares for children under conditions of full compliance (when procreators are contributing what they ought to give). but we might wonder what is a fair division of this burden across the procreators of the child and everyone else. after all, in the standard case, those who bring a child into existence either engage in sex with the aim of producing a child or engage in sex with the understanding that a possible outcome of what they are doing is that a new child might be brought into existence. so maybe the procreators bear some special responsibility in this regard. this issue is insightfully analyzed in a resource egalitarian framework by paula casal and andrew williams (casal and williams 2004). other philosophers inspired by the resource egalitarianism of ronald dworkin adopt similar views. 5 they contrast two possible cases. in one case, bringing a child into existence makes others better off, by increasing the supply of resources available for humans to use. in another possible case, bringing a child into existence makes others worse off, by decreasing the supply of resources available for humans to use. one can discern an asymmetry between the cases. when people voluntarily choose to have children, to the point that there is no undersupply, with resulting benefits to others, we who benefit from the parents’ childbearing and childrearing efforts do not owe compensation to the parents for this benefit. this is a positive externality and those who benefit from it do not thereby incur any obligation towards those who produce it to reward them for doing so. in contrast, when people voluntarily choose to have children, and thereby make others worse off, there is a moral case for requiring the responsible procreators to pay the costs their childbearing generates and not seek to impose these costs on nonprocreators. to illustrate, suppose society begins with a group of adults forming a society with a supply of unowned resources available for fair distribution among them. no one has prior claims on the resources. the resources should then be divided fairly among the individuals. following the resource 5. see, for example, rakowski 1993; also clayton 2006. what do we owe to poor families? 11 leap 2 (2014) egalitarian views of ronald dworkin, casal and williams suppose a fair distribution is the one that mimics the outcome of an equal auction in which all resources are put up for bid and the individuals are given equal bidding power (equal money for use in the auction) and there is trade to equilibrium, with the added proviso that there are also simultaneously in play hypothetical insurance markets for handicaps and native marketable talents. 6 individuals as they bid for resources are also able to purchase insurance against suffering handicaps, with the overall incidence of handicaps known but not the particular risk that one has one or several, and able to purchase insurance against having low marketable talent. in this hypothetical market one knows one’s native talents but not what prices they are likely to fetch when the auction ends and economic life commences. the insurance pays out if one has the covered condition and one pays into the fund that makes these payments if one lacks the condition against which one has insured. to simplify, assume the outcome of the hypothetical auction and insurance markets is that all of the individuals receive an equal share of available material resources. now suppose some people voluntarily act so that a new child is brought into the world, and suppose the existence of this child will lessen not increase the available stock of resources. suppose that as each new child enters the world, each is owed an equal resource share as defined by the hypothetical auction and insurance market procedures, and just suppose the outcome continues to be that each new person should get an equal share of available resources. the existing adults must together then be worse off, must accept fewer resources, to satisfy the just claim of the new child. who should bear this cost? casal and williams point out in effect that if we start from a fair initial distribution and there is a fair framework for interaction after that (roughly, a standard private ownership free market economy with the requirement that one not harm others without their consent), then those and only those who have voluntarily brought about the child should pay for the costs the child’s entry into the world imposes on others. from the perspective of the nonprocreators, the cost of the new child created by others is bad brute luck, luck that falls on them beyond their power to control. 7 this luck merits full compensation. in contrast, the cost of the new child in its relation to the child’s voluntary creators is option luck, costs brought about that they should have foreseen and might have avoided. there is a case then for requiring the procreators to absorb the costs of the new child, including the costs of giving the child resources to enable her to have fair initial prospects should fall on the procreators and no one else. in 6. dworkin 2000, chapters 1 and 2; also dworkin 2011, chapter 16. see also steiner 1995. 7. the claim in the text here is advanced by rakowski, not by casal and williams. on the distinction between brute luck and option luck, see dworkin 2000. see also vallentyne 2002. 12 richard j. arneson leap 2 (2014) this respect having children is like building a fire on your property for your own purposes that emits pollution that fouls the air that others must absorb. these costs imposed by your voluntary conduct should be borne by you and no one else, so you owe full compensation to those your behavior would otherwise be harming, in the absence of this full compensation. as in the pollution case, we suppose that it is morally permissible for agents to act with their resources for their own purposes in ways that have spillover negative effects on others (unless there are special circumstances such as that the negative effects are noncompensable) if and only if they fully compensate others for any damages incurred. it bears emphasis that casal and williams are assuming background conditions of fair distribution of resources. their analysis and assessment would not straightforwardly apply to a world like ours in which the distribution of resources over time fails to conform to the resource egalitarian justice principles. so their analysis and assessment does not straightforwardly yield any implications for what we might owe voluntary procreators who bring costly children into existence and what they might owe us when social relations are already marred by distributive injustice. there is some plausibility to the account that casal and williams provide. however, the view they offer is incomplete and thus defective. let us look at the two cases they consider. 2.1. case one: procreation imposes costs on nonprocreators to see the difficulty, imagine a world with very low population. this might be the situation in a world shortly after the events of the adam and eve story as told in the judeo-christian bible have unfolded. or we might imagine a world with very reduced population in the wake of some natural or man-made disaster such as a war that wipes out almost the entire human population and sets us the task of starting human society afresh. suppose there are four individuals and resources are initially divided fairly in line with the hypothetical equal auction and insurance markets. again, to simplify, just suppose the fair distribution is an equal distribution. each individual gets one-quarter of the earth’s material resources. the four individuals then proceed to save and consume and build with the resources they own. they trade with each other on mutually agreed terms. all is well, as assessed from the resource egalitarian perspective. now imagine that two of the individuals pair up and have two children. this addition of new people might over time reduce or increase the resources available for human use; let us suppose there is a reduction. in these circumstances, the new individuals have a right to a fair initial share of resources; let us suppose this is a share of resources equal to what each of the four initial persons received. here the resource egalitarian position what do we owe to poor families? 13 leap 2 (2014) yields the clear result that the two procreators and they alone should bear the cost of introducing the new people into the world and providing them fair initial shares. this result seems clearly mistaken. or at least, an issue needs to be faced, to settle who owes whom what in this setting. in effect rakowski’s assessment of the situation assumes that the resource endowments that the four people initially get are lifetime entitlements come what may. the four are in effect lords and ladies of the earth, entitled to all of it, fairly divided. there would be no moral impropriety if the four all lived out their lives as nonprocreators and the total population of the earth after the start of our account turns out to be four. each might say, “one-fourth of the earth is mine, to use as i choose”. but someone might protest that each person’s initial endowment of resources only provisionally belongs to him. each is a partial steward of the earth, with a responsibility to pass it on intact, or perhaps to pass along some combination of material resources plus technology so that future generations of people get fair shares and decent life prospects. moreover, there is a responsibility of some sort bearing on each of us to bring it about the future generations exist. there is a moral duty falling on the four initial owners to bring about future people. i would add, there is a duty not simply to maintain current population but, as the biblical injunction says, to “be fruitful, and multiply”. 8 exactly what the correct secular version of the biblical injunction requires would involve elaborating a full population ethics, which i am not able to do. but even without having in hand a full population ethics, we can see some of its contours, and can say with assurance that when the earth can sustain increasing population with good lives for people, it is not morally permissible for existing people to decline to reproduce and let the human race die out. nor for that matter would it be morally permissible merely to sustain a very low population, as in our toy example. here i am appealing to a vague but controversial premise, which those who oppose the claim that nonparents owe help to those who voluntarily create costly children may reject. however, rejection comes at a cost. if the resources of the earth are abundant, or can predictably support a very large population for the indefinite future given predictable improvements in technology that render natural resources increasingly useful, many will agree with me that it is wrong for us to fail to produce the population increase that can bring huge gains in lives worth living. 9 of course there are some ways in which the addition of new people to the world might worsen the prospects of already existing people that would 8. the book of genesis 1: 28. 9. for a view contrary to what is asserted in the text, see narveson 1967. 14 richard j. arneson leap 2 (2014) plausibly be regarded as trampling on their genuine rights. suppose the story of how adding new people worsens the existing people’s life prospects is that we procreators culpably mismanage the education and socialization of our children and they grow up to be antisocial, disposed to engage in acts that wrongfully harm others. if this is the way that the already existing people’s life prospects are made worse off by the addition of new people, the already existing nonprocreators may have a plausible case that the procreators have done them wrong. (i say “may have a case”, putting the claim tentatively, because we have yet to see what responsibilities nonprocreators might have regarding the education and socialization of new people.) but simply being made worse off by the arrival of new people on earth because one has to share the earth with them, given that their arrival was beyond one’s power to control, and brought about by the actions of others, does not introduce a justice claim of nonprocreators against responsible procreators. to see whether any such entitlement of nonprocreators is violated, we need to look at the duties and obligations that we all have with respect to childbearing. i have suggested that there is a collective duty to be fruitful and multiply, a duty that falls on all of us together to bring about sufficient population growth or maintenance (or reduction, in unfortunate circumstances). this collective duty generates individual duties, but in a conditional and indirect way. consider by way of analogy the duty that falls on an enormous crowd of people lying around at the beach, to carry out a rescue when someone falls in peril of drowning. there is a duty initially that falls on each of us to carry out a rescue if no one else does so, a duty that disappears when someone able to carry out the rescue commences it. the collective duty then is transmuted into a duty to provide help to the rescue team if that is needed, and to compensate for the costs they incur and the services they render, and to participate in follow-up efforts to help the imperiled person recover from the near-drowning incident either by contributing labor directly or by contributing to a fund of resources used for these amelioration efforts. we need not enter into the abstract question, what theory of morality best explains and justifies the particular shape that the duty to rescue that binds us has. suffice it to say that according to any moral theory that stands a chance of being right, morality contains a significant beneficence requirement—a requirement to make the world better by one’s efforts. the beneficence requirement may be multifaceted, but it is plausible to insist that it includes a requirement to contribute to making the world better by bringing the number of people who enjoy good life prospects closer to what it should ideally be. in the context of the initial situation of four people living on earth, a resource egalitarian view might initially assign each of us provisional ownership of one-quarter of the earth’s material resources. but this is not a what do we owe to poor families? 15 leap 2 (2014) permanent bequeathable property right over the entirety of those resources. nor is it a full property right that disappears only with one’s death, as the example we are considering illustrates. the initial distribution of resources takes place against a moral background in which population growth is mandatory and there is an obligation to share resources with new people whether or not the addition of the new people worsens one’s situation compared to what it would have been had no new people arrived on the scene. that is not a morally relevant baseline of comparison because one never has any right to enjoy throughout one’s life an undisturbed ownership of the equal share of resources that is implemented at an earlier time on the ground that it is fair to then existing individual persons. so in my example the procreators are fulfilling a collective duty binding on all existing people, and nonprocreators are obligated to contribute to this mission to some degree, even if population increase takes away from their initial endowment of resources, where the initial allocation of these resources is assumed to be (provisionally) fair. at a minimum the nonprocreators are obligated to accept this reduction in their resources that we are supposing accompanies the morally mandatory population increase. notice that the resource reduction accompanying population increase that according to casal and williams triggers a duty on the part of procreators to make good this loss to nonprocreators (or prevent it from ever occurring by absorbing themselves the costs of giving their children fair initial shares) need not even involve any worsening of the lives of the nonprocreators all things considered. the presence of the new humans might be pleasurable for everyone to contemplate. watching children frolic is fun. hence the population increase might leave no one sad that this event has occurred, without this fact counting against the casal-williams claim of the nonprocreators to full compensation for resource losses. this feature of their view is generated by its being resource-oriented, not welfare-oriented. the position i am sketching regarding procreation obligations need not deny that special responsibilities fall on the particular persons who voluntarily act to produce childbirth. these persons have brought about the existence of particular needy and helpless human infants at a particular time, and surely doing so triggers a special duty of care for the welfare of the dependent beings one has created. seeing this is compatible with placing voluntary childbearing in a broader context in which we all have duties to contribute to population increase. what holds true in a four-person world can also hold true in a world already populated with billions of people. again, i don’t presume to be in possession of a satisfactory population ethics principle or suite of 16 richard j. arneson leap 2 (2014) principles. 10 any of a range of principles will yield the plausible implication that the population of the earth, given present circumstances, ought to increase. also, suppose that the right population ethics calls for population stabilization not increase in our circumstances. carrying out this mandate might still lead to the circumstance that triggers the duty of procreators to absorb costs of procreation and pass none of them along to nonprocreators according to casal and williams. again, those who bring about births necessary for stabilization are still fulfilling a collective duty, and their acts trigger duties falling on nonprocreators, on the view this essay proposes. 11 the claim then is that the voluntary procreator whose childbearing and childrearing incurs costs we all must share is relevantly unlike the polluter who acts for his own purposes in ways that impose spillover harms on others. he is more like the voluntary rescuer when a person in peril is threatened with drowning and many persons might come to the rescue. his act helps to fulfill a duty we all owe and we all have duties to help carry through the fulfillment. 12 either the rescue effort itself, or the cost of reimbursing those who bear special risk or expense, might impose costs on nonrescuers, but these are costs that nonrescuers are morally obligated to bear, up to some point. same goes for nonprocreators. 2.2. case two: procreation brings gains to nonprocreators turn now to case two. suppose some people voluntarily chose to have children —again we are supposing this occurs against the backdrop of an initially fair distribution of resources— and nonprocreators gain spillover benefits. in resource egalitarian terms, which we are here not challenging, the addition of new people to the world brings it about that there are more resources for everybody. in another terminology, bringing children into the world, in some circumstances, generates positive externalities that fall on others, including nonprocreators. in this scenario, do nonprocreators have some duty to assist with costs of childbearing and childraising that is 10. for a useful introduction to population ethics issues, see broome 2004. 11. i do not deny that in some circumstances adding people to the world will be morally wrong according to a reasonable population ethics. in this case procreators might be wronging nonprocreators by imposing unfair costs on them. but whether this is so depends on the shape of the collective duty we all share, in some circumstances, to bring about population decrease. it might turn out that nonprocreators have not done all that they ought to do, to facilitate population decrease, so the mere fact that alf has been directly responsible for adding a child to the world, when this outcome is morally undesirable, does not by itself establish that alf has wronged nonprocreating bystanders. 12. i assume that casal and williams would agree that if there is a duty to procreate that falls in one way or another on all of us, that duty might generate obligations on the part of nonprocreators to assist in the childrearing and resource provision for children that voluntary procreators are morally required to give their children. they will disagree that there is any such duty. what do we owe to poor families? 17 leap 2 (2014) triggered by their receipt of these external benefits, on the assumption that they neither asked for nor consented to the imposition of these benefits? this question calls to mind the hart-rawls principle of fairness, which holds that “when a number of persons engage in a mutually advantageous cooperative venture according to rules, and thus restrict their liberty in ways necessary to yield advantages to all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission”. 13 the idea is that when procreation and childrearing are correctly regarded as a cooperative practice that fits this characterization, the cooperating behavior of the participants generates duties of reciprocity and fair play that fall on those who are recipients of benefits. as rawls remarks, “we are not to gain from the cooperative labors of others without doing our fair share” (rawls 1999: 96). casal and williams do not deny that obligations can arise from the hartrawls principle of fairness. but they interpret the principle in a way that restricts its applicability. in this connection we might consider doubts about how obligations might arise under hart-rawls raised in separate discussions by robert nozick and a. john simmons. 14 roughly, the idea is that those who incur obligations to cooperators under the hart-rawls principle must either voluntarily accept the benefits of the scheme or at least be willing to accept benefits voluntarily if voluntary acceptance were possible. mere receipt of benefits does not suffice to obligate. also, those to whom duties are owed under hart-rawls must be intending to benefit others by their cooperative actions undertaken under a fair scheme of rules. merely acting in ways that happen to benefit others does not suffice to generate obligations of reciprocity to repay. along a similar line, casal and williams say “the principle concerns nonexcludable goods that are produced by cooperative activity in which individuals bear some cost, which they would not otherwise bear, in order to produce the good”. (casal and williams 2004: 159). casal and williams anyway hold that in our world, procreation and childrearing as actually practiced do not meet the conditions of the hartrawls principle of fairness suitably interpreted. hence, procreative activities do not give rise to obligations on the part of nonprocreators to bear a share of the costs of childrearing and fair provisioning of children with resources as they become responsible adult citizens. in response, the first point to note is that if there is a collective duty to expand or sustain population and individual duties flow from that collective duty, then in the case in which the childbearing and childrearing activities 13. cited from nozick 1974: 90. 14. see nozick 1974, 90-95; also simmons 1979, chapter 5; also simmons’s contribution to simmons and wellman 2005. for defense of the principle of fairness, see arneson 1992; arneson 2013. 18 richard j. arneson leap 2 (2014) of procreators confer external benefits on others, the requirement falling on recipients of these benefits to do more to assist in the child production enterprise in virtue of this receipt of benefits holds whether or not the conditions of the hart-rawls principle of fairness apply. returning to the analogy with rescue cases, suppose some people undertake a rescue in circumstances in which all of us, including me, bear some responsibility for undertaking rescue and sharing its costs. suppose the rescue effort happens to shower benefits on some bystanders, who are themselves obligated to share the costs of the rescue. the receipt of benefits alters what qualifies as the fair cost sharing arrangement. if some in the group of those who are snared in the web of collective obligation to bring about rescue happen to gain side effect benefits and others similarly obligated do not, those who benefit should pay a greater share of the overall cost of the rescue operation and those who do not so benefit should pay less. nonetheless, i hold that the childbearing and childrearing enterprise in many communities does qualify as a cooperative practice satisfying the conditions of the hart-rawls principle and so triggering obligations of reciprocity to contribute one’s fair share. first point: if other conditions are met, mere receipt of benefits can sometimes suffice to trigger obligations. some goods provided via cooperative schemes are nonoptional with respect to a group of people: if anyone in the group consumes any benefits, everyone must consume some benefits. 15 when nonoptional benefits are delivered by cooperation, one need not voluntarily accept benefits in order to become obligated to pay one’s fair share. nor need one’s will be disposed to voluntary acceptance if that were possible. casal and williams cite ronald dworkin as criticizing versions of the principle of fair play that assume that “people can incur obligations simply by receiving what they do not seek and would reject if they had the chance”. dworkin comments, “this seems unreasonable”. 16 casal and williams do not definitely embrace whatever amendment of the principle dworkin’s claim seems to suggest. i would definitely deny that we 15. there are further distinctions that need to be drawn here. sometimes if any members of a group consume any of a good, all must consume the same amount of it. here the good just falls on people and there is no choice whether or not to consume it. sometimes all must consume some if any group members consume some, but a different amount of the good might fall on different group members—again, all of this happening in the absence of anyone’s voluntary choice as to how much to consume. in still other cases even though a good is nonoptional for members of a group, how much of the good each individual consumes is up to that individual. in this last case, the extent of one’s obligation to help pay for the good may depend on how much one chooses to consume (“may depend”, because consumption may be nonrival, and one’s choice to consume may be just a decision to avoid waste, in the context of a scheme that is not worth its costs and should cease to exist). these complications do not affect any claim i urge in this essay. 16. dworkin 1986:194 (cited after casal and williams 2004: 168). what do we owe to poor families? 19 leap 2 (2014) should endorse the dworkin criticism as stated in the first instance. suppose a cooperative practice is operating that provides national defense for the community you inhabit. suppose you have false empirical beliefs, and do not see that the national defense practice really does provide you genuine benefits, worth their cost, in a scheme whose costs are fairly apportioned. your subjective disbelief that you benefit does not obviate your obligation to contribute under the scheme. the same holds, i would say, if your error is moral rather than factual. suppose you have misguided pacifist views and believe benefiting by threat of violence under any circumstance is wrong. nonetheless, the threat of violence that maintenance of national defense involves is in fact morally right and you do in fact benefit, and benefit from a morally acceptable practice that is fair. i say, in these circumstances, you have an obligation to contribute, indeed an enforceable obligation, which your subjective opinion to the contrary does not obviate. suppose that the production-of-children practice does in fact confer benefits on me, and the benefits are worth the cost, and the costs are fairly apportioned by the rules of the practice. suppose also that at least some of the benefits provided are nonoptional. just by living in the society, i cannot avoid receipt of benefits. these circumstances do not yet suffice to establish that obligations arise under hart-rawls. the enterprise must be a cooperative venture, fairly organized, and the cooperators must be intending by their activity to be conferring the benefits of the scheme on others. also, the cooperators must be incurring costs under the arrangements. the objection then insists that these further conditions are not satisfied. there is an interesting question raised here, which this essay will not seek to answer. the question is what obligations if any arise in situations in which some but not all of the hart-rawls conditions are met. for example, suppose that the conditions of the hart-rawls principle of fairness are satisfied, except that the “cooperators” don’t think of themselves as acting to benefit others, but if the fact that their efforts do spread benefits widely through the community were brought to their attention, they would find this welcome news, and acquire an intention so to benefit the others. we might call these people latent cooperators. do their latently cooperative activities generate obligations in those who benefit from their efforts to pay a share of their costs? i suspect the answer is “yes” but will not pursue the issue here. i simply contend that the plain unvarnished conditions of the hart-rawls principle, rightly understood, are standardly satisfied by participants in child production practices, so given that these practices shower benefits on others in the neighborhood, the obligations of reciprocity that the fair play principle generates here are triggered. one issue is whether participants in the practice are acting to benefit others. i grant that people who either have sex with the aim of having children or who have sex and then make a decision to bring the fetus to 20 richard j. arneson leap 2 (2014) term when it is discovered that a pregnancy has started normally act in the expectation that raising children will enrich their lives and make the decision for this reason. but there is normally another element in play. people decide to have children for self-fulfillment, but this is a moralized notion of self-fulfillment. procreators think that their childrearing activities will significantly enhance the community in which they live, and they are also aware, perhaps in a somewhat inchoate or vague way, that there is a duty to be fruitful and multiply that falls on their community and is one that their procreative choices help to fulfill. people’s motives are mixed, but that does not preclude their having the motivations that are conditions for hart-rawls to apply. after all, many who volunteer to contribute to national defense, the paradigm of a cooperative scheme to which hart-rawls applies, have mixed motives and aim in part at their own self-fulfillment, through meaningful work or glory seeking or the like. here is a relevant comparison. take the standard example of a public goods provision scheme that generates duties under the principle of fairness. bandits periodically menace peaceful farmers living near each other in a narrow valley. some farmers initiate a protection system. valley dwellers are to take turns standing sentry duty each night, which will reduce the losses of all to predatory bandits. suppose some people really hate standing sentry duty, some don’t mind, some fancy the activity even though it is risky. so a fair and tolerably efficient scheme for distributing the burdens of the protection scheme might involve asking for volunteers, and then if the number of individuals who volunteer is adequate, requiring other valley inhabitants to pay into a fund that compensates the volunteer sentries for their noble activity and provides special health care benefits to sentries injured on duty, etc. the sheer fact that people volunteer to supply the needed public good (partly for altruistic, partly for self-interested motives) does not negate the moral appeal of the claim that others who benefit from their activities on behalf of the community owe them compensation. someone might object that if people voluntarily act in ways that benefit themselves and spill benefits also on others, without any offer of compensation, no compensation to them is owed—and this is the situation of procreators vis-à-vis benefiting others. in reply: under the hart-rawls principle of fairness reasonably interpreted, obligations can arise on the part of those who benefit from cooperative schemes that shower nonoptional benefits on a group of people (or for that matter on those who voluntarily seek and get optional benefits from such a public goods delivery system), even if the cooperators are net beneficiaries from the scheme in the absence of contributions from nonparticipant beneficiaries. the cooperators who gain on balance in this way can still be unfairly treated by the free riders, and the scheme can be made more fair in its distribution of benefits and burdens if nonparticipant beneficiaries are required to pay a fair share. what do we owe to poor families? 21 leap 2 (2014) (what constitutes “fair shares” is a topic not addressed in this essay.) i grant that procreators normally expect their lives to be improved, in prudential terms, by having and raising children. nonetheless, procreators also expect to bear some costs they would prefer to avoid, or lessen, if they could, despite their expectation of overall gain. and procreators recognize that in deciding to have children they are inevitably making a risky choice, that if things go badly might result in large-scale disruption or degradation of their lives. when children turn out badly, even through no fault or oversight of the parents, the parents’ lives can be blighted, pretty much destroyed. i submit that these generally applicable characterizations of the decision to have and raise children suffice to satisfy the condition of sacrifice incurred by cooperators that is required for the hart-rawls principle to apply. readers may wonder what benefits unavoidably fall on nonprocreators arising from the childrearing efforts of parents in their society. these vary. some are highly local. only those living nearby get the benefit of seeing your children gamboling along the street. some are widely diffused. all people benefit, as they age, from reinvigoration of the culture as a result of the creativity of youth, and of stimulus to the economy from the energy and ambition of the young. 17 one might raise another worry. the hart-rawls principle of fairness stipulates that obligations arise, given certain conditions, when people participate together in a mutually cooperative venture according to rules and others receive benefits from the scheme. is the production-of-children practice sensibly regarded as carried out according to rules? yes. in a just society, laws and social norms stipulate what those who contribute to and benefit from childbearing and childrearing owe to one another. there are recognized expectations. in a state of nature, the rules are more inchoate, and essentially consist of the recognized duty to procreate according to population ethics along with the principle of fairness and a sensible range of interpretations of the duties and obligations thereby generated. the preceding scrappy remarks have tried to support the idea that nonprocreators have obligations to procreators in a wide range of circumstances. your bringing about the birth of a child generates obligations 17. in an interesting essay, serena olsaretti raises doubts as to whether obligations to share the costs of having children arise under hart-rawls along the lines i have urged. my discussion in the text answers these doubts. she makes a further suggestion: that as modern societies are actually organized, significant benefits of parenting are coercively channeled to nonparents, as when children are taxed to pay for old age assistance programs and other elements of the modern welfare state. this sounds plausible. however, i worry that critics might respond that in an ideally just society, these arrangements would be made on a pay as you go basis, and there would not be forcible takings of the sort she highlights. for example, each generation could save for its own future, and use the proceeds to purchase goods needed in old age. see olsaretti 2013. 22 richard j. arneson leap 2 (2014) in bystanders to help in the upbringing of the child. whatever we owe to procreators and children generally, we owe more to procreators who are poor and to children born into poverty. 18 to return again to the rescue analogy: if there is a drowning threat on a beach filled with people, a few people undertake the necessary rescue of those who are in peril, and the rescuers then turn out to be especially vulnerable and incur large costs in the course of the rescue, or turn out to need extra help in order to complete the rescue effort successfully, the bystanders have an extra obligation to compensate the rescuers who have sustained great loss and especially to assist these would-be rescuers in bring their rescue efforts to success. a wide variety of approaches to social justice will converge on the judgment that we owe more to worse off (as compared to better off ) members of society who are engaged in childbearing and childrearing. under a wide range of circumstances, utilitarian, egalitarian, sufficientarian, and prioritarian views will affirm this judgment. i want to focus on the subset of poor children and poor adult family members who are also low in the ensemble of personal traits that constitute native ability. 19 some poor children and their guardians are below average in bank account wealth and income but blessed with high levels of talent. some are cursed with low talent endowments. (ability is multifaceted and multidimensional, but i suppose some are poorly endowed all things considered; for simplicity let’s just speak of those with low talent.) with luck and pluck the impoverished people with low ability may end up leading great lives, but they are surely likely to be clustered among the people who end up badly off in overall lifetime well-being. a further point is perhaps worth noting. our duties to poor people likely include a duty to provide them a fair opportunity to become parents and successfully raise children. this duty applies with special force to the subset of poor individuals with low marketable skills. parenting is meaningful and creative work. (of course, it is also drudgery and frustration; that does not undermine the claim just stated.) the parent has the duty to form the child’s character, to shape the lumpish infant into a particular person. this is in some respects a creative, artistic task, like painting a picture or making a sculpture, with the special twist that from the very beginning the material on which one is doing the creating is a conscious human with agency interests of its own, which gradually come to include interests in self-making and self-determination. it is as though you 18. see bou-habib 2012. 19. for an interesting defense of the view that in determining people’s fundamental political status and political entitlements a duty of opacity respect is owed all agents above a threshold of rational agency capacity, and that opacity respect requires us to refrain from assessing or measuring individuals’ agency capacities, see carter 2012. what do we owe to poor families? 23 leap 2 (2014) were trying to paint a work of art on a canvas that had arms and hands of its own that were clasping paint brushes, and the canvas arms were making their own strokes and painting over your brush strokes —not to mention that there are many other forces besides your artistic efforts that are shaping the outcome of the process, including some deliberate painting by other people’s hands. moreover, the canvas arms gradually become more adept and eventually take over the process, if you are successful. for many poor people, and especially for those who suffer the double burden of being born into below-average wealth and being born with a weak endowment of native talent potential, raising a child will be their best option for meaningful and creative work. this will be brutally true under circumstances of injustice, but we should entertain the possibility that a potentially tolerably just society might generate a distribution of income and wealth and a distribution of labor market opportunities that give some individuals meager prospects. if such a society is to qualify as tolerably just, the opportunities of those with below-average prospects must be good enough, and surely must include opportunities for meaningful and creative tasks. there will then be a special obligation to encourage people to undertake childrearing by making sure they have reasonable prospects of being successful parents if they do choose this life path. this line of thought is strengthened by the further consideration that parenting requires a different set of capacities than most kinds of creative and challenging work that positions in the market economy provide, especially those that are available to those with low marketable skills a the bottom of the economic heap. a caring, loving disposition, attentiveness and persistence, and some common sense will go a long way toward making one a good parent, especially in the crucial early years of a child’s life. (agencies other than parents can help foster autonomy and sophisticated skills in older children.) parenting tends to be an accessible form of meaningful work. so a just society that provides adequate opportunities for meaningful work for all its members will be careful to provide, within the mix of meaningful work options made available to poor individuals, good opportunities to be successful parents. 20 much that should be done to help poor (that is, nonaffluent) parents to be successful as parents involves familiar welfare-state measures. we should channel public funds for public education to ensure high quality primary and secondary education along with avenues to higher education for children of poor parents. we should provide high-quality day-care that is available to children of the working poor, to help parents combine paid employment 20. i don’t deny that a just society in some circumstances might restrict rights to have children and provide fair opportunities for meaningful work to its members in other ways. for example, consider scenarios of severe overpopulation and a drastic need to reduce the birth rate. 24 richard j. arneson leap 2 (2014) and parenting. we should regulate labor markets to bring about decent employment prospects for individuals with small income and wealth and weak marketable skills, if necessary setting up the state as decent employer of last resort (see arneson 1990). we should set income tax policy so that individuals with below-average marketable skills are rewarded for seeking and sustaining paid employment and paying self-employment. we should facilitate adult education that develops improved parenting skills. i suggest that in addition the state should be encouraging people to form marriage (or other long-term stable relationships) that make parenting easier by sharing its burdens and for that matter encouraging people, especially men, to regard sustained commitment to parenting as a valuable life option. 3. marriage promotion, state neutrality, and marriage abolitionism one might first of all object that the state simply has no business interfering in the decisions of sane adults regarding living alone, cohabitating, marrying, or divorcing. the proper functions of the state do not include regulation of people’s friendships and romantic lives. the state has a proper interest in securing an adequate upbringing for all children, but this job can and should be done without wrongly interfering in people’s private lives. in a diverse society marked by reasonable pluralism of belief, people will differ in their views on sex, romance, marriage, living alone versus living cohabiting versus living communally with several adults, and so on. 21 so the state should be strictly neutral on this broad issue, neither promoting marriage nor discouraging it. 22 this is in some ways an appealing stance, but notice that if you adopt it, you would seem to be committed to opposing the contemporary movement in some contemporary societies (for example, the u.s.) to establish the legal right for same-sex couples to marry and have the legal privileges of marriage that are restricted to opposite-sex couples in many jurisdictions. (you could still accept as a demand of non-ideal justice that if there is legal establishment of marriage, the status ought to be equally open to couples of both orientations, without being committed to legal establishment of marriage.) the normatively compelling position would be to abolish the legal status of marriage as a stateprotected legal status for anyone, of whatever sexual orientation. the counterargument against marriage abolitionism is that a long-term committed romantic relationship, combining friendship, sex, and the building of a life together, is a valuable achievement, and the official recognition of this 21. the invocation of reasonable pluralism of belief is claimed to support state neutrality on the good. see rawls 1996; also quong 2010. 22. this view is vigorously advanced in brake 2012. what do we owe to poor families? 25 leap 2 (2014) type of commitment by the state is a reasonable, noncoercive encouragement to people to attempt this achievement. the goods to be had thereby can equally well be obtained in same-sex and opposite-sex relationships, and the achievement toward which the marital status aspires is equally valuable no matter what the sexual orientation of those attaining it. hence there should be no discrimination between same-sex and opposite-sex relationships in the state’s policy of marriage recognition and endorsement, and this recognition and endorsement are preferable to a hands-off neutral policy, if the state’s policy of putting a thumb on the scale in favor of marriage is likely to bring it about that people are better off and the gains of the gainers are not brought about unfairly at the expense of any losers. the point here is that to defend same-sex marriage rights rather than abolition of state recognition of marriage, one needs to argue that long-term relationships are instrumentally and noninstrumentally good for people and that society should foster what is good for people. in a slogan, one needs to oppose state neutrality on the good. i suggest we ought not be marriage abolitionists. (although the discussion above refers to same-sex and opposite sex couples, nothing hangs on the fact that the group of adults seeking recognition of their pledge to long-term commitment consists of exactly two people. larger groups might well form similar bonds and seek the same type of recognition.) the condition that the state should recognize and endorse marriage on the ground that people gain overall only if gains and losses are not unfairly divided is nontrivial. some people will do better living alone, or living with their parents or other close relatives, or cohabiting in shifting groups. is favoring marriage disfavoring them? in many countries in recent years, your chances of getting married and staying married vary with your income. the poor do it less and stick with it less than the nonpoor. heaping subsidies on marriage might be unfair to the poor. here a comparison might be made to recreational drug prohibitions. suppose the state bans the recreational consumption of methamphetamine, cocaine, and heroin on paternalistic grounds. such a policy must confront the fact that some citizens are no doubt hurt not helped by the legal ban. ideally there should be different legal policies for people who would benefit from having these drugs available and for those who would be harmed, but such a legal regime may be unfeasible. if gainers gain enough and losers lose little enough, the ban may be roughly fair, and understanding this, all should abide by it. much the same might be true of state policies encouraging romantic involvement and in particular long-term committed romantic involvement. the policies might be roughly fair on balance despite the fact that they produce winners and losers. a significant residual difficulty is that hard drug prohibitions might well impose especially hard burdens on the poor who violate the prohibitions 26 richard j. arneson leap 2 (2014) and are then more likely to be exposed to onerous legal penalties than nonpoor violators. in the same way, marriage promotion policies will benefit some and hurt others, but among those who end up disfavored, those who are poor will be more likely than nonpoor to be grievously afflicted. if those disfavored in these ways will tend to be the worse off among the worse off, difficult tradeoff issues arise. a policy that helps the worse off may be bad for the worse off segment of the worse off. depending on the costs and benefits and the numbers of people involved, a morally sensitive cost and benefit calculation might sometimes yield the judgment that an instance of this sort of hard tradeoff is acceptable all things considered. but surely in our public policy choices we should seek ways of avoiding kicking those who are already down. in considering the desirability from a social justice standpoint of pronatalist and pro-marriage public policies, we need to be considering not simply what is desirable from the standpoint of an adult person who is poor, but also what is good for poor children. this section has suggested that promoting stable romantic commitment might be fair on balance in its effects on adults even if the policies produce some winners and some losers. the consideration of children’s interests complicates the picture. 4. marriage promotion and childrearing assistance in several contemporary societies, single-parent households are increasing, especially among the poor. there is evidence that children are likely to fare better in stable two-parent (or two-guardian) households, and that poverty exacerbates whatever problems for children growing up in a single-parent household involves. there is also some evidence that growing up in a singleparent household, with a female as lone parent, creates more difficulties for boys than for girls (autor and wasserman 2013). so perhaps the state ought to be discouraging childbearing and childrearing among people, mostly women, who are likely to end up in single-parent households? i suggest the answer is no, but the issues are tricky, even murky. when two individuals not involved in a stable relationship produce a child, it is not axiomatic that marrying the man who got you pregnant is a good idea, for you or the child. when a marriage is conflictual, it is not obvious that staying together and fighting is better for the children in the household than separating and divorcing. working class single-parent mothers in the u.s. are more likely than their european counterparts to marry, but they are also more likely to divorce and cohabit again and perhaps remarry again. as a sociologist studying u.s. marital patterns has put it, we have in the u.s. a “marriage-goround”. (cherlin 2010) moreover, working class women in the u.s. are more likely than their european counterparts to form nonlasting cohabitation arrangements—the partner-go-round. for children, the evidence is that what do we owe to poor families? 27 leap 2 (2014) unstable household arrangements during early childhood years are stressful for children and interfere with healthy development. how should public policy tilt? providing financial incentives to marry might exacerbate the marriage-go-round. providing financial incentives that encourage stable marriage might pressure women to stay in abusive relationships. one might be tempted by the thought that policies that discourage poor women from having children when they cannot reasonably foresee a stable household arrangement with two or more dedicated adults playing parental roles for their children, if they were successful, would reduce the incidence of single-parent households, a desirable outcome for children. 23 if poor women are less prone than their wealthier counterparts to form stable companionate partnerships, and policies enacted to discourage single-parenting would deter some from having children, that outcome should strike us as harsh. for a very large number of prime-age adults, being successful at childrearing is a great part of their good. for many adults, the job of childrearing is the most interesting, rewarding, challenging, and creative work they have the opportunity to perform. as discussed in section two of this essay, this is more likely to be the case for poor adults, whose labor market options are meager. there are better alternatives to discouraging childrearing on the part of an adult who would be living alone. we should be trying to help poor individuals who want to be parents to succeed in this role rather than to discourage them from undertaking it. 24 this is compatible with encouraging stable cohabitation. also, since men can benefit from successful parenting as well as women, we should be seeking sensible policies that encourage poor men to want to take on childrearing roles and help them succeed in these tasks. there is an element of “the hat makes the man “ here. if i take on a responsible role, i am more likely to become committed to it and personally identified with it, and more likely to function as a responsible role-player. we need to seek policies that will induce the man to put on the hat. the weakening of marriage among working-class people in current times is not mysterious. compared to earlier times, in our time the benefits of marriage for working-class adults are less and the costs of not getting 23. this is a theme of political conservatives in the u.s. see for example the collected works of charles murray (1984; 2012). 24. there is a tradeoff here. individuals vary in their capacities for good parenting, and vary in how propitious their circumstances are for this social role, and some individuals (rich and poor!) should be discouraged from assuming a childrearing role, even under ideally supportive social conditions. this is consistent with maintaining that generally speaking, people, especially the poor, should be encouraged both to take on the parental role and to form stable family-type relationships, for their sakes and for the sake of the children they will raise, and that those among the poor who have weak parental skills should be helped and supported so that their parenting ventures are successful. 28 richard j. arneson leap 2 (2014) married are less. for starters, men are less marriageable. they offer less in economic security terms, and women now have other options for securing their economic well-being. a familiar feature of contemporary economic life is that economies are hollowing out, with fewer good jobs for the uneducated and increasing rewards to those with higher education credentials at the level of college degrees and beyond. in the u.s., “by 1996, the average thirty-year old husband with a high school degree earned 20 percent less than a comparable man in 1979” (cherlin 2010: 163). increasing assortative mating in marriage patterns increases the strains on poor and near-poor people seeking mates. “the winners in the new economy are marrying each other and consolidating their gains” (cherlin 2010: 179; see also esping-anderson 2009: 59-70). we should assume that these trends will continue for the foreseeable future. in that case, what strategies make sense for poor adults starting out in life? what preparation and —to the extent this might be effective— guidance might society provide them to cope with the world they will face, and what forms of help will facilitate their succeeding in their life aims? men with a high school education or less will not offer particularly attractive economic prospects to prospective mates. if these men are predominantly oriented to seeking short-term gratification with male buddies, they won’t appear, or be, good candidates for the role of loving partner in intimate relationships. a feminization of their socialization would render them more companionable, more cohabitable, and more marriageable. even if my job prospects are bleak, if i have serious nonwork interests that i care about and that make me interesting, if i want long-term friendship on egalitarian terms with someone with whom i will also build an intimate stable romantic relationship, and if my life plans are open to the possibility of committing time and energy into childrearing, i look more credible in the eyes of someone seeking a stable romantic partner. labor force attachment helps as well. if it is just not in the cards that i will be a good traditional breadwinner, at least i can be a stable, rather than erratically intermittent, crumb-winner. in interviews, high school educated u.s. women report that they have the same life goals as their more educated and wealthy sisters. in a potential mate they seek economic security, intimate friendship, and cooperative faithfulness. perhaps the “realistic utopian” aspiration for high school educated women would be to find the latter two of the three, and be happy with that. of course, economic insecurity tends to erode one’s capacities for intimacy and loyalty. (i assume that in a just society the distribution of income and wealth can be unequal, but the human cost of economic insecurity that falls on the poor surely affects the degree to which justice requires distributive arrangements that eliminate or cushion that insecurity.) i have been speaking of people seeking heterosexual partnerships, but there are other sorts. if women’s sexuality is more labile than men’s, women what do we owe to poor families? 29 leap 2 (2014) potentially have the option of choosing to orient sexually toward women and seek female long-term romantic mates and childrearing partners. or at least, they have the option to the degree that their culture does not wrongfully rule out this option as socially taboo. (i assume men are more likely to be stuck with whatever sexual orientation is planted in their genes.) if more stable partnership arrangements would be good for people, the simplest way in which social arrangements can facilitate successful partnerships among the poor is by providing generous financial assistance to people who are making serious efforts to fashion a good life for themselves. that probably would involve income supplements conditional on labor force attachment. such income assistance would ease the ever-present grinding strain of hovering on the edge of poverty or being engulfed in it that wears down people’s attempts to make lasting loving relationships. society could also be generous, rather than stingy, in the educational opportunities provided to children of less educated and economically marginal parents. better teachers, a longer school day, high quality preschool instruction for very young children, a longer school year, flexible after-school child care, all targeted at poor children, would help the recipients and also help their parents fulfill their important life goal of being successful parents (waldfogel 2006). and completing the circle, education of all children, not only the children of the poor, should include a didactic character-forming component. think of life skills classes that essentially amount to cognitive behavioral therapy —here are the circumstances you can expect to encounter in your future life, here are the difficulties and challenges you will face, what goals do you have and anticipate having and what personal skills and traits will you need to achieve them? this is what i have in mind under the heading of the feminization of socialization, insofar as we are considering the schooling of men. regarding state support to the parenting efforts of poor parents, a delicate dance is needed. on the one hand, society should help parents succeed at parenting, for their sake and for the sake of their children. on the other hand, some nonwealthy parents (some wealthy parents too, but that points to other issues) are ineffective parents, and channeling aid to children entirely through their incompetent parents is not an effective strategy for helping children at risk. 25 yet helping poor children in ways that bypass their parents can undermine these parents’ authority and self-confidence and decrease their ability to steer their children’s lives for the better. to some extent one wants to structure aid to children so that from a very early age they are exposed to authority figures (other than parents) who are visibly working for their benefit and worthy of their trust and emulation. in pre-school and 25. this is one lesson that might be drawn from mayer 1997. 30 richard j. arneson leap 2 (2014) school and day-care centers, though children’s peers will probably make a larger imprint on their socialization than their teachers, good teachers can be part-time substitute parents and significant role models. same goes for the nurse or social worker who makes regular state-sponsored visits to troubled family homes. there is no contradiction in pursuing goals that, in actual circumstances, partially conflict. one seeks to advance the ensemble of the worthy pertinent policy goals appropriately weighted so that one can discern which to pursue more vigorously and to what degree in cases of conflict. 5. conclusion in this essay i argue that given population ethics obligations that fall on all of us collectively, we owe assistance to procreators in providing a fair start in life to their children, even on the assumption of an initially fair distribution of resources. we also owe people a fair opportunity to be successful parents. i suggest a perspective for determining what shape and form of public policies these obligations press us to endorse. the perspective assumes that what we one another depends on what is intrinsically good, what constitutes a better as opposed to a worse quality of life for the individual living it. i support the perspective largely by illustrating how it would structure deliberation of public policy. bibliography alesina, a., and glaezer, e. l., 2004: fighting poverty in the u.s. and europe: a world of difference, oxford: oxford university press. arneson, r., 1982: “the principle of fairness and free-rider problems”. ethics 92: 616-633. — 1990: “is work special? justice and the distribution of employment”, american political science review 84: 1127-1147. — 2013: “paternalism and the principle of fairness”, in paternalism: theory and practice, ed. c. coons and m. weber,134-156, cambridge: cambridge university press. autor, d., and wasserman, m., 2013: wayward sons: the emerging gender gap in labor markets and education, washington, d.c.: third way. the book of genesis. bou-habib, p., 2012: “parental subsidies: the argument from insurance”, politics, philosophy, and economics 12: 197-216. brake, e., 2012: minimizing marriage: marriage, morality, and the law, oxford: oxford university press. broome, j., 2004: weighing lives, oxford: oxford university press. carter, i., 2012: “respect and the basis of equality”, ethics 121: 538-571. casal, p., and williams, a., 2004: “equality of resources and procreative justice”, what do we owe to poor families? 31 leap 2 (2014) in dworkin and his critics, ed. j. burley, 150-169, oxford: blackwell. cherlin, a. j., 2010: the marriage-go-round: the state of marriage and the family in contemporary america, new york: vintage books. clayton, m., 2006: justice and legitimacy in upbringing, oxford: oxford university press. dworkin, r., 1986: law’s empire, cambridge: harvard university press. — 2000: sovereign virtue: the theory and practice of equality, cambridge: harvard university press. — 2011: justice for hedgehogs, cambridge: harvard university press. esping-andersen, g., 2009: the incomplete revolution: adapting to women’s new roles, cambridge: polity press. fuchs, v. r., 1988: women’s quest for economic equality, cambridge: harvard university press. garfinkel, i.; rainwater, l., and smeeding, t., 2010: wealth and welfare states: is america a laggard or a leader, oxford: oxford university press. mayer, s. e., 1997: what money can’t buy: family income and children’s life changes, cambridge: harvard university press. murray, c., 1984: losing ground: american social policy 1950-1980, new york: basic books. — 2012: coming apart: the state of white america 1960-2010, new york: crown forum. narveson, j., 1967: “utilitarianism and new generations”, mind 76: 62-72. nozick, r., 1974: anarchy, state, and utopia, new york: basic books. olsaretti, s., 2013: “children as public goods?”, philosophy and public affairs 41: 226-258. quong, j., 2010: liberalism without perfection, oxford: oxford university press. rakowski, r., 1993: equal justice, oxford: oxford university press. rawls, j., 1993: political liberalism, new york: columbia university press. — 1999: a theory of justice (revised edition), cambridge: harvard university press. simmons, a. j., 1979: moral principles and political obligation, princeton: princeton university press. simmons, a. j., and wellman, c. 2005: is there a duty to obey the law, cambridge: cambridge university press. steiner, h., 1995: an essay on rights, oxford: blackwell. steiner, h., and vallentyne, p. 2009: “libertarian theories of intergenerational justice”, in intergenerational justice, ed. a. gosseries and l. meyer, 50-76, oxford: oxford university press. vallentyne, p., 2002: “equality, brute luck, and initial opportunities”, ethics 112: 529-557. waldfogel, j., 2006: what children need, cambridge: harvard university press. 32 issn 2341-1465 leap 2 (2014 ): 32-57 firms, states, and democracy: a qualified defense of the parallel case argument* íñigo gonzález-ricoy universitat de barcelona abstract the paper discusses the structure, applications, and plausibility of the muchused parallel-case argument for workplace democracy. the argument rests on an analogy between firms and states according to which the justification of democracy in the state implies its justification in the workplace. the contribution of the paper is threefold. first, the argument is illustrated by applying it to two usual objections to workplace democracy, namely, that employees lack the expertise required to run a firm and that only capital suppliers should have a say over the governance of the firm. second, the structure of the argument is unfolded. third, two salient similarities between firms and states regarding their internal and external effects and the standing of their members are addressed in order to asses the potential and limits of the argument, as well as three relevant differences regarding the voluntariness of their membership, the narrowness of their goals, and the stiffness of the competition they face. after considering these similarities and differences, the paper contends that the the parallel-case argument provides a sound reason in favor of democracy in the workplace —a reason, however, that needs to be importantly qualified and that is only pro tanto. keywords: firms, states, parallel-case argument, workplace democracy. * previous versions of the paper were presented at icade and at the chaire hoover d’éthique économique et sociale at the université de louvain. i am grateful to these audiences, and to audiences in barcelona, london, madrid and princeton, for the central concern of the paper was persistently raised by them. for comments, i am also grateful to borja barragué, jahel queralt, two anonymous referees for this journal and especially to andrew williams. the usual disclaimer applies. funding was provided by the arc project 09/14-018 on ‘sustainability’ (french speaking community of belgium) and the catalan agency for management of university and research grants. firms, states, and democracy 33 leap 2 (2014) 1. introduction over the last decades democracy has rapidly expanded worldwide. while in 1946 only 20 out of 71 independent states were democratic, the number increased to 48 in 1989, to 77 in 1994, and to 92 in 2009 (marshall and cole 2009: 10-11). the expansion of democracy in the state, however, has not gone hand-in-hand with a parallel expansion of democracy in other realms, such as the workplace. 1 rather the contrary. the number of cooperatives may have decreased over the last decades. 2 and attempts to extend the german system of co-determination have either been blocked —as in the case of the fifth directive drafted by the european community in the 1970s— or failed altogether —as in the case of the bullock report in the uk (gold 2005; 2010). further, once a battle cry among workers and a central research topic in industrial relations, labor economics, and political philosophy (christie 1984: 112-128), since the 1980s workplace democracy has attracted a declining interest among scholars, political parties, and workers alike. yet, the recent resilience of co-operatives to the great recession has strengthened their presence in the world economy, and has aroused the interest in this and other forms of workplace democracy once again (birchall and ketilson 2009; lansbury 2009; birchall 2013). some recent philosophical work on economic and workplace democracy has also contributed to the debate (hsieh 2008; schaff 2012; perry 2014; anderson, forthcoming; landemore and ferreras, unpublished; see also the essays in gosseries and ponthiere 2008; and o’neill and williamson 2012: part ii). among those who have championed the idea, some have called into question the consistency between the widespread commitment to democracy in the state and the skepticism with which its extension to the workplace is nowadays received. indeed, it has been argued that firms’ decisions influence workers’ lives as much as governments’ decisions; that managers have as much power over workers as public officials have over citizens; or that large companies influence the society as much as the state does. 3 from this point of view, nondemocratic firms have sometimes been depicted as autocratic institutions within which the economy is centrally planned, freedom of movement and speech is heavily constrained, and failure to obey can result in instant exile. 4 1. democracy is minimally defined throughout the paper as a form of collective decisionmaking that gives a binding say to all the affected and/or subjected individuals on a roughly equal basis. 2. for some evidence in the us farming context, see united states department of agriculture (2004). 3. for references, see section 4, in which these arguments are discussed. 4. noam chomsky (1998: 19) has expressed this view as follows: “what kind of freedom is there inside a corporation? they’re totalitarian institutions —you take orders from above and maybe give them to people below you. there’s about as much freedom as under stalinism”. 34 íñigo gonzález-ricoy leap 2 (2014) however, there may be good reasons against democracy in the workplace that do not apply to the state, and the converse may also be true. indeed, it has been often claimed that firms and states are too different for the analogy between them to work. for example, it has been argued that firms are voluntary associations while states are not, that firms are for-profit while states are not, and that firms are meritocratic while states are not. 5 the goal of this paper is to analyze the structure, applications, and limits of the analogy between states and firms that is often used to argue for workplace democracy, i.e. what joshua cohen (1989) has labeled as the parallel-case argument for workplace democracy. 6 according to this argument, firms and states have a number of similarities that make any argument against workplace democracy plausible either in both realms or in neither realm. in this paper i will advance a qualified defense of the parallel-case argument. as i shall argue, firms and states are analogous regarding two salient features (their internal effects and the exercise of power within them). in addition, i will address a number of potential differences between them (regarding the voluntariness of their membership, the narrowness of their goals, and the toughness of the competition they face) that may block the analogy on which the argument is based. i will contend that, while relevant, these differences are often overdrawn, for they are of degree, not of kind. i will conclude that the parallel-case argument provides a sound, yet qualified and non-decisive, basis in favor of workplace democracy. the paper is divided into five further sections. section 2 briefly defines workplace democracy and illustrates the parallel-case argument by applying it to two common arguments against workplace democracy. section 3 unfolds the structure of the argument. section 4 discusses two salient analogies, while section 5 tackles three potential differences between firms and states. a conclusion closes the paper. 2. the parallel-case argument at work this section has two goals. it firstly introduces the definition of workplace democracy that will be used throughout the paper. it then illustrates the parallel-case argument by applying it to two influential arguments against workplace democracy. (those who are familiar with these issues may want to directly turn to section 3). workplace democracy is defined as follows: 5. for references, see section 5, in which these arguments are discussed. 6. the argument has been most recently employed by schaff (2012), and assessed by landemore and ferreras (unpublished). the classice references defending it are walzer (1983) and dahl (1985). for a detailed critique, see lópez-guerra (2008). firms, states, and democracy 35 leap 2 (2014) workplace democracy: a form of managerial organization in which workers have control rights over the management of the firm. workplace democracy has developed into many different forms since its nineteenth-century origins, including robert owen’s cooperative experiments, the israeli kibbutzim, the german co-determination system, and the us employee stock ownership plans (dow 2003; hansmann 2000; wilkinson et al., 2010: part iii). the above definition is, thus, a fairly minimal and inclusive one. even though it rules out forms of participation that are limited to employee information, communication, and/or consultation, it leaves open a large number of issues regarding the goals, procedures, and boundary conditions of workplace democracy. it also leaves open the relationship between ownership and control rights. hence, under this definition workers are not required to have a share in the ownership of the firm in order to be granted control rights. they may be granted control rights either qua owners or qua workers. the best-known instance of the first alternative is co-operativism, in which workers —and only workers— have equal control rights and supply capital, e.g. via debt contracting or by drawing upon their own savings. 7 co-determination, on the other hand, provides the closest instance of the second alternative, in which workers are granted control rights without making any equity investment in the firm. 8 many arguments have been advanced in favor of these and other forms of workplace democracy. 9 unlike other arguments, the appeal of the parallel-case argument is that, by tracing a tight analogy between firms and states, it moves the debate on the desirability of workplace democracy to the political realm, in which the desirability of democracy is taken for granted. in addition, since some of the arguments that are used nowadays against workplace democracy are very similar to arguments that were once used against democracy in the state yet are now seen as unacceptable and anachronistic, the parallel-case argument suggests that we may be using such arguments uncritically. 7. however, as elster (1989) recalls, only rarely we find cooperatives so-defined, for nonworking owners, non-owning workers, and unequal distribution of shares are common. 8. the best-known case of co-determination is the german system (dow 2003: chapter 4; fitzroy and kraft 2005). in force since 1976, it makes compulsory for all limited liability firms with over 2,000 workers to have a supervisory board with ample powers (e.g. the approval of the annual budget or the ratification of important investments) in which both shareholders and workers are represented on a “near-parity” basis (because exclusively the shareholders elect the chairman of the board, who has a tie-breaking vote). for a theoretical model of codetermination with a more equal distribution of control rights among shareholders and employees, see ferreras 2012. 9. for overviews of recent normative debates, see dow 2003: chapter 2; hsieh 2008, and gonzález-ricoy 2010. 36 íñigo gonzález-ricoy leap 2 (2014) in order to illustrate this, let us assume for a moment that the argument is sound, and briefly apply it to two usual arguments against workplace democracy, namely, that employees often lack the expertise required to run a firm (call it the epistemic argument) and that only shareholders should have control rights for they are the only suppliers of capital (call it the argument from capital supply). ( just to be clear, in this section i will not assess the merits of the parallel-case argument, something that will only be done in the next section. i only show how the argument could be used if it were sound.) 2.1. the epistemic argument firms are complex institutions that operate in constantly changing economic environments. their management involves decisions about investment policies, production engineering, contracting, compensation, and budgetary planning, among many other technical and complex issues. why, then, should workers be granted a say in their governance when they often lack the expertise required to make informed decisions about such issues? as an executive commented, “what? and let the monkeys run the zoo!” (quoted in christie 1984: 115). according to the epistemic argument, (a1) complex institutions should not be governed by those who lack the expertise to govern them sufficiently well (i.e. to at least some specific level of competency). (a2) firms are complex institutions and workers lack the expertise to govern them sufficiently well. therefore, (a3) firms should not be governed by their workers. however, consistently extended, (a1) allows for an analogous criticism of democracy in the state. put simply, (a4) states are also complex institutions and not all citizens have the political expertise required to govern them sufficiently well. therefore, (a5) states should not be governed by all their citizens. as we shall see below in section 3, it is possible to resist (a5) by claiming that (a1) applies differently to firms and states due to certain relevant differences between them. for example, efficiency may be crucial in the firm yet not in the state and, accordingly, expertise may be crucial in governing the firm yet firms, states, and democracy 37 leap 2 (2014) not in governing the state. since the goal of this subsection is just to illustrate how the parallel-case argument could be employed if it were sound, let us assume that (a1) applies equally to both domains. two possible reactions follow to (a5). on the one hand, it is possible to accept (a1)-(a5). this was common until not so long ago. for instance, in defending the restoration of suffrage restrictions in france right after the thermidorian coup of 1794, boissy d’anglas (1795) famously stated that “we must be governed by the best, and the best are the more educated”. jason brennan (2011) has recently argued similarly. however, on the other hand, it is possible to deny that it is permissible to disenfranchise some group of voters regardless of how competently they cast their vote, thus rejecting (a5), which most of us would nowadays do. now, from the latter option it follows that, if (a2) is true, then (a6) (a1) should be rejected, i.e. expertise should not be a necessary condition for the governance of complex institutions. it may be further replied that (a1)-(a5) is too radical an argument, for some degree of insulation of expertise from democratic control may not be at odds with political equality, as the insulation of central banks and constitutional courts from parliamentary decision-making in most democracies proves. this is surely a controversial argument, since it might be argued that the insulation of expertise from democratic control does pose a constraint on political equality, even though such constraint may be justified for reasons other than political equality. however, for present purposes, it is irrelevant whether the argument is sound or not. for, even if it were, it would also apply to firms, given that certain tasks can also be insulated from workers’ control in democratic firms. jeffrey moriarty (2007: 344) has made the following claim along those lines: “it would be just as unwise to allow employees to elect their firm’s chief financial officer as it would be to allow citizens to elect their country’s chairman of the federal reserve board”. the parallel-case argument does not imply that democratic firms ought to include this sort of insulation. it only shows that the scope and limits of democracy and the precise mechanisms of accountability that are to be used are as up for grabs in democratic firms as they are in democratic states. as walzer (1983: 302) points out, “in a developed economy, as in a developed polity, different decisions are made by different groups of people at different levels of society. the division of power in both cases is only in part a matter of principle; it is also a matter of circumstance and convenience”. 38 íñigo gonzález-ricoy leap 2 (2014) 2.2. the argument from capital supply the parallel-case argument can be similarly applied to the argument against workplace democracy from capital supply, according to which workers should not be granted control rights over the governance of the firm because they supply labor but not capital. workers can always choose to work for democratic firms, take over their own firm in case it goes bankrupt, or try to get a majority of its voting shares. as nozick (1974: 250) put it, “persons may form their own democratically-run cooperative firms. it is open to any wealthy radical or group of workers to buy an existing factory or establish a new one, and to institute their favorite microindustrial scheme; for example, worker-controlled, democratically-run firms”. in capitalist firms, however, shareholders supply capital. accordingly, only they should govern the firm. in short, according to the argument from capital supply, (b1) only those who supply capital should govern the firm. (b2) workers supply labor but not capital to the firm. therefore, (b3) workers should not govern the firm. before turning to the parallel-case argument against (b3), the following caveat is required. even if we accepted that only shareholders should have control rights over the governance of the firm, it might be argued that workplace democracy need not trump such rights, for it need not be compulsory. true, some (for example, cohen 1989) have argued for an inalienable right to workplace democracy. yet it might be argued that workplace democracy can be implemented gradually and voluntarily, by means of providing legal advice, tax benefits, or direct subsidies to democratic firms, rather than, say, through expropriation or prohibition of non-democratic ones (see bowles and gintis 1996: 66). now, even when workplace democracy is not compulsory, a rationale is still required to justify why the state should promote democratic firms at the expense of non-democratic ones. to be sure, there is a notable difference between using state coercion to ban non-democratic firms, on the one hand, and using its public resources to promote democratic firms at the expense of non-democratic ones. however, in both cases public means are used to benefit one managerial option at the expense of the other. hence, the argument from capital supply still poses a potential threat to the justification of a non-mandatory-yet-publiclypromoted workplace democracy. 10 10. i am grateful to joseph mazor for pressing me to clarify this. firms, states, and democracy 39 leap 2 (2014) let us now go back to premise (b1), according to which supply of capital implies exclusive control rights over the governance of the firm. as in the case of (a1), consistently extended, (b1) leads to a similar criticism in the political realm. the following one: (b4) not all citizens contribute equally to the revenue of the state, if at all. therefore, (b5) not all citizens should govern the state. again, assume that firms and states are similarly enough for (b1) to apply to both realms. if so, we are again faced with two options. on the one hand, we can accept (b5). this has been a usual way to argue for property and tax qualifications for voting throughout history. john jay’s “favorite maxim”, according to which “those who own the country ought to govern it”, largely expressed what was common sense until nineteenth —and twentieth— century extensions of the franchise ( jay, 1833: 70). few would accept (b5) nowadays though. now, if we reject (b5), then it follows that (b6) premise (b2) should also be rejected, i.e. supply of capital should not be a necessary condition to govern the firm. 3. the structure of the parallel-case argument as we have just seen, by tracing a close analogy between firms and states, the parallel-case argument pushes the debate on the desirability of democracy in the workplace to the political realm, in which democracy is the default normative position. further, since some of the arguments that are used nowadays against democracy in the workplace, such as the epistemic argument and the argument from capital supply, closely resemble arguments that were once used against democracy in the state yet few would accept nowadays, the argument suggests that we may be using such arguments uncritically. in this section i unfold the structure of the argument. robert dahl (1985: 111) provides the best-known account of the parallelcase argument, according to which “if democracy is justified in governing the state, then it must also be justified in governing economic enterprises; and to say that it is not justified in governing economic enterprises is to imply 40 íñigo gonzález-ricoy leap 2 (2014) that it is not justified in governing the state”. of course, the second sentence is redundant. it is just a different yet logically equivalent way to express the material conditional stated in the previous sentence, namely, that parallel-case argument: if democracy is justified in governing the state, then it is justified in governing economic enterprises. further, even though dahl formulates it in merely conditional terms, his discussion of the pca favors a biconditional conclusion. as lópez-guerra (2008: 15) points out, it would be certainly awkward if dahl agreed that democracy could be justified in the workplace yet not in the state, as mere conditionality implies. even though the previous definition of the argument is enough for the goals of this paper, the following modified version of it follows: strong parallel-case argument: democracy is justified in governing the state if and only if it is justified in governing economic enterprises. what links the antecedent and the consequent is that economic enterprises and states are taken to be analogous in some morally relevant sense. the parallel-case argument is thus an analogical argument. it refers to some similarities between two objects or systems of objects —namely, firms and states— in support of the conclusion that some further similarity exists (see bartha 2010: chapter 1). it unfolds as follows: (c1) economic enterprises are similar to the state regarding certain features. (c2) such features are individually sufficient to justify democracy in governing the state. therefore, (c3) such features are individually sufficient to justify democracy in governing economic enterprises. for this version of the argument to avoid being invalid, at least one further condition needs to obtain. in addition to their similarity regarding certain features that are sufficient to justify democracy in the state, firms and states ought to be similar regarding the absence of a number of aspects that may block the justification of democracy in either realm. for example, it may be the case that being subject to certain form of power by public officials is sufficient to justify democracy in the state, and that managers exercise the same sort of power in the firm. however, it may also be the case that democracy is inappropriate to govern firms because of the stiff competition they face in the market, while it is not to govern the state because states firms, states, and democracy 41 leap 2 (2014) do not face such competition in the international sphere, and that this difference is sufficiently strong to override the similarity regarding the sort of power exercised in both spheres. in the next section i will consider two potentially relevant similarities between firms and states —regarding their effects and regarding the standing of their members. in the next one, i will turn to three potentially defeating differences between states and economic enterprises. before turning to these similarities and differences, a caveat is nonetheless in order. 11 the plausibility of the conclusions drawn from the argument depends on the moral relevance of the similarities and differences under consideration for the justification of democracy in either realm. hence, it might be argued that the features considered below in this section —even when similarly present in firms and states— are irrelevant for the justification of workplace democracy because different governance schemes (notably, workplace democracy and political democracy) ought to be assessed according different moral criteria. an argument of this type has been advanced by lópez-guerra (2008), who concedes that firms and states might be similar regarding one of the features that will be considered below, namely the exercise of power within them. yet, he argues, economic justice, and not the exercise of power, should be the criterion employed in assessing the organization of the firm. accordingly, the parallel-case argument fails because it overlooks the possibility that certain features that are morally relevant for the assessment of some governance schemes may be irrelevant —or not relevant enough to override some further differences that are morally more relevant— when assessing other schemes. two replies can be advanced. the first one is that lópez-guerra’s argument is compatible with the argument presented in this paper. the reason for this is that here i assume a pluralistic view of the values that are morally relevant to the assessment of democracy. hence, as it will become apparent immediately below, my goal is not to assess if the features that i consider below are morally relevant for the justification of democracy. i make the normative assumption that they are, and that they need to be balanced against each other (something that i do not attempt to do here either). my goal here is rather to analyze if such features are similarly present in firms and states. if the normative assumption turned out to be wrong, then the conclusions drawn from the present analysis would have to be recon sidered. the second reply is that, even if we accepted lópez-guerra’s argument, the parallel-case argument could still hold. lópez-guerra seems to believe that, if we prove that the exercise of power is not a relevant moral criterion 11. i am grateful to a referee for this journal for pressing me to introduce this caveat. 42 íñigo gonzález-ricoy leap 2 (2014) (or not relevant enough to override some other criteria), we then also prove that the argument is invalid. but this is because he explicitly assumes that the parallel between firms and states has to be based on the exercise of power. to be sure, this has been the main basis in the existing literature, in which it has been assumed that democracy should be equally applied to firms and states because the same sort of power is exercised in both realms. however, there is no reason why the parallel-case argument could not be based on the similarity between firms and states regarding some other moral criteria (for example, how profoundly the decisions made by firms and states affect workers and citizens, respectively). and, once we accept this, it may be the case that firms and states are similar enough regarding these further criteria to make the argument work. 4. similarities firms and states are similar in a number of ways. 12 however, not all the features that firms and states share are equally suitable to be included in this category. these should be limited to those features that may satisfy premise (c2), i.e. those features that may be sufficient for the justification of democracy in the state. now, different normative theories of democracy will provide different accounts of which precise features count as sufficient in justifying democracy in the state. for instance, pure instrumentalist theories will consider only process-independent features, such as welfare maximization or the protection of fundamental rights, while noninstrumentalist theories will look at process-related features, such as the exercise of power by public officials. in the remainder of this subsection i will consider two similarities that have dominated recent debates and that are plausible candidates to justify democracy in the state. more specifically, i will briefly consider, first, the external and internal effects of firms and states and, second, the power exercised by managers and public officials. 4.1. effects let us begin with one of the several principles by which democracy has been justified in the state. according to the principle of all-affected interests, all which interests are affected by a decision ought to have a say in that 12. here i refer to evaluative similarities, i.e. similarities in the values relevant to their assessment, rather than to non-evaluative similarities (e.g. they both are ways of distributing decision-making powers between individuals). firms, states, and democracy 43 leap 2 (2014) decision. 13 since the goal of this paper is not to consider which principles may justify democracy in the state but to assess whether such principles apply equally to firms and states, let us assume that the principle of allaffected interests is sufficient to justify democracy in the state. in considering whether it applies equally to both realms, we need to look at those individuals that are affected by decisions made by firms and by states and the extent to which their effects are similarly pervasive. we can distinguish between two sorts of effects —namely, internal effects (i.e. effects on individuals who are members of the two sort of institutions under consideration) and external ones (i.e. effects on outsiders). even though external effects turn out to be irrelevant for the issue at hand, let me briefly show why before turning to internal ones. it has been often argued that firms’ decisions have a pervasive influence beyond the limits of the firm, both social and political. 14 further, it has been claimed that such influence is as pervasive as the influence of states —if not more— in the case of large companies. for instance, in 1999, general motors’ annual revenue was larger than the revenue of the netherlands, exxon mobil’s revenue larger than spain’s, daimlerchrysler’s revenue larger than canada’s, and so on (chowla 2005: 3). as such, large companies’ social and political influence often resembles, if not exceeds, that of states. however, this analogy is irrelevant for the issue at hand for at least two reasons. 15 first, assuming that the analogy holds, it holds only —or to a much greater extent— for big businesses. the influence of small and medium businesses, by contrast, is not comparable to the influence of states. second, even assuming that it holds for all firms, it does not have a bearing on the justification of democracy, neither within the state nor within firms. under the principle of all-affected interests, all stakeholders, and not only workers, would have to be granted a say over firms’ decisions. similarly, aliens who are affected by the externalities of the state, and not only citizens, would have to be granted a say over its decisions. accordingly, stakeholder democracy and global democracy would obtain, rather than democracy within the firm and within the state. consider now the more interesting case of internal effects. it can be argued that decisions made by managers affect workers as much as decisions made by public officials and elected officials affect citizens. on the one hand, firms’ decisions can affect workers and their families directly 13. for a discussion and defense of the principle, see goodin (2007). for a criticism, see saunders (2012). 14. as néron (2010: 336) has put it, “[firms] control vast human, organizational, and financial resources, and labor; they influence national governments and local communities; and they support (directly and indirectly) everything from education to the arts and sports”. 15. i am grateful to two referees for this journal for pressing me to clarify this. 44 íñigo gonzález-ricoy leap 2 (2014) through day-to-day commands or the setting up of the working conditions. for example, in europe almost as many employees die on average due to fatal accidents in the workplace as citizens die due to intentional homicide. 16 on the other hand, firms’ decisions can affect workers indirectly, as a side effect of strategic decisions such as production planning or relocation. the relevance of these internal effects is enhanced by two further facts. first, workers spend one third of their adult lives in their workplaces, probably more time than anywhere else. second, given that work is a central source of self-esteem in modern economies, these effects do not have a merely instrumental importance to workers. they are also intrinsically important. 17 in short, internal effects of firms’ decisions provide —assuming that the principle of all-affected interests suffices to justify democracy in the state— a robust candidate to ground the parallel-case argument. 4.2. standing in defining the similarities between firms and states, most uses of the parallel-case argument have not focused on the influence of firms’ decisions in contrast with the influence of states. rather, they have focused on workers’ standing in relation to firms as analogous to citizens’ standing in relation to the state and, notably, on the power exercised by managers and public officials. 18 this is a feature that is often seen, at least in the state, as sufficient to justify granting control rights to those over whom such power is exercised (and, again, i will assume that this is the case). accordingly, it is not very surprising that this version of the argument has been dominant. it is not very controversial that employees are subject to the power of their employers. in contrast to self-employment, in which workers exchange the product of their labor in the market, rather than their labor force, the very point of the employment relationship is the subordination of the worker to the command of the employer. in large firms, managers rather than owners exercise command on behalf of the latter in the daily running of the firm. managers, thus, have power over employees because they have the ability to make the latter perform actions that they would not otherwise perform. what is controversial, then, is not so much whether employers and managers have power over employees. it is clear that they do. and almost as matter of definition, since managers’ ability to issue directives to which 16. in the eu there were 2.5 fatal accidents per 100,000 persons employed in 2008 and 3.5 intentional homicides per 100,000 inhabitants in 2011. see eurostat (2012: 190) and united nations office on drugs and crime homicide statistics, at http://www.unodc.org/unodc/en/ data-and-analysis/homicide.html (accessed july 6, 2013). 17. on normative issues related to work and self-esteem, see schwartz (1982), arneson (1992), and moriarty (2009). 18. dahl (1985) is the classic reference relying on the power exercised within the firm. http://www.unodc.org/unodc/en/data-and-analysis/homicide.html http://www.unodc.org/unodc/en/data-and-analysis/homicide.html firms, states, and democracy 45 leap 2 (2014) employees have to conform is a core feature of the employment relationship. what is controversial is whether such power is similar to the power exercised by elected representatives and officials in the state. there are three potential differences between firms and states that might call into question that they are. the first potential difference is that the power exercised by employers is more heavily constrained than the power exercised by elected officials. this could be the case because employers and employees sign a labor contract at the outset of the relationship that clearly specifies the terms under which the relationship will be conducted. by contrast, citizens and elected governments do not sign any such contract. true, in democratic countries citizens elect their representatives. but the latter enjoy ample discretion once they have been elected. they are not subject by binding instructions from the former, or by their own party manifesto. (it might be argued that party manifestos are contracts, but this is at most metaphorical because, unlike labor contracts, they are not legally binding). accordingly, while employers’ exercise of power is heavily constrained (by the employment contract), the exercise of power by elected officials is not. however, this difference is overdrawn. neither the discretion of elected officials is completely unconstrained, nor is the discretion of managers completely constrained. in the state, elected officials are legally constrained by vertical and horizontal forms of accountability. first, they are subject to regular elections, in which they need to be reelected. this poses a de facto constraint on the extent to which they can deviate from their electoral promises and party manifestos while in office. second, their power is legally constrained by the constitution and the checks and balances of the other branches of the state. managers in firms, on the other hand, enjoy ample discretionary powers beyond the terms of their employment contracts because such contracts turn out to be incomplete when they are applied to concrete cases and unforeseeable contingencies. since it would be impossible or prohibitively costly to anticipate every detail and contingency at the outset of such contract, and since some flexibility is desirable to adequately address such contingencies, employers are unavoidably granted ample discretion to issue commands. 19 a second potential difference is that —unlike citizens in non-democratic states, who do not have a say over decisions imposed upon them by public officials— employees in non-democratic firms do have a say over decisions imposed upon them. this is because they can elect the public officials who regulate the exercise of power in the workplace, and who decide, for that matter, whether the workplace should be democratized or not. once 19. i fully develop this argument in gonzález-ricoy (2014: 244-248). 46 íñigo gonzález-ricoy leap 2 (2014) employees get their say in more general elections and are thus able to shape how corporations should operate, it may be argued, the case for democracy in the workplace becomes much weaker than the case for democracy in the state. this, however, does not make the power exercised by non-democratic managers of firms operating in democratic countries irrelevant. to see why, consider the case of a country in which democracy applies at the state level yet not at the municipal level. i take it that the fact that citizens can elect public officials at the state level does not make the power exercised by public officials at the municipal level irrelevant, even if the latter have to exercise their power within the democratic limits imposed by the former, just as it does not make the case for municipal democracy irrelevant. analogously, the fact that workers have a say at the political level certainly makes a difference for the issue at hand, since it constrains the power that managers can exercise upon them. however, it does not make such power innocuous as far as managers enjoy some discretion (something that, as pointed out before, is intrinsic to the employment relationship), and it does not make the case for democracy in the workplace completely irrelevant as a result. a third potential difference is that the power exercised in the firm is more easily avoidable than the power exercised by public officials. as arneson (1993: 139) has argued, employees can “generally escape the reach of ... unwanted policies by quitting one’s job and taking another”. citizens, by contrast, cannot leave their country and enter another one so easily, if at all. the sort of power to which employees and citizens are subjected is, thus, very different. this is an important potential difference that might block the analogy, and it has been extensively discussed in the relevant literature. for now, however, let us put it aside, for it will be discussed in some detail immediately below in section 5.1. 5. differences in the previous section i have argued that the similarities between firms and states regarding their internal effects, as well as their similarities with regard to the exercise of power within them, are good candidates to ground the parallel-case argument. assume that this is correct —or that some further similarities between firms and states exist, and that such similarities are, other things being equal, sufficient to favor democracy both in the state and the firm. even if that is the case, however, these similarities only provide pro tanto reasons in favor of workplace democracy. further differences between the firm and the state may end up overriding them, thus blocking the justification of workplace democracy on balance. in this subsection i will focus on three potential differences. first, firms are voluntary associations while states are not. second, firms have well-defined purposes while states firms, states, and democracy 47 leap 2 (2014) are open-ended. third, firms face stiff competition by other firms while states do not face a similar competition by other states. 5.1. voluntariness the potential difference that has dominated the debates about the parallel case is that firms are voluntary associations while states are not. as arneson (1993: 139) claims, “the most significant disanalogy between states and firms is voluntariness”. the reason for this, according to arneson and others (narveson 1992; see also dahl 1985; mayer 2000; hsieh 2008; cordelli, unpublished), is that workers are entitled to leave economic enterprises at will, while leaving the state may be impossible or very costly. two problems with how this debate has proceeded are (i) that the notion of voluntariness is rarely made explicit in full and (ii) that it is unclear whether the lack of exit rights necessarily entails that an association is involuntary (which most of the literature about the parallel-case argument assumes). here i will not attempt to clarify these two problems. rather, i will assume, following the relevant literature, that exit rights and the ability to exercise them without incurring excessive costs are necessary to deem an association voluntary. when the members of an association lack exit rights, or the costs of exercising them are unbearable (say, because of the absence of acceptable alternatives), then their agreement cannot be deemed fully voluntary. 20 in what follows, i will accordingly limit myself to discussing the potential differences between firms and states with this regard. the basic reason why exit rights are deemed so crucial for voluntariness is that, when the members of an association are entitled to leave it without incurring excessive costs, by remaining inside of it they are taken to consent to the terms of the association. from this standpoint, firms might have been involuntary associations in nineteenth-century england, when master and servant acts were in force and employees were criminally prosecuted for quitting their jobs. and involuntariness may sometimes persist nowadays in monopsonistic labor markets, or in markets of forced labor. 21 however, in free, competitive, and fully clearing labor markets, so the argument often goes, firms are voluntary associations because employees are entitled to 20. notice, however, that the sort of involuntariness that results from the lack of exit rights is different from the sort of involuntariness that would render a contract nonbinding, as scanlon (2000: 245) suggests. the mere absence of exit rights does not exempt the parties, thus, from their duty to honor their agreements. 21. according to the ilo’s forced labour convention no. 29, forced labor is all work or service that is exacted from any person under the threat of a penalty and for which the person has not offered herself voluntarily. 48 íñigo gonzález-ricoy leap 2 (2014) quit at will. 22 by contrast, states are involuntary because exit is impossible or prohibitively costly. two important implications follow. the first one has to do with the analogy between firms and states regarding their internal effects and the exercise of power within them. while citizens can hardly escape such effects as well as the exercise of power by public officials, employees can generally avoid them by terminating their employment contracts. further, employees can use such freedom as an implicit yet ever-present threat against their employers. as a result, the latter may well ex ante modify their behavior so as to incorporate the interests of their employees, thus minimizing the possibility of such freedom being exercised, thus reducing the employee turnover rate. this is not to say that freedom to exit completely rules out employers’ power over their employees, or that the latter are not affected by the decisions of the former any longer. rather, it means that employees are affected and subjected by such decisions very differently, and to a lesser extent, from how citizens are. the second implication follows from the first one. as i have argued in the previous section, the parallel-case argument can be grounded on the internal effects and the power exercised within firms and states being similar. now, if they are not —because, unlike states, firms are voluntary associations, which members are entitled to join and leave at will— then the argument for workplace democracy based on the analogy turns out to be blocked. as bowles and gintis (1993: 97) put it, “if the capitalist economy is a sphere of voluntary private interactions, what is there to democratize?” jan narveson (1992: 53-54) nicely summarizes these two implications: “if a firm doesn’t like the way you do your job, can it send men with guns who will put you in prison if you don’t do it the way the boss says? ... it is fundamental to politics that political association is not essentially voluntary ... once a gathering is plainly voluntary, then there simply is no case for imposing “democratic” structures and procedures on it.” however, this contrast between firms and states is overdrawn. even though it is generally more costly to leave one’s country than to leave one’s job, the difference is one of degree, not of kind, for leaving one’s country is, at least formally, as possible as leaving one’s job. true, leaving one’s country is very costly. it includes serious obstacles such as closed borders, linguistic 22. as a referee for this journal has suggested, markets might not need to fully clear for entry and exit from firms to be voluntary, provided that workers are sufficiently protected from unemployment, e.g. through employment benefits or a basic income. i have considered this alternative argument for the voluntariness of firms in gonzález-ricoy (2014: section 3). here, however, i limit the analysis to the stronger argument according to which, even in the absence of such protection, entry and exit from firms in free and competitive markets is voluntary. firms, states, and democracy 49 leap 2 (2014) barriers, and travel expenses, in addition to the fact that moving from one country to another usually implies changing jobs, while one can change jobs without changing countries. however, leaving one’s job does not go without sacrifice either. briefly consider the following reasons. 23 first, imperfect labor markets have involuntary unemployment, which makes it costly for employees to quit provided that they would not be able to find another job easily. 24 second, even if labor markets cleared, there are additional exit costs that can lock-in employees, including the following four: (i) investment costs in developing firm-specific human capital; (ii) integration costs in the network of co-workers, customers, etc.; (iii) searching and transition costs from one job to another; (iv) psychological costs in quitting work altogether provided that work is a relevant source of self-esteem in modern societies. third, in addition to these costs, freedom to exit, even when costless, may not be sufficient for voluntariness when the alternatives are not acceptable. to see why, consider the following case: 25 a is an employee who toils in a humiliating job and wishes to change jobs. for a, leaving her present job is both available and costless. as the labor market fully clears, a has numerous job alternatives available. however, all these alternatives are as humiliating as her present job. eventually, a decides not to quit and stays at her present job. is a’s decision fully voluntary? i take it that most of us would respond in the negative (even though, as i said above in note 20, not in a sense that would render a’s labor contract nonbinding), which shows that freedom to exit does not always suffice for voluntariness. when the range of options available to us is not acceptable, then formal exit rights, which a in the case above holds, do not suffice for voluntariness. in short, leaving one’s job may be less costly than leaving one’s country. however, this is a difference of degree, not of kind, for leaving one’s job also has important costs. in addition, when acceptable alternatives are absent, freedom to exit, even when costless, does not suffice for voluntariness. accordingly, any conclusion on the justification of democracy in the workplace drawn from the parallel-case argument would be less compelling than the corresponding justification of democracy in the state. yet it would not be forceless. 23. i have developed these reasons in more detail in gonzález-ricoy (2014: 239-241). 24. shapiro and stiglitz (1984) have shown that, under conditions of imperfect information, this is also the case in perfectly competitive markets, which need a sufficiently large unemployment rate to remain competitive. 25. serena olsaretti (1998: 71) advances a similar example. 50 íñigo gonzález-ricoy leap 2 (2014) consider now two objections. 26 first, it might be argued that the mentioned costs, as well as the circumstances in which exit rights may be insufficient for involuntariness, vary enormously across employees and firms. for example, employees who possess scarce and valuable skills may bear lower costs if they quit than employees who lack such skills. however, these differences are also present in the state, in which exit costs are also very unevenly distributed across citizens and different states. hence, some citizens might find it more costly to leave their country than others, and some countries may make it more costly for their citizens to leave than others. accordingly, the analogy between firms and states regarding these differences holds and if democracy is justified in the state despite these differences, then it follows that it is justified in firms as well. second, even if democracy may be favored both in the state and in the workplace due to their similarly profound and unavoidable effects on citizens and workers, respectively, it may be objected that this argument can be blocked by appealing to the idea of freedom of economic association. workers, it may be argued, have a right to freedom of economic association that empowers them to bind themselves to agree to obey commands of a non-democratic firm, and they have this power even if their set of valuable alternatives is very limited. i raise two points in response. first, as joshua cohen (1989: 48) has claimed in response to a similar objection, while it may be valuable to be able to choose the economic activity in which one engages as well as the parties with whom one associates, there may not be any fundamental interest protected by the liberty to sell labor for a wage and to be subjected to undemocratic command in the workplace instead of, say, working as a member of a co-operative. second, even if we assume that freedom of economic association does entail a right to work for nondemocratic firms, this freedom does not necessarily override workers’ right to workplace democracy. even though these two rights may sometimes conflict with each other, in the sort of economy envisaged by most proponents of workplace democracy —in which workplace democracy (unlike, say, mandatory schooling) is a right that can be alienated— it is not entirely implausible that both rights coexist. 27 26. i am grateful to a referee for this journal and to andrew williams for raising these objections. 27. according to bowles and gintis (1996: 66), for example, “to argue against mandatory workplace democracy is to critique a straw man and to elide the fundamental issue, which concerns whether policies promoting workplace democracies are justified in the interest of giving workers the opportunity to participate in these forms of governance”. firms, states, and democracy 51 leap 2 (2014) 5.2. narrowness of purposes consider now a further yet related difference, namely, that firms are justified in having well-defined purposes, e.g. to maximize profits, while states ought to be open-ended, as phillips and margolis (1999) have argued. a reason for this is that, unlike firms, states are not voluntary associations. firms are justified in having narrow purposes their employees can always leave if they disagree with such purposes. states, by contrast, have to remain open-ended because their citizens cannot leave them easily if they disagree. hence, while it is acceptable for a firm to have certain narrow goals (say, produce and sell copies of the bible), it is unacceptable for the state to do so. an implication of this difference for the issue at hand is the following. when the goals of an organization are well defined and disagreement about them among its members is not very profound, the need for a collective decision-making procedure, democratic or otherwise, to set the goals that ought to be pursued is also weaker. 28 when, by contrast, goals are subject to more profound disagreements, the need for a decision-making procedure to handle such disagreements is stronger. it thus follows that if states are open-ended and have plural goals while firms have narrow purposes, then the case for democratic procedures in the state is stronger than the case for democratic procedures in the firm. there are good reasons, however, to resist this clear-cut distinction. firstly, according to phillips and margolis, purpose narrowness is allowed in firms and open-endedness is required in the state due to the fact that the former are voluntary organizations while the latter are not. however, as we have seen in the previous section, this difference is overdrawn, for exit from firms is often costly and the decision to stay, thus, not always fully voluntary (at least under the definition of voluntariness used before, which requires that meaningful exit rights are available and that does not necessarily render employment contracts nonbinding). now, if firms are not fully voluntary associations, then the case for purpose narrowness becomes weaker and the difference between firms and states regarding the narrowness of their goals becomes less clear-cut. there are further reasons to call into question that purpose narrowness should be allowed in firms and open-endedness should be required in the state. on the one hand, it is certainly the case that some libertarians have argued not only that making profits is perfectly respectable for economic enterprises, but also that it should be their only goal (typically, friedman 28. as przeworski (2006: 312) has put it, democracy presupposes, as a necessary condition, that “interests or values are in conflict. if they were not, if interests were harmonious or values were unanimously shared, anyone’s decisions would be accepted by all, so that anyone could be a benevolent dictator”. a similar argument can be found in waldron (1999) and valentini (2012). 52 íñigo gonzález-ricoy leap 2 (2014) 1970). however, this position has not gone without challenge, not least by corporate social responsibility approaches and stakeholder theorists. indeed, it is widely assumed nowadays that firms should have a diversity of goals, social and otherwise, other than maximizing profits. on the other hand, the requirement of open-endedness in the state can also be called into question. today, it is widely accepted that states have to comply with a number of narrow goals that constrain their sovereignty, including the fulfillment of human rights and the responsibility to protect their population. 29 in short, neither firms ought to have narrow purposes, nor the state ought to be completely open-ended. of course, this does not imply that firms and states ought to have similar goals (just as different firms have different goals). it rather implies that the difference between firms and states regarding the narrowness of their goals is less clear-cut than it is sometimes argued and that, given that firms should also have plural purposes, the argument for ruling out the use of democratic procedures in their governance turns out to be less compelling. 5.3. toughness and efficiency jeffrey moriarty (2005) has advanced a further difference that may have a bearing on the assessment of the parallel-case argument, namely, the tougher environment that firms face in the market compared to states in the international realm. in free-market economies, firms face stiff competition from other firms that attempt to drive them out from the market. they face continuous and rapid changes due to the appearance of new technologies and products, changes in consumers’ preferences, the introduction of new legislation, periodical economic downturns that make them likely to disappear, and so on. indeed, the us census bureau reports that the one-year failure rate for firms started in 2004 is 23.6 percent and the fiveyear failure rate for firms started in 2000 is 49.3 percent (headd 2010). by contrast, states face a less tough environment. they are much more resilient to changing circumstances, and their downfall is rare or at least rarer than in the case of firms. two relevant implications follow from this difference. first, moriarty claims that managers in firms should be granted extensive powers to face stiff competition in the market, as well as the ability to exercise them fast, that public officials need not have or not to the same extent. in times of economic downturn, he reckons, managers may need to be able to cut employees’ pay, give shareholders smaller returns, or renegotiate contracts with suppliers, provided that some minimal constraints (e.g. safety conditions) are respected. 29. a classic contemporary defense of human rights as constraints on state sovereignty is rawls (1999). firms, states, and democracy 53 leap 2 (2014) public officials, by contrast, need not have this sort of power, or not to the same degree. the environment they face is less tough, and dissolution of the state less likely to ever happen. second, even though this is a point that moriarty does not make, it may also be claimed that stiff competition and the constant threat of downfall make efficiency, in terms of the ratio of output to input, more important in the firm than in the state. the bearing of these two implications on the parallel-case argument is that both the need for extensive prerogatives and the crucial importance of efficiency may conflict with democratic decision-making, which may be too slow to adapt to changing environments, and may be less efficient than other decision-making arrangements. 30 accordingly, since the need for extensive prerogatives and the importance of efficiency due to stiff competition is greater in the firm than in the state, democratic decision-making may be less suitable in the former than in the latter. these differences, in turn, may block the parallel-case argument for democracy in the workplace or, at least, make any conclusion drawn from other similarities that firms and states may share less compelling. this is an important argument for, as the figures above suggest, firms certainly face stiffer competition than states. three replies can be advanced, though. first, governments also face tough circumstances, and the availability of emergency powers and the importance of efficiency may also be crucial in the governance of the state. as moriarty acknowledges, the difference between firms and states in this regard is one of degree, not of kind. 31 second, as it has been argued above, democracy in the workplace is not at odds with delegation of extensive prerogatives to managers, with the only difference that managers in democratic firms are appointed by workers rather than, or along with, shareholders, and accountable to them. third, it has been much discussed whether democracy in the workplace diminishes or improves efficiency. 32 this issue largely exceeds the scope of this paper. however, it may be too quick to assume that efficiency is at odds with democracy, either in the workplace or in the state. there are good theoretical and empirical grounds to believe that the contrary may be the 30. classic references on the inefficiency of democratic firms are jensen and meckling (1979) and alchian and demsetz (1972). 31. as andrew williams has suggested to me, it may be argued that competition is not only a fact but also a desirable fact in the economic domain, given the benefits of creative destruction. the same, however, may not be true in the political domain, since the social costs of political bankruptcy are so much higher. while this may entail that the difference is ultimately of kind, i leave it open whether the difference holds, for it implies a moral assessment of the benefits of competition that, regarding the economic domain, is highly contested to say the least. 32. some have argued that the fact that democratic firms are marginal shows that democratic firms are not efficient, for otherwise they would be created voluntarily. see jensen and meckling (1979). elster (1989) has replied that they could be marginal due to endogenous preference formation, adverse selection, discrimination, and externalities. 54 íñigo gonzález-ricoy leap 2 (2014) case, at least under certain circumstances (see bowles and gintis 1993; parks et al., 2004; levin 2006; for overviews of the debates, see dow 2003; hansmann 2000). in short, the difference in toughness that firms and states face is one of degree. it should not be overdrawn when assessing the limits to the parallel between firms and states. in addition, the difference might turn out not to have much bearing on the parallel-case argument, first, because democratic firms are consistent with the sort of powers that tough market competition may require and, second, because, they may not be inefficient in their operation. 6. conclusions if the features upon which the analogy between firms and states is based turn out to be sufficient to justify democracy in the state, then the parallelcase argument provides a plausible reason in favor of democracy in the workplace —a reason, however, that needs to be importantly qualified, i conclude, for a number of reasons. first, while the paper has shown that firms and states are similar regarding their internal effects and the power exercised within them, it has not attempted to demonstrate that these features are morally sufficient to justify democracy in the state. second, the paper has shown that there are a number of morally relevant differences that could override, or at least undermine, the similarities upon which the analogy between firms and states is based —even though it has also shown that these differences are often overdrawn, for they are of degree, not of kind. third, further differences that have not been considered here may further undermine the analogy between firms and states, thus blocking the parallel-case argument in favor of workplace democracy. in short, the case for democracy in the workplace, when drawn from the analogy between firms and states, and provided that democracy is justified in the state, is plausible. yet it is also not as strong as the case for democracy in the state. mcmahon (1994: 259) is thus right in acknowledging that “the case for democracy in nongovernmental organizations is weaker than the case for democratic government”, at least, when based upon the parallel-case argument. bibliography alchian, a., and demsetz, h., 1972: “production, information costs, and economic organization”, american economic review 62: 777-795. anderson, e., forthcoming: “equality and freedom in the workplace: recovering republican insights”, social philosophy and policy. arneson, r., 1987: “meaningful work and market socialism”, ethics 97: 517-545. firms, states, and democracy 55 leap 2 (2014) — 1993: “democratic rights at national and workplace levels”, in the idea of democracy, ed. d. copp, j. hampton, and j. roemer, cambridge: cambridge university press. bartha, pfa, 2010: by parallel reasoning. the construction and evaluation of analogical arguments, new york: oxford university press. birchall, j., 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i., 2010: “democratizar la empresa: un análisis desde la filosofía política”, revista de estudios políticos 148: 45-69. — 2014: “the republican case for workplace democracy”, social theory and practice 40: 232-254. 56 íñigo gonzález-ricoy leap 2 (2014) gosseries, a., and ponthíere, g., eds. 2008: “la démocratie d’entreprise”, revue de philosophie économique 8. hansmann, h., 2000: the ownership of enterprise (cambridge, ma: harvard university press. headd, b., et al., 2010: business dynamics statistics brief 5: what matters more: business exit rates or business survival rates?, us census bureau, center for economic studies, 2010. hsieh, n., 2008: “survey article: justice in production”, journal of political philosophy 16: 72-100. jay, w., 1833: the life of john jay, vol. 1, new york: j. & j. harper. jensen, m. c., and meckling, w. h., 1979: “rights and production functions: an application to labor-managed firm and codetermination”, journal of business 52: 469-506. landemore, h., and ferreras, i., unpublished: ‘towards a justification of the analogy firm/state”. lansbury, r., 2009: “workplace democracy and the global financial crisis”, journal of industrial relations 51: 599-616. levin, h. m., 2006: “worker democracy and worker productivity”, social justice research 19: 109-121. lópez-guerra, c.: “against the parallel case for workplace democracy”, revue de philosophie économique 8: 11-28. marshall, m. g., and cole, b. r., 2009: global report 2009: conflict, governance, and state fragility, vienna: center for systemic peace. mayer, r., 2000: “is there a moral right to workplace democracy”, social theory and practice 26: 301-325. mcmahon, c., 1994: authority and democracy: a general theory of government and management, princeton, nj: princeton university press. moriarty, j., 2005: “on the relevance of political philosophy to business ethics”, business ethics quarterly 15: 453-471. — 2007: “mcmahon on workplace democracy”, journal of business ethics 71: 339345. — 2009: “rawls, self-respect and the opportunity for meaningful work”, social theory and practice 35: 441-459. narveson, j., 1992: “democracy and economic rights”, social philosophy and policy 9: 29-61. néron, p., 2010: “business and the polis: what does it mean to see corporations as political actors?”, journal of business ethics 94: 333-352. nozick, r., 1974: anarchy, state and utopia, new york: basic books. olsaretti, s., 1998: “freedom, force and choice: against the rights-based definition of voluntariness”, journal of political philosophy 6: 53-78 o’neill, m., 2008: “three rawlsian routes towards economic democracy”, revue de philosophie économique 8: 29-55. o’neill, m., and williamson, t., eds., 2012: property-owning democracy: rawls and beyond, oxford: blackwell. parks, r.; kruse, d., and sesil, j., 2004: “does employee ownership enhance firm survival?”, in employee participation, firm performance and survival, ed. v. perotin and a. robinson, amsterdam: jai press. firms, states, and democracy 57 leap 2 (2014) perry, f., 2014: “reducing racial prejudice through workplace democracy”, journal of social philosophy 45: 203-227. phillips, r. a., and margolis, j. d., 1999: “toward an ethics of organizations”, business ethics quarterly 9: 619-638. przeworski, a.: “self-enforcing democracy”, in oxford handbook of political economy, ed. d. wittman and b. weingast, new york: oxford university press. rawls, j., 1999: the law of peoples, cambridge, mass.: harvard university press. saunders, b., 2012: “defining the demos”, politics, philosophy & economics 11: 280301. scanlon, t., 2000: what we owe to each other, cambridge, ma: harvard university press. schaff, k. p., 2012: “democratic rights in the workplace”, inquiry 55: 386-404. schwartz, a., 1982: “meaningful work”, ethics 92: 634-646. shapiro, c., and stiglitz, j., 1984: “unemployment as a worker discipline device”, american economic review 74: 433-444. united states department of agriculture, 2004: farm marketing, supply and service cooperative historical statistics, washington, dc: usda, rural business, cooperative service. valentini, l., 2013: “justice, disagreement and democracy”, british journal of political science 43: 177-199. waldron, j., 1999: law and disagreement, oxford: oxford university press. walzer, m., 1983: spheres of justice, new york: basic books. wilkinson et al., eds., 2010: the oxford handbook of participation in organizations, oxford: oxford university press. 58 issn 2341-1465 leap 2 (2014): 58-86 rethinking the good – a small taste l arry temkin rutgers university abstract this article aims to convey a few of the key claims and arguments of my book, rethinking the good: moral ideals and the nature of practical reasoning. the article gives an example of a spectrum argument, and illustrates that such arguments put pressure on the axiom of transitivity, which holds that for any three possible outcomes or alternatives, a, b, and c, if, all things considered, a is better than b, and b is better than c, then a is better than c. the article distinguishes between two different approaches to understanding the goodness of outcomes, the internal aspects view and the essentially comparative view. it suggests that two deeply plausible, but seemingly incompatible, positions underlying the spectrum argument, an additive-aggregationist position, and an anti-additive-aggregationist position, reflect the essentially comparative view, and that on such a view they are not incompatible. the article introduces several widely-held views about neutrality and dominance principles, and shows that some of these views are incompatible. the article contends that various ideals or views that people care about are most plausibly understood as essentially comparative, and notes that one such view, a narrow person-affecting view, will be especially difficult to reject in at least some cases. it also illustrates how such a view, like other essentially comparative views, threatens the axiom of transitivity. the article concludes by contending that we must seriously rethink our understanding of the good, moral ideals, and the nature of practical reasoning, while recognizing that the way forward is murky, at best. keywords: transitivity, practical reasoning, internal aspects view, essentially comparative view, narrow person-affecting view, spectrum argument, additive aggregation, good, better than, ideals. this article is based on my fall 2012 leap lecture given at pompeu fabra university. the lecture kicked off a symposium on my book, rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012), with responses to the book offered by oscar horta and ingmar persson, rethinking the good – a small taste 59 leap 2 (2014) followed by comments from me on those responses. 1 the aim of the lecture was not to give an overview of the book, which would have been impossible in the time allotted, but rather, as i told the audience, to give a very crude and brief tour of a few of the book’s arguments, just enough to give a sense for the sorts of issues the book explores. correspondingly, this article, like the lecture from which it is derived, is woefully incomplete and superficial. but, hopefully, some readers will find it sufficiently important and intriguing to turn to the book itself, where a more careful and sustained treatment can be found of the issues broached here, as well as many other issues central to our understanding of the good, moral ideals, and the nature of practical reasoning. this article is divided into six sections. in section i, i provide a brief introductory remark, and offer a simple example of a spectrum argument. the spectrum argument puts pressure on a widely accepted principle of practical reasoning which may be called the axiom of transitivity. according to the axiom of transitivity, for any three alternatives, a, b, and c, if, all things considered, a is better than b, and b is better than c, then, all things considered, a is better than c. 2 in section ii, i offer some background to some of the issues i discuss, and make some terminological distinctions. in section iii, i introduce a distinction between two different approaches to understanding the goodness of outcomes, which i call the internal aspects view and the essentially comparative view. i note how two seemingly incompatible positions underlying the spectrum argument, which i call an additive-aggregationist position, and an anti-additive-aggregationist position, can be seen as reflecting the essentially comparative view, and that on such a view they are not incompatible. i also note various considerations against rejecting the anti-additive-aggregationist position. in section iv, i introduce several widely-held views about neutrality and certain widely-held dominance principles. i show that some of these views are incompatible. in section v, i suggest that various ideals or views that people care about are most plausibly understood as essentially comparative. i focus on a particularly plausible version of a narrow person-affecting view, and note 1. i want to thank paula casal and josé luis martí for inviting me to deliver the leap lecture, for organizing the symposium, and for arranging for the publication of the symposium’s papers. i would also like to acknowledge my gratitude to horta and persson for their careful and thoughtful attention to my work. 2. here, i am using “the axiom of transitivity” as shorthand for “the axiom of transitivity of the ‘all-things-considered better than’ relation”. elsewhere, i often put my discussions in terms of “the axioms of transitivity”, where these include the “allthings-considered equally as good as” and “all-things-considered at least as good as” relations as well as the “all-thingsconsidered better than” relation. at times, i may shorten my descriptions and just talk in terms of the “better than”, “equally as good as”, or “at least as good as” relations. but, unless noted otherwise, if i consider whether one outcome is better, equally as good as, or at least as good as, another, i am considering whether the one outcome is better than, equally as good as, or at least as good as the other all things considered. 60 larry temkin leap 2 (2014) how this view, like other essentially comparative views, threatens the axiom of transitivity. in section vi, i conclude with some final remarks. 1. introduction and a spectrum argument in this article, i will be discussing a number of views that are widely taken to be obviously true. at first blush this may seem rather odd. why labor the obvious? the answer, in a nutshell, is that a number of the seemingly obvious views aren’t even true, much less obviously so! this follows from the simple fact that a number of the so-called “obvious” truths are incompatible with each other. or so i shall argue anyway. indeed, on reflection, it turns out that an awful lot of hard work needs to be done to sort out what we really should believe in the domains i shall be canvassing. i can’t do the required work here, in this article, but perhaps i can say enough to motivate the importance of taking up the task. i tried, in rethinking the good, to do much of the work in question. the result of that work, i believe, is that we need to significantly revise our current understanding of the good, moral ideals, and the nature of practical reasoning, and that such revisions will have profound practical and theoretical implications. the aim of this article is to provide a small taste of the questions addressed in my book, and what is at stake as we try to answer them. let me begin by presenting two very simple questions, and the answers these questions typically provoke. my first question goes like this. suppose that you or a loved one are going to have to experience a certain intensity of pain, for a certain duration, or a little bit less intense pain for twice, or three, or five times as long. which alternative do you think would be better for you or your loved one? when i asked that question during my leap lecture, there was total agreement amongst the audience of roughly forty people, that the first alternative would be better; that is, that an outcome involving a slightly more intense pain would be better than an outcome involving a slightly less intense pain, if the duration of the pain in the outcome with the less intense pain would be two, or three, or five times as long as the duration of the pain in the outcome with the more intense pain. the audience’s responses were very typical. among audiences around the world, involving 1000s of people over many years, virtually everyone thinks the better outcome would be the one with a slightly more intense pain that lasted significantly less long. indeed, i estimate that over 95% of the people of whom i have asked my question have responded the same way; and, as i usually like to put it, only half in jest, if several people in an audience of a hundred have answered differently, typically one or two are just being rethinking the good – a small taste 61 leap 2 (2014) difficult, or figuring it is a trick question, and the other one or two haven’t fully understood the question! my second question goes like this. suppose that you, or a loved one, are going to live for a long time. perhaps a very long time. and there are two ways your life might go. in one, you will have, on average, fifteen mosquito bites a month for the duration of your life and, in addition, at some point in your life you will have two years of the most excruciating torture imaginable — including such things as hot wax under your eyelids, bamboo shoots under your fingernails, electrical shocks to your genitals, and so on. you would be awake 18-20 hours per day, and during every waking moment your life would be much worse than nothing and you would wish you were dead. however, after the two years of torture, you would be given a pill so that you didn’t remember any of the pain. further, let us suppose that the torture would have no permanent impact on your body or brain, and that there would be no other effects of any kind during the remainder of your life, once the two years of excruciating pain was over. in the second way your life might go, there would be no torture of any kind. however, instead of fifteen mosquito bites per month for the duration of your life, you would have sixteen mosquito bites per month. bearing in mind that your life might be very long, which life would be better for you or your loved one; the life with fifteen mosquito bites throughout and two years of excruciating torture, or the life with sixteen mosquito bites throughout? to this question, all but one member of the leap lecture audience gave the same answer. and i think it is fair to say that many audience members were dumbstruck when someone voted for the position that the life involving two years of torture would be better than the life involving one extra mosquito bite a month, if only the two lives lasted long enough! as before, the reactions of the leap audience were very typical. of the thousands of people to whom i have posed such a question over the years, the vast majority of them —again, well over 95% i would estimate— have given the same answer to this question. they think that the life involving one extra mosquito bite per month would be better, indeed much better, than the life involving two years of excruciating torture, and they think this no matter how long the two lives might persist. as indicated, these two results are very robust. but together, they are inconsistent if one accepts the axiom of transitivity: that if, all things considered, a is better than b, and b is better than c, then all things considered, a is better than c. to see this, notice that when i asked my first question, i didn’t actually say how intense the two pains were, nor how long they lasted. and i didn’t need to! this is because it seems to be a general truth that no matter how intense a given pain might be, and how long it lasted, it would be better to have that pain than one that was only slightly less intense but which lasted much longer. 62 larry temkin leap 2 (2014) accordingly, one can imagine a spectrum of lives, each of which would be very long and each of which would have, as a persistent background condition, fifteen mosquito bites per month. the first life in the spectrum would also involve extraordinary pain (the equivalent, let us suppose, of excruciating torture) lasting for two years, and each subsequent life in the spectrum would involve slightly less intense pain than that involved in the preceding life in the spectrum, but the pain would last two, or three, or five times as long as the duration of pain in the preceding life of the spectrum. moving from the first member of the spectrum to the last, the pain gets slightly less intense though much longer, until eventually the pain has decreased so much that its intensity is the equivalent of but one extra mosquito bite per month, though instead of only lasting two years, as the pain did in the first member of the spectrum, the once a month mosquito-like pain extends throughout much, if not all, of the very long life. the point, of course, is that in accordance with the answer to the first question i asked, most people would agree that, all things considered, the first member of the spectrum would be better than the second, the second would be better than the third, the third would be better than the fourth, and so on. for each pairwise comparison, the life involving fifteen mosquito bites per month and a slightly more intense pain lasting a certain duration would be better, all things considered, than the life involving fifteen mosquito bites per month and a slightly less intense pain lasting two, or three, or five times as long. according to the axiom of transitivity, it follows that the first member of the spectrum must be better than the last. but the first member of the spectrum involves a life involving 15 mosquito bites per month and two years of excruciating pain the equivalent of torture, and the last member of the spectrum just involves 15 mosquito bites per month and many years of a minor pain that is the equivalent in intensity to one extra mosquito bite per month! thus, as we have seen, most people would reject the claim that the first member of the spectrum would be better than the last. indeed, i have found that most people —though admittedly not all— regard such a view as preposterous, if not downright absurd. it follows that if people want to maintain the answers typically given to my two questions above —answers to which, i believe, most people are deeply committed— then they must reject the axiom of transitivity. 3 3. the first spectrum argument challenging the axiom of transitivity was developed by stuart rachels (1993). rachels’s thinking about intransitivity was sparked by my original article on the topic, “intransitivity and the mere addition paradox” (temkin 1987), but his argument against intransitivity was entirely original and at the time it was the strongest argument yet posed against the axiom of transitivity. although i have developed and defended spectrum arguments in my own way over many years now, the basic structure of my arguments remains heavily indebted to rachels’s original argument. rachels’s published contributions in this area include rachels 1998, 2001 and 2004. many people have worried about the implausibly rethinking the good – a small taste 63 leap 2 (2014) this is a very striking result. because the axiom of transitivity is one of the key premises underlying expected utility theory, and expected utility theory is arguably the central theory underlying game theory, decision theory, and much of modern economics. so, rejecting the axiom of transitivity would entail rejecting, or substantially revising our understanding of, game theory, decision theory, and much of modern economics. since, in many ways, those theories are intended to model our best understanding of practical rationality, rejecting the axiom of transitivity would require us to drastically revise our understanding of what it is to be practically rational. put differently, the axiom of transitivity lies very close to the core of our current understanding of practically rationality. we believe that just as it is irrational to believe both a and not a, or to prefer a to b or believe that a is better than b, all things considered, while at the same time also preferring b to a, or believing that b is better than a, all things considered, so, too, we believe that it is irrational to prefer both a to b, and b to c, or to believe both that a is better than b and that b is better than c, all things considered, while at the same time also preferring c to a, or believing that c is better than a, all things considered. as economists would often put it, someone with intransitive preferences is irrational and they ought to get their preferences in order! in this context, the “ought” is the strong normative “ought” of individual rationality, implying that rationality requires that their preferences be transitive. it is worth adding that the axiom of transitivity is not merely an important theoretical assumption underlying our understanding of ideal rationality and some important academic fields, it plays an integral role in countless cases of everyday practical reasoning, typically without our even being aware of the role it is playing. for example, often when we are faced with a decision between various alternatives with a number of competing factors relevant to our decision, and a significant degree of indeterminacy involved regarding how much to weight each factor, we simplify our decision procedure by focusing on just two alternatives at a time. for instance, suppose we have decided to buy a new car, and based on our research we have narrowed our choice down to seven models. at that point, we might test drive the first model, and then test drive the second, and then, taking account of each of the factors that are important to us and how much we care about them —cost, gas mileage, reliability, resale value, ease long length of life that might be involved in the kind of spectrum argument presented in the text. i address such worries in rethinking the good, but also show that similar arguments can arise involving many different people all living at the same time, rather than a single person living at many times (see chapters 2, 5, and 9 for extended discussion and defense of spectrum arguments). 64 larry temkin leap 2 (2014) of repairs, handling, storage capacity, power, handling, comfort, looks, extra features, and so on— we might determine that, all things considered, the first model, a, is better than the second, b. in that case, we remove b from further consideration, test drive c, and then decide whether a is better than c. if c is better we remove a, from further consideration, test drive d, and proceed as before. in this way, we might straightforwardly determine which of the seven models to buy on the basis of a sequence of six direct pairwise comparisons, with the “winner” of each pairwise comparison advancing to a subsequent comparison, and the “loser” being discarded from further consideration. as long as we are confident in each of our pairwise judgments, we will be confident that we have determined the best car for our purposes given our preferences. moreover, given the many different factors we have to pay attention to, focusing clearly and carefully on the various models just two at a time, we will often be much more confident in any comparative judgments we might arrive at as to which of two cars is better, all things considered, than we would be in any absolute judgments about exactly how good each of the seven cars were, all things considered. as indicated, this simplifying decision procedure of focusing on just two alternatives at a time is a staple of many practical decisions involving multiple options. but, importantly, this decision procedure depends on the axiom of transitivity for its legitimacy. after all, we can only confidently remove b from further consideration after determining that a is better than b, all things considered, if we can be certain that it couldn’t be the case that there is some third alternative, c, which is both worse than b, and yet better than a, all things considered. for if it could be the case that, all things considered, a is better than b, which is better than c, which is better than a, then there would be no more reason to remove b from further consideration just because it is worse than a, than there would be to remove a from further consideration given that it is worse than c, or c from further consideration given that it is worse than b. it is the axiom of transitivity which presumably “guarantees” that this unfortunate predicament couldn’t arise. thus, as indicated, the axiom of transitivity is presupposed, often implicitly and unwittingly, in numerous cases of everyday practical reasoning. clearly, such reasoning is deeply flawed if the axiom of transitivity fails to hold. i suggest, then, that there is a great deal at stake, both theoretically and practically, if the axiom of transitivity fails. and for many years, i argued that spectrum arguments, such as the one given above, as well as various other arguments i developed, gave us good reason to conclude that the axiom of transitivity does fail. that is, i used to claim that we should conclude that all things considered better than is not a transitive relation. but my earlier claims were too strong, and hence misleading. rethinking the good – a small taste 65 leap 2 (2014) what i now think is that over the years i have developed a series of impossibility arguments. the axiom of transitivity is one of the key premises in my impossibility arguments, but it is not the only one. accordingly, each of the key premises of my impossibilities arguments are in play and, if the reactions to the work in this area over the years are any indication, the question of which of the premises should be given up is a difficult one about which people are deeply divided, and about which there is unlikely to be a consensus for years to come. a second key premise that is in play in spectrum arguments is a position i call the first standard view: trade-offs between quality and number are sometimes desirable. on this view, in general, it is better to experience more intense suffering for a shorter period of time than less intense suffering for a longer period of time, if the difference in the intensity of the two pains is sufficiently small, and the difference in their durations is sufficiently large. a third key premise that is in play in spectrum arguments is a position i call the second standard view: trade-offs between quality and number are sometimes undesirable even when vast numbers are at stake. on this view, in general, it would be worse to receive a more intense pain of a significant duration than a much less intense pain of virtually any duration, if the difference in intensity of pains is such that the more intense pain of significant duration would have a significant negative impact on one’s life, while the less intense pain of longer duration would have little negative impact on one’s life. each of the axiom of transitivity and the first and second standard views is powerfully appealing, and i believe that giving any of them up would have deeply implausible implications. so my current position is like that of a juggler, who is juggling a number of very valuable and fragile balls, and he can’t hang on to all of them. he has to let at least one of them drop, but can’t decide which one. initially, he may decide to let the first ball drop, and preserve the others. but as the first ball heads towards the ground he thinks he can’t possibly let that ball drop, so he quickly reaches out to preserve that ball and lets the second ball go, instead. but he then realizes that he can’t let that ball drop either, so he seeks to save that one, as well, steeling himself to let the third ball drop. but as the third ball gets closer and closer to the ground he realizes he can’t bear the thought of losing that ball either, so reaches out to save it with the thought that he’ll let the fourth ball go. this process continues, till he once again finds himself letting the first ball drop. the problem, of course, is that the cost of letting any of the valuable balls go seems unacceptably high, so he frantically wants to keep each of them in the air, but realizes that that option is ultimately unsustainable. to a large extent, my book is about determining what various positions stand or fall together, and illuminating both the benefits and costs 66 larry temkin leap 2 (2014) associated with retaining or abandoning each of the offending premises in my impossibility arguments. 2. some background and terminology many believe that giving up the axiom of transitivity is not an option. they believe that it is an analytic truth —literally true in virtue of the meanings of the words— that “all-things-considered better than” is a transitive relation. this is the view of john broome (1991 and 2004), and at one time it was the view of tom nagel, tim scanlon, and derek parfit. 4 i suspect that this, or something very close to it, is also the view of many economists, for whom the transitivity of the “all-things-considered better than” relation is an unquestioned, and perhaps even self-evident, axiom which needs no argument. i think this view is mistaken or, more charitably, deeply misleading. since people can use words as they see fit, let me first simply grant that there may be a use of the words “all-things-considered better than” such that it must be a transitive relation, by definition. so, if broome or others want to insist that as they use the notion of “all-things-considered better than” the axiom of transitivity is analytic, there is no point in denying or trying to refute their claim. but then, let me hasten to add that, as wittgenstein might have put it, meaning is use, and there is another, widely accepted and more normatively significant, usage of “all-things-considered better than”, what i call the reason-involving sense of “all-things-considered better than”, according to which to say that a is better than b, all things considered, is to say that from an impartial perspective there is most reason to rank a as more desirable than b taking full account of all of the factors that are relevant and significant for making that comparison. 5 and, as i shall suggest next, on that notion of “all-things-considered better than” —the reason-involving one— even if it is true that “all-things-considered better than” is a transitive relation, it is not an analytic truth, rather, it is a truth that turns on substantive facts about the nature and structure of the good. 3. the internal aspects view versus the essentially comparative view to see how the transitivity of the “all-things-considered better than” relation in the reason-involving sense turns on substantive facts about the nature and structure of the good, it will help to consider two alternative models for 4. nagel’s, scanlon’s, and parfit’s early views on this topic were conveyed to me during discussions when i was a graduate student (for more on this see my preface in temkin 2012). 5. ludwig wittgenstein’s famous contention that “meaning is use” is defended in wittgenstein 1958. rethinking the good – a small taste 67 leap 2 (2014) thinking about ideals in general, and moral ideals in particular, which i call the internal aspects view and the essentially comparative view. here is one natural and plausible way of understanding the internal aspects view. on this view, how good or bad any given outcome is with respect to any given ideal depends solely on the internal features of that outcome. likewise, how good or bad any given outcome is all things considered will depend solely on how good or bad it is with respect to each ideal. now this will be a function of how much the different ideals matter relative to each other, and it may, in fact, be a very complex function reflecting various holistic interaction effects between different ideals, but the key point is that on the version of the internal aspects view that i am now elucidating, ultimately there is a fact of the matter about how good or bad each outcome is, and that fact depends solely on the internal features of that outcome and the internal relations between them. so, on the internal aspects view, if one wants to assess how good or bad an outcome is, all things considered, it will always be sufficient to consider that outcome directly, by itself, in terms of all of the factors or ideals that are relevant and significant for assessing the internal features of outcomes. thus, for example, if one believes that equality is relevant to the goodness of outcomes, one will consider the extent to which equality or inequality is a feature of that outcome, and similarly for other relevant ideals such as justice, freedom, utility, perfection, and so on. one will then give each outcome its due weight, taking account, as necessary, of any relevant interaction effects, in order to arrive at an all things considered judgment regarding the outcome’s overall goodness. the internal aspects view allows room for epistemological ignorance about how good or bad any given outcome is, as well as room for believing that facts about the goodness of outcomes may be indeterminate or imprecise, but it is natural to assume that each outcome will have a precise or imprecise degree of goodness or badness that can, in principle, be accurately represented by a number or range of numbers on the real number line. so, for example, in principle it might be a fact that, all things considered, any given outcome might have 1013 “units” or “degrees” of goodness or, alternatively, perhaps there may be no fact as to precisely how good the outcome is, but it might still be true that it has between 1003 and 1023 “units” or “degrees” of goodness. for simplicity, in what follows i shall ignore the complication introduced by imprecision, and assume that each outcome can be given a precise number representing its degree of goodness. but the points i am making could also have been made in terms of ranges of numbers for those who believe that the degree or extent to which an outcome is good or bad 68 larry temkin leap 2 (2014) is (often) imprecise, and best captured by a range of numbers rather than a single number. 6 the internal aspects view is a natural and plausible way of thinking about ideals and their relation to the goodness of outcomes. it also supports various views that have been thought central to practical reasoning or the assessment of outcomes. for example, it clearly supports the axiom of transitivity, since if the number representing a’s degree of goodness based solely on a’s internal features is higher than the number representing b’s degree of goodness based solely on b’s internal features —which will be the case if a is better than b— and the number representing b’s degree of goodness based solely on b’s internal features is higher than the number representing c’s degree of goodness based solely on c’s internal features — which will be the case if b is better than c— then the number representing a’s degree of goodness based solely on a’s internal features will be higher than the number representing c’s degree of goodness based solely on c’s internal features —since “being a higher number than” is a transitive relation— and hence a will be better than c precisely as the axiom of transitivity requires. the internal aspects view also supports another principle which many economists and others have regarded as a central principle of practical reasoning, which is often called the independence of irrelevant alternatives principle (iiap). on iiap, to know how a compares with b it is sufficient to compare them directly, as how a or b compares with respect to some third alternative, c, or some other set of alternatives c through n, is irrelevant to how a compares with b. as we have seen, on the internal aspects view, any outcome a will get a score representing its degree of goodness and that score will be based solely on a’s internal features. and similarly for any outcome b. a will be better than, equal to, or worse than b, if and only if its score is higher than, equal to, or lower than b’s, respectively. accordingly, how a compares to b in terms of goodness follows directly from how good each of them is, considered just by itself, and doesn’t depend at all on how either or both of them compares to some third alternative or some other set of alternatives. thus, as indicated, the internal aspects view supports, or indeed implies, the independence of irrelevant alternatives principle. 6. some people reject the numerical model entirely. for example, in discussion, both derek parfit and ingmar persson have conveyed their rejection of any sort of numerical model for understanding the good. but while there are problems with any numerical model, i think this way of thinking about the internal aspects view is natural, plausible, and sufficient for my present purposes. i might add that a well-worked-out alternative to such a model has not yet been given. moreover, i am skeptical as to whether a coherent non-numerical model can be developed which will capture the most important and attractive features of an internal aspects view. i briefly touch on this issue at the end of my response to persson’s article (see temkin 2014: 151-52). rethinking the good – a small taste 69 leap 2 (2014) let me mention just one other principle of practical reasoning which has great plausibility and which is supported by the internal aspects view. it is plausible to believe that if two alternatives, a and b, are equally good, then however a compares to some third alternative c, that is exactly how b will compare to c. i call this principle the principle of like comparability for equivalents. it is easy to see how the principle of like comparability for equivalents holds if the internal aspects view is correct. on the internal aspects view, for any three outcomes, a, b, and c, how good a, b, and c are will depend solely on their internal features, and each of them will receive a score representing its degree of goodness. if a and b are equally good they will receive the same score, so clearly however a’s score compares to c’s score, that is how b’s score compares to c’s score. in sum, the internal aspects view has great intuitive plausibility, and it would support and explain a number of other widely accepted views about practical rationality that many have found compelling, including the axiom of transitivity, the independence of irrelevant alternatives principle, and the principle of like comparability for equivalents. the problem is that despite its great appeal, the internal aspects view doesn’t reflect the thinking that many people often engage in when assessing outcomes! in particular, as i argued in chapter 12 of rethinking the good, many of the ideals people value most reflect an essentially comparative view of moral ideals. this includes especially plausible versions of utility, maximin, the pareto principle, and the narrow person-affecting view. 7 on such views, there is no fact of the matter as to how good or bad an outcome is considered just by itself with respect to the ideal in question, or if there is, that fact has no special significance in comparing outcomes with respect to that ideal. rather, our assessment of how good an outcome is with respect to the ideal in question will depend on the alternative or alternatives with which it is compared. more specifically, on an essentially comparative view of ideals, the relevance and significance of the factors for assessing how good an outcome is regarding a particular ideal may differ depending on the outcome’s alternative(s), so, in essence, a given outcome may have one value regarding an essentially comparative ideal given one alternative, but a different value regarding that very same ideal given another alternative. 7. roughly, utility assesses the goodness of outcomes in terms of how much utility, or well-being, the sentient beings in those outcomes have, maximin assesses the goodness of outcomes in terms of how well off the worst-off individuals fare in those outcomes, and the pareto principle claims that in outcomes involving the same people, one outcome will be better than another if it is better for at least one person and at least as good for everyone else. i’ll discuss the narrow person-affecting view more later. as stated in the text, in temkin 2012: ch. 12, i argue that in many contexts, the most plausible versions of the ideals in question are essentially comparative. 70 larry temkin leap 2 (2014) it follows that if an essentially comparative view of moral ideals is correct —so, for example, in comparing certain outcomes it is legitimate, as many believe, to assess them in terms of essentially comparative versions of utility, maximin, the pareto principle, or a narrow person-affecting view— then there is no reason to expect the “all-things-considered better than” relation to be transitive. this is because if the relevance and significance of the factors for assessing an outcome can vary depending on the alternative with which it is compared, then it could well be the case that for any three alternatives a, b, and c, a might be better than b in terms of all of the factors that are relevant and significant for making that comparison, and b might be better than c in terms of all of the factors that are relevant and significant for making that comparison, and yet a might not be better than c in terms of all of the factors that are relevant and significant for making that comparison. after all, it could then well be the case that the factors that are relevant or significant for comparing a with c, and which might rightly support the judgment that a is not better than c, may differ from the factors that are relevant and significant for comparing a with b, or b with c, allowing for the real possibility that those factors might rightly support the judgment that a is better than b, and b is better than c. so, in reflecting on whether or not the axiom of transitivity holds, a key question is whether the nature and structure of ideals reflects an internal aspects view of the sort sketched above, or an essentially comparative view of the sort sketched above. and i submit that the answer to this question is a substantive matter determined by the nature of the normative domain, it is not a terminological matter determined by the meanings of the words “all-things-considered better than”! the words “all-things-considered better than” can’t dictate the nature and structure of the normative realm. if ideals have the structure embodied by the internal aspects view as i have characterized it, then, indeed, the axiom of transitivity will hold. but if at least some ideals have the structure reflected by the essentially comparative view —as might be the case— then it will not. i submit, then, that in the face of seemingly compelling arguments that put pressure on the axiom of transitivity, we must do the hard philosophical work of facing those arguments head on and determining which, if any, of their premises should be rejected. we cannot confidently reject such arguments on the analytic grounds that the axiom of transitivity is necessarily true in virtue of the meanings of the words “all-thingsconsidered better than”. in light of the foregoing, let us quickly revisit what appears to be going on in section i’s initial spectrum argument. the first standard view reflects an additive-aggregationist approach that seems relevant and significant for certain comparisons. that is, in comparing the first alternative with the second, it seems appropriate to basically multiply the intensity of the pain rethinking the good – a small taste 71 leap 2 (2014) times its duration, in determining which of the two alternatives is better, and this yields the plausible judgment that the first alternative (the slightly more intense pain of shorter duration) is better than the second (the slightly less intense pain of much longer duration). similar additive-aggregationist reasoning seems appropriate in comparing the second alternative with the third, the third with the fourth, the fourth with the fifth, and so on. however, the second standard view reflects an anti-additive-aggregationist approach that seems relevant for other comparisons. in particular, in comparing the first alternative with the last, most people don’t simply multiply the intensity of the pains times their durations. rather, they judge that where the difference in intensity of the pain is such that the more intense pain of a given duration has a significantly adverse effect on one’s life, while the less intense pain of much longer duration would have little adverse effect on one’s life, then the former would be much worse than the latter, even though the sum total of pains as determined by their intensities times durations would be greater in the latter situation than the former. so, in essence, most people believe that one set of criteria is relevant and significant for assessing how bad the first alternative is in comparison with the second, but a different set of criteria is relevant and significant for assessing how bad the first alternative is in comparison with the last. this reflects an essentially comparative view for assessing outcomes and, as we have seen, such a view opens up the door to rejecting the axiom of transitivity. in response to my spectrum arguments, some total utilitarians and economists would reject the anti-additive aggregationist reasoning of the second standard view, and just insist that as long as there are enough extra mosquito bites, the life involving 16 mosquito bites per month is worse than the life involving two years of excruciating torture and fifteen mosquito bites per month. but is such a view really plausible? here are three related cases where most people would oppose simple additive aggregation. most people firmly believe that derek parfit’s repugnant conclusion is, indeed, repugnant (parfit 1984: ch. 17). they believe that an outcome, a, of at least ten billion people, all with a very high quality of life, would be better than an outcome, z, with a vast population all of whom have lives that are barely worth living, no matter how many people live in z. similarly, most firmly believe that an incredibly flourishing human life that lasted, say, a million years, would be better for the liver of that life than a mere oyster-like existence, no matter how many years one might live in an oyster-like state. 8 and likewise, most firmly believe that no matter how many people would each get one lick of a lollipop, it would be better for that not 8. i discuss this kind of example, which i call the single life repugnant conclusion, in temkin 2012: ch. 4. the single life repugnant conclusion was originally presented by j. m. e. mctaggart (1921: vol. 2, 452-3). 72 larry temkin leap 2 (2014) to occur, if it unavoidably involved an innocent person suffering unbearable agony for many years followed by a slow, lonely, miserable death. 9 notoriously, total utilitarians reject such claims. insisting that more utility is better than less utility, they offer a number of sophisticated explanations for why our intuitions about such cases are not to be trusted. for the total utilitarian, then, no matter how small the amount of good may be in a life that is barely worth living, or in a moment of oyster-like existence, or how small the amount of pleasure may be from one lick of a lollipop, if only there are enough such lives, moments, or licks, eventually the total amount of good or pleasure will be greater, and then be better, than, any finite amount of good or pain that might be balanced off against it. the utilitarian’s position is admirably consistent, but it reminds one of emerson’s contention that “a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines” (emerson, 1983). few are willing to “bite the utilitarian’s bullet” in such cases, and i believe they are right not to do so. in evaluating outcomes, we don’t simply care about how much utility obtains, we also care about how that utility is distributed and the impact that the distribution has on people’s lives. 4. neutrality and dominance principles it is common for philosophers and others to assume that in certain contexts, morality requires us to be neutral with respect to people, places, and times. so, for example, setting aside the special obligations that one may have towards people with whom one stands in certain special relations —such as one’s family, friends, students, patients, and so on— it is thought that, other things equal, if one could save one person or five, it would be better to save the five whether the five were (a) black or white, rich or poor, hindu or non-hindu, men or women, european or african, and so on (neutrality with respect to people), (b) close or far (neutrality with respect to space), or (c) living in the present, the near future, or the distant future (neutrality with respect to time —we’d also think it wouldn’t matter if the five were living in the past if, contrary to fact, we could save people who were living in the past). now i am aware that certain prevalent theories of modern physics discuss the space/time continuum in a way that suggests that space and time are not really distinguishable, so that however we treat space we should also treat time, and vice versa. but despite this, i have my doubts whether space and 9. my lollipops for life case is presented in temkin 2012: ch. 2. that case serves as the inspiration for the book’s cover art. rethinking the good – a small taste 73 leap 2 (2014) time should, in fact, be treated the same normatively. consider, for example, the following thought experiment. suppose i learn that our civilization will live in our galaxy another 1000 years, and then die out. i also learn that in a distant galaxy another advanced civilization will exist for the same 1000 years and then die out, and that this is also so in a third distant galaxy, and a fourth distant galaxy. i find this all quite interesting. it is somewhat pleasing to me to learn that there are, in fact, advanced civilizations living in galaxies far away. but suppose i also learn that beyond the fourth galaxy there is nothing but cold, empty, space. this, too, i find interesting, but i must confess that learning that fact doesn’t bother me at all. indeed, if someone said that events beyond the fourth galaxy were about to unfold which would make those distant reaches inhospitable to life forms in perpetuity, i wouldn’t think it important for our civilization to make significant sacrifices, if it could, to prevent that from happening. suppose, on the other hand, i vary the story a bit. as before, i learn that civilization in our galaxy will die out in 1000 years; but i learn that after ours dies out another advanced civilization will arise and persist for 1000 years in a second galaxy, and that this will happen again a third and fourth time. but i also learn that after the fourth civilization dies out there will be nothing but cold, empty, space, forever. for some reason, that knowledge would bother me a lot. indeed, if i learned that events were about to unfold which would make the universe uninhabitable for any life forms 4000 years from now, unless our civilization made significant sacrifices to prevent that from happening, i would feel quite strongly that we should do so, and i would feel that way even if i knew that our civilization was going to die out in 1000 years no matter what we did. my views here may ultimately be indefensible, but i don’t think they are idiosyncratic. they reveal an asymmetry in my thinking about space and time. i think it very important that many periods of time are filled with flourishing sentient beings. i think it much less important that many areas of space are filled with flourishing beings. there is much more to be said about this suggested asymmetry between space and time, but i shall not pursue this here. instead, let me turn to another set of views that might be held regarding space, time, and people. at first blush, i think most people would readily accept the following three dominance principles: (1) if outcome a is better than outcome b at every point in space, then a is better than b; (2) if outcome a is better than outcome b at every moment in time, then a is better than b; and (3) if outcome a and outcome b involve the very same people, and a is better than b for every person, then a is better than b. 1, 2, and 3 are exceedingly weak pareto-like principles. according to the pareto principle, if two outcomes involve the same people, and the first outcome is better for at least one person and at least as good for everyone 74 larry temkin leap 2 (2014) else, then the first outcome must be better than the second. 1 and 2 apply similar reasoning to the domains of space and time, respectively, as to the domain of people. in addition, 1, 2, and 3 require that the first outcome be better than the second at every point in space, at every moment in time, or for every person, respectively. given the widespread appeal of the pareto principle, the fact that the dominance principles noted above are much weaker —and are therefore even more plausible— than the standard pareto principle, and the common assumption that we should be neutral with respect to people, places, and times, i think it is fair to assume that most people would find each of the three dominance principles intuitively appealing. indeed, i suspect that many people would think that each of the dominance principles is “obviously” true. yet, it is easy to see that however intuitively appealing the three dominance principles may be, at least one of them must be rejected. consider diagram one. day 1 p 1 hell day 1 p 1 heaven day 2 p 1 heaven; p 2 , p 3 hell day 2 p 1 hell; p 2 , p 3 heaven day 3 p 1-3 heaven; p 4-9 hell day 3 p 1-3 hell; p 4-9 heaven day 4 p 1-9 heaven; p 10-27 hell day 4 p 1-9 hell; p 10-27 heaven : : : : w 1 w 2 diagram one diagram one represents two possible worlds god is thinking of instantiating, w 1 and w 2 . in w 1 , there will be a single person, p 1 , who will exist on day 1, and he will be in hell. we don’t have to think that p 1 ’s life will be infinitely bad, we just have to think that it will be very bad. during the course of that day, it would be much better for p 1 if he were not alive. on day 2, p 1 moves to heaven, where it will be very good for p 1 that he is alive. for simplicity, let us assume that each day in heaven would be as good for the person experiencing it as a day in hell would be bad for a person experiencing it, so that on balance the net value of a life with an equal number of days in heaven and in hell would be zero. unfortunately, on day 2 two new people, p 2 and p 3 are created and put in hell. on day 3, each of p 1 -p 3 are in heaven, but six new people p 4 -p 9 are in hell. on day 4 each of p 1 -p 9 are in heaven, but 18 new people are created in hell. and so on. w 2 is just like w 1 except in reverse. in w 2 , p 1 will again exist on day 1, but this time he will start in heaven. on day 2, p 1 moves to hell, but two new people, p 2 and p 3 are created and put in heaven. on day 3, each of p 1 -p 3 are rethinking the good – a small taste 75 leap 2 (2014) in hell, but six new people p 4 -p 9 are in heaven. on day 4 each of p 1 -p 9 are in hell, but 18 new people are created in heaven. and so on. how do w 1 and w 2 compare in terms of goodness? which, if either, is the better outcome, all things considered? if one looks at the two outcomes day by day, it may seem clear that w 2 is better than w 1 . after all, on day 1, there would be one person in hell in w 1 and one person in heaven in w 2 . so, on day 1, w 1 is clearly worse than w 2 . similarly, on day 2, w 1 would have one person in heaven, but two people in hell, whereas w 2 would have one person in hell, but two people in heaven. given our views about neutrality with respect to people, it seems clear that it is worse for there to be twice as many people in hell as in heaven, than it is for there to be twice as many people in heaven as in hell, so w 1 is worse than w 2 on day 2. similarly, on day 3, w 1 , where there are three people in heaven but six people in hell, will be worse than w 2 , where there are three people in hell, but six people in heaven. and so on. the point is that on day 1, w 1 is worse than w 2 , and that on each day after that w 1 is worse than w 2 , since, on each day after day 1, there will always be twice as many people in hell as in heaven in w 1 , while there will always be twice as many people in heaven as in hell in w 2 . thus, comparing w 1 and w 2 day by day, or moment by moment, the dominance principle with respect to time would entail that w 2 is better than w 1 . is w 2 better than w 1 ? i find that very hard to believe. suppose we compare the two outcomes not moment by moment, but person by person. in w 1 , each person spends exactly one day in hell, and the rest of eternity in heaven. in w 2 , each person spends exactly one day in heaven, and the rest of eternity in hell. i know which of these worlds i would want for myself, a loved one, or anyone else who was not pure evil! i would want w 1 , and i would want it because it would be better for each person who ever lived. notice, since in this example we are assuming that the very same people would live in each world, and we know that each of them would be better off in w 1 than w 2 (indeed vastly so, since it is much better to spend only one day in hell and the rest of eternity in heaven, than to spend only one day in heaven and the rest of eternity in hell), then the dominance principle with respect to people would entail that w 1 is better than w 2 . in this example, we see that two intuitively plausible and seemingly “obvious” dominance principles are in fact incompatible. in this case, at least, we must choose between the dominance principle with respect to time and the dominance principle with respect to people. as i have already made clear, i know how i would choose in this case. i think w 1 is clearly and unequivocally better than w 2 . notice, if one adopted a purely impersonal view of morality, according to which it didn’t matter how any particular sentient beings fared, or how benefits or burdens were distributed within or between lives, but it only mattered how many benefits or burdens obtained in an outcome, then it 76 larry temkin leap 2 (2014) might be plausible to maintain that w 2 is better than w 1 , in accordance with the dominance principle with respect to time, or, alternatively, that w 1 and w 2 were equally good, since each would ultimately involve an infinite number of days lived in both heaven and hell of the same orders of infinity. but my own view is that one lesson to be learned from diagram one is that in assessing the goodness of outcomes we should not merely focus on the impersonal questions of how much well-being there is in the two outcomes, or how many benefits and burdens obtain in total. rather, in some cases, at least, we must focus on the question of how the well-being or benefits and burdens are distributed, and, in particular, on how the sentient beings are affected for better or worse in those outcomes. 5. essentially comparative ideals i claimed earlier that a number of ideals people attach great value to have an essentially comparative structure, including the pareto principle, the most plausible versions of maximin and utility, and the narrow person-affecting principle. i defend this claim in temkin (2012: ch. 12) for each of the ideals in question, but for the purposes of this article let me just focus on the narrow person-affecting principle. in any choice situation between possible outcomes, let us call those people who do exist, or have existed, or will exist in each of the outcomes independently of one’s choices, independently existing people. by contrast, let us call those people whose existence in one or more possible outcomes depends on the choices one makes in bringing about an outcome, dependently existing people. bearing these distinctions in mind, we can now state the narrow person-affecting view. the narrow person-affecting view: in assessing possible outcomes, one should (1) focus on the status of independently existing people, with the aim of wanting them to be as well off as possible, and (2) ignore the status of dependently existing people, except that one wants to avoid harming them as much as possible. regarding clause 2, a dependently existing person is harmed only if there is at least one available alternative outcome in which that very same person exists and is better off, and the size of the harm will be a function of the extent to which that person would have been better off in the available alternative outcome in which he exists and is best off. 10 10. derek parfit presented a position which he also called a narrow person-affecting view in parfit 1984: ch. 18. the view as i present it here is different in important respects than parfit’s, but i have retained the name parfit uses, because i think the view i have described reflects a fundamental approach to assessing outcomes that is best described as a narrow person-affecting view. i believe that my version of the narrow person-affecting view is rethinking the good – a small taste 77 leap 2 (2014) as stated, the narrow person-affecting view reflects an important extension of jan narveson’s claim that “morality has to do with how we treat whatever people there are…. [we] do not … think that happiness is impersonally good. we are in favor of making people happy, but neutral about making happy people” (narveson 1973: 73 and 80). specifically, the first clause reflects the view that we are neutral about making people exist, while the second clause reflects the important qualification that if we are going to make a particular person exist, her interests have to count the same way as every other existing person’s, in that we must equally seek to make that person, like every other existing person, as well off as possible. now, in fact, that there are lots of ways in which the narrow personaffecting view needs to be qualified and limited in scope, which i won’t go into here (temkin 2012: ch. 12.3). nevertheless, when properly interpreted, the narrow person-affecting view reflects a deeply plausible and widelyaccepted view for a certain range of cases. to illustrate the narrow person-affecting view, it will be useful to consider a range of cases to which it might be applied, and to contrast it with some other principles that might be appealed to in assessing outcomes: the impersonal total view, the impersonal average view, and the wide personaffecting view. roughly, we might say that the narrow person-affecting view assesses outcomes by considering how the particular people in those outcomes fare, relative to how they fare in any available alternative outcomes (here, and below, “people” refers to any sentient beings). the aim is to make sure that each particular person who does, or will, exist independently of our choices, or who will exist as a result of our choices, fares as well as possible. in contrast, the wide person-affecting view assesses outcomes by considering how the people in those outcomes fare, but it is not concerned with how any particular people fare in one outcome relative to how those very same people might fare in any available outcomes. 11 a precise characterization of the wide person-affecting view is elusive, but one natural and plausible way of interpreting it implies, among other things, that if the people in one outcome, a, are all better off than the people in another outcome, b, whether or not they are the same people or there are the same number of people, then a is better than b; if, for each distinct person in b, there is corresponding more plausible than parfit’s original version, and in conversation parfit has indicated that he agrees. 11. the notion of a wide person-affecting view was introduced by parfit 1984: ch. 18. unfortunately, as parfit originally presented the position, he combined two elements which are best kept distinct. the first reflects the view that in assessing outcomes we want to assess them in terms of the extent to which the people (sentient beings) in those outcomes are affected for better or worse. the second concerns the very distinct question of whether causing someone to exist benefits that person. i use the notion of a wide person-affecting view to reflect the first element only. parfit now shares my view (temkin 2012: note 41, section 12.4). 78 larry temkin leap 2 (2014) distinct person in a, at least one of whom is better off and the rest of whom are at least as well off, then a is better than b as long as anyone else existing in a has a life that is (sufficiently) worth living; and if a and b have the same number of people, and for each person in b there is a corresponding person in a who is equally well off, and vice versa, then a and b are equally good. finally, the impersonal total and average views imply that regardless of whether or not they have the same people or the same number of people, one outcome will be better than (equal to) another if and only if the one outcome has a higher (the same) total or average amount of utility or wellbeing, respectively. consider diagram two. 1000 p 1 p 1 p 1 p 2 p 1 p 3 p 1 p 4 p 1 p 4 a a a b a c a c a d i ii iii iv v vi diagram two 1200 1100 1100 800 1100 800 600 in i, there is a large population, a, say of 10 billion people, on a given planet, p 1 , all of whose members are at level 1000. assume that i is the initial outcome, and that the a people are thinking about transforming their outcome into one represented by ii. in ii, those very same people all exist and are better off, at level 1200. ii would be judged a better outcome than i on all of the different approaches for assessing alternatives. specifically, ii is better than i on the impersonal total and average views, since the total and average amounts of wellbeing are greater in ii than in i, on the wide personaffecting view, since it is better for people, as everyone in ii is better off than everyone in i, and on the narrow person-affecting view, since it is better for the particular, independently existing a people who exist in both outcomes. suppose, instead, that the a people could transform i into an outcome like iii. in iii, the a people have all been lowered to level 600, but a new population of 10 billion people, b, would also come to exist at level 600 on a second planet, p 2 . in this scenario, iii would be ranked better than i on the impersonal total view, since the total wellbeing would be greater in iii than in i. but iii would be ranked worse than i on the impersonal average view, rethinking the good – a small taste 79 leap 2 (2014) since the average level of wellbeing would be less in iii than in ii. iii would also be ranked worse than i on the wide person-affecting view, since the people in i are better off than the people in ii. finally, iii would also be ranked worse than i on the narrow person-affecting view, as the independently existing a people are better off in i than in iii, and the principal aim of the narrow person-affecting view is to make the particular existing people as well off as possible (making people happy) rather than to add more people to an already large and well-off population (making happy people). while total utilitarians would rank iii better than i, if outcome i were one’s starting point, many people, and perhaps most, would rank i better than iii, and they might do so on any combination of the grounds suggested. suppose next that the people in i could bring about iv. iv involves a new group of 10 billion people, c, living on a different planet, p 3 . unfortunately, the conditions on p 3 are not quite as favorable as those on p 1 , so the c people would only be at level 800. but we may presume that level 800 is still quite high, so that everyone on p 3 would have lives well worth living. in addition, there might be resources on p 3 which could be used in trades with those on p 1 , so that everyone in p 1 would be raised up to level 1100. iv would be worse than i on the impersonal average view. many find this hard to believe. if there is an objection to iv, it would seem to rest on the fact that iv involves inequality while i is perfectly equal, not on the fact that the average level of well-being is lower in iv than in i. after all, iv is better off than i for everyone who lives in i, and in addition iv involves a very large group of people all of whom have lives that are well worth living. 12 on reflection, i believe most people would judge iv better than i, and this would be supported by the impersonal total view —since the total wellbeing is greater in iv than in i— by the wide person-affecting view —since iv is better for people than i, as for each person in i there is a corresponding person in iv who is even better off, and any additional people in iv have lives that are well worth living— and by the narrow person-affecting view, since the particular independently existing a people are better off in iv (being at level 1100) than in i (being at level 1000). next, suppose that the people in outcome i could bring about either iv or v. in v, the a people have to make extra sacrifices to enable the c people to live on a different, more hospitable, fourth planet p 4 . the result would be 12. the strongest arguments against the average view involve alternatives where people’s lives are well below the level at which life ceases to be worth living. surely, one wouldn’t improve an outcome where billions of people were living in the worst hell imaginable in any respect, merely by adding billions of more people whose lives were almost, but not quite, as badly off. but, of course, the addition of all those extra people living hellish lives would raise the average level, even if only by a small amount. for further discussion of this kind of case, which parfit called hell three, and other reasons to be skeptical of average views, see parfit 1984: 422; temkin 2012: section 10.4; temkin 1993: section 7.5. 80 larry temkin leap 2 (2014) that the c people would be at level 1100, but the a people would only be at level 800. interestingly, as alternatives to i, iv and v would likely be regarded as equally good on all four of the principles we have been discussing. iv and v are equally good on the impersonal total and average views, as they are equally good in terms of total and average wellbeing. they are equally good on the wide person-affecting view, since in terms of how people in those outcomes fare (rather than in terms of how the particular people fare in one outcome rather than another), they are equally good for people. finally, they are equally good on the narrow person-affecting view, since on that view one doesn’t have to bring about the dependently existing c group, but if one is going to bring a particular group into existence —and, by hypothesis, the very same c people would be brought into existence in both iv and v— then their interests have to be given the same weight as those of the independently existing people, a. hence, on the narrow person-affecting view, there would be nothing to choose between outcome iv, where the independently existing a people would be at level 1100 and the dependently existing c people would be at level 800, and outcome v, where the independently existing a people would be at level 800 and the dependently existing c people would be at level 1100. finally, suppose that the option facing those in i is not iv or v, but iv or vi. here, the option is between populating planet p 3 with 10 billion people, the c people, who would all be well off, but “only” at level 800, but where this would enable the a people to raise their level from 1000 to 1100, or populating a more hospitable but more distant planet p 4 , with an entirely different group of 10 billion people, the d people, but where the cost of populating the more distant planet would be to lower the level of the a people from 1000 to 800. iv and vi would be equally good on both the impersonal total and average views, since the total and average levels of wellbeing are equal in both outcomes. likewise, iv and vi , would be equally good on the wide person-affecting view, since, overall, people fare equally well in both outcomes. however, importantly, if one’s initial starting place was i, then iv would be decidedly better than vi on the narrow person-affecting view. this is because, insofar as we are concerned with “making people happy, rather than making happy people”, iv is a clear improvement, while vi is a clear worsening of the outcome. that is, on the narrow person-affecting view, iv is better for the independently existing a people (they are at level 1100 rather than level 1000), and it in no way harms the dependently existing c people, since their lives are well worth living, and, in this choice situation, there is no available alternative in which they would be better off. vi, on the other hand, is clearly worse for the independently existing a people (they are at level 800 rather than level 1000), and this worsening of the outcome cannot be made up for by the neutral factor of adding extra “happy” d people. rethinking the good – a small taste 81 leap 2 (2014) let me acknowledge that the narrow person-affecting view is not plausible in cases like parfit’s non-identity problem (parfit 1984: ch. 16) as stated, it is also implausible in a host of other cases, many of which will readily occur to the reader. however, despite this, i believe that the narrow person-affecting view is plausible, and relevant and significant for comparing outcomes in a large range of cases, including those just discussed. thus, in considering cases like those represented in diagram two, i believe that many people would judge that if one’s initial outcome were like i, then ii would be better than i, iii would be worse than ii, iv would be better than i, iv and v would be equally good, and iv would be better than vi, and i believe that many would base their judgments partly, if not wholly, on narrow person-affecting grounds (or a position very much like it in spirit if not exact detail). as should be clear, the narrow person-affecting view is an essentially comparative ideal. on such a view, assessing how good an outcome is depends not solely on its internal features, as is the case on the internal aspects view, but on whether the particular people in that outcome exist in available alternative outcomes, and if so, on how they fare in the available alternatives. assuming that there would be no morally relevant differences between the different people in my examples other than narrow person-affecting considerations, on the internal aspect view iv, v, and vi would be equally good, since their internal features are identical, except for which particular people exist in which outcomes and which particular levels they are at. hence, in accordance with the principle of like comparability for equivalents, on the internal aspects view, however one of them compared with some other alternative, that is how each of them would compare with that alternative, and this would be so regardless of whether or not any other outcomes were available. but, as we have seen, in accordance with the narrow personaffecting view, many people would judge iv as better than i, if outcome i was the initial starting point and those were the only alternatives, but they would judge v as worse than i, if outcome i was the initial starting point and those were the only alternatives. similarly, in accordance with the narrow personaffecting view, many people would judge iv as equally as good as v, if those were the only alternatives, and v as equally as good as vi, if those were the only alternatives, but, contrary to both the principle of like comparability for equivalents and the axiom of transitivity for equally as good as (each of which is entailed by the internal aspects view), they would deny that vi is equally as good as iv. likewise, in accordance with the narrow personaffecting view, and contrary to the axiom of transitivity for better than, it is plausible to contend that if outcome i were one’s initial starting point, then iv would be better than i if those were the only alternatives, and i would be better than v if those were the only alternatives, but iv would not be better than v if those were the only alternatives. 82 larry temkin leap 2 (2014) could we abandon the narrow person-affecting view and simply adopt impartial views or the wide person-affecting view instead? not without abandoning a view that underlies many judgments people make in assessing outcomes. and not easily. to buttress this claim, let us consider two further cases, of a different sort, the first of which is exemplified by diagram three. –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 1 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 –21 –22 –23 –24 –25 –26 –27 –28 –29 –30 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 2 diagram three suppose that one of two outcomes was going to come about. in o 1 , there would be one person living on planet one, p 1 , at time one, t 1 , and that person would be at level –1, which is below the level at which life ceases to be worth living. it would be better for that person if he or she never existed. there would also be one person living on planet two, p 2 , at time two, t 2 , and that person would be even worse off at level –2. there would be a third person living on planet three, p 3 , at time three, t 3 , and that person would be even worse off at level –3, and so on. hence, there would be an infinite number of people living on different planets and at different times, and each person, after the first, would be worse off than those that preceded him or her. in addition, let us assume there would be no other morally relevant factors or events obtaining in w 1 . in the second outcome, o 2 , there would again be one person living on planet one, p 1 , at time one, t 1 , but this time the person would be at level –11. there would also be one person living on planet two, p 2 , at time two, t 2 , and that person would be even worse off at level –12. there would be a third person living on planet three, p 3 , at time three, t 3 , and that person would be even worse off at level –13, and so on. as before, there would be an infinite number of people living on different planets and at different times, and each person, after the first, would be worse off than those that preceded him or her, and there would be no other morally relevant factors or events obtaining in o 2 . finally, for any level –n, it is worse for someone to be at level –(n – 10), than to be at level –n. rethinking the good – a small taste 83 leap 2 (2014) how do o 1 and o 2 compare? as described, there might be some reasons associated with how we think about cases involving infinity, for claiming that o 1 and o 2 were equally good. on the other hand, i think there would also be powerful reasons for thinking that o 1 was better than o 2 . if we, or god, had to choose which of the two outcomes to produce, or we learned that one of the two outcomes was going to be instantiated, at first blush it seems that we should produce or hope that it is o 1 rather than o 2 . other things equal, it seems we should be confident that o 1 would be at least at good as (and probably better than) o 2 . the preceding ranking of o 1 and o 2 would be supported by both impersonal principles, as well as any plausible wide person-affecting view. insofar as one merely focuses on the impersonal value in each outcome, or on how people fare in each outcome without regard to how any particular people fare, then it seems clear that o 1 is at least at good as o 2 . moreover, i think o 1 would be at least at good as o 2 if completely different people lived in o 1 than in o 2, or if anyone who lived in both outcomes, lived on the same corresponding planet and at the same corresponding time in both outcomes, such that if a given person, john, lived in both outcomes, then whatever planet p n and time t n that he occupied in o 1 , he would also occupy p n and t n in o 2 . suppose, however, that i now tell a different story regarding the members of o 1 and o 2 . suppose it is true that every person who would exist in o 2 , if o 2 obtained, would also exist in o 1 , if o 1 obtained, but that each of them would be worse off in o 1 than in o 2 . specifically, let us assume that the very same individual, i 1 , who would exist at t 1 in o 2 , would exist at t 21 in o 1 , that the very same individual, i 2 , who would exist at t 2 in o 2 , would exist at t 22 in o 1 , that the very same individual, i 3 , who would exist at t 3 in o 2 , would exist at t 23 in o 1 , and so on. it would then be the case that every single person who would exist in o 2 would also exist in o 1 and would be ten units worse off, where, as before, for any level –n, it is worse for someone to be at level –(n – 10), than to be at level –n. given that scenario, it seems clear that if we, or god, had to choose which of the two outcomes to produce, or we learned that one of the two outcomes was going to obtain, we should produce or hope that it is o 2 rather than o 1 ! o 1 is worse than o 2 for every person who lives in o 2 , and, in addition, there are 20 different individuals who exist in o 1 but not in o 2 (those who would be living at times t 1 through t 20 in o 1 ), whose lives are below the zero level —they would rationally prefer that they had never been born. surely, if we were aiming to choose the better outcome, and we knew that we or our loved ones might actually be occupants of one of the two worlds, we would choose o 2 , and we would make a similar choice on behalf of any strangers who were not pure evil. it seems clear, then, that our judgments about how outcomes like o 1 and o 2 compare would not, and should not, be influenced solely by impersonal or wide person-affecting considerations. in some cases, how the particular people are affected for better or worse depending on the alternatives is rightly 84 larry temkin leap 2 (2014) relevant to our assessment, as is implied by the narrow person-affecting view. thus, in some cases at least, cross-world identification of particular individuals is both relevant and necessary for accurately comparing outcomes, as is permitted on the essentially comparative view of ideals, but is prohibited by the internal aspects view. let us apply the preceding reasoning to a final case, represented by diagram four. –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 3 –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 4 –1 –2 –3 –4 –5 –6 –7 –8 –9 –10 –11 –12 –13 –14 –15 –16 –17 –18 –19 –20 → t 1 t 2 t 3 t 4 t 5 t 6 t 7 t 8 t 9 t 10 t 11 t 12 t 13 t 14 t 15 t 16 t 17 t 18 t 19 t 20 p 1 p 2 p 3 p 4 p 5 p 6 p 7 p 8 p 9 p 10 p 11 p 12 p 13 p 14 p 15 p 16 p 17 p 18 p 19 p 20 o 5 diagram four o 3 , o 4 , and o 5 are just like o 1 in diagram three. in each outcome there is one person on p 1 at t 1 at level –1, a second person on p 2 at t 2 at level –2, a third person on p 3 at t 3 at level –3, and so on. if one asked how o 3 , o 4 , and o 5 compared, it would be natural to assume that they were all equally good, all things considered. and if there were different people in o 3 , o 4 , and o 5 , then it seems clear that they would all be equally good. suppose, then, we make the assumption that the people in o 3 would be different people than those in o 4 , and similarly that the people in o 3 would be different people than those in o 5 . in that case, there would be no narrow person-affecting considerations that were relevant for comparing o 3 with o 4 , or for comparing o 3 with o 5 , and there would be good grounds for judging that o 3 and o 4 were equally good, and similarly that o 3 and o 5 were equally good. does it follow from this that o 4 and o 5 must be equally good, as it must if the internal aspects view is correct, since such a view entails both the principle of like comparability for equivalents and the transitivity of the “equally as good as” relation? it does not! because consistent with the forgoing relations between o 3 and o 4 , and o 3 and o 5 , o 5 may stand in a rethinking the good – a small taste 85 leap 2 (2014) different relation to o 4 , one that is similar to the relation in which o 2 stood to o 1 in diagram three. after all, even it is true that the people in o 3 are different from the people in both o 4 and o 5 , it doesn’t follow from that that the people in o 5 are different from the people in o 4 . they may not be! suppose, then, that the person who would occupy p 1 and t 1 and be at level –1 in o 5 , would occupy p 11 and t 11 and be at level –11 in o 4 , the person who would occupy p 2 and t 2 and be at level –2 in o 5 , would occupy p 12 and t 12 and be at level –12 in o 4 , the person who would occupy p 3 and t 3 and be at level –3 in o 5 , would occupy p 13 and t 13 and be at level –13 in o 4 , and so on. it would then be the case that everyone who exists in o 5 also exists in o 4 and is ten units worse off, and that, in addition, there would be 10 different individuals who exist in o 4 , but not in o 5 , whose lives would be below the zero level and who would rationally wish that they had never been born. in this case, as above, it seems clear that o 4 would be a worse outcome than o 5 , and mainly in virtue of narrow person-affecting considerations. we see, then, that in accordance with the essentially comparative view, a factor that is relevant and significant for comparing o 4 and o 5 —specifically, the fact that everyone who exists in o 5 also exists in o 4 where he or she is worse off— is not relevant or significant for comparing o 3 with o 4 , or o 3 with o 5 . this explains how it can be the case that in terms of all of the factors that are relevant and significant for making each comparison, o 3 and o 4 might be equally good, and o 3 and o 5 might be equally good, but o 4 and o 5 might not be equally good. more generally, as we have seen, once we accept an essentially comparative view of ideals, as it seems we must if we are to account for the judgments to which many are committed regarding diagrams two, three, and four, then there is no reason to expect the “all-things-considered better than” or “all-things-considered equally as good as” relations to be transitive, or, alternatively, no reason to think that such relations even apply to various alternatives we may have expected them to for the purposes of practical reasoning. 13 13. in my book, i discuss various ways of preserving the axioms of transitivity in the face of my arguments, which have the implication that there is no single set of alternatives that are being compared in the cases i discuss, or no single relation that the different alternatives are being compared in terms of, so that there is, strictly speaking, no violation of the axioms of transitivity in the cases i discuss, rather those axioms don’t even apply to the cases i consider. i suggest that even if such a move can be plausibly defended, it has significant practical and theoretical difficulties akin to those that would accompany the rejection of the axioms of transitivity (see temkin 2012: ch. 13). 86 larry temkin leap 2 (2014) 6. concluding remark as promised at the beginning, this article barely scratches the surface of some of the issues raised in rethinking the good. moreover, the further one explores such issues, the more one realizes how this domain is fraught with complications, unresolved difficulties, and impossibility results whose premises are exceedingly difficult to abandon. the book seriously challenges us to rethink our understanding of the good, moral ideals, and the nature of practical reasoning in many ways that have deep practical and theoretical implications. but beyond that, i’m afraid, it offers little guidance, and i have little sense, of where we go from here. i wish it were otherwise. bibliography broome, j., 1991: weighing goods, oxford: basil blackwell. — 2004: weighing lives, oxford: oxford university press. emerson, r. w., 1983: “selfreliance”, in essays and lectures, ed. joel porte, new york library of america: 259-82. mctaggart, j. m. e., 1921: the nature of existence, 2 vols., cambridge: cambridge university press. narveson, j., 1973: “moral problems of population”, the monist 57. parfit, d., 1984: reasons and persons, oxford: oxford university press. rachels, s., 1993: “a theory of beneficence”, unpublished philosophy, politics and economics thesis, oxford university. — 1998: “counterexamples to the transitivity of better than”, australian journal of philosophy 76: 71-83. — 2001: “a set of solutions to parfit’s problems”, noûs 35: 214-238. — 2004: “repugnance or intransitivity”, in the repugnant conclusion: essays on population ethics, ed. j. ryberg and t. tannsjo: 163-86, dordrecht: kluwer academic publishers. temkin, l. 1987: “intransitivity and the mere addition paradox”, philosophy and public affairs 16: 138-187. — 1993: inequality, new york: oxford university press. — 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. — 2014: “intransitivity and the internal aspects view”, law, ethics and philosophy 2: 139-152. wittgenstein, l., 1958: philosophical investigations, 2nd ed., ed. and trans. by g. e. m. anscombe, oxford: blackwell. 87 issn 2341-1465 leap 2 (2014): 87-107 in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions oscar horta university of santiago de compostela abstract according to the internal aspects view, the value of different outcomes depends solely on the internal features possessed by each outcome and the internal relations between them. this paper defends the internal aspects view against larry temkin’s defence of the essentially comparative view, according to which the value of different outcomes depends on what is the alternative outcome they are compared with. the paper discusses both person-affecting arguments and spectrum arguments. the paper does not defend a person-affecting view over an impersonal one, but it argues that although there are intuitive person-affecting principles that entail an essentially comparative view, the intuitions that support these principles can also be acommodated by other principles that are compatible with the internal aspects view. the paper also argues that the rejection of transitivity and the internal aspects view does not help us to solve the challenges presented by spectrum arguments. despite this, the arguments presented by temkin do succeed in showing that, unfortunately, our intuitions are chaotic and inconsistent. the paper argues that this has metaethical consequences that will be unwelcome by a moral realist such as temkin, since they challenge the idea that our intuitions may track a moral reality existing independently of our preferences. keywords: betterness, essentially comparative view, internal aspects view, person-affecting reasons, spectrum arguments, transitivity. 1. introduction larry temkin’s book rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012) is the most powerful challenge to our understanding of axiology and normative theory in contemporary philosophy to date. calling it a classic or a masterpiece is an understatement: 88 oscar horta leap 2 (2014) it is a true milestone with which we enter a new stage in the study of value theory. its importance can hardly be overestimated given how radically it will change axiology as well as normative ethics. the reason why this is so is that rethinking the good shows that a fundamental assumption in value theory that we used to consider axiomatic is not free from doubts and may be actually challenged. to understand why this is so, consider the following two opposing views about the factors according to which an outcome can be better than another: the internal aspects view: the value of different outcomes, and whether a certain outcome is better or worse than another, depends solely on the internal features possessed by each outcome and the internal relations between them. the essentially comparative view: the value of different outcomes, and whether a certain outcome is better or worse than another, depends on what is the alternative outcome they are compared with. a given outcome may have one value given one alternative, but a different value given another alternative. this can happen both when we compare outcomes regarding a certain ideal in particular or when we compare them as a whole, all things considered. the internal aspects view is of course the traditional and more intuitive view concerning the value of outcomes. value theory as we understand it today is based upon it. yet temkin has claimed that we should reject this view and accept instead an essentially comparative view. he has done this by presenting a set of arguments against the claim that betterness relations (“a is better than b”) must be transitive. 1 those arguments show that in a number of cases it is just impossible for us to hold intuitive views regarding which outcomes are better than others unless we abandon the axiom of the transitivity of betterness. if we do this, however, that would mean that a very important part of what has been considered essential to practical reasoning until now will no longer apply. temkin’s arguments are so strong that from now on we will not be able to just take for granted, as most of us have done thus far, the internal aspects view. this does not mean, however, that we have to abandon this view, as temkin argues. but it does mean that if we want to defend this view we will be now forced to respond to these arguments and not just presume the internal aspects view is true. in fact, this is what i intend to do in this paper. 1. see temkin (2012; see also 1987; 1996; 1997 and 2010). the other main proponent of this view has been stuart rachels (1998; 2001 and 2004). see algo friedman (2009). for criticisms of this view see norcross (1997; 1998 and 1999); binmore and voorhoeve (2003); voorhoeve (2008); broome (2004: 55-62). in defense of the internal aspects view 89 leap 2 (2014) i will argue that, powerful as temkin’s case for the essentially comparative view is, there are ways to resist it and to keep on maintaining the internal aspects view. i will claim that temkin’s arguments, instead, may drive us to doubt realist metaethics. in order to defend these claims, my argument will unfold as follows: in section 2, i will distinguish two main ways in which an internal aspects view can be challenged: by appealing to person-affecting essentially comparative principles such as the narrow person-affecting principle, and by appealing to spectrum arguments. i will claim that the kinds of reasons that are appealed to in each of these two lines of reasoning are essentially different ones. due to this, whether one of them succeeds does not mean that the other will succeed too. in section 3, i will explain that while some principles such as the narrow person-affecting principle can lead to intransitive rankings of outcomes, the job this principle does in accommodating some common intuitions regarding person-affecting reasons can also be done by other principles as well. i will present three other principles that can do this: the time-dependent personaffecting principle, the actuality-dependent person-affecting principle and the identity-dependent person-affecting principle. these principles entail the rejection of the transitivity of the “_ is better than _” relation. but they also seem to imply the asymmetry of that relation. i will claim that, despite this, when we examine the matter we discover that these principles do not really imply that betterness is not asymmetric or intransitive. 2 they only appear to have that implication. i will argue that, unlike the narrow personaffecting principle, they are not essentially comparative principles, and do not really question the internal aspects view. this does not mean that we should accept a person-affecting view instead of an impersonal one, but it does mean that those who accept it do not need to assume an essentially comparative view. i will then argue in section 4 that in spectrum arguments essentially comparative principles such as the narrow person-affecting principle do not play any role. i will then consider the puzzles we find in spectrum 2. note that nonasymmetry does not entail symmetry. the claim that betterness is an asymmetric relation means that if a is better than b, then b cannot be better than a. so the claim that betterness is not an asymmetric relation implies that if a is better than b, then b may o or may not be better than a. but if betterness were a symmetric relation that would mean that if a is better than b, then b is better than a. nonasymmetry is also different from antisymmetry. if betterness were an antisymmetric relation that would mean that if a is better than b, and b is better than a then a would be equal to b. similarly, although accepting that betterness is intransitive entails rejecting it is transitive the opposite is not the case. as temkin (2012: 17) points out, transitivity of betterness may fail to apply in a certain set of alternative outcomes without that implying that intransitivity does apply. that would happen, for instance, if a were roughly equal to b, a were better than a’ and a’ were roughly equal to b. however, all the cases of nontransitivity we will see in this paper will also be cases of intransitivity. 90 oscar horta leap 2 (2014) arguments, and will argue that they are not solved if we abandon the claim that betterness is transitive. we can see this when we consider what happens when we aim at global maximization instead of local maximization. this means spectrum arguments do not provide us with any conclusive reason to reject the internal aspects view. next, section 5 will conclude that in light of what has been argued in sections 3 and 4 the internal aspects view can be maintained despite the very strong objections temkin has presented against it. finally, in section 6, i will argue that there is a conflict between the arguments against the internal aspects view presented by temkin and his realist metaethical positions. even though the problems presented by temkin do not necessarily have metaethical implications, they still give us reasons to doubt moral realism. this is so because if moral reality exists we can only track it with our intuitions, and the arguments presented by temkin show that our intuitions are chaotic and inconsistent. temkin can only make his attack on the internal aspects view and the moral realist view he holds compatible by accepting a methodological approach that leaves room for inconsistency. but this clashes against some strong intuitions that many of us have towards consistency, as well as towards other metacriteria such as simplicity and transitivity. in fact, for many of us these intuitions can be stronger than those we have when we face pairwise comparisons of particular outcomes that contradict them. this is what will make us resist temkin’s arguments against the internal aspects view. but it will also drive us to doubt that those intuitions towards particular choices in pairwise comparisons of outcomes can be reliable, and thus to deny they can track any moral reality existing out there independently of us. 2. different ways to question the internal aspects view in rethinking the good temkin argues against the internal aspects view in different ways. i want to focus here in two of the strongest ones: 2.1. appealing to person-affecting reasons temkin tries to show that a consideration of person-affecting reasons is incompatible with the internal aspects view (2012: ch. 11 and 12). 3 this would be so because according to these reasons whether a certain outcome is better or worse than another depends on the relative situation of the individuals who are in them. if individuals in some outcome a 3. in chapters 11 and 12 temkin considers also other reasons apart from this one in favor of the internal aspects view that are closely related to the one i discuss here, but for lack of space i will not address them here. in defense of the internal aspects view 91 leap 2 (2014) are better off than they would be in outcome b, then a is better than b according to these principles. and if individuals in b are better off than they would be in c, then b is better than c. but this may be because the individuals that there are in a, b and c, and their relative situation in these outcomes, varies in such a way that makes it the case that the individuals in c are better off than they would be in a, so c would be better than a according to these principles. imagine, for instance, that outcomes a, b and c are as follows: figure 1 a p q q r r p b c suppose now that we accept a principle such as the following one: the narrow person-affecting principle: in assessing possible outcomes, one should (1) focus on the status of independently existing individuals, with the aim of wanting them to be as well off as possible, and (2) ignore the status of dependently existing individuals, except that one wants to avoid harming them as much as possible. 4 according to this principle b would be better than a, since independently existing individuals would be better off in b. but for the same reason c would be better than b and a would be better than c. this means that if we accept this principle we have to reject transitivity and the internal aspects view. due to this, we can consider it to be an essentially comparative principle, which we may define as follows. essentially comparative principles: a certain principle is essentially comparative if the factors for comparing two alternatives according to it may vary depending on the alternatives being compared, so an essentially comparative view necessarily is the case. 4. see parfit (1984: 392); temkin (2012: 417). 92 oscar horta leap 2 (2014) in other words, any principle whose acceptance entails accepting an essentially comparative view (as the narrow person-affecting principle) is an essentially comparative one. 2.2. appealing to spectrum arguments another way to question the internal aspects view is by considering what happens in spectrum arguments (2012: chs. 2 and 5). in them we compare a number of different outcomes in which the values or disvalues that there are vary with respect to at least two dimensions. for instance, the outcomes may differ according to the intensity and the distribution through time or among different individuals of certain harms. 5 let us focus here, for the sake of simplicity, on a single-person spectrum argument temkin discusses (2012: ch. 5). in it we compare outcome a, which is terrible torture for one year against outcome b, which is some only slightly milder torture for a much longer period. then, we compare b against c, which is again some torture only slightly milder than the one in b, but for a much longer period. and we go on comparing each new outcome against a new one in which the torture is just a bit less painful but lasts for much longer. at the end, we reach outcome z in which we experience some mild pain for a very long time —one which would be much longer than the total time we could ever live (temkin suggests this could be the pain that a mosquito bite suffered each month would cause). 6 z is worse than another outcome y in which we suffer for some pain which is only slightly higher but for a much shorter time. in this spectrum, a seems clearly better than b, which seems clearly better than c, which seems better than d, etc., until we reach y, which seems better than z, which in turn, if transitivity applied, should be much worse than a. yet z seems intuitively better than a. our intuitions in spectrum arguments therefore appear to entail that a > b; b > c; c > d; ... ; y > z; z > a. in this way, 5. see quinn 1990. 6. this stipulation is unfortunate because it complicates unnecessarily the examination of the problem by introducing in it another dimension according to which our evaluation of different outcomes may vary: intermittence. by presenting z as a situation in which one just suffers an extra mosquito bite for a month (in addition to other pains we may suffer, including other mosquito bites) we are not only considering intensity of pain and duration of pain, but also intermittence between different pains (this is not only so because a mosquito bite does not feel bad for a whole month, but also because mosquito bites do not itch continuously). many of us would think it is worse to receive a more intense pain of some non trivial duration altogether in time than distributed in very short times spread in time. consider, to see this, that a whole year of terrible torture seems to be worse than five seconds of torture each five years during a number of years equivalent to the number of seconds in a year. for the case to present the problem without including the problem of intermitence, the pain in z should be felt continuously and uninterruptedly, although it would be an extremely mild pain. in defense of the internal aspects view 93 leap 2 (2014) if we accept what our intuitions tell us, transitivity does not seem to apply, and the internal aspects view fails. these two lines of reasoning, the one appealing to person-affecting reasons and the one appealing to spectrum arguments, are very different ones. whether one of them succeeds is not dependent on whether the other one does. so in order to see if temkin’s case against the internal aspects view succeeds we will have to examine them separately. 3. the appeal to person-affecting principles 3.1. principles that can entail intransitivity: the narrow person-affecting principle in order to explain why person-affecting principles challenge the internal aspects view temkin considers what happens in the comparison that takes place between a and a+ in the mere addition paradox (parfit 1984: ch. 142). as it is well known, in the mere addition paradox a is an outcome in which a small group of individuals is enjoying a significantly high level of wellbeing. a+ is an outcome in which there are two groups: one of them is a group of individuals whose level of wellbeing is just like the one in a; the other one is a group of individuals whose level of wellbeing is a bit lower than the one of those in a. the size of both groups is just like that of the group in a: figure 2 a a+ is a+ worse than a? someone who considered this problem by taking into account exclusively impersonal reasons would reach always the same conclusion no matter the identity of those who are in a and a+. if she concluded that if a+ is worse than a, then that would mean that a+ has to be worse than a in all circumstances. and the same would happen if she concluded that a+ is better than a. 94 oscar horta leap 2 (2014) but those who accept person-affecting reasons can reach a different conclusion. the reason for this is that there are different ways in which we could move from a to a+. consider first the one we can see in the next picture: figure 3 a p q p q r s a+ in this case, all the individuals who live in a are also present in a+ with the same level of wellbeing, but in a+ we add an extra group of individuals whose level of wellbeing is lower but still very good. according to a view that takes into account person-affecting reasons this would not make a+ worse than a: if anything, it would make it better. but consider now this other way in which we may move from a to a+: figure 4 a p q p r q s a+ in this other case, half of those who are in a see their level of wellbeing reduced to the level of the worst off individuals in a+. and then, the population of both the better off and the worse off doubles. according to a view that takes into account person-affecting reasons and gives priority to the interests of those independently existing in both a and a+, this would make a+ worse than a. so a+ can be considered worse than a in some cases and not worse than a in others depending on the identity of those who are in defense of the internal aspects view 95 leap 2 (2014) in a+. 7 this can be concluded, in particular, if one assumes a principle such as the narrow person-affecting principle. the rejection of the axiom of transitivity is an inescapable conclusion of the acceptance of this principle, at least as long as we face comparisons with different individuals. this appears to be a powerful argument against the internal aspects view, although it depends on a view that is very controversial. it is not at all clear that we should accept a person-affecting view, and for those accepting a purely impersonal view temkin’s argument will have no force at all. in this paper i will remain neutral regarding whether we should accept an impersonal view or a person-affecting one. but i will argue that those who think that considering impersonal reasons alone has counterintuitive implications need not accept essentially comparative principles such as the narrow person-affecting principle. there are different ways to defend the idea that person-affecting reasons must be considered. there are different person-affecting principles. the narrow person-affecting principle implies rejecting transitivity, but other person-affecting principles lack this implication, even if they appear to possess it at first. let me elaborate. 3.2. person-affecting principles that seem to imply betterness need not be asymmetric in order to examine this i need to point at an important distinction between different principles that appeal to person-affecting reasons. some of these principles imply nontransitive or actually intransitive comparisons regarding the betterness of three or more outcomes, but despite this it is clear that according to them betterness is always asymmetric. the narrow person-affecting principle is an example of these principles. if a certain outcome a is better than another one b, then according to this principle it is not possible that b is better than a according to it. this seems very intuitive. but there are other principles that appear to imply that betterness need not be asymmetric. 8 i will consider here three different principles that can imply this. there are other possible principles which can also fall within this class of principles, but for simplicity i will focus on these three principles that i think many of those defending a person-affecting view can find intutitive. in particular, i think many accept 7. see temkin 2012: chs. 11 and 12. the initial trigger for the development of this idea was parfit’s claim that the inequality occurring in a+ cannot be bad because it is produced by a mere addition of extra individuals (1984: 425). see on this claim also temkin 1997: 304. for criticisms see dancy 2005; weber 2007. 8. they also seem to imply, in a similar vein, that the “_ is at least as good as _” relation need not be antisymmetric. 96 oscar horta leap 2 (2014) the actuality-dependent person-affecting principle: in assessing possible outcomes, one should (1) focus on the status of those who exist in the actual world, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who do not exist in the actual world, except that one wants to avoid harming them as much as possible. i think many people also accept the time-dependent person-affecting principle: in assessing possible outcomes that have not occurred yet, one should (1) focus on those who will exist in the outcome that will occur first, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who will not exist in the outcome that will occur first, except that one wants to avoid harming them as much as possible. and at least some philosophers also accept: the identity-dependent person-affecting principle: in assessing possible outcomes, one should (1) focus on the status of those whose identity is already determined, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those whose identity is not determined yet, except that one wants to avoid harming them as much as possible. i shall henceforth refer to these principles as “the three alternative person affecting principles” or simply “the three other principles”. now, to see these principles in action consider the way in which the move from a to a+ in the mere addition paradox may be assessed according to them. the standard way of presenting this move assumes we depart from a and then we move to a+. but suppose we depart from a+, and are asked whether it would be worse to remain in a+ rather than to move to a, in which only those who are best off at a+ will exist. if we applied any of the three principles i have introduced above, we would then claim that remaining in a+ would be better. the reason would be that in a+ certain individuals whose existence is good exist, who instead would not exist if we moved to a. but suppose we were not at a+, but at a. many people have the intuition that if we are at a, while it would be fine if we moved to a+, it need not be necessarily better to move to a+ than to stay at a. the reason for this is that after all those extra individuals who would exist at a+ do not exist, in fact they have never existed and may never exist. most people do not regret that there are possible happy individuals who may have lived but have never existed. on the contrary, if moving from a to a+ implied that the wellbeing of some of those in a is reduced, these principles would claim that a+ would be worse than a. therefore, a might be better than a+ if a was actual or in defense of the internal aspects view 97 leap 2 (2014) previous than a+, or if the identity of those in a was established but not the identity of those in a+. but a+ would always be better than a if a+ was actual or previous than a, or if the identity of those in a+ was established. 3.3. why person-affective principles that seem to deny non-asymmetry fail to support an essentially comparative view given what we have just seen, it seems that these three principles i have just introduced appear to imply an essentially comparative view in an even more radical way than the narrow person-affective view. this is so because although rejecting the transitivity of betterness is one way to reject the essentially comparative view, rejecting the asymmetry of betterness is another, more radical, way to do so. i will now claim, however, that this is not really the case. these person-affective principles only seem to imply that “better than” is asymmetric and intransitive. on closer examination, they are not. to see this, we must consider that whether an outcome is better than another depends on which of those outcomes is the actual outcome. these facts need to be taken into account to know what outcome it would be better to obtain. there are two ways to explain this. we can count temporal position, actuality and the determination of individuals’ identity as something internal to outcomes, or we can count it as something external to them. suppose we consider that these circumstances are internal to outcomes themselves. that is, suppose they are part of that which defines a certain outcome and, therefore, of what can distinguish it from a different outcome. this means that two outcomes that are equal in everything except the time at which they occur are in fact different outcomes. and the same happens if one of them is actual and the other one is not, or if the identity of the individuals in them is determined beforehand or not. if we accept this we will have to conclude that a and b are not really the same outcomes when a is better than b and when “b” is better than “a”. and when we claim that a is better than b, b is better than c, and c is better than a, what happens is that a when a is better than b is different from “a” when c is better than “a”. that is, let us assign the names a’ and b’ to “a” and “b” when “b” is prior to “a”, when “b” instead of “a” is actual, or when the identity of the individuals existing in “b”, but not in “a”, is determined. if a > b and b’ > a’, then a ≠ a’ and b ≠ b’. let us now assign the name b’ to “b” when “b” is prior to c, when “b” is actual, or when the identity of the individuals existing in “b”, but not in “c”, is determined, and the names c’ and a’’ to “c” when “c” is prior to “a”, when “c” is actual, or when the identity of the individuals existing in “c”, but not in “a”, is determined. if a > b, b’ > c and c’ > a’’ then a ≠ a’’, b ≠ b’ and c ≠ c’. given this, there is no reason to deny betterness is symmetric. but there is no reason either to deny it is a transitive relation. 98 oscar horta leap 2 (2014) consider now the other solution. let us suppose that when we compare two outcomes, whether one outcome is previous to another one, or is actual, or has individuals whose identity is already determined, is something “external”, so to speak, to whatever defines the outcomes themselves. we have seen that according to these principles it is impossible to know whether an outcome is better than another one without knowing which one is prior or actual, or whether the identity of those who exist in them is determined. but then, this means that knowing everything about two outcomes is not enough to know which one is better. this means that an outcome cannot be considered better or worse than another one in itself. so in order to compare two outcomes we need to know also something “external” to these outcomes. if this is right, then whenever we compare which outcome is better according to the three principles i have presented we are not comparing the outcomes as such, but outcomes and something else. therefore, it is not the outcomes themselves that are ordered according to the relation “all things considered better than”. we must thus conclude that these principles are compatible with (i) the view that “all things considered better than” is a transitive relation, and with (ii) an internal aspects view. as we saw above, this is not the case when we consider other principles such as the narrow person-affecting principle whose application does not depend on factors such as time, actuality or whether the identity of individuals is fixed. whenever we compare two outcomes according to principles such as this one we can tell which one is better without having to know anything else apart from the outcomes. therefore, these principles never give rise to comparisons regarding betterness that are not asymmetric. but they can genuinely give rise to intransitive comparisons regarding betterness all things considered. therefore, as long as we accept the narrow person-affecting principle (or any similar principle) we will have to reject the internal aspects view. the difference between the narrow person-affecting principle and the three other principles i have presented is that, unlike these three principles, the narrow person-affecting principle compares different outcomes by virtue of the features of the outcomes themselves and that these features do not include circumstances, such as which outcome is previous, or actual. it is for this reason that according to the three other principles in certain circumstances a would be preferable to b and in other circumstances b would be preferable to a, while according to the narrow person-affecting principle this cannot be so. this result, however, can also mean that while according to the narrow person-affecting principle it is possible that a > b > c > a (though not that a > b and b > a), this is not so according to the other three principles. while according to them it seems that it can be the case not only that a > b > c > a, but also that a > b and b > a, this is so either because (a) when a is better in defense of the internal aspects view 99 leap 2 (2014) than b, b and a are different than they are when “b” is better than “a”; and when a is better than b and b is better than c, a and c are different than they are when c is better than a; or (b) because the comparison is not only between outcomes but between outcomes plus other circumstances. it is due to this that the time-dependent person-affecting principle, the actualitydependent person-affecting principle and the identity-dependent personaffecting principle are fully compatible with an internal aspects view. this means it is possible to reject an impersonal view when it comes to comparing outcomes with different individuals and yet accept an internal aspects view. this setting aside the fact that those who accept an impersonal view will have no reason to reject the internal aspects view either. 4. what happens in spectrum arguments? 4.1. no essentially comparative principle applies in spectrum arguments let us assess another way temkin defends an essentially comparative view, the one that appeals to spectrum arguments. we have seen already that in them our intuitions regarding which outcomes are better than others appear to imply that betterness is not transitive. however, this does not happen due to the application of a certain essentially comparative principle such as the narrow person-affecting principle. to be sure, in spectrum arguments one can assume an essentially comparative view. but if that is so, it needs to be due to reasons other than the application of essentially comparative arguments such as the ones presented in the previous sections (note that appeals to person-affecting reasons play no role here). in fact, what happens in spectrum arguments is that certain principles appear to clearly outweigh other principles in certain comparisons, but they appear to be clearly outweighed by them in other comparisons. to use the language temkin introduces here (2012: ch. 2 and 5, appendices a and b), for some comparisons between outcomes there is a certain “standard view” that seems to be clearly right, while for other comparisons between outcomes there is another standard view that appears to be clearly correct as well. temkin points out that there is a standard view according to which trade-offs between the duration and the quality of a certain suffering are sometimes desirable (2012: 30). this is so because it is assumed that it is better to experience more intense suffering for a shorter period of time, rather than less intense suffering for a longer period of time, if the difference in the intensity of the two pains is sufficiently small, and the difference in their durations is sufficiently large. this is the view we can think of when we face comparisons between immediate options, as that of a against b, b against c, c against d, etc. it is therefore the one that may drives us to think that a > b > c. when we compare options that are located far away in the 100 oscar horta leap 2 (2014) spectrum, however, as when we compare z against a, temkin claims that there is another standard view according to which trade-offs between the duration and the quality of a certain suffering are not acceptable. this is so because it is assumed that it is worse to receive a more intense pain of some non trivial duration than a very mild pain of virtually any duration. this is the one that drives us to think z > a. so two standard views apply here, not a single principle. 9 and note that none of these two views is an essentially comparative principle as defined above. suppose we only accepted the standard view that claims that trade-offs between quality and duration can be desirable and therefore concludes that a > b > c. we would never reach any result according to which a > b > c > ... > y > z > a, because that view would give us no reason to conclude that z > a. suppose now that we only accept the standard view that in some cases trade-offs between quality and duration are not desirable and concludes that z > a. again, the same result obtains: this view would never drive us to conclude a > b > c > ... > y > z > a. in this case, because the view itself gives us no reason to accept a > b > c or y > z. so, our intuitions may drive us to conclude that a > b > c > ... > y > z > a only when we combine these two principles. consider now the issue the other way around. suppose we accept an essentially comparative principle such as the narrow person-affecting principle. this need not give us any reason to reject transitivity in spectrum arguments, because in them no variation regarding the individuals involved in different outcomes occurs. therefore, if in these cases transitivity and the internal aspects view also fail to apply it must be due to completely different reasons. as i mentioned earlier, the only reasons to doubt about whether transitivity applies here is the conflict between our intuitions concerning the two different principles that we may accept in spectrum arguments. the examination of spectrum arguments must thus be different from the discussion of the cases involving essentially comparative principles visited above. 9. note that the contradictions between the application of principles sometimes works in different directions, so it is possible to draw two spectrum arguments in which things work just the other way around as in temkin’s main spectrum argument. for instance, consider one spectrum argument that starts with a, in which we suffer a very mild pain for a month. then compare it to b, in which we suffer moderate pain for three weeks. b seems to be worse than a. then consider c, which is a much worse pain for two weeks. c appears to be worse than b. and so on. finally, you reach z, where you suffer excruciating pain for a second. many would deem z preferable to a (though maybe not on reflection, providing a second is a relevant duration). the fact is that the intuitions we have towards each spectrum argument vary. for instance, i find the idea that excruciating pain for a second is worse than a headache for a month harder to accept than the idea that torture for a year is worse than some very mild pain lasting continuously for immense periods of time. but other people have different intuitions. in defense of the internal aspects view 101 leap 2 (2014) 4.2. why denying betterness is transitive does not solve the puzzles entailed by spectrum arguments there are reasons to reject that the challenge that spectrum arguments present should drive us to reject the conclusion that transitivity does not apply to them. the main reason for this is that rejecting that betterness is transitive does not solve the problems implied by the conflict between different standard views. suppose we granted that in spectrum arguments comparisons must be essentially comparative, and that betterness can be intransitive. i may know that i intuitively prefer a to b, b to c, c to d... and then y to z and z to a. and i can decide accordingly which outcomes are better when i compare two options in turn. but what happens if i do not only need to compare two options, but more? what happens, in particular, if i want to know what is the best option among all the available options? rejecting transitivity may allow us to make the choices we find more intuitive when it comes to pairwise comparisons between different alternatives. but it offers no guidance whatsoever regarding what we may do when we have to choose one outcome in the whole spectrum. it leaves us without any way to look for a global maximum in which the harms we suffer are minimized (see elster 2000; mcclennen 1990: 231). if anything, it makes things far more complicated, since transitivity offers at least a possible method to solve the problem. we may consider that this is not really crucial to the problem we face here. having trouble finding the best outcome is surely a problem. but the fact that some outcomes such as y and z seem to be better than others such as a and b, which in turn seem to be better than others such as c and d, is also very problematic. so we could think that while the problem of which is the best outcome is one everyone faces, this other problem is one that only those who accept the internal aspects view have to face. in this way, rejecting transitivity would at least allow us to make some progress. this, however, does not seem correct, because the problems we face when we have to choose the best option in the spectrum have the same origin as the problems we face when we compare alternatives that seem to be intransitive. the reason we have problems identifying the best option is that a appears to be better than b, b appears to be better than c and z seems to be better than a. it is all about the conflict between the prevalence of two different standard views. this is the reason why, in the spectrum, it seems that z > a while it also seems that a > b > c > … > y > z. it is also the reason why we are at a loss to identify the best option. in addition, we may take into account something temkin considers when he wonders: “[w]ouldn’t the best alternative be the one that was best in comparison with all other possible alternatives, whether or not we might ever actually face them?” (2012: 470). this is a reasonable view, and if it is right, then in comparing two outcomes it makes perfect sense 102 oscar horta leap 2 (2014) to compare them considering all the different options that there may be in a spectrum within which these two outcomes can be included. we might believe that even if this is so, the problems we will have to face to do this will not be exactly the same ones that those faced by advocates of the internal aspects view. we may think that if we reject the claim that betterness is transitive we will have more alternatives available among which we can choose what solution is the best. but this is not so. to see this, let us examine what reasons we may have to support as sound candidates to the best outcome in the spectrum. 10 (a) duration prevails. we may hold that the worst pain is always the one that lasts more. according to this a is the best option. this view will solve the whole spectrum problem by rejecting the applicability of the two standard views. (b) quality prevails. we may also hold that the worst pain is always the most intense pain. if so, z is the best option. again, this would solve the spectrum problem by denying the applicability of the two standard views. (c) expected utility. we may also hold that expected utility theory tells us how good or bad is each option in the spectrum. we would then choose a. unlike in the case of the two other possible solutions we have just seen this criterion does not immediately dissolve the spectrum problem. on this view it makes sense to claim that there is intuitively less utility in a than in z. but expected utility theory assumes that betterness is transitive. due to this, it can revise this first judgement by acknowledging that it is in contradiction with agreeing that a is better than b, b better than c, and so on until we agree that y is better than z, and therefore conclude a is also better than z. (d) critical level. we may accept a capped model according to which there would be a certain critical level that ruled out as bad any outcome in which pain became too intense, if the critical level was set to rule out outcomes according to quality, or too persistent if the critical level was set to rule out outcomes according to duration. accordingly, we could choose a point of the spectrum such as m, for example, at which the pain was not too intense or too long. we may think that rejecting transitivity makes it easier for us to accept this, because it would make it easier for us to accept any option different from a. but the fact is that we can accept any of those options even if we do not reject transitivity. suppose we do this in the case of m. this will imply that we will have to accept that m is both better than 10. see on this handfield (2013). in defense of the internal aspects view 103 leap 2 (2014) l and n (l < m > n). this is very counter-intuitive and thus a high price to pay for holding this position. it is hard to see how m may be better than l and n, since the same reasons for m to be better than n seem to make it worse than l. but both advocates of transitivity and advocates of instransitivity face the same problem here. (e) strength of preference in pairwise comparisons. we may also decide to choose the option for which our preference over the immediate next option in the spectrum is the strongest one. in that case we would choose z, it seems, because our preference for z over a is stronger than our preference for a over b, from b over c, etc. we may think that this solution is easy for advocates of intransitivity. but it is not. the reason is that if transitivity does not apply, then there is no reason to assume a certain ranking according to which a certain outcome comes after another one. so the whole idea of having an immediate next option in the spectrum ceases to make sense. but then, for advocates of intransitivity, the intuitive initial preference for z over a is weaker than that for y over a, and that of x over a. and, as i have just said, if transitivity does not apply, then there is no reason to assume that z, and not y or x, is the relevant outcome we must compare with a. and mind that both y and x are clearly better than z, yet similar enough to z to make the distinction in quality between z and a, and between y to a trivial. so if we reject transitivity we will be at a loss about how to solve this problem. (f ) special preferences. we may just maintain an arbitrary view according to which some solution such as, say, g, is the best one just because it is. for instance, we may maintain that there’s something special about mild torture for 10 years that makes it less bad both than a slightly worse torture for fewer years and a slightly milder torture for more years. again, there is no reason why we may accept any solution if we reject transitivity but not if we accept it. as it happened when we considered critical levels, advocates of transitivity have to bite the bullet that some option is better than both the previous and the following option in the spectrum (which they may find preferable than having to reject transitivity). but advocates of intransitivity need to do so as well if they are to give a solution to this problem at all. there is only one way in which advocates of intransitivity can avoid all these difficulties which is not available to advocates of transitivity: by claiming that there is just no fact of the matter as to what outcome is the best one in the spectrum. but this is certainly not a way to solve the problem; rather, it is a way to claim (i) either that the problem has no solution or (ii) that we cannot solve it, both of which are odd replies. 104 oscar horta leap 2 (2014) in all these cases, rejecting transitivity fails to facilitate a solution. in fact, it makes it harder, if not impossible, to do so. to be sure, there can be other solutions to this problem apart from the ones i have presented. but it seems that the abovemention problems both for advocates of transitivity and intransitivity persist. 5. we do not need to reject the internal aspects view if my arguments above are correct, we have reasons to maintain transitivity and the internal aspects view. we have seen that some principles that appeal to person-affecting reasons are essentially comparative. but the intuitions supporting these principles can also be accommodated by means of other principles which are not essentially comparative. in addition, the argument will have no force for those who hold an impersonal view. we have also seen that it is possible to try to explain our intuitions in spectrum arguments by rejecting transitivity. but this does not solve the problems these arguments pose, in light of which we may simply opt for not rejecting it and not accepting the essentially comparative view. we can thus conclude that we do not need to reject the internal aspects view to find apt solutions to the challenges pressed against it. moreover, rejecting transitivity fails to yield better solutions. 6. the conflict between temkin’s normative and metaethical views 6.1. can inconsistent moral intuitions track an objective reality? the problems discussed thus far are normative and methodological, but may entail also metaethical consequences. this need not be so, since, strictly speaking, normative claims need not depend on metaethical views. temkin’s arguments, however, may give us reasons against moral realism (even though temkin is a realist himself ). this is so because if there are some substantive moral claims that are true regardless of what we think, we have no epistemological access to the moral reality other than our intuitions. moral realists thus claim that our intuitions somehow track moral reality. temkin’s attack on the internal aspects view, however, shows that the intuitions most of us have are inconsistent and chaotic. could it be that moral reality is also inconsistent and chaotic? this seems implausible. given this, it seems that either moral realism is also implausible or our moral intuitions do not really track any moral reality, in which case moral realism is indefensible (since we have nothing to back the claim that some moral reality exists). in defense of the internal aspects view 105 leap 2 (2014) temkin argues that rejecting transitivity need not imply an inconsistent viewpoint (2012: 500). this, however, is besides the point. the issue is not the inconsistency involved in rejecting transitivity, or the internal aspects view. the issue is that temkin’s arguments show that most of us have inconsistent intuitions. to see this, consider the way temkin argues that intransitivity does not entail inconsistency: suppose that there are three alternatives a, b, and c, such that we come to believe that it really is the case that, all things considered, a is better than b, b is better than c, but, all things considered, a is not better than c. would this mean that we have inconsistent beliefs or that we thought the world was inconsistent? no! it would mean this if we also thought that “all-things-considered better than” was a transitive relation. temkin’s argument is not necessarily implausible. the problem, however is that many of us do think that “all-things-considered better than” is a transitive relation. i have presented several arguments defending this view. we can accept them and yet feel the strength of the intuitions temkin appeals to when he claims, for instance, that in spectrum cases a > b > c > d > ... > y > z > a. but that means we have inconsistent intuitions. this means that if our moral intuitions tracked the world, such world would also be inconsistent. temkin defends the compatibility of his normative position and realism, claiming that moral reality could be inconsistent. he writtes that “[o]ur theories should reflect the world as it actually is, and on my view, whether or not the normative realm is vague, incomplete, or even inconsistent depends on facts about the normative realm, not on what is useful for us” (2012: 521). he adds to this: “[o]n my realistic conception of the normative realm, it is not [...]up to us to simply decide which positions should be accepted and which revised or rejected” (ibid.). such statements leaves us without guidance to accept or reject any kind of normative or metaethical views. moreover, we are the only ones who can decide which views to accept or reject, and we have nothing but our intuitions and our capacity to compare them to make such decisions (this is the case of both realists and antirealists). finally, the idea that there is an inconsistent moral reality appears to many of us both hardly conceivable and at any rate less likely than the falsehood of realism (regardless of other reasons we may have to doubt this). 6.2. our intuitions towards metacriteria how is it possible that there is this radical disagreement about the requirement of consistency between temkin and (surely) many temkin readers like myself? 106 oscar horta leap 2 (2014) to answer this question we can examine the kind of intuitions with which we can appraise the apparent paradoxes that temkin presents. it seems that most of us have intuitions both about whether certain particular outcomes are better than others and towards certain general axiological principles. similarly, we have intuitions about what we should do in some particular cases and about general normative principles. some of us, however, have also intuitions about metacriteria concerning our axiological and normative theories. some of us have a very strong intuition that betterness must be transitive. we also have a very strong intuition that our axiological and our moral views must be consistent. these are not the same; and it is possible that rejecting transitivity does not entail any kind of inconsistency. but they are both strong intuitive metacriteria for many of us. these are not, moreover, the only intuitions about metacriteria we have: many of us also have the intuition that there is something wrong with a theory that is very complex and includes lots of exemptions and provisos. in fact, many of us find these intuitions so compelling that when we have to decide between abandoning them or abandoning the claim that a year of torture must be worse than a very large number of mosquito bites we give up the claim about mosquito bites. however, temkin and others find that decision unacceptable. this is because their intuitions regarding consistency, transitivity and simplicity are weaker or even nonexistent. temkin is not only willing to give up transitivity and simplicity, but also consistency if it clash with his intuitions about pairwise comparisons of outcomes (2012: section 14.6). he argues that “[n]othing can force someone to give up a set of inconsistent views” (2012: 520). because we have inconsistent views, temkin suggests we give up our aspirations to have a consistent approach, so we can keep all our views. this can help temkin not only to hold the normative views he finds intuitive, but also to do so without abandoning moral realism. if we strongly believe all our views must be consistent, however, the problem continues, and consistency remains a requirement we do not want to drop. moreover, we probably do not want to drop other metacriteria such as transitivity and simplicity. this gives us reasons to resist temkin’s attack on the internal aspects view, and, if the argument presented above is correct, it also present a serious challenge to his realist views in metaethics. bibliography binmore, k. g., and voorhoeve, a., 2003: “defending transitivity against zeno’s paradox”, philosophy and public affairs, 31: 272-279. broome, j., 2004: weighing lives, oxford: oxford university press. dancy, j., 2005: “essentially comparative concepts”, journal of ethics and social philosophy, 1, url = http://www.jesp.org/pdf/dancy.pdf. in defense of the internal aspects view 107 leap 2 (2014) elster, j., 2000: ulysses unbound: studies in rationality, precommitment, and constraints, cambridge: cambridge university press. friedman, a., 2009: “intransitive ethics”, journal of moral philosophy, 6: 277-297. handfield, t., 2013: “rational choice and the transitivity of betterness”, philosophy and phenomenological research. huemer, m., 2013: “comparative value, and the methods of ethics”, ethics, 123: 318345. norcross, a., 1997: “comparing harms: headaches and human lives”, philosophy and public affairs, 26: 135-167. — 1998: “great harms from small benefits grow: how death can be outweighed by headaches”, analysis, 58: 152-158. — 1999: “intransitivity and the person-affecting principle”, philosophy and phenomenological research, 59: 769-776. mcclennen, e. f., 1990: rationality and dynamic choice: foundational explorations, cambridge: cambridge university press. quinn, w., 1990: “the puzzle of the self-torturer”, philosophical studies, 59: 79-90. rachels, s., 1998: “counterexamples to the transitivity of better than”, australasian journal of philosophy, 76: 71-83. rachels, s., 2001: “a set of solutions to parfit’s problems”, noûs, 35: 214-238. — 2004: “repugnance or intransitivity: a repugnant but forced choice”, in the repugnant conclusion: essays on population ethics, ed. j. ryberg and t. tännsjö, 163-186, dordrecht: kluwer. temkin, l. s., 1987: “intransitivity and the mere addition paradox”, philosophy & public affairs, 16: 138-187. temkin, l. s., 1996: “a continuum argument for intransitivity”, philosophy & public affairs, 25: 175-210. — 1997: “rethinking the good, moral ideals and the nature of practical reasoning”, in reading parfit, ed. j. dancy, 290-234, oxford: blackwell. — 2010: “intransitivity and the person-affecting principle”, philosophy and phenomenological research, 59: 777-784. — 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. voorhoeve, a., 2008: “heuristics and biases in a purported counter-example to the acyclicity of ‘better than’”, politics, philosophy and economics, 7: 285-299. weber, m., 2007: “is equality essentially comparative?”, ethical theory and moral practice, 10: 209-226. 108 issn 2341-1465 leap 2 (2014): 108-119 reply to horta: spectrum arguments, the “unhelpfulness” of rejecting transitivity, and implications for moral realism l arry temkin rutgers university abstract this article responds to oscar horta’s article “in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions”. i begin by noting various points of agreement with horta. i agree that the “better than relation” is asymmetric, and point out that this will be so on an essentially comparative view as well as on an internal aspects view. i also agree that there are various possible personaffecting principles, other than the one my book focuses on, that people might find plausible, and that in some circumstances, at least, these might have deontological, rather than axiological significance. in particular, i grant that horta’s actuality-dependent person-affecting principle, his time-dependent person-affecting principle, and his identity-dependent person-affecting principle, might each be relevant to what we ought to do, without necessarily being relevant to which of two outcomes is better. but i reject horta’s claim that essentially comparative principles don’t apply in spectrum arguments. i also argue against horta’s view that the two standard views that underlie our intuitions in spectrum arguments are contradictory. i question horta’s (seeming) position that there is no point in rejecting the transitivity of the “better than” relation on the basis of spectrum arguments, on the grounds that doing so won’t solve the predicament that spectrum arguments pose. finally, i conclude my paper by challenging horta’s interesting contention that my views about nontransitivity support an anti-realist metaethics, and are incompatible with the sort of realist approach to metaethics that i favor. keywords: transitivity, spectrum arguments, person-affecting principles, internal aspects view, better than, essentially comparative view, realism, anti-realism, sophie’s choice, moral dilemmas. reply to horta 109 leap 2 (2014) let me begin by acknowledging my gratitude to oscar horta for his thoughtful and sensitive comments in his article “in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions” (horta, 2014), and also for the generous spirit he displayed in presenting them. i will divide my responses into two main parts. in part i, i will note some points where i agree with horta. in part ii, i will note some points about which we disagree. 1 1. in section 3, horta discusses different possible types of person-affecting principles, and the question of whether better than can be non-asymmetric. as horta recognizes, the points he makes in this section are not in tension with my book’s claims. but i agree that they offer useful lessons to bear in mind as we try to determine what needs to be said about the “better than” relation and other analogous relations. one of horta’s main claims in section 3 is that the “better than” relation is asymmetric: so if, in any given context, a is better than b, all things considered, then it can’t also be the case that, in that very same context, b is better than a, all things considered. even i, who am open to rejecting the axiom of transitivity for the “better than” relation, don’t reject the fact that the better than relation is asymmetric! similarly, while i am open to rejecting the axiom of transitivity for the “equally as good as” relation, i accept the standard view that the “equally as good as” relation is symmetric: so if, in any given context, a is equally as good as b, all things considered, then it must 1. this article was originally written in response to the talk that horta presented at the leap symposium on my book, rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012), at pompeu fabra university in fall 2012, and to an early draft of his article based on that talk. unfortunately, shortly before this journal was to go to press, i received the final, revised, version of horta’s article, and i was somewhat surprised to see that he had substantially revised his article, both in terms of adding new material that i hadn’t previously seen, and deemphasizing, or removing, some key claims or passages to which my original article had objected. i have, where possible, adjusted my article in light of horta’s final changes. however, given the journal’s time constraints, there were some important aspects of the final version of horta’s article to which i was unable to respond. in addition, in some cases i have thought it worthwhile to retain points that i raised with respect to his original talk and draft, since others may be attracted to views similar to those he previously held, even if horta, himself, has now changed his mind on the matters. thus, i acknowledge, here, that some of the points that i will be making are less relevant, or even not relevant, to his published article, and that, in some cases, when i highlight a supposed disagreement between us, the disagreement between us may have lessened, or disappeared altogether, since horta first presented his views on these topics. to aid the reader, i try to make it plain in the text where i am mainly responding to his talk, as opposed to his published article. 110 larry temkin leap 2 (2014) also be the case that, in that very same context, b is equally as good as a, all things considered. to these uncontroversial claims, i would simply point out that the explanation i give for why the various axioms of transitivity could fail to hold, does not similarly challenge these other standard claims. in challenging the axioms of transitivity, i noted that some of the ideals people most value are essentially comparative. on an essentially comparative view, the factors that are relevant and significant for assessing an outcome may vary depending on the alternative with which it is compared. this opens up the possibility that, in any given context, the factors that are relevant and significant for comparing a with b, or b with c, may be different from the factors that are relevant and significant for comparing a with c. from this it follows that, in a given context, a might be better than (or equally as good as) b, in terms of all of the factors that are relevant and significant for making that comparison, and b might be better than (or equally as good as) c, in terms of all of the factors that are relevant and significant for making that comparison, and yet a might not be better than (or equally as good as) c, in terms of all of the factors that are relevant and significant for making that comparison. thus, i claimed that on an essentially comparative view of ideals, the axioms of transitivity regarding the “better than” and “equally as good as” relations may fail, or fail to apply across different sets of alternatives to which we might have thought they should apply. 2 however, as indicated, the explanation i give for why the axioms of transitivity may fail, or fail to apply, offers no reason to doubt the asymmetry of the “better than” relation, or the symmetry of the “equally as good as” relation. this is because whether one accepts an internal aspects view (according to which how good an outcome is depends solely on the internal features of that outcome), or an essentially comparative view of ideals, if, in a given context, a is better than b in terms of all of the factors that are relevant and significant for comparing a and b in that context, then it will be the case that b is worse than (and hence not better than!) a in terms all of the factors that are relevant and significant for comparing a and b in that 2. some people believe that on an essentially comparative view the axioms of transitivity fail to hold, so that they should be rejected. others insist that there are various ways of preserving the axiom of transitivity even on an essentially comparative view, so that they never fail, but that the axioms of transitivity may fail to apply in those cases where essentially comparative ideals are relevant for assessing different alternatives. in my book, i use the notion of non-transitivity to cover both the cases where we think the axioms of transitivity fail, and those where we think they fail to apply across different sets of alternatives to which we might have expected that they should apply. i argue that there are significant practical and theoretical implications of the “all-things-considered better than”, “equally as good as”, and “at least as good as” relations being non-transitive, whether or not this is because the relations fail, or “merely” because they fail to apply in the cases i discuss (temkin, 2014: 85, note 13). see temkin 2012: 5, 16-8, 59-60, 66, 163-182, 197-8, 203-214, 223-5, and ch. 13. reply to horta 111 leap 2 (2014) context. thus, “better than” is asymmetric, precisely as horta has claimed and as i, and everyone else, should readily accept. similarly, whether one accepts an internal aspects view or an essentially comparative view of ideals, if, in a given context, a is equally as good as b in terms of all of the factors that are relevant and significant for comparing a and b in that context, then it will be the case that b is equally as good as a in terms all of the factors that are relevant and significant for comparing a and b in that context. hence, the “equally as good as” relation is symmetric. in sum, i have offered an account of why the axioms of transitivity might fail to hold, but that account does nothing to challenge the uncontroversial claims that “better than” and “equally as good as” are asymmetric and symmetric relations, respectively. let me turn next to horta’s discussion of different person-affecting principles. horta distinguishes between three different kinds of personaffecting principles: the actuality-dependent person-affecting principle: in assessing possible outcomes, one should focus on the status of those who exist in the actual world, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who do not exist in the actual world, except that one wants to avoid harming them as much as possible. the time-dependent person-affecting principle: in assessing possible outcomes that haven’t occurred yet, one should focus on those who will exist in the outcome that will occur first, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those who will not exist in the outcome that will occur first, except that one wants to avoid harming them as much as possible. the identity-dependent person-affecting principle: in assessing possible outcomes, one should focus on the status of those whose identity is already determined, with the aim of wanting them to be as well off as possible, and (2) ignore the status of those whose identity is not determined yet, except that one wants to avoid harming them as much as possible (horta 2014: 96). i should mention that none of horta’s versions of person-affecting principles correspond exactly to the two versions i discuss in my book, my narrow person-affecting view and my wide person-affecting view (temkin 2012: 416-45), but this need not concern us here. in his original talk, horta contended that while positions like the actualitydependent, time-dependent, and identity-dependent person-affecting principles might be relevant, in certain circumstances, to our assessment of what we ought or ought not to do in choosing between two alternatives, it doesn’t follow that such judgments are tracking which of the two alternatives, considered just by themselves, is better, per se. here, too, i agree with horta. 112 larry temkin leap 2 (2014) consider, for example, diagram one. a q r b b a diagram one as drawn, diagram one represents two possible outcomes, q and r. each outcome contains two groups, a better-off group and a worse-off group. there is no difference between the levels or number of people in the two better off groups, and similarly, for the two worse-off groups. the only difference concerns the identities of the betterand worse-off groups in the two outcomes. in q, the a people occupy the better-off group and the b people occupy the worse-off group; in r, the reverse is true. assuming there are no morally relevant differences between the a and b people—so, for example, each person is equally talented, hardworking, deserving, and so on—it seems clear that, considered just by themselves, q and r are equally good. but now, suppose that there were a presently existing actual outcome, with people whose identities were already determined, and it looked like p in diagram two. aa p q r b ab diagram two in p, a presently existing actual outcome, the a people already exist, and they are at a level between that of the betterand worse-off groups in possible reply to horta 113 leap 2 (2014) future outcomes q and r. suppose, next, that we could transform the p outcome into one like q or r. that is, we could either raise the a people up, and bring another group of people, b, into existence at a lower level, so as to produce an outcome like q, or, alternatively, we could bring another group of people, b, into existence at a high level, but at the cost of lowering the a people, so as to produce an outcome like r. in accordance with horta’s actuality-dependent, time-dependent, and identity-dependent person-affecting principles, it would be permissible, desirable, and perhaps even obligatory to bring about q, and impermissible, undesirable, and prohibited to bring about r. but even if this showed that p would be improved by being changed into q and worsened by being changed into r, that doesn’t entail that q, considered just by itself, is a worse outcome than r, considered just by itself. this should be evident, if one considers the fact that instead of the third alternative p, being a presently existing actual outcome, it might have been a fourth alternative, o, that was a presently existing actual outcome, where o was just like p except that instead of the a people existing at a level between the betterand worse-off groups in q and r, the b people existed at that level. in that case, it would have been true that on all three of horta’s dependent person-affecting principles, o would be improved by being changed into r, and it would be worsened by being changed into q. thus, we would have to abandon the non-asymmetry of the “better than” relation if we thought that we could infer that q was in itself better than r, simply from the fact that it would be desirable to transform p into q, but undesirable to transform p into r; because the same reasoning would then entail that r was in itself better than q, since it would also be desirable to transform o into r, but undesirable to transform o into q. a fortiori, as horta contended in his talk, even if there are cases where in accordance with any of his dependent person-affecting principles it would be obligatory to bring about one outcome, o 1 , rather than another outcome, o 2 , it doesn’t follow that the judgments yielded by such principles support the conclusion that, considered just by themselves, o 1 is better than o 2 . however, let me add that horta’s position is not merely compatible with my claims in rethinking the good, it follows directly from the fact that horta’s three person-affecting views are essentially comparative as i characterized that notion. as noted previously, on an essentially comparative view, different factors can be relevant and significant for assessing the relative goodness of outcomes like q or r, depending on the alternatives with which they are compared. thus, q might have one value in comparison with r when those are the only alternatives, but a different value in comparison with r when each is itself an alternative to some third outcome p, and a still different value in comparison with r when each is itself an alternative to some fourth outcome o. 114 larry temkin leap 2 (2014) 2. let me turn next to some points of disagreement with horta, some of which are fairly minor, but others of which are not. first, in discussing my spectrum arguments, horta titles his subsection 4.1 “no essentially comparative principle applies in spectrum arguments”, and he calls special attention to the claim “that appeals to person-affecting reasons play no role here” (horta, 2014: 99). i agree with horta’s claim that personaffecting views do not underlie my spectrum arguments. 3 however, i take exception to the title of his subsection, which, i believe, is either misleading or mistaken. as i have presented and analyzed them, spectrum arguments do arise because of the essentially comparative view of ideals. consider, for example, my spectrum argument where the first member of the spectrum involves a very long life with 15 mosquito bites per month and two years of torture, and the last member involves a very long life with 16 mosquito bites per month but no torture. i claimed that two distinct views guided our thinking in making different comparisons along the spectrum. the first standard view reflects an additive-aggregationist approach and the second standard view reflects an anti-additive-aggregationist approach. both views are limited in scope, in that they seem relevant and significant for making certain comparisons but not others. in particular, i pointed out that where the differences in the intensity of pains between two alternatives was very small, the first standard view seemed plausible and appropriate for comparing those alternatives, so, in particular, it seemed appropriate for comparing my spectrum’s first alternative with the second, the second with the third, the third with the fourth, and so on. on the other hand, where the differences in the intensity of pains between two alternatives was very large, the second standard view seemed plausible and appropriate for comparing those alternatives, so, in particular, it seemed appropriate for comparing my spectrum’s first few alternatives with its last few alternatives. thus, the factors that seemed relevant and significant for assessing the spectrum’s first alternative were different depending on whether it was being compared with the spectrum’s second alternative or its last alternative. this is in keeping with the essentially comparative view of ideals, and is at odds with the internal aspects view of ideals (see temkin 2014: section 3, 71; and temkin 2012: 62-6, 229-31, 369-74). in sum, while it may be true that there is no single essentially comparative ideal like a person-affecting view that underlies my spectrum arguments, i think it is true that an essentially comparative approach best explains 3. however, like the spectrum arguments, person-affecting views challenge the axioms of transitivity. see temkin 2014: sec. 5; and temkin 2012: ch. 12. reply to horta 115 leap 2 (2014) what is going on in my spectrum arguments, and why they ultimately put pressure on the axioms of transitivity. let me turn to a second point. horta suggests that my two standard views are contradictory. 4 i deny this. the first and second standard views would be contradictory if there were any particular judgments which the first standard view made which were denied by the second, or vice versa. but this is not, i think, the case. for example, where the first standard view yields the judgment that the first member of my spectrum is better than the second, the second standard view doesn’t deny this judgment, rather it is silent. specifically, as i characterized it in my book, the second standard view simply doesn’t apply for comparisons involving such alternatives. likewise, where the second standard view yields the judgment that the spectum’s first member is worse than the last, the first standard view doesn’t deny this judgment, rather it is silent. again, as i characterized it, the first standard view simply doesn’t apply for comparisons involving such alternatives. note, there would be nothing contradictory about the claims that john is in love with mary and that john isn’t in love with tim, even if mary is in love with tim. there would also be nothing problematic about such claims, and this for the simple reason that “is in love with” isn’t a transitive relation! likewise, there will be nothing contradictory or even problematic about the claim that spectrum’s first outcome is better than the second, but the first is not better than the last, even if, for each pair of adjacent outcomes n and n + 1 along the spectrum, n is better than n + 1, as long as “all-things-considered better than” isn’t a transitive relation. but, of course, if, as many believe, the first standard view is relevant and significant for comparing adjacent outcomes along my spectrum, but doesn’t apply for comparing the first and last outcomes, and if, as many also believe, the second standard view is relevant and significant for comparing my spectrum’s first and last outcomes, but doesn’t apply for comparing my spectrum’s adjacent outcomes, then there is good reason to believe that “allthings-considered better than” isn’t a transitive relation, in which case the first and second standard views won’t be contradictory, and neither will their respective judgments that the spectrum’s first outcome is better than the second, but not better than the last. third, horta suggests that there is a powerful reason to resist being driven to “reject the conclusion that transitivity does not apply to [spectrum cases, since]... rejecting that betterness is transitive does not solve the problems 4. horta was clearer about this in his talk, than he is in his article, where he seems to deemphasize this claim. however, he still seems to hold the view in question. see, for example, note 9 of horta 2014: 100, where he writes “note that the contradictions between the applications of the [spectrum arguments’] principles sometimes works in different directions... (emphasis added)”. 116 larry temkin leap 2 (2014) implied by the conflict between different standard views (emphasis added)” (horta 2014: 107). later, horta emphasizes that “rejecting transitivity fails to facilitate a solution. in fact, it make it harder, if not impossible, to do so” (horta 2014: 104). in essence, then, horta believes that there is no point in rejecting transitivity on the basis of spectrum arguments, if doing so won’t help us to solve such arguments. 5 to a large extent, i agree with these remarks. indeed, i emphasize some of these very same sentiments in my book, when i’m discussing the costs and benefits of accepting or rejecting the different positions underlying my impossibility arguments. but, i’m not sure, exactly, what is supposed to follow from such observations. i am a philosopher seeking the truth. we would very much like to be able to answer certain questions in a certain way. but what if the sad truth is that the answers we seek are not to be found, or cannot be answered in the way we had thought or hoped. is it not an important advance in our understanding of the normative realm if we learn that this is so? i am reminded here of the socratic claim regarding why the oracle called him the wisest of all men. it was, socrates claimed, because whereas most people thought that they knew a lot, and were wrong, he knew that he knew nothing (other than the fact that he knew nothing!). 6 as socrates recognized, it can be as important to know what we don’t know, and to learn what we can’t know, as to continue to seek solutions along a path where they can’t be found. this raises a related point. many years ago, when i first began thinking about and teaching these issues, carl hoefer, who was then still an undergraduate, was quite pleased by my results, and the implications he took them to have. hoefer was worried about the dominance of consequentialist reasoning in much of contemporary normative reasoning. at the time, hoefer thought it would be better if moral philosophers spent more time focusing on considerations of character, of the sort championed by aristotle, or on deontological considerations, of the sort championed by kant. for hoefer, my results suggested a vindication of sorts for those who thought that a focus on consequences, and in particular on the aim of bringing about the best available outcome by maximizing the good, was the wrong way to proceed in determining how we ought to act, morally. now i don’t abandon the appeal to consequences lightly, if at all. indeed, as i emphasize in my book, i don’t really even see how that could be a possible option, and i am certain that there would be enormous costs to such a move. moreover, and more troubling, i’m not sure that virtue-based or deontological-based reasoning can wholly avoid the sorts of worries that 5. horta was, i think, even clearer about this in his talk, where he really emphasized this point. 6. the position in question is often attributed to socrates on the basis of a key passage (21d) of plato’s apology. reply to horta 117 leap 2 (2014) arise in my book from spectrum arguments or an essentially comparative view of ideals. 7 but having said all that, the mere fact that abandoning the transitivity of the “all-things-considered better than” relation wouldn’t help us to decide what to do if, for example, we found ourselves facing a spectrumtype choice and we wanted to bring about the best available outcome, doesn’t show us that transitivity shouldn’t be abandoned. perhaps, reluctantly, it should. however intuitively unpalatable, this is an alternative that requires careful consideration. indeed, perhaps taking such an option seriously will force us to pursue other paths in our exploration of the normative realm that may ultimately prove to be more fruitful than the paths on which most moral philosophers have focused up until now. let me conclude my response to horta with some comments on the topic of section 6 of his article, moral realism. as i note in my book, derek parfit once claimed that if my arguments were sound, they amounted to the most skeptical argument against moral realism since david hume’s arguments. 8 since neither parfit nor i are moral skeptics, that gave us both reasons to hope that my arguments aren’t sound —at least, if parfit were right in his assessment about their implications. but, of course, hoping doesn’t make it so! moreover, as my previous comment suggests, how devastating my results may prove to be will ultimately turn on whether other fruitful paths in the normative realm might be found that do not fall victim to my arguments. a key question to be addressed concerns how much of the normative realm depends on our being able to provide a coherent ordering, in the form of a transitive ranking, of outcomes or choices. even if, in the end, there is no meaningful transitive ranking of outcomes that we can correctly appeal to in our normative deliberations, it is arguable that there may still be many fullblooded realist considerations that would rightly have a bearing on what choices we ought, morally, to make in the living of our lives. perhaps some of these would be deontic-, caring-, or virtue-based in nature. but, as implied above, perhaps some of these would be along new lines yet to be discovered and developed; lines which, perhaps, will only be discovered if we are forced to look in new directions for navigating the normative realm. finally, i am a realist in thinking that if we end up abandoning the axioms of transitivity, it will be because we are recognizing that there are compelling reasons to accept essentially comparative principles like the narrow person7. soon after i sent this article off, morten dahlback sent me an email suggesting that virtue theorists and deontologists will also face compelling versions of the spectrum arguments, together with a sketch of an argument for why this is so. in a few subsequent exchanges, we were able to revise and tighten up his argument, showing that this is, indeed, the case. 8. actually, parfit has made this claim to me on multiple occasions over the years during discussions about my work. 118 larry temkin leap 2 (2014) affecting view, the pareto principle, person-affecting versions of utility and maximin, and combinations of positions like the first and second standard views. that is, i believe that there may be good reasons to abandon the axioms of transitivity, and that we will only be driven to such a position by the force of such reasons. so, this makes me a realist about reasons, as opposed to a skeptical anti-realist who denies that there could be reasons to accept or reject any particular principles, including principles of consistency like the axioms of transitivity. my position here is similar to that of some people who believe in the possibility of genuine moral dilemmas. consider one classic example of a so-called moral dilemma, sophie’s choice (styron 1979). sophie seemingly faced three choices: she could save her son, in which case the nazis would murder her daughter, she could save her daughter, in which case the nazis would murder her son, or she could do nothing, in which case the nazis would murder both her children. anti-realists about reasons believe that in the most fundamental sense it doesn’t matter what sophie chooses. specifically, they believe that, ultimately, there are no reasons of any kind guiding sophie’s choice, or any other choice for that matter. on the anti-realist position, there is no reason either way for sophie to save her son, save her daughter, allow both to be killed, or, for that matter, to pursue a fourth option of killing both of her children herself, and perhaps a lot of other innocent victims who would otherwise have survived! those realists about reason who believe in the possibility of genuine moral dilemmas (many realists do not), believe that there are overwhelmingly compelling reasons for sophie to save her son, but that there are also overwhelmingly compelling reasons for sophie to save her daughter, and that the nature and structure of the reasons in question are such that they do not, and cannot, balance or cancel each other out. on their view, the fact that she can’t save both of her children doesn’t alter the fact that sophie should save her son, which she can do, and that she should save her daughter, which she also can do. accordingly, for such moral realists, sophie is facing a moral blind alley, or moral dilemma, in the sense that whether she chooses to save her son or her daughter she will, in a deep and fundamental way, have acted wrongly. on this view, whatever choice sophie makes, she will have unavoidably acted contrary to compelling reasons for acting otherwise than she did, reasons which were not cancelled out or balanced by the likewise compelling reasons on which she chose to act. importantly, such realists would vehemently deny that there are no reasons applicable to sophie’s choice. contrary to the anti-realist, they would insist that sophie has strong reason not to let both children be killed, and even stronger reason not to kill her children herself along with a number of other innocent victims who would otherwise survive. but they believe that the very real and compelling reasons that have a bearing on her situation reply to horta 119 leap 2 (2014) put sophie in a “no win” situation. she must choose to save her son or her daughter, but whatever choice she makes will be wrong! on the view in question, moral dilemmas are truly tragic situations from which there is no rational escape. but they only obtain because there genuinely are moral reasons whose nature and structure give rise to such dilemmas. my point in discussing moral dilemmas is not to defend the view that there are such dilemmas, but to illustrate how such a view is consistent with a realist view of reasons. similar thinking applies, i believe, regarding my spectrum arguments, or the other arguments i have given threatening the axioms of transitivity. one may be a realist about reasons, but believe that an essentially comparative view of ideals is true. if the essentially comparative view is true, then there may be no transitive ordering of the alternatives in my spectrum arguments, or of many of the other sets of alternatives my book discusses. but this won’t be because the anti-realists are right. rather, it will be because of the nature and structure of the genuine reasons that exist, and that bear on the alternatives in question. or so i believe, anyway. bibliography horta, o., 2014: “in defense of the internal aspects view: person-affecting reasons, spectrum arguments and inconsistent intuitions”, law, ethics and philosophy 2: 87-107. styron, w., 1979: sophie’s choice, new york: random house. temkin, l., 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. — 2014: “rethinking the good a small taste”, law, ethics and philosophy 2: 58-86. 120 internal or external grounds for the nontransitivity of “better/worse than” ingmar persson gothenburg university and oxford uehiro centre for practical ethics abstract in his book rethinking the good: moral ideals and the nature of practical reasoning larry temkin contrasts two views of ideals for evaluating outcomes: the internal aspects view and the essentially comparative view. he claims that the latter view can make the relation of being better/worse than all things considered nontransitive, while the former can’t. this paper argues that the internal aspects view can also be a source of nontransitivity. the gist of the argument is that perfect similarity as regards supervenient properties, like value, is compatible with differences as regards their subvenient properties and that it’s logically possible that such sets of insufficient differences add up to differences that are sufficient for supervenient differences. thus, perfect similarity or identity is nontransitive as regards the supervenient property of value, and this implies that the relation of being better/worse than all things considered is also nontransitive. keywords: derek parfit, larry temkin, transitivity, non-transitivity, supervenience, outcome value, identity, similarity. 1. internal and comparative views and the nontransitivity of “better than” larry temkin’s monumental book rethinking the good is by far the most resourceful and penetrating investigation into the various aspects of the value of outcomes to date. it’s therefore invaluable to anyone with an interest in these matters. a central theme is the contrast between two views of ideals for evaluating outcomes: the internal aspects view and the essentially comparative view. according to the internal view, how good an outcome is with respect to any relevant ideal depends solely on its internal features, that is, features that it has irrespective of its relations to other outcomes (which are not parts of it). consequently, how good an outcome is all things —i.e. all relevant ideals— considered, will depend entirely on its internal features. according to the comparative view, there are some ideals such that how good an outcome is with respect to these ideals depends not only on its issn 2341-1465 leap 2 (2014): 120-138 internal or external grounds 121 leap 2 (2014) internal features, but also on its relations to other outcomes with which it is compared. thus, how good an outcome is all things considered will depend also on its external relations. to illustrate, consider three outcomes: a: a large number of people at a high level of welfare; a+: this population plus an equally large number of individuals at a significantly lower level of well-being, but still well above the neutral or zero level; and b: these two populations at a level which is a bit higher than halfway between their levels in a+. now suppose that inequality isn’t a bad feature that detracts from the value of an outcome if it comes about by bringing individuals into existence. hence, it isn’t a respect in which a+ is worse than a. however, it is a respect in which a+ is worse than b, since these outcomes only contain individuals who exist in both outcomes. therefore, b would be better than a+ with respect to equality, but a+ would not be worse than a in this respect. so, if a+ is better than a because its sum of welfare is greater, a+ will plausibly be better than a all things considered. b will reasonably be better than a+ all things considered because it is better both in terms of equality and in terms of aggregate welfare. true, it’s worse in one respect because nobody in b is as well off as the better-off individuals in a+; so, some of the better things in life may be lost. but we might feel that this aspect is outweighed by the other two aspects in which b is better. nonetheless, we might also feel that b isn’t better all things considered than a because its greater sum of wellbeing doesn’t outweigh the qualitative loss. then we would face what derek parfit calls the mere addition paradox (1984: ch. 19) if we also endorse the transitivity of the relation of being better than all things considered which implies that b is better all things considered than a because b is better all things considered than a+ which is better all things considered than a. by adopting a comparative view of the ideal of equality and taking it to be relevant for the comparison between a+ and b, but not for the comparison between a and a+, we can remove the paradox by denying the transitivity of “all things considered better than”. accordingly, temkin associates the nontransitivity of this relation with the comparative view. in contrast he affirms that on the internal view “‘all things considered better than’ must be a transitive relation” (2012: 494). 1 i shall argue, however, that a rejection of transitivity can also be justified by the internal view. the source of it must then be in the internal features of outcomes. i shall suggest that it is found in 1. however, in a footnote he seemingly concedes the possibility of constructing an internal view that doesn’t imply transitivity, but he doesn’t explore this possibility (2012: 386-7n). 122 ingmar persson leap 2 (2014) an imprecision of the relevant internal features that renders them inherently unquantifiable. this implies that the internal view cannot conform to the numerical model temkin assumes. i don’t believe, however, that the internal view gives a complete account of the value of outcomes. this view captures only the intrinsic value of outcomes. as some of temkin’s examples show —in my opinion, progressive diseasethird version (2012: 441-5) is especially persuasive— to decide whether one outcome is better all things considered than another outcome, sometimes it is not enough to consider the intrinsic value of these outcomes. it is also necessary to take into account various relations between these outcomes, such as relations of identity between people in these outcomes. (as we have seen, the fact that the people in a+ are identical to the people in b, but not to the people in a may be thought to make the ideal of equality relevant only to a comparison of the first two outcomes.) however, in many cases it is enough to consider the intrinsic value of outcomes in order to establish which one is better all things considered. my claim is that even in such cases the relation of being better than all things considered isn’t transitive. if so, the reasons for the nontransitivity can’t lie solely in variations of the evaluative factors that temkin regards as distinctive of the comparative view. to my mind, a case in point is the series of outcomes leading to the repugnant conclusion. this conclusion can be reached via the sort of mere addition case considered above, but it can arise simply from a spectrum of cases in which the level of well-being, the same for everybody, in each outcome is slightly lower than it is in the preceding outcome, but the number of individuals is twice (or several times) as high. here it is reasonable to hold that the second outcome, b, is better all things considered than the first, a, because the increase in quantity (i.e. the number of subjects receiving wellbeing), outweighs the loss of quality, the lowering of their level of well-being. thus, when we think about such outcomes, we are inclined to adopt what temkin calls an additive-aggregationist position. to continue the descent towards the repugnant conclusion: a third outcome, c, in which the level of well-being is slightly lower than in the second outcome, but in which there are twice as many people as in b is similarly better than b, and so on. however, at least when the level of wellbeing becomes so low that it is barely above the neutral level, we are inclined to think that however many the individuals are in this outcome, z, (as long as it’s a finite number), it’s worse all things considered than an outcome in which many individuals exist at a very high level, e.g. a. thus, we adopt an anti-additive aggregationist stance when the differences in quality or level of well-being become sufficiently extensive. but this is inconsistent with the belief that the relation of being better than all things considered is transitive: if b is better all things considered than a, c is better all things considered internal or external grounds 123 leap 2 (2014) than b ... and z is better all things considered than y, then, if this relation is transitive, it follows that z is better all things considered than a. like temkin, i am inclined to block the repugnant conclusion by rejecting transitivity of “all things considered better than”. 2 but i find it unsatisfactory to hold, as does the comparative view that temkin advocates, that this nontransitivity is based on a variation of the relevance or significance of evaluative factors in the process of comparing different outcomes of the spectrum, i.e. that the additive aggregationist and antiadditive aggregationist positions involve a variation of factors. let’s make the matter as simple as possible by assuming that the differences in respect of level of well-being in the repugnant conclusion spectrum derives from differences in respect of the intensity of some sort of physical pleasure, for instance, the sensations we have when we eat the tastiest food, the second tastiest food, and so on. we’re inclined to think that when the intensity of a pleasure becomes high enough, this pleasure, if of adequate duration, is better than a pleasure whose intensity is sufficiently lower, whatever the duration of the latter may be. however, it isn’t easy to see how this is possible, since this difference in intensity and duration consists in a number of smaller, intermediate differences in these respects. how can the value of this difference be anything other than a sum of the differences in which it consists? this question is especially pressing if one adopts a numerical model of these internal factors, as does temkin. he claims that in such a spectrum “the relevant factors, or the significance of those factors, for comparing ‘distant’ alternatives a and y, may differ from the relevant factors, or significance of those factors, for comparing intervening ‘adjacent’ alternatives” (2012: 224). therefore, he claims that the value of y might be n when y is compared to x, but different, o, when y is compared to a (see 2012: 229). this fits the value of a+ when a comparative view is taken of the ideal of equality; then the value of a+ will be higher when it is compared to a than when it is compared to b, since in the latter case the badness of inequality detracts from its value. in other words, one “factor”, the factor of equality, which is relevant for the comparison a+ and b, is irrelevant for the comparison of a+ and a. by contrast, in the repugnant conclusion series, irrespective of whether we compare the value of adjacent outcomes, like y and x, or distant outcomes like y and a, the factors seem to be the same, namely the intensity and duration of certain sensations (on my assumption above). these are internal features of these outcomes. moreover, the difference in intensity and duration between y and the distant a consists in a number of adjacent 2. he also considers the possibility of avoiding the repugnant conclusion by a capped model of utility (2012: 328ff ). but this model rejects the idea that “utility is intrinsically valuable” (2012: 343) which i regard as strongly counter-intuitive. 124 ingmar persson leap 2 (2014) differences in these respects; so how can the value difference between y and a be anything but the sum of the adjacent value differences, i.e. how is antiadditive aggregationism possible? it seems to me that, having found that variations in respect of evaluative factors explain nontransitivity in other cases, like mere addition, temkin simply postulates that such variations are also present in the repugnant conclusion series because there is apparently nontransitivity. but if this is his only reason for postulating such variations, it isn’t convincing to claim that they make up the explanation of nontransitivity, unless all alternative explanations have been excluded. also, one would like a more detailed account —of the sort temkin supplies as regards mere addition— of how evaluative variations generate nontransitivity in the series. otherwise, the reasonable conclusion might be that the apparent nontransitivity is just that —apparent. i shall suggest an alternative, more detailed explanation of how antiadditive aggregationism with respect to value is possible, of why bigger value differences aren’t necessarily identical to sums of intermediate value differences in the spectrum, but a big enough value difference such as between a and y can be greater than the sum of the intermediate value differences a-b, b-c, ... x-y. it’s made possible by an imprecision as regards what has intrinsic value, e.g. pleasure and pain, which is incompatible with an assignment of numerical values to their goodness or badness. in other words, we must reject numerical models of the value of pleasure which assigns a number to the value of a pleasant experience which is based on its duration and intensity. if we reject such numerical or linear models of value, the source of the nontransitivity of “all things considered better than” can lie in the internal features of outcomes that the internal view recognizes. 2. an argument against the transitivity of identity of supervenient properties it’s relatively uncontroversial that the value of a thing supervenes on other properties of it. i shall now present an argument to the effect that the relation of sameness or perfect similarity with respect to properties that are supervenient can’t be transitive. as we shall see, this argument implies that the relation of being better than all things considered isn’t transitive. according to an informal understanding of the notion of supervenience, to say that s is a supervenient property of x means that there have to be other properties of x, basic properties, b, in virtue or because of which x has s, properties that determine or explain x’s having s. i shall say no more about this notion than that i take it to imply that supervenient properties aren’t internal or external grounds 125 leap 2 (2014) logically entailed by or identical to their basic properties. 3 for instance, x’s having some less specific or more determinable property such as being yellow or green, or being coloured, isn’t supervenient on x’s being yellow because the former properties are obviously entailed by the latter. they don’t seem to be genuinely supervenient on x’s being yellow, since x’s having them isn’t ontologically anything additional to x’s being yellow. similarly, the weight and spatial properties of a thing don’t supervene on the weight and spatial properties of its proper parts, since if one knows the weight and spatial properties of all parts, one can deduce or calculate the weight and spatial properties of the thing they constitute. thus, the property of the whole isn’t anything over and above the sum of the properties of the parts. nor is a dispositional property like x’s being brittle supervenient on x’s having a certain molecular structure if being brittle is having this structure (identified in terms of how it responds to certain causes). as already implied, the properties of being of positive or negative (not neutral) value, or being good or bad, are usually regarded as paradigm examples of supervenient properties. another set of often cited examples are so-called secondary qualities, such as having a particular colour or taste. however, as has been pointed out, e.g. by simon blackburn (1988: 66 ff ), it appears to be a matter of linguistic competence to know that value properties are dependent on other properties. you show that you are not in command of the terms “good” and “bad” if you think that something can be good or bad without being so in virtue of some other properties that it has. in contrast, knowing how to apply colour terms apparently doesn’t entail knowledge that if something has some colour, it has it in virtue of some other properties. this difference with respect to linguistic competence between values and secondary qualities may be the reason why the notion of supervenience was first introduced in value theory by, g. e. moore (1922: 261). 4 but this difference doesn’t make it uncontroversial that values are supervenient in the sense that i’ve adopted which implies that they’re ontologically distinct from subvenient properties. this claim needs to be defended both in the case of values and secondary qualities, though i shan’t do so here. 5 3. in terms of jaegwon kim’s distinction between strong and weak supervenience (see, e.g., “concepts of supervenience” reprinted in kim 1993), the essential point is that the dependence mustn’t be so strong that it jeopardizes the distinctness or irreducibility of the supervenient properties. 4. the term was introduced by hare (1952:145). 5. for instance, value and secondary qualities will be supervenient in the requisite sense if they’re subjective in the following fashion: value is definable in terms of desire fulfilment rather than in terms of the properties that make things valuable, and secondary qualities are properties whose nature is revealed in our experiences rather than any properties which cause these experiences. 126 ingmar persson leap 2 (2014) it follows from the informal notion of the supervenience of a property that if there’s something, y, that’s perfectly similar to x in respect of the basic properties b, then x and y are also perfectly similar in respect of the supervenient s. in other words, if there’s a difference between x and y with respect to s —if x has s but y lacks it, or if x has s to a greater or smaller degree than y, etc.— there must be a difference in respect of b between x and y. otherwise the difference in respect of s can’t be explained in terms of b. in contrast, supervenience doesn’t imply that if there’s no difference or perfect similarity between x and y with respect to s, then there’s no difference between them with respect to b. differences in respect of b which are insufficient to generate differences in respect of s may well exist. for the purposes of my argument, i needn’t plunge any deeper than this into the notion of supervenience, since i’ve already secured the simple implication of supervenience which forms the first premise of my argument: simp: if s is a property of objects that supervenes on their having b, then, for all objects x, y and z, even if both x and y, and y and z, are perfectly similar or the same with respect to s, it’s logically possible that there are differences with respect to b between both x and y, and y and z. to illustrate: even if the physical stimulations x and y are felt to be equally painful and bad to humans, and the same is true of y and z, it may be that there are differences between x and y and y and z that are too small to be registered and transmitted by the human nervous system to the brain. 6 this is an example of the very simplest kind of value judgement. as will emerge, there’s reason to focus on such simple examples. but although this example is as simple as they come, it’s controversial how it should be properly understood. there are three things whose precise relations to each other are debatable: the painfulness of a sensation (for the subject), the (intrinsic) dislike of or aversion to it (which the subject has), and the (intrinsic) badness of it (for the subject). i shall assume that a pain is bad (for the subject) because it’s disliked (by the subject), and disliked because it’s painful. the precise force of these “because”, whether they’re conceptual or contingent, doesn’t matter for present purposes. the next step in the argument is a claim about the possible differences as regards b between x and y, and y and z, of which simp speaks: add: even if there are differences in respect of b between x and y, and between y and z, neither of which are sufficient for differences in respect of s between x and y, or between y and z, but x is perfectly similar to y, and y to z, with respect to s, it’s logically possible that there are differences 6. i take a “stimulation” to have both a physical aspect (a cut, burn, etc.) and a psychological aspect (a sensation). both can be said to be painful. internal or external grounds 127 leap 2 (2014) in respect of b between x and z that are sufficient for a difference with respect to s between x and z. the fact that the differences with respect to b between neither x and y nor y and z are sufficient for there to be a difference with respect to s between x and y, or y and z, is surely compatible with there being another difference in respect of b between x and z which is sufficient to mainfest itself in a difference with respect to s between x and z. since b and s are distinct properties, the sufficiency in question is contingent, e.g. causal. but, evidently, the fact that neither the difference in respect b between x and y nor between y and z is contingently sufficient for a difference in respect of s between them can’t logically entail that the difference in respect of b between x and z —which may be twice as big as either of the two other differences— isn’t contingently sufficient for a difference as regards s between x and z. for instance, the following is clearly logically possible: the difference between x and y and between y and z with respect to b (e.g. the pain-producing properties) is each one unit, but the difference in this respect between x and z is two units, and a difference of two units is minimally sufficient to give rise to a difference as regards s for the subjects in question. this additive possibility is one reason for the name of the second step of the argument. another reason is that it’s an additional premise, supplying the link between supervenience and transitivity. this link comes out in the third step: trans: if add is true, it must be false that the relation of perfect similarity or sameness with respect to s is transitive, i.e. it must be false that it’s a logically necessary truth that if x and y, and y and z, are perfectly similar or the same with respect to s, then x and z are perfectly similar or the same with respect to s. if add is true, it must be logically possible that there be a difference with respect to s between x and z, though there’s no such a difference between x and y, or between y and z, for, as we have seen, the latter similarities are compatible with there being a difference with respect to b between x and z which is sufficient to manifest itself in a difference with respect to s. if it’s logically possible that there’s a difference which is sufficient for the manifestation of another difference, it must be logically possible that the second difference obtains. now, from add and trans we may validly infer by means of modus ponens: conclusion: the relation of perfect similarity or sameness with respect to a supervenient property s isn’t transitive. 128 ingmar persson leap 2 (2014) according to simp, this is true of s because of something that follows from the fact that s is supervenient, namely that there may be differences in the subvenient properties, though there’s no difference in the supervenient ones. so, the nontransitivity of perfect similarity or sameness as regards these properties follows from their supervenience. it may in fact be true of some, or even all, objects x, y and z, that if x and y, and y and z, are perfectly similar with respect to s, x and z will also be perfectly similar in this respect. this may be because it’s in fact not only the case, as the notion of supervenience implies, that if two things are perfectly similar in respect of b, they are also perfectly similar as in respect of s but, conversely, that if they are perfectly similar in respect of s, they are perfectly similar in respect of b. this possibility refutes the (implausible) claim that the relation of perfect similarity as regards supervenient properties is intransitive, not my claim that it is not transitive, or nontransitive. the fact that in some cases it’s true that, if x and y, and y and z, are perfectly similar as regards s, then x and z are perfectly similar as regards s, doesn’t establish that this is so as a matter of logical necessity, which is what the denial of the transitivity of the relation of perfect similarity denies. it’s then logically possible that, even though the difference with respect to b between x and y, bxy, is insufficient to make a difference in respect of s between x and y, and another difference with respect to b between y and z, byz, is insufficient to make a difference with respect to s between y and z, a third difference with respect to b between x and z, bxz, is sufficient to make a difference in respect of s between x and z. the heart of my argument is that, since this possibility statement is incompatible with the necessity statement which expresses transitivity as regards sameness with respect to s —that it’s necessary that if x and y, and y and z, are the same with respect to s, so are x and z— the latter statement isn’t true when the former is. notice that it isn’t possible to argue “top-down” that since x and y and y and z are identical as regards s, and identity is a transitive relation, there can’t be differences as regards subvenient properties which are sufficient for a difference between x and z as regards s. since it’s subvenient properties which determine the supervenient properties, and not the other way around, the argument has instead to be “bottom-up”: because it’s possible that the difference bxz is sufficient for a difference between x and z in respect of s, transitivity has to go. internal or external grounds 129 leap 2 (2014) 3. three objections to the argument 3.1. an appeal to relativity let’s now consider some objections to this argument. i’ve assumed that the supervenient properties that x, y and z have are intrinsic properties, roughly, properties that they have independently of their relations to things external to them. 7 also, i take the relation of perfect similarity or sameness to be intrinsic in the sense that it holds between two relata independently of their relations to anything external to them. one objection challenges the assumption that the supervenient properties of x, y and z are intrinsic and claims that they’re instead relative to what the object of comparison is: rel: how something, e.g. y, is with respect to s depends on whether it’s compared to x or z. rel offers to explain how y can be perfectly similar as regards s to both x and z, though the latter aren’t perfectly similar to each other, by claiming that y isn’t the same with respect to s when it’s compared to x as when it’s compared to z. 8 but if how y is as regards s depends on the object to which y is compared, how y is as regards s can’t be an intrinsic feature of y. it has to be an extrinsic feature, which is dependent on whether x or z is the object of comparison. rel undercuts my argument against transitivity, but it does so by implying that transitivity isn’t applicable to the case at hand, since this applicability presupposes that how y is with respect to s is the same irrespective of whether it’s compared to x or z. otherwise, there’s no basis for any inference as to how x and z are as regards s. in defence of rel it may be said that it’s impossible that one and the same thing, y’s s-ness, can be perfectly similar to both x’s and z’s s-ness, when x and z are different with respect to s. but this is in fact not impossible if s is a supervenient property and how something intrinsically is with respect to s can remain the same, though the stimulation which is its cause varies within a certain range. for then the stimulation y may lie within the same range as the stimulation x and within the same range as stimulation z —at a point at which these ranges overlap— though x and z do not lie in the same range. 7. in order to cater for the possibility that an intrinsic property is subjective in the sense (alluded to in footnote 5) that x’s having such a property is analyzable in terms of some subjects reacting with some psychological state to x under certain conditions, one should say, alternatively, that a property is an intrinsic property of x if it’s possible to determine that x has it by considering only x and its parts. 8. this is a point that robinson (1972) and jackson & pinkerton (1973) make. 130 ingmar persson leap 2 (2014) imagine, again, that it takes a difference of two units of physical stimulation for there to be any difference in respect of s (painfulness, say) and that x consists in one unit of stimulation, y in two units and z in three units. x is then s-in-virtue-of-one-unit, y is s-in-virtue-of-two-units, and z is s-in-virtue-of-three-units. by hypothesis (since a one-unit difference in stimulation is insufficient to give rise to a difference as regards s), x and y are qualitatively identical as regards s-ness, and so are y and z. hence, being s-in-virtue-of-one-unit-or-two-units expresses one kind of s-ness, and so does being s-in-virtue-of-two-units-or-three-units. but being s-in-virtueof-one-unit-or-two-units and being s-in-virtue-of-two-units-or-three-units do not express one kind of s-ness, since x which is s-in-virtue-of-one-unit and z which is s-in-virtue-of-three-units differ in respect of s. nevertheless, since y is s-in-virtue-of-two-units, and this is a common element of the two disjunctive properties, y is both s-in-virtue-of-one-unit-or-two-units and s-in-virtue-of-two-units-or-three-units. so, y can after all exhibit just one kind of intrinsic s-ness and still be perfectly similar in respect of intrinsic s-ness to both x and z, though x and z are distinct from each other as regards intrinsic s-ness. therefore, although i can’t rule out rel as a possible description of the case at hand, my interpretation, according to which it violates transitivity, is also possible. 3.2. an attempted parallel with primary properties a second line of attack in effect draws a parallel between perfect similarity in respect of a supervenient property and perfect similarity in respect of a property whose exemplifications can’t be explained in terms of the exemplifications of any other kind of property. i shall call the latter properties primary. suppose that both x and y, and y and z, are perfectly similar with respect to a primary property, p. this is of course compatible with their being different with respect to other primary properties, q. but no difference in respect of q can make it the case that x differs from z in respect of p since, by hypothesis, an object’s having p isn’t supervenient on its having some other property. hence, if there’s a difference between x and z with respect to p, this must be explained by or grounded in there being a difference in respect of this property, p, between x and y or y and z (or both). so, if no such differences between x and y, or y and z, are observed, unobservable differences as regards p must be postulated. imagine that one observes a difference in length (weight, etc.) between x and z, though according to our most accurate measurements of x and y, and of y and z, the members of these pairs are equally long. then, provided that the comparison of x and z is correct, we’re forced to conclude that there must be unobserved or unmeasurable differences in length between x and internal or external grounds 131 leap 2 (2014) y or y and z (or the particles constituting them and the spaces in-between these particles). the present objection makes a parallel claim as regards supervenient properties: par: as in the case of primary properties, there must be unobservable differences in respect of s between x and y and/or y and z, when there’s an observable difference in respect of s between x and z. derek parfit seems to assume the existence of such unnoticeable differences as regards pain when he writes: “i believe that someone’s pain can become less painful, or less bad, by an amount too small to be noticed. someone’s pain is worse, in the sense that has moral relevance, if this person minds the pain more, or has a stronger desire that the pain cease. i believe that someone can mind his pain slightly less, or have a slightly weaker desire that his pain cease, even though he cannot notice any difference” (1984: 79). we have assumed, with parfit, that a sensation of pain becomes less painful “in the sense that has moral relevance”, i.e. becomes less bad, when one has a weaker desire that it cease. to fail to notice that one’s desire that a pain cease has become weaker then amounts to failing to notice that the pain has become less bad. certainly, people can be suspected of sometimes making mistakes when they introspectively investigate their desires. for instance, somebody who sincerely reports not minding people of other races might be suspected of being mistaken if he’s observed to avoid the company of such people. this is because the behavioural evidence contradicts his introspection. but imagine instead that the behavioural evidence supports the introspective finding that there’s no difference in respect of degree of being disliked between x and y, and between y and z: the subject doesn’t show any sign of choosing one member of these pairs in preference to the other. imagine, for instance, that he’s simultaneously pricked by pins in his left and right hands, and both his introspective scrutiny and his behaviour support the view that there’s no difference in his aversion to the two pains. then it seems that there’s no reason to hypothesize that the subject’s aversion to one pain is stronger than his aversion to the other, and, hence, that one pain is for him worse than the other than that this case is parallel to a case in which the comparison concerns some primary property (and there is transitivity). par’s claim that there must be such unfelt or unnoticeable differences as regards s between x and y, or y and z, and, hence, that the difference in respect of basic properties between x and y, bxy, or the difference in respect of such properties between y and z, byz, must be sufficient for a difference in respect of s because there is a difference between x and z in respect of 132 ingmar persson leap 2 (2014) s, betrays a misunderstanding of the nature of supervenient properties, of their dependence on subvenient properties. for the difference in respect of s between x and z can be explained in terms of the difference bxz, of this difference being sufficient to make up a difference in respect of s between x and z, even though each of the differences bxy and byz isn’t sufficient for a difference in respect of s. therefore, a postulation of unobservable differences in respect of s between x and y, and between y and z, isn’t necessary to make the difference between x and z intelligible, as it is in the case of primary properties. now, if it isn’t necessary that there be a difference in respect of s between either x and y, or y and z, when there’s such a difference between x and z, there’s no transitivity with respect to s. transitivity implies that it would be incoherent to assume that there’s a difference in respect of s between x and z, though there’s no such difference between x and y or y and z. but this isn’t incoherent, since the difference between x and z can be explained in terms of differences as regards the subvenient properties that, as a matter of definition, must underlie supervenient properties. the supervenience of s guarantees that there’s a difference like bxz to which an explanation of the difference in respect of s between x and z can refer. furthermore, the postulation of such unfelt and unnoticeable differences in respect of s isn’t only redundant, but impossible, if s is a subjective property, as painfulness presumably is. if the esse of pain is percipi, it can’t have any unfelt aspects. this rules out that my considered judgement that x and y are feeling equally painful to me can be rejected because of differences in painfulness that aren’t felt by me. analogously, it’s difficult to see what sense could be given to the concept of dislike or aversion if it isn’t construed as something that entails either behavioural tendencies of withdrawal or differences of feeling. but in the cases we have examined, there aren’t, by hypothesis, differences of either kind. it should be re-emphasized that i’ve assumed that supervenient properties are distinct from their bases. we shouldn’t expect perfect similarity to be nontransitive as regards properties which are disqualified from being supervenient by this distinctness requirement, but in some instances it is. for instance, it’s nontransitive as regards the properties of being yellow or green and having some colour. imagine that x is a two-coloured object, both yellow and green. so are y and z. imagine further that y has the same yellow shade as x, but a different green shade, whereas z has the same green shade as y, but a different yellow shade. then x and y are perfectly similar as regards both the disjunctive property of yellowness or greenness and some of their colours, and the same is true of y and z. but x and z are not perfectly similar as regards either of these properties. some identify secondary qualities with primary qualities, e.g. having some colour with reflecting light of a certain wavelength. likewise, according internal or external grounds 133 leap 2 (2014) to some metaethical theories, the relation between value properties and the properties they’re supposed to supervene on is entailment as in the case of the determinable properties under discussion. if this is right, secondary qualities and values won’t be supervenient in my sense, and my argument doesn’t apply to them. it’s only if value properties and secondary properties are taken as supervenient in a sense which, like mine, implies that they’re entirely distinct from their bases that my argument rules out transitive sameness with respect to them. 3.3. an appeal to roughness of comparison comparisons concerning supervenient properties may be rough or imprecise. a comparison of value will be rough, e.g. when you compare complex and qualitatively different things which must be evaluated along several dimensions that have to be weighed against each other, especially if evaluation along some of these dimensions is to some extent subjective. suppose, for instance, that you were to evaluate the greatness of novelists that are very different as regards style, content etc., like joyce, kafka and proust. the judgement that these writers are equally great novelists is obviously rough because no precise comparison between them is possible. if you compare a long string of novelists who are only roughly comparable, you may find it impossible to distinguish between the greatness of one writer and the next and still end up with writers who are distinguishable in respect of greatness because smaller differences eventually mount up. so, it isn’t to be expected that judgements of sameness under conditions of rough or imprecise comparability ensure transitivity. a final objection makes an appeal to such roughness: rough: similarity in respect of s between x and y, and y and z, can only be rough, or imperfect, when x and z aren’t the same with respect to s, though x and y and y and z are. however, a comparison between two simultaneous stimuli in respect of painfulness and badness can clearly be more precise than such rough comparisons as between the aforementioned novelists because it’s a comparison of much simpler entitities. it seems to me that it can be as precise as any comparison of the (intrinsic) value of two things can possibly be. the upshot of such a comparison can therefore be that one stimulus is precisely and perfectly as painful and bad as the other in the sense that there’s no difference whatsoever between them in respect of painfulness and badness. so, this comparison isn’t rough or imprecise in the sense that there are differences in these respects that it fails to register, as a comparison of the weight of two things based on lifting them is. 134 ingmar persson leap 2 (2014) it may be objected that someone with more acute pain receptors than mine could feel a difference between the stimulations x and y (and y and z), though i don’t. true, but this doesn’t show that there’s any difference between the pains i am feeling when i’m stimulated by x and y, since this subject is feeling two kinds of pain where i’m feeling only one kind. consider a creature whose pain receptors are as acute as you like. realistically, there will still be minute differences in physical stimulation which aren’t distinguishable by this creature, but suppose there isn’t. then this creature would never feel any difference in respect of painfulness between x and z when it feels no such difference between x and y, and between y and z. but, as long as the supervenient and subvenient qualities are distinct, this would still not be so as a matter of necessity. for the same reason, there being unfelt differences with respect to primary properties doesn’t imply that there are after all unfelt differences as regards the supervenient properties, or that the comparison with respect to the latter properties isn’t as precise as it could be. this is something that distinguishes the argument that i’ve been running from sorites arguments in which unnoticeable or negligible differences in respect of a feature add up to a difference that is noticed or significant. if you remove one grain from a heap, you will still have a heap, but —whether or not you notice it— you won’t have something which is the same in respect of “heapiness”, as much of a heap. you will have something which is less of a heap, and if you go on removing grains, you will eventually have something which isn’t a heap at all. this is because something’s being a heap is constituted by a number of grains standing in certain spatial relations to each other. the former isn’t a distinct property which supervenes on the latter in my sense of the term, as the painfulness supervenes on certain physical stimulation. so, it can’t remain the same when the constitutive elements undergo changes. i’ve considered the strategy of supporting the roughness of which rough speaks by (a) taking supervenient properties to be analogous to primary properties. but it could also be supported by (b) claiming that the relation of perfect similarity or sameness is, by necessity or definition, transitive. it could be claimed that the comparison between, e.g. the stimuli y and z in respect of painfulness isn’t as precise as possible if only y and z themselves are considered, that this requires comparing them to other things, such as x. so, y and z would be perfectly similar in respect of s only if, for x and all other things, y and z are perfectly similar in respect of s to x and other things (see goodman 1951: 221). failure of perfect similarity to other things is now no longer seen merely as evidence of there being undetected differences and, thus, no perfect similarity between y and z, but as something that entails that there’s no perfect similarity between y and z. but, apart from the fact that this way of defending rough is blatantly question-begging in the present context, it’s at odds with the intuition that internal or external grounds 135 leap 2 (2014) perfect similarity in intrinsic respects between two entities, like y and z, is an intrinsic relation between them such that it’s possible to determine whether it holds between them by examining only how y and z are as regards the relevant respects, and nothing external to them like x. this is a way to understand the relation in the case of intrinsic primary properties without getting nontransitivity as an inescapable result. turning to another way of buttressing (b), it may be true as a matter of definition that if x and y are perfectly similar in respect of a feature, such as s, there’s a feature s such that x has s if and only if y has s. but it can be seen from my reply to rel that it doesn’t follow from this claim that the notion of perfect similarity with respect to a feature is by definition transitive. i imagined the s-ness that both x and y have to be s-ness-in-virtue-of-oneor-two-units. but y, which was imagined to be s-in-virtue-of-two-units, also has the property of s-ness-in-virtue-of-two-or-three-units, and we saw that this could be a distinct kind of s-ness from s-ness-in-virtue-of-one-ortwo-units. y and z could be perfectly similar with respect to this s-ness in the sense that y has this s-ness if and only z has it. this obviously does not entail that there is any kind of s-ness such that x has it if and only if z has it. consequently, we should reject the claim that the proposed definition entails that the relation of perfect similarity or sameness as regards a property is transitive. this is rather an implication that the definition has when applied to properties that i’ve called primary, since the phenomenon that i’ve just described is impossible in the case of primary properties because there are no other properties underlying them. however, suppose that you’re feeling the sensations x, y, and z simultaneously. surely, you can’t simultaneously compare x and y, y and z, and find them the same, and x and z and find them different. i agree. the most accurate comparison between two sensations requires undivided attention to them, but when you try to execute the three comparisons at the same time, none of them gets undivided attention. this makes it likely that a minute difference between x and z won’t be noticed. so, all three sensations would come out as identical. if the series of sensations had consisted not in three, but in ten sensations, the difference in intensity between the endpoints could be greater, but then the distraction would also be greater, so bigger differences may escape unnoticed. i don’t think, then, that my account carries any implausible phenomenological implications. it doesn’t imply that the relations it describes are noticeable in all circumstances. indeed, it’s possible that they aren’t noticeable in any circumstances – this might be true if the pains are so intense that we can’t ever concentrate on the task of making accurate comparisons. 136 ingmar persson leap 2 (2014) 3.4. the nontransitivity of better/worse than i see no other way to resist my argument to the effect that the relation of identity or perfect similarity as regards properties that are supervenient isn’t transitive. i’ve assumed, rather than argued, that value properties and secondary qualities are supervenient in the sense explained at the outset. if no properties should turn out to be supervenient in this sense because all candidates are entailed by or identical to their bases, my argument will be less interesting, but i’m inclined to think that this isn’t anything i need to fear. now if values are supervenient, it’s easy to see how my argument could be extended into an argument against the transitivity of the relations of being better/worse than all things considered. 9 imagine, for instance, that the painful stimulation y is slightly shorter than x, though there’s no difference in the felt intensity of the pain. then y is better than x all things considered (assuming that intensity and duration are the only relevant factors). if the same is true of y and z, z will be better than y all things considered. still, it might be that z isn’t better than x all things considered because z is felt to be more intense than x, and this difference is judged to outweigh the longer duration of x. to take an example more similar to temkin’s spectrum cases, imagine that x is minimally more painful than y, but that y is markedly longer than x. the same goes for y and z. then y may be worse than x all told, and z may be worse than y all told because the greater difference in duration outweighs the smaller difference in intensity. yet, z may be better than x all told because, due to unmanifested differences in the subvenient properties, the difference in intensity between x and z may exceed the sum of the differences in this respect between x and y, and y and z. therefore, it is possible that the difference in intensity between x and z in z’s favour overpowers the difference in duration in x’s favour. in the case of both examples, nontransitivity may come out as more plausible if the series are made longer. 10 this nontransitivity isn’t due to any variation in respect of what factors are relevant; they are throughout the intensity and duration of sensations. it has to do with a variation of their “significance” if this refers to the shift from an additive aggregationist approach to an anti-additive aggregationist approach, 9. john broome claims that it’s an analytic or conceptual truth that comparative relations are transitive (2004: 50-1). but, to return to the two-coloured objects considered earlier, suppose that the green of y is greener than the green of x, but its yellow is paler. likewise, the yellow of z is yellower that the yellow of y; it’s in fact as yellow as the yellow of x, just as its green is as green as the green of x. then y is yellower or greener (or more saturated in respect of some colour) than x, and z is yellower or greener than y, but z isn’t yellower or greener than x. so, the comparative relation of being yellower or greener (or of being more saturated in respect of some colour) isn’t transitive. hence, broome’s claim is false. temkin gives the similar counterexample of “larger than” defined as “heavier or taller than” (2012: 164). 10. stuart rachels has also presented such arguments in (1998) and (2001). internal or external grounds 137 leap 2 (2014) but the explanation of this shift and nontransitity lies in the imprecision of the intensity of pain relative to the underlying physical stimulation. the intensity and duration of sensations are internal features of pains; so, a value that depends on them is captured by the internal aspects view. rethinking the good is a first-rate intellectual achievement. however, my conclusion is that, despite all his ingenuity and thoroughness, temkin has missed that there’s an internal aspects view of the intrinsic value of outcomes – a value which in many instances determines their value all things considered – that implies that values aren’t quantifiable in a way that guarantees transitivity. obviously, we can’t assign any number to the value of sensations which is based on their intensity and duration, since the number of this value of y would have to be the same as the numbers assigned to x and z, though these would have to be different from each other. this internal view seems to me to provide a more informative explanation of some simple spectrum cases than does temkin’s comparative view. but since i’ve agreed that the comparative view can provide a rationale for nontransitivity in some cases, it may be, for all i’ve said, that some other spectrum cases involving more complex value judgements are among these cases. however, although i’ve indicated that temkin’s comparative account of why we adopt an anti-additive stance when we compare distant outcomes in a spectrum needs to be filled out, i don’t think it can be filled out in the terms i’ve supplied without impugning the distinction between comparative and internal views. therefore, my conclusion is that temkin has to concede that the internal view provides the basis for the nontransitivity of better than all things considered in some cases and, thus, is capable of providing such a basis. 11 bibliography blackburn, s., 1988: “supervenience revisted”, in g. sayre-mccord (ed.): essays on moral realism, ithaca, ct: cornell university press. broome, j., 2004: weighing lives, oxford: clarendon press of oxford university press. goodman, n., 1951: the structure of appearance, cambridge, ma: harvard university press. hare, r. m., 1952: the language of morals, oxford: oxford university press. jackson, f., and pinkerton, r. j., 1973: “on an argument against sensory items”, mind 92: 269-72. kim, j., 1993: supervenience and mind, cambridge: cambridge university press. 11. sections ii and iii of this paper have been presented at pompeu fabra university, rutgers university, university of massachusetts at amherst, university of gothenburg, university of copenhagen, the moral philosophy seminar, university of oxford, and university of york. many thanks to these audiences for valuable comments. but a special thanks to larry temkin for many stimulating discussions of this topic through many years. 138 ingmar persson leap 2 (2014) moore, g. e., 1922: philosophical studies, london: routledge & kegan paul. parfit, d., 1984: reasons and persons, oxford: clarendon press. rachels, s., 1998: “counterexamples to the transitivity of better than”, australasian journal of philosophy 76: 71-83. — 2001: “a set of solutions to parfit’s problems”, noûs 35: 214-35. robinson, h., 1972: “professor armstrong on ‘non-physical sensory items’”, mind 91: 84-7. temkin, l. s., 2012: rethinking the good, new york: oxford university press. 139 issn 2341-1465 leap 2 (2014): 139-152 reply to persson: intransitivity and the internal aspects view l arry temkin rutgers university abstract this article responds to ingmar persson’s article “internal or external grounds for the nontransitivity of ‘better/worse than’”. in his article, persson argues in favor of an account of supervenience that would be compatible with both an internal aspects view, and the nontransitivity of the “better or worse than” relations. this article points out that the internal aspects view that persson favors would fail to capture many features of practical reasoning that most advocates of an internal aspects view favor, and that the version of the internal aspects view that i discuss in rethinking the good does capture. i note, however, that persson’s view would not only be compatible with my book’s main claims and arguments, it would substantially buttress my results. accordingly, i would welcome it if persson could successfully develop and defend his view. unfortunately, however, my article raises a number of worries about persson’s view. i consider various different ways of understanding persson’s position, and argue that none of them ultimately succeed in establishing a plausible version of a genuinely internal aspects view that would be compatible with the nontransitivity of the “better or worse than” relations. i acknowledge that if persson can ultimately make good on his claims, he will have made a substantial contribution to our understanding of the good and the nature of ideals. however, as matters now stand, i am not moved by his arguments to revise the claims i made in rethinking the good, correlating the nontransitivity of the “better or worse than” relations with the essentially comparative view, rather than the internal aspects view. keywords: transitivity, nontransitivity, internal aspects view, essentially comparative view, practical reasoning, better than, supervenience. i’d like to thank ingmar persson for his response to rethinking the good: moral ideals and the nature of practical reasoning (temkin 2012). i have long admired persson, and i have learned much from him over the years. 140 larry temkin leap 2 (2014) persson’s work typically displays a rare combination of insight, good sense, and importance. not only do i usually find his claims interesting and plausible, i usually find myself in agreement with them. i confess, however, that while i find his central claims in “internal or external grounds for the nontransitivity of ‘better/worse than’” (persson 2014) interesting and important, i don’t find them plausible. indeed, i’m not really sure how to make sense of them. in this article, i’ll mainly try to show why i find his claims puzzling and unconvincing. perhaps persson will be able to adequately answer my concerns in a way that will give his claims the clarity, plausibility, and defensibility typical of his work. if so, i believe he will have made a significant contribution to our understanding of the good and the nature of ideals. but as matters now stand, i am not moved by his remarks to revise the claims i made in rethinking the good. 1. before presenting persson’s central claims, and my response to them, it will be useful to start with a brief recapitulation of some of rethinking the good’s key claims. i do this both as useful background for persson’s position and, as importantly, to illustrate that i could, in principle, accept everything persson contends without significant revision of my own views. indeed, if correct, persson will have provided a new and important argument which not only fits comfortably with my larger views, but which, in fact, provides independent support and further vindication of those views. in my book, i noted that many people make certain standard assumptions about practical reasoning. for example, most people assume various axioms of transitivity, believing, for instance, that the “all-things-considered better than”, the “all-things-considered equally as good as”, and the “all-thingsconsidered at least as good as” relations are all transitive. most people also assume an independence of irrelevant alternatives principle, believing that if one wants to know how any two outcomes o1 and o2 compare, it is sufficient to compare them directly. on such a view, how o1 and o2 compare to each other all things considered, won’t depend in any way on how either or both compare to some third outcome o3, or some alternative set of outcomes, ok to on. similarly, most people assume a principle of like comparability for equivalents, believing that if two outcomes, o1 and o2, are equally good, then however o1 compares to any third outcome o3, that is precisely how o2 will compare to o3. i showed that there is one way of thinking about ideals, which i called the internal aspects view, which had great intuitive plausibility and which, if true, would explain why each of the above principles held. more specifically, reply to persson 141 leap 2 (2014) i gave a particular characterization of the internal aspects view which would account for such principles, one according to which the goodness of each outcome would depend solely on in the internal features of that outcome, and where an outcome’s goodness could be accurately represented by a number or range of numbers on the real number line (temkin 2012: sec. 11.3). however, in my book i also pointed out that there is an alternative way of thinking about ideals, which i called the essentially comparative view, that also has great intuitive plausibility. on this view, the factors that are relevant and significant for assessing an outcome’s goodness may vary depending on the alternative outcome(s) with which it is compared. i argued that many of the ideals people care most about, including a narrow person-affecting view, the pareto principle, and particularly plausible versions of maximin and utility, are best captured by an essentially comparative view of ideals rather than an internal aspects view (temkin 2012: ch. 12). i then argued that given the nature and structure of essentially comparative ideals, many of the common assumptions about the nature of practical reasoning may fail to hold or apply across different sets of outcomes, including the various axioms of transitivity, the independence of irrelevant alternatives principle, and the principle of like comparability for equivalents. in my book, i also pointed out that many important principles are limited in scope, in the sense that they are thought to be relevant and significant for comparing certain outcomes but not others. i noted that this is true of the pareto principle as it is commonly interpreted (temkin 2012: sec. 12.5), it is true of john broome’s principle of personal good, as he presents it in weighing goods (broome 1991: sec. 8.1), and it is true of john rawls’s two principles of justice as he presents them in a theory of justice (rawls 1971: 63). i then showed that whenever it is true for such a principle that there can be three outcomes, o1, o2, and o3, such that the principle would apply when comparing o1 and o2, but would not apply when comparing o1 and o3, then such “limited scope” principles are essentially comparative in the sense i am employing that notion, and this opens up the possibility that the common assumptions about practical reasoning discussed above, including the axioms of transitivity, may fail to hold or apply across different sets of outcomes. i suggested that one important set of cases where principles that were limited in scope came into play was in my spectrum arguments; where one such argument involved a spectrum of outcomes where the first outcome involved a very long life with 15 mosquito bites per month and two years of excruciating pain, the second outcome involved a very long life with 15 mosquito bites per month and four years of pain almost as bad as that obtaining in the first outcome, the third outcome involved a very long life with 15 mosquito bites per month and eight years of pain almost as bad as that obtaining in the second outcome, and so on, where the last outcome of the spectrum merely involved a very long life with 16 mosquito bites per 142 larry temkin leap 2 (2014) month but no torture. i claimed that (1) in accordance with a position i called the first standard view, which reflected an additive-aggregationist approach to comparing outcomes, most people would judge that for each adjacent pair of outcomes along the spectrum, n and n + 1, the earlier outcome, n, would be better than the later outcome, n + 1, all things considered, that (2) in accordance with a position i called the second standard view, which reflected an anti-additive-aggregationist approach to comparing outcomes, most people would judge that the spectrum’s first member was worse than its last member, all things considered, and (3) that together, these plausible and widely-held judgments are incompatible with the axiom of transitivity for the “all-things-considered better than” relation (temkin 2012: ch. 5; and temkin 2014: sec. 1). a key part of my analysis of what is going on in my spectrum arguments was to emphasize that the first and second standard view are both limited in scope, so that we regard the first standard view as relevant and significant for comparing adjacent outcomes along my spectrum, but not for comparing outcomes at opposite ends of the spectrum, and vice versa with respect to the second standard view. this implies that most people are implicitly relying on an essentially comparative view of ideals in making the judgments they do regarding my spectrum’s outcomes, rather than an internal aspects view, and i claimed that this accounts for why the axiom of transitivity for the “betterness” relation fails, or fails to apply, across the different outcomes in my spectrum cases. having distinguished between the internal aspects view and the essentially comparative view in the way that i did, i acknowledged in a note that there may be alternatives ways of thinking about an internal aspects view that might allow for the non-transitivity of the “all-things-considered better than” relation (temkin 2012: ch. 11, note 32). however, i don’t pursue this as, in fact, i believe that the best explanation of the various cases where the axioms of transitivity seem questionable lies in our implicitly accepting an essentially comparative view in thinking about those cases. similarly, my motivation for focusing on the version of the internal aspects view that i did is that i think such a view is intuitively plausible, widely assumed in many contexts, and would account for many standard assumptions about practical reasoning, including the various axioms of transitivity, the independence of irrelevant alternatives principle, and the principle of like comparability for equivalents. now persson accepts that certain ideals people attach great weight to in assessing outcomes are essentially comparative. he also accepts that many ideals people value may be limited in scope, in a way that supports an essentially comparative view of ideals. so, he is prepared to grant that in a range of cases, people may be committed to a set of judgments that are incompatible with the axioms of transitivity because of essentially comparative considerations. furthermore, he doesn’t deny the intuitive appeal of an internal aspects view reply to persson 143 leap 2 (2014) of the sort i characterized, nor does he deny that, if true, my version of the internal aspects view would support, and explain, many of the standard assumptions about practical rationality that i discuss. however, persson is keen to defend the possibility that i broached in a note. more specifically, he believes that in the case of my spectrum arguments, we can explain the non-transitivity of the goodness of the spectrum’s outcomes solely on internal aspects grounds. that is, persson believes the non-transitivity of most people’s judgments about the goodness of the different outcomes in my spectrum cases can be explained in a way that is wholly consistent with the view that, all-things-considered, an outcome’s goodness depends solely its internal features. moreover, importantly, persson believes that unlike some of the other cases of non-transitive goodness that i discuss, the best explanation of the non-transitivity of outcome goodness in my spectrum cases will rest on internal aspects grounds rather than essentially comparative grounds. naturally, in developing his position, persson is committed to an alternative version of the internal aspects view than the one i offered in my book, since my version entails the various axioms of transitivity. this is partly what makes persson’s suggestion so intriguing and important. if the best way of understanding the internal aspects view differs from the one i offered, in that it also supports the non-transitive “all-things-considered better than” judgments that most people make about my spectrum arguments, this will make it even harder to deny my book’s central conclusion that we need to significantly revise our understanding of the good, moral ideals, and the nature of practical reasoning. 2. in light of the foregoing, it should be clear that i would welcome the success of persson’s project. indeed, i would regard it as a friendly amendment that is clearly within the spirit of my own views, and one which would add significant weight to my book’s main claims. but despite that, i am not persuaded that persson has provided a better account of people’s judgments in my spectrum arguments than my own. indeed, to be completely honest, i don’t even understand persson’s view, finding his claims about the internal aspects view and how it is supposed to support the rejection of the various axioms of transitivity deeply puzzling. in what follows, i will present my main worries about his position. persson’s account of how best to understand what is going on in spectrum arguments rests on his views about supervenience. he assumes that any given supervenient property, v, could supervene on two distinct bases. thus, it could be the case that a given base, b1, gave rise to a given supervenient property, v1, and that a slightly, or even wholly, different base, b2, could give 144 larry temkin leap 2 (2014) rise to a perfectly similar supervenient property (persson 2014: 126). i accept this view, which might be expressed in several ways. one might say that b1, gives rise to v1, and that b2 gives rise to v2, where v1 and v2 are qualitatively indistinguishable even if they are numerically distinct. in this case, v1 and v2 might be thought of as two tokens of the same type, perhaps type v. if the supervenient properties are values, which is the class persson is concerned with, then we can express this by saying that v1 and v2 have exactly the same value, which would then mean that b1 and b2 were exactly equally as good as each other. another way of expressing the same idea is simply to say that two partially or wholly distinct bases, b1 and b2 can give rise to the very same supervenient value, v1. as the latter way of putting the point is simpler for purposes of exposition, that is how i’ll often put it in what follows. if this is right, then persson contends that we should accept his principle simp: if s is a property of objects that supervenes upon their having b, then, for all objects x, y, and z, even if both x and y, and y and z, are perfectly similar or the same with respect to s, it’s logically possible that there are differences with respect to b between both x and y, and y and z (persson 2014: 126). as stated, there is every reason to accept principle simp. but this is because if, as seems plausible, two distinct base objects could give rise to the very same supervenient property (or “perfectly similar” supervenient properties), then presumably three distinct base objects could also give rise to the very same supervenient property (or “perfectly similar” supervenient properties). so, where the supervenient property is a value, v1, simp will be true as long as there could be three distinct base objects, b1, b2, and b3, each of which gave rise to v1, and there is good reason to accept that possibility. however, persson claims something much stronger, and more controversial, than what i readily grant regarding principle simp. he contends that the differences between the bases of objects x and y, and the bases of objects y and z, could be such that we should accept his principle add: even if there are differences in respect of b between x and y, and between y and z, neither of which are sufficient for differences in respect of s between x and y, or between y and z, but x is perfectly similar to y, and y to z, with respect to s, it’s logically possible that there are differences in respect of b between x and z that are sufficient for a difference with respect to s between x and z (persson 2014: 127). now i can see how principle add could be true on an essentially comparative view of ideals. after all, on such a view it could be the case that the factors that are relevant and significant for comparing outcomes x reply to persson 145 leap 2 (2014) and z, might be different from the factors that are relevant and significant for comparing outcomes x and y, or outcomes y and z. (here, and in what follows, i have put persson’s views in terms of “outcomes” rather than “objects”. this does not affect the substance of his views or my claims.) hence, as principle add contends, on the essentially comparative view, it could well be the case that the supervenient values of x and y might be the same when they are compared, and the supervenient values of y and z might be the same when they are compared, and yet the supervenient values of x and z might not be the same when they are compared. but i fail to see how principle add can be made coherent on an internal aspects view, where the goodness of a given outcome depends solely in the internal features of that outcome. regarding the kind of situation principle add is supposed to be addressing, persson seems to believe that the two bases corresponding to outcomes x and z, call them bx and bz, differ sufficiently that they would give rise to supervenient properties that were not perfectly similar or the same. since we are interested in the case where the supervenient properties are values, let’s say that the base properties of outcome x, bx give rise to, or account for, the value of outcome x. i shall represent this as “bx → vx”. further, suppose that, however the notion of value is ultimately understood, the letter k represents the value of outcome x. i will represent this as “vx = k”. we can then use the notation “bx → k”, to represent the fact that the bases of value in outcome x that determine x’s value are such, or make it the case, that outcome x’s value is k. we can then similarly write that “bz → vz”, “vz = m” (where the letter m represents the value of outcome z), and hence “bz → m”. by hypothesis, in the cases covered by principle add, k ≠ m, since, by hypothesis, the base objects of outcomes x and z differ sufficiently that the values for outcomes x and z differ. now, as noted previously, on an internal aspects view, the value of an outcome depends solely on the internal features of that outcome. so, the value of outcome y will supervene solely on the relevant internal features of y that constitute the base, by, for y’s value. assume, in accordance with principle add, that while by is distinct from bx, they both give rise to perfectly similar, or the same, values. i have already granted, in accepting principle simp, that this might be the case. this means that vx = vy, and thus, by → k. but since, by hypothesis, k ≠ m, it follows that it is not the case that by → m, and so, contrary to principle add, outcome y’s value will not be the same as outcome z’s value. alternatively, suppose that although the bases of value for outcomes y and z differ, they give rise to the same values for the two outcomes (as might be the case, in accordance with simp). since, by hypothesis, bz → m, it follows that it will also be the case that by → m. but in that case it could not also be the case that by → k, since, by hypothesis, k ≠ m. 146 larry temkin leap 2 (2014) putting the preceding together, since, on the internal aspects view, an outcome’s goodness depends solely on the internal features of that outcome, it seems clear that on that view the object bases for y’s value should give rise to, or account for, exactly the same value for y whatever alternative it is compared with. accordingly, given that x’s value, k, is different from z’s value, m, it seems clear that, on the internal aspects view, y’s value could be equal to x’s, or it could be equal to z’s, but it could not be equal to both! more specifically, if, in fact, y’s internal features are such that by → k, then, indeed, x and y will have the same value, but y and z will not; while if, on the other hand, y’s internal features are such that by → m, then, indeed, y and z will have the same value, but x and y will not. it seems, then, that if we adopt an internal aspects view, we should reject persson’s principle add. why does persson think otherwise? it isn’t clear. perhaps persson has something like the following picture in mind. the value bases for outcome x, bx, determine x’s value, k, the value bases for outcome y, by, determine y’s value, l, and the value bases for outcome z, bz, determine z’s value, m. so, on the notation used above, bx → k, by → l, and bz → m. now it might be that k and l are so “close”, that we can’t distinguish them intuitively or phenomenologically. in that case, we might well regard them as “perfectly similar” or “the same”. likewise, it might be that l and m are so “close”, that we can’t distinguish them intuitively or phenomenologically. in that case, too, we might well regard them as “perfectly similar” or “the same”. but it is perfectly consistent with those two facts that k and m are sufficiently far apart that we can distinguish them, and so rightly recognize them as different. such a picture might account for any intuitive appeal that principle add might have, even on an internal aspects view. unfortunately, however, it would not justify or vindicate add. i have three related worries about the picture in question. my first worry is that such reasoning is reminiscent of familiar arguments for the intransitivity of the indifference relation concerning alternatives involving vagueness or imperceptibly small differences. it is well known that presented with three alternatives a, b, and c, two at a time, many people might be indifferent between a and b because the differences between them are imperceptibly small, and they might similarly be indifferent between b and c because the differences between them are imperceptibly small, and yet they may not be indifferent between a and c. this is because together the imperceptibly small differences between a and b, and between b and c, might add up to a difference between a and c that is large enough to be perceptible and is one about which they would be concerned. but cases of this sort are like the notorious sorites paradoxes, such as those purporting to show that a heap of sand is the same as a single grain, or that hairiness is the same as baldness. now there is much to be said about standard sorites paradoxes, but here i shall simply note that in my book i argued that my spectrum arguments reply to persson 147 leap 2 (2014) are not related to the standard sorites paradoxes (temkin 2012: sec. 9.2), and persson agrees with me about that. my spectrum arguments do not rely on vagueness, nor do they trade on a series of imperceptible differences which together add up to a perceptible difference. rather, my spectrum arguments rely on differences of quality and number which are clearly perceptible, and which seemingly combine in one way for making certain comparisons, but in a different way for making other comparisons. specifically, as noted previously, most people follow (something like) the additive-aggregationist approach of the first standard view for comparing the outcomes of my spectrum that are adjacent to each other. this generates a clear ranking between such outcomes where the “earlier” outcome is better than the “later” outcome, so that most would clearly prefer the former to the latter and would not be indifferent between them. likewise, most people follow (something like) the anti-additive-aggregationist approach of the second standard view for comparing those outcomes that are at the opposite ends of my spectrum. this also generates a clear ranking between such outcomes, so that most would clearly judge the last outcome as better than the first, and so would not be indifferent between them. but then, i submit that the proper explanation of what is going on with my spectrum arguments, and the root of their challenge to the transitivity of the “betterness” relation, has everything to do with the essentially comparative view of ideals, and nothing to do with the vagueness or accumulation of imperceptible differences which underlies the standard sorites paradoxes and which accounts for the intransitivity of the “indifference” relation in such contexts. thus, if, as persson claims, he is hoping to offer a better explanation of the spectrum arguments than the one i offered —one that is compatible with both the internal aspects view and the rejection of the transitivity of the “betterness” relation— it won’t do for him to rely on the sort of picture sketched above. as indicated, that picture mirrors the standard sorities paradoxes, but it does not mirror what is going on in the spectrum arguments. second, even if one claims that the values of outcomes x and y are so close as to be indistinguishable, and likewise that the values of outcomes y and z are so close as to be indistinguishable, there is good reason to believe that there are circumstances in which we’d be able to distinguish between at least one of the two sets of values, k and l, or l and m. more particularly, even if it were true that were we confronted only with outcomes x and y, we might discern no difference in value between them, and were we confronted only with outcomes y and z, we might discern no difference in value between them, it seems likely that if we were confronted with all three alternatives at once we would discern a difference between at least two of the supposedly “indistinguishable” values. suppose, for example, that we were presented with all three outcomes, x, y, and z, at the same time. suppose, as before, that on the internal aspect 148 larry temkin leap 2 (2014) view, bx → k, and bz → m, where the difference in value between k and m was sufficiently great that we clearly recognized x’s value to be different than z’s. in that context, as we were considering all three outcomes at once, how would we assess y’s value? it seems there are only three possibilities here that we need to consider. it might be that in that context, y’s internal features were such that by → k. if that were so, then x and y would have the same value, but y and z would not, and so principle add would not apply. alternatively, it might be that in that context, y’s internal features were such that by → m. if that were so, then y and z would have the same value, but x and y would not, and so once again principle add would not apply. or, it might be that in that context y’s internal features were such that by → l, where l was an intermediate value between k and m. in that case, y’s value, l, will either be clearly distinguishable from one or both of k and m, or it will not. if it is clearly distinguishable from one or both of k and m, then once again principle add would not apply. but similarly, if it is not clearly distinguishable from both k and m, then in that context we will have good reason to be confident that y’s value is not perfectly similar to, or the same as, x or z’s values, since, by hypothesis, those values, k and m, are clearly distinguishable from each other. hence, again, principle add won’t apply. in sum, for any three outcomes to which we might have thought principle add would be applicable, if we considered those outcomes two at a time, we can see that principle add would not apply to those three outcomes if we considered all three of them at once. insofar as the latter result seems firmly grounded, and i believe it is, this suggests one of two appropriate responses to the initial judgment. first, we might decide that the initial judgment that principle add applied to the three outcomes when they were considered two at a time was mistaken. in essence, we might conclude that the judgment in question was akin to a perceptual illusion, which is only revealed as such when we consider all three outcomes at once. this might be like the predicament of someone confronting the famous muller-lyer illusion, who was convinced when looking at two side-by-side line segments, alone, that the one with the “outward” pointing arrows ( ) was longer than the one with the “inward” pointing arrows ( ), until a ruler was placed between them revealing that, in fact, the two line segments were the exact same length. alternatively, we might retain our conviction in our initial judgment, that x and y really do have the same value, k, when they are compared with each other, and that y and z really do have the same value, m, when they are compared with each other, but that x and z have different values, k and m, when they are compared with each other, even as one grants that y can have one or neither of the values, k and m —but not both— when all three outcomes are considered at once. but in that case, it is clear that y’s value depends not solely on its internal features, and the particular value bases corresponding to those internal features, by, but in part on the alternatives with which it is compared. thus, either the intransitivity of the “equally as good as relation” suggested by add reply to persson 149 leap 2 (2014) is an illusion, or it is based on an essentially comparative view of ideals, and not on an alternative version of the internal aspects view as persson suggests. next, let me discuss a related way of thinking about the kinds of cases that persson may have in mind. to do this, it will help to consider diagram one. diagram one diagram one represents the values of our three standard outcomes, x, y, and z. in accordance with the internal aspects view, the value of outcome x is determined by the relevant bases for value that obtain in x, and these bases are a function solely of x’s internal features. however, diagram one represents a situation where the value of x, which we again represent by the letter k, does not correspond to a single number, rather it has a number of varying elements reflecting the ways in which and extent to which x is good. for simplicity, we have assumed that the different aspects of x’s value can be accurately represented by the two connected rectangles of different color and pattern in the top left portion of the diagram. similarly claims might be made regarding outcomes y and z and their values, where the different aspects of y’s value are represented by the two connected rectangles of different color and pattern in the bottom portion of the diagram, and the different aspects of z’s value are represented by the two connected rectangles of different color and pattern in the top right portion of the diagram. as represented, there is considerable overlap in the nature and extent of value between outcomes x and y, represented by the fact that x’s right rectangle, and y’s left rectangle have the exact same color and pattern. similarly, there is considerable overlap in the nature and extent of value between outcomes y and z, represented by the fact that y’s right rectangle, and z’s left rectangle have the exact same color and pattern. but there is no overlap in the nature and extent of value between outcomes x and z, represented by the fact that x’s two rectangles, and z’s two rectangles have completely different colors and patterns. the following might then be phenomenologically accurate. if someone were asked to compare the outcomes x and y, he might naturally focus on the significant respects in which their values were the same, and thus “perceive” or judge that they had the same value. likewise, if someone were asked to compare the outcomes y and z, he might naturally focus on the significant x, bx = k y, by = l z, bz = m 150 larry temkin leap 2 (2014) respects in which their values were the same, and thus “perceive” or judge that they had the same value. but if someone were asked to compare the outcomes x and z, he might naturally focus on the fact that their values were not the same at all, and hence “perceive” or judge that they had different values. thus, considering the outcomes two at a time, one might naturally be drawn to judge that x and y were equally good, and y and z were equally good, but that, contrary to the purported transitivity of the “equally as good as relation”, x and z were not equally as good. here, we might have three outcomes where the judgments people might actually make regarding their value would seem in accordance with principle add. moreover, importantly, the values we would be responding to in making our judgments about the different outcomes would be determined solely by the internal features of those outcomes, so it might seem that we can give an account of a violation of the transitivity of the “equally as good as” relation consistent with an internal aspects view of ideals. so should we accept persson’s view, after all? i don’t think so; at least not on the basis of the foregoing. my reaction to this kind of case is similar to my reaction to the previous one. my first reaction, and my main one, would be to acknowledge that people might, in fact, react phenomenologically to the different outcomes in the way suggested, but to contend that when they did so they were mistaken, and caught in the equivalent of a normative optical illusion. comparing outcomes x and y, we might well find the respects in which their values are the same especially salient, and this may lead us initially to judge them as equally good. however, once we are clear about what is going on in such cases, it seems clear that x and y are not equally good (or perfectly similar regarding value). there are, undoubtedly, respects in which their values are the same, represented by the two rectangles that they each have of exactly the same color and shape, but there are also, undoubtedly, respects in which their values are different, represented by the two rectangles that they each have of completely different color and shape. absent a plausible story that we have not been given for why it is permissible to completely ignore the respects in which x and y differ in the ways and extent to which they are good, it seems hard to stick with the intuitive judgment that x and y have exactly the same value, all things considered. similar points might be made, of course, about our initial intuitive judgment that y and z have the exact same value. my second reaction to this kind of case would be to point out that, while it would be true that whatever aspects of y’s value that we find ourselves responding to arise from y’s internal features, the particular features that we focus on in assessing y’s value will not solely be a function of y’s internal features. instead, it will be a function of the alternative outcome with which we compare y. so, contrary to the internal aspects view, we cannot first determine y’s value, considering y just by itself, do the same for x and z, and then find out how y compares with x and z by comparing them directly reply to persson 151 leap 2 (2014) in terms of the independent answers we came up with. rather, in assessing y’s value, we focus and rely on the ways and extent to which y is good that are represented by the bottom left rectangle in diagram one when we are comparing y with x, but we focus and rely on the ways and extent to which y is good that are represented by the bottom right rectangle of diagram one when we are comparing y with z. thus, here too, the factors that are relevant and significant for assessing y’s value vary depending on the alternative outcome with which it is compared, and hence it is an essentially comparative view, after all, that would account for the plausibility of principle add and the intransitivity of the “equally as good as” relation, not a rival internal aspects view to the version that i presented. let me make one final point. in presenting his view, persson makes it clear that if one is going to have an internal aspects view that would be compatible with the rejection of the various axioms of transitivity, then we have to reject the natural and plausible model for thinking about the goodness of outcomes that i present in my book, where goodness is understood as a property that can, in principle, be quantified and accurately represented by a real number, or a range of real numbers. 1 i agree with persson about this. moreover, as i point out in my book, there are various important problems with the “numerical” model in question (see for example temkin 2012: ch. 10, note 10). but recognizing this, it is not enough to note that we need something other than my numerical model if we are to explain violations of the axioms of transitivity in a way that is compatible with an internal aspects view. we need an account of what the alternative way of thinking about the internal aspects view looks like. so far, we don’t have even the broadest sketch of such an account —beyond the simple assertion that it can’t be like my numerical model. how, exactly, are we to understand this rival, non-numerical, conception of the internal aspects view, so as to capture the various features that persson and i both agree need to be captured? here, as elsewhere, the devil is in the details, and i think the burden of proof lies on persson to further develop and defend the conception he has in mind. perhaps he thinks he has already done this. but if he has, i am afraid i have missed it. and if i have, perhaps others have as well. 1. parfit has often made similar claims during our discussion about these issues. he eschews thinking about goodness in terms that can be represented by a real number. however, it is not clear to me what the coherent alternative to thinking about goodness in such terms is supposed to be, which fits with the underlying intuitions that motivate the internal aspects view in the first place. 152 larry temkin leap 2 (2014) 3. persson’s article presents a striking and intriguing suggestion. he suggests that even on an internal aspects view the axioms of transitivity should be rejected. moreover, he contends that this position offers the best way of interpreting what is going on in my book’s spectrum arguments. unfortunately, i don’t find persson’s claims convincing. as i try to make sense of persson’s view, i keep thinking that either his normative judgments are mistaken —caused, perhaps, by a cognitive illusion— or the real explanation for them is provided by an essentially comparative view. in sum, while i welcome further reasons to challenge some of our standard assumptions about practical reasoning, i am not yet persuaded that persson can deliver on the promissory note that his article offers us. specifically, i am not yet convinced that there is a plausible rival account of an internal aspects view that both fully reflects the position that an outcome’s goodness depends solely on its internal features, and is compatible with the rejection of the axioms of transitivity. moreover, even if such a view could be defended, i’m not convinced that it would provide the best explanation for what is going on in my spectrum arguments, rather than the one that i suggested in terms of an essentially comparative view. but i look forward to learning more from persson regarding all of this on another occasion. bibliography broome, j., 1991: weighing goods, oxford: basil blackwell. persson, i., 2014: “internal or external grounds for the nontransitivity of ‘better/ worse than’”, law, ethics and philosophy 2: 120-138. rawls, j., 1971: a theory of justice, cambridge (mass.): harvard university press. temkin, l., 2012: rethinking the good: moral ideals and the nature of practical reasoning, oxford: oxford university press. — 2014: “rethinking the good a small taste”, law, ethics and philosophy 2: 58-86. 153 issn 2341-1465 leap 2 (2014): 153-165 globalization and global justice in review* nicole hassoun binghamton university abstract globalization connects everyone, from the world’s poorest slum dweller to the richest billionaire. globalization and global justice starts by giving a new argument for the conclusion that coercive international institutions —whose subjects who are likely to face sanctions for violation of their rules— must ensure that everyone they coerce secures basic necessities like food, water and medicines. it then suggests that it is possible for coercive institutions to fulfill their obligations by, for instance, providing international aid and making free trade fair. this overview sketches the argument in the book’s first half, as which is the focus of the papers in the symposium. keywords: globalization, global justice, legitimate coercion, autonomy. 1. introduction globalization connects everyone, from the world’s poorest slum dweller to the richest billionaire. us subsidies for ethanol contributed to a world food crisis in 2008 that caused haiti’s government to fall. the subsequent us financial crisis precipitated the european sovereign debt crisis and a global recession felt in even the poorest countries. today, however, antiglobalization protests pale in comparison to the new protests against economic inequality and oppression that gave rise to the arab spring. but many of the new protests, from the us occupy movement to those in tahrir square, also focused on what are now —truly global— economic structures’ impacts on individuals’ ability to meet their basic needs. the first half of globalization and global justice (ggj) gives a new argument for the conclusion that coercive international institutions —whose subjects who are likely to face sanctions for violation their rules— must ensure that everyone they coerce secures basic necessities like food, water, medicine. * the author would like to thank particularly paula casal, as well as editors, marcus arvan, thom brooks, and darrel moellendorf. 154 nicole hassoun leap 2 (2014) otherwise, the book suggests, these people will not secure sufficient autonomy, which will be defined below to include the basic reasoning and planning capacities necessary to consent, or object, to coercion. the book’s second half suggests that it is possible for coercive institutions to fulfill their obligations by, for instance, providing international aid and making free trade fair. it concludes with a new proposal for fair trade in pharmaceutical and biotechnology to help people secure access to essential medicines. because the papers in this symposium focus on the argument in ggj’s first half, however, this overview will do so as well. this autonomy argument proceeds, roughly, as follows: 1) coercive institutions must be legitimate (i.e. justified in exercising coercive force). 2) for a coercive institution to be legitimate it must ensure that its subjects secure sufficient autonomy to autonomously consent to, or dissent from, its rules (henceforth sufficient autonomy). 3) everyone, to secure this autonomy, must secure some food and water, and most require some shelter, education, health care, social support, and emotional goods. 4) there are many coercive international institutions (that may amount to a coercive international institutional system). 5) so, these institutions must ensure that their subjects secure food, water, and whatever else they need for sufficient autonomy. this argument is intended to address liberals deeply concerned about individual freedom. ggj does not provide an account of individual responsibility for bringing about the requisite institutional change. nor does it address tradeoffs between fulfilling the condition for legitimacy it defends and other things that matter. 1 nevertheless, the book attempts to provide reasons for liberals of all sorts —as long as they are deeply concerned about coercion— to accept the autonomy argument’s conclusion. although there are many other good arguments for aiding the global poor, the book attempts to address two kinds of skeptics: libertarians and statists. libertarians do not think there are any obligations of global justice or legitimacy to provide aid. 2 they are, however, deeply concerned about coercion and think no one should have to sacrifice their freedom for others. ggj argues that it is precisely because no one should have to sacrifice their freedom for others that there are significant obligations to the global poor. 3 it suggests that if, as many have argued, libertarians should be actual consent theorists, libertarianism entails that people must secure the autonomy they need to consent to coercive rule. so, if the autonomy argument goes through, 1. i discuss some such tradeoffs elsewhere (hassoun 2008) and in this journal. 2. i use the term “libertarian” throughout to refer only to right-libertarians. 3. i discuss elsewhere the relevant sense in which this is true (hassoun 2014). globalization and global justice in review 155 leap 2 (2014) libertarians should agree that coercive institutions must ensure that their subjects secure food, water, and whatever else they need for this autonomy. statists often hold that, because states exercise coercion, to be legitimate, they must fulfill significant obligations of global legitimacy or justice. ggj argues that many international institutions also exercise coercion. so, statists should agree that these institutions also have these obligations. what follows recaps the basic line of thought supporting each premise of the autonomy argument. in particular, this summary focuses on a line of argument for the second premise, which is most relevant when addressing libertarians. i suspect that this premise is the most controversial —and potentially important— aspect of the argument. in the book, i distinguish between the defense of the argument by appeal to libertarian principles (the topic of chapter 3) and the more general defense (discussed in chapter 2) by renaming the autonomy argument the legitimacy argument. here, however, i will not make much of the distinction and simply highlight some of the argumentative moves intended to address libertarians. 2. the first premise ggj defines institutional legitimacy in this way: a coercive institution is legitimate only if it has the right to use coercive force. 4 legitimacy, then, is a “justification” right to rule through force (landenson 1980). having a justification right is having a moral permission to make coercive rules and give coercive commands. legitimacy, in this sense, must be distinguished from justified authority (christiano 2004). a coercive institution has justified authority if and only if it is legitimate and individuals have a moral duty to comply with its rules (buchanan 2004: 237). some rights may carry with them correlative duties (simmons 1979). ggj’s argument does not rely on it being the case, however, that whenever coercive institutions have a right to rule through force, their subjects are obligated to obey their dictates (though this may be so). according to the first premise of the autonomy argument, any coercive institution must be legitimate. although this point is relatively uncontroversial, here is an argument in its defense that is intended to appeal to liberals 4. legitimacy, as the book uses the term, comes in degrees. some people believe legitimacy is an all or none affair. this is not a substantive disagreement. those who hold a binary theory of legitimacy can specify that an institution is legitimate in the binary sense if it surpasses a threshold of legitimacy in the degree sense. however, the degree conception allows for different thresholds to be specified for different purposes. for the purpose of the autonomy argument, one need only suppose that imperfectly legitimate institutions must be reformed. i owe thanks to allen buchanan for discussion on this point. 156 nicole hassoun leap 2 (2014) deeply concerned about coercion. following john locke, one may hold that each person has a natural right to freedom and so, rights-respecting people cannot be subject to others’ commands without justification (locke 1690). h.l.a. hart provides one way of defending a natural right to freedom. hart argues that if there are any natural rights, there is a natural right to freedom (hart 1955). alternately, one might try to ground the concern for freedom in a concern for individuals’ interests or autonomy. but, since the autonomy argument is not intended to address skeptics about the importance of freedom, ggj does not examine the alternatives at great length. 3. the second premise according to the second premise of the autonomy argument, to be legitimate, coercive institutions must ensure subjects secure sufficient autonomy. consider what this means. first, people are subject to a coercive institution when the rules of the institution apply to them and to secure sufficient autonomy, people must be able to reason about, make, and carry out some significant plans on the basis of their desires, beliefs, values, and goals (henceforth commitments). more precisely, people must be able to reason about, make, and carry out the plans necessary to consent or object to the coercive institutions to which they are subject. to secure sufficient autonomy people need not be perfectly autonomous. people need only possess a few conditions for autonomy. the book appeals to these conditions for autonomy to secure broad agreement on the autonomy argument’s second premise. at least it is not plausible to reject this premise because the conditions for autonomy it relies upon are too demanding. those who accept fuller (e.g. kantian) conceptions of autonomy might run a similar argument for more significant obligations to the global poor. second, what is necessary to ensure that people secure sufficient autonomy will vary with the case. coercive institutions must do whatever is necessary (and permissible), to ensure that their subjects become and remain autonomous until and unless they autonomously relinquish their ability to do so. what is necessary depends on how close one is to being able to secure such autonomy and what resources one already has. in cold climates, for instance, one may need to secure heat. in the tropics, heat is usually unnecessary. some will be able to secure sufficient autonomy as long as they are free from interference. others, however, need assistance to secure sufficient autonomy. the coercive institutions to which these people are subject may have to provide this assistance. if, for instance, a person is in a coma from which she could recover with proper medical care and she is not receiving such care from friends, family, or benefactors, then the coercive globalization and global justice in review 157 leap 2 (2014) institutions to which she is subject must provide it. these institutions have a responsibility of last resort. an institution does not lose legitimacy if it does not help someone secure sufficient autonomy and this person does not have the potential to secure such autonomy. when they are very young, children are not able to secure any autonomy at all. most children who receive proper care will be able to secure sufficient autonomy as they get older. if no one else does so, a legitimate coercive institution must help these children secure such autonomy once they are old enough. it is possible to defend the condition for legitimacy in the autonomy argument’s second premise in two steps. what follows will argue, first, that coercive institutions can only be legitimate if as many of their subjects as possible secure sufficient autonomy. second, it will argue that such institutions must do what they can to ensure subjects secure this much autonomy. it is possible to defend the first claim by appeal to the nature of liberalism (leaving the possibility constraint implicit where its importance is minor). the second claim follows from the first and some observations about the nature of ensuring and coercive institutions. 3.1. the first point necessary for establishing the enabling condition at the heart of liberalism is the concern for individual freedom. recently liberals have focused primarily on arguing that coercive institutions must be decent, if not fully just (rawls 1993; pogge 1989). an equally powerful strand in liberal thought, however, expresses the idea that the actual relationship between the rulers and each ruled person must be voluntary in some way. liberals deeply concerned about individual freedom disagree about what makes the relationship between the rulers and the ruled voluntary. they all agree, however, that this relationship can only be voluntary if the ruled possess at least some freedom. this freedom is not constituted by the social order and it is compatible with significant constraints on social life (waldron 1987: 133). the key idea is that subjects must be free to determine their actions and shape the nature of their relationship with the coercive institutions to which they are subject (waldron 1987: 132). although individuals may not have a choice of whether or not they are subject to a coercive institution, subjects must be able to exercise some control over the way they react to their subjection. subjects should get to decide whether or not to abide by, dissent from, or consent to coercive institution for themselves (waldron 1987: 146). political liberals almost unanimously agree, for instance, that people have a right to dissent from the rule of the coercive institutions to which they are subject by conscientious objection, non-violent protest, passive resistance, and so forth. 158 nicole hassoun leap 2 (2014) to consent to, or dissent from, coercive institutions in these ways, people must be able to reason about, make, and carry out some significant plans in light of their beliefs, desires, values, and goals; they must be able to secure sufficient autonomy. 5 (recall that the conditions for sufficient autonomy are quite minimal people secure sufficient autonomy when they secure basic reasoning and planning capacities). so liberals implicitly accept the first claim embodied in the enabling condition for legitimacy; those living under coercive institutions must be able to secure sufficient autonomy for the coercive institutions to which they are subject to be legitimate. will kymlicka puts the point this way: “liberalism is committed to (and perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community, should they come to see them as no longer worthy of their allegiance” (kymlicka 1992). the book explains, at some length, why liberals of many persuasions should accept the first part of the second premise of the autonomy argument; for coercive institutions to be legitimate, their subjects must secure sufficient autonomy. consider, here, just why libertarians, in particular, should endorse the first part of the second premise of the autonomy argument. there is a wellknown argument in the literature for the conclusion that libertarians should be actual consent theorists. very roughly, on the relevant version of actual consent theory, coercive institutions must, insofar as possible, secure their rights-respecting subjects’ consent until, and unless, they give up the right to consent. any agent, or institution, may be justified in coercing those who violate others’ rights. to use an example from john simmons, even “the third reich was justified in prohibiting rape and punishing rapists” (simmons 1999). but coercive institutions usually do more than this. when they create norms, rules, and procedures governing the use of force, for instance, they prevent people from defending their own rights. this is clearly the case for (even libertarian) states, which claim a monopoly on coercive force within a territory traditionally defined. since libertarians hold that everyone has a basic right to defend their rights, consent is required for such coercion. assuming this argument goes through, ggj notes that, in order to actually consent, people must be able to do so. this requires at least basic reasoning and planning capacities sufficient to autonomously consent (i.e. sufficient autonomy). 5. recall that this just presupposes some minimal conditions for full autonomy —one need not have coherently structured values e.g. to have the basic reasoning and planning capacities at issue. globalization and global justice in review 159 leap 2 (2014) 3.2. the second point necessary for establishing the enabling condition why must coercive institutions do what they can to ensure subjects sufficient autonomy? the preceding argument entails that when coercive institutions subject people who cannot secure sufficient autonomy to coercive rules and do not do what they can to ensure subjects secure this autonomy, they are illegitimate. this is because coercive institutions are not justified in exercising rights-constraining coercive force over rights-respecting people who could, but have not, secured sufficient autonomy. yet coercive institutions exercise such force. if coercive institutions continue to exercise coercive force, legitimacy requires that they do what they can to ensure subjects secure sufficient autonomy. coercive institutions do continue to exercise this force (insofar as they remain coercive institutions). so, they must do what they can to ensure subjects secure sufficient autonomy. there are a few caveats to this conclusion. others may have primary responsibility for enabling those subject to coercive institutions to secure sufficient autonomy. moreover, if people secure this autonomy on their own, with the help of friends and/or benefactors, or give up their right to do so, the coercive institutions to which they are subject need not do a thing. these coercive institutions must generally step into the breach, however, if help is required. it is only if they do this that as many of their subjects as possible will secure sufficient autonomy. there may also be other conditions for institutional legitimacy. coercive institutions may even be justified in doing other things before enabling their subjects to secure sufficient autonomy. 4. the third premise the third premise of the autonomy argument is this: most people must at least be able to secure some minimal amount of food, water, shelter, education, health care, social and emotional goods to secure sufficient autonomy. recall that, to secure the sort of autonomy at issue, people must at least be able to reason about, make, and carry out some significant plans on the basis of their commitments. even without explaining this condition for autonomy in any detail, it should be clear that those who lack basic food, water, shelter, education and health care are likely to suffer from autonomy undermining disabilities. malnutrition inhibits one’s immune system’s ability to fight infection and poor nutrition is linked to many non-infectious illnesses. 6 similarly, if 6. scurvy results from a lack of vitamin c, beri-beri from a lack of thiamine, pellagra from niacin deficiency, and macrocytic and microcytic anemia from folic acid and iron deficiencies, for instance. there is also a lot of evidence that decent nourishment is important for good 160 nicole hassoun leap 2 (2014) people lack adequate shelter, they may be exposed to environmental hazards including disasters, pollutants,. parasites, and bacteria and acquire diseases, like dysentery, tetanus, typhoid, cholera, or heptatitis from flood water or unsanitary living conditions (red cross 2007). those without basic health care, food or water are at risk of diseases causing disabilities or premature death (ibid.) incompatible with securing sufficient autonomy. less obviously, those without basic education, emotional and social goods may suffer from autonomy undermining disabilities (woolcock 2001; doyle 2002). basic education, emotional and social goods are often necessary for securing decent living conditions, health care, livelihood opportunities, and earning power (marmot 2004). those who lack (formal or informal) elementary education may not develop, or maintain, the reasoning and planning skills they need to secure sufficient autonomy. 7 those who lack basic emotional and social goods, like self-esteem, are at high risk for mental and physical illness, suicide, and early death from other causes (cullen and whiteford 2001; brock 1999; hudson 2005; woolcock 2001). “fear, insecurity, dependency, depression, anxiety, intranquility, shame, hopelessness, isolation and powerlessness... such experiential elements of a bad life... [often impact] ... agency” (brock 1999: 195). it is true that some people are able to secure sufficient autonomy without being able to obtain even minimal education or social or emotional goods. but, this kind of severe deprivation will undermine most people’s ability to secure sufficient autonomy. 5. the fourth premise before arguing that there are many coercive international institutions, ggj sketches a conception of coercion. it explains that an institution is coercive when individuals, or groups, violating its dictates are likely to face sanctions for the violation. a sanction is a punishment or penalty. coercion usually creates conditions under which the coerced have no good alternative except to do what their coercer wants them to do. this is usually explained by the fact that the coerced are threatened by sanctions. depending on the kind and amount of coercion and so forth, coercion may or may not undermine autonomy to any significant degree. usually, it engages the will of the cognitive functioning. children’s mental functioning can even be impaired if their mothers do not receive proper nourishment during pregnancy. keratomalacia which results from vitamin a deficiency, kwashiorkor which results from protein deficiency, and iodine deficiencies can all lead to severe disabilities and death. see leathers and foster 2004. 7. stress may contribute to a host of autonomy-undermining mental disorders. stress can, for instance, cause panic attacks and depression. psychological disorders can reduce the ability of one’s immune system to fight infection. see beaton 2003. the causal evidence suggests that perception of low social standing may increase stress which reduces immune functioning and can harm health in other ways as well. mailto:dbeaten29@yahoo.com mailto:dbeaten29@yahoo.com mailto:dbeaten29@yahoo.com globalization and global justice in review 161 leap 2 (2014) coerced. still, people can be coerced into doing what they would otherwise do freely. furthermore, institutions can be coercive even if they do not coerce anyone into doing anything. if, for instance, a state only creates just laws and everyone willingly obeys, it may still be coercive. the state is subjecting people to coercive laws, though it never has to sanction anyone for disobedience. ggj notes that the preceding analysis leaves a lot open. much hangs on what counts as a violation, a punishment or penalty, and a good alternative (anderson 2006). some hold that only threats can be coercive while others say sanctions can include withholding an offered good. there is also disagreement about the appropriate baseline relative to which something counts as a sanction. it is not clear, for instance, whether one can be sanctioned in ways that do not violate rights. the book allows that some international institutions are not coercive. non-binding treaties like the declaration on the rights of disabled persons are not coercive. nor are non-governmental organizations that offer only voluntary programs, normally, coercive. ggj argues, however, that there are many coercive international institutions. it does so by providing examples that should appeal to those with widely divergent accounts of coercion. many international institutions’ dictates are binding and non-voluntary. (since libertarians tend to think there is a lot of coercion in international affairs, what follows will not focus on addressing libertarians, in particular, though the book provides additional examples that are intended primarily to address libertarians.) there are many ways the international institutions governing trade exercise indirect coercion. institutions like the world trade organization (wto) and the north american free trade agreement (nafta) impose sanctions on countries that violate property rights or the rules of the market. states enforce these sanctions. the nafta sanctioned mexico for prohibiting metalclad from operating a toxic waste dump in san luis potosi, for instance. mexico had to pay metalclad 16 million us dollars in damages (wallach 2005). the wto found the us guilty of violating its rules with the byrd amendment. it allowed prosecuting countries to impose import duties on the us until the us repealed the act (european union, 2005). recently, the wto sanctioned the european union (eu) by allowing the us to impose tariffs on eu goods because the eu had used import licensing requirements to support caribbean banana producers (british broadcasting company 1999). in many cases, laws passed by states as a result of wto rulings eventually coerce businesses and individuals into abiding by the rulings. the united nations (un) also exercises indirect coercion. the un security council imposes economic sanctions, air traffic controls, and arms embargos on countries, and groups within countries, that threaten http://www.unhchr.ch/html/menu3/b/72.htm 162 nicole hassoun leap 2 (2014) international security. the un has, for instance, sanctioned rhodesia, iraq, south africa, serbia, montenegro, yugoslavia, somalia, libya, haiti, sudan, rwanda, sierra leon, ethiopia, eritrea, and groups within cambodia, angola, and afghanistan (roberts 2001). the un security council also authorizes the use of force against countries threatening international peace. when iraq invaded kuwait the un authorized the use of force to stop the invasion. the un-mandated international security assistance force of about 30,000 troops was involved in military action in afghanistan from 2001 until 2014 (united nations 2003). moreover, many countries’ participation in international institutions is not voluntary. countries often pay significant penalties if they do not abide by wto, un, world bank or international monetary fund (imf) rules. sometimes countries do not have other good options and so are not free to resist these organization’s conditions. highly indebted poor countries facing default, for instance, may have to abide by imf conditionality. furthermore, some argue that international institutions bear responsibility for poor countries’ having no reasonable option but to abide by their rules by having contributed to their impoverishment. 8 at least in such cases, international institutions are indirectly coercing individuals in the way that a man with a gun indirectly coerces someone if he forces another person to threaten the first. 9 many international institutions also exercise direct coercion. un peacekeeping forces exercise direct coercion by, for instance, taking over territory, patrolling borders, and creating safe havens for refugees. those who attempt to wrest control from the un, or enter its protectorates or safe zones without permission, face sanctions for the violation. peacekeeping forces have been deployed in places as diverse as congo, iran, lebanon, sinai, yemen, the golan heights and cyprus. between 1988 and 1999 alone, the un initiated forty peacekeeping missions (roberts 2001). other international institutions also coerce individuals directly, sometimes in ways that violate rights. consider, for instance, what happened as the humanitarian crisis in the balkans developed. the un imposed an arms embargo against the former yugoslavia, a flight ban over bosnia and herzegovina, and economic sanctions against montenegro and serbia. nato enforced these measures. in 1999, when the un peacekeeping force failed to prevent the srebrenica massacre, nato bombed bosnia. nato then enforced the bosnia-herzegovina peace agreement under the auspices 8. this condition may not be necessary for coercion. for discussion see nozick 1969; zimmerman 1981; gorr 1986; mcgregor 1998/89; held 1972; van de veer 1979. 9. even if individuals’ states have other options and are thus partly responsible for coercing their people, international institutions may still be acting wrongly. knowing how states are likely to act, it may not be acceptable for these institutions to act in the ways that they do. but this paper sets this point aside. globalization and global justice in review 163 leap 2 (2014) of a un protectorate and brought individuals accused of war crimes to the hague. it thereby directly coerced, and enabled the court to coerce, individuals. eventually, nato ceded command in bosnia to the eu, which deployed its own troops (nato 2007). 6. conclusion many people resist the idea that there are any obligations of justice to the global poor. if the autonomy argument goes through, these people are mistaken. legitimacy requires that coercive institutions do what they can to ensure that all of their subjects with the potential to secure sufficient autonomy secure adequate food, water, shelter, education, health care, social and emotional goods. the second half of ggj argues that there are many things we can do to help people secure what they need for sufficient autonomy. so, the book concludes, in a world where 18 million people die annually of easily preventable poverty-related causes, there are many things we can and must do to ensure that everyone secures what they need. 10 bibliography anderson, s., 2006: “coercion”, stanford encyclopedia of philosophy, http://plato. stanford.edu/entries/coercion/. british broadcasting company, 1999: “wto approves banana sanctions”, http:// news.bbc.co.uk/2/hi/business/322938.stm. brock, k., 1999: “‘its not only wealth that matters it’s peace of mind too’: review of participatory work on poverty and illbeing”, institute of development studies: birmingham. buchanan, a., 2004: justice, legitimacy, and self-determination: moral foundations for international law, oxford: oxford university press. christiano, t., 2004: “political authority”, stanford encyclopedia of philosophy, http:// plato.stanford.edu/entries/authority/. cullen, m., and whiteford, h., 2001: “inter-relations of social capital with health and mental health”, mental health and special programs branch commonwealth department of health and aged care discussion paper. canberra: commonwealth department of health and aged care. doyle, r., 2002: “calculus of happiness: assessing subjective well-being across societies”, scientific american 287/5 :3. european union, 2005: “u.s. congress repeals byrd amendment but allows for a transition period”, no. 128/05. 10. see world health organization 2004. although the autonomy argument does not establish this conclusion, coercive institutions must also allow individuals to meet their basic needs in a decent, legitimate way. no one should have to scavenge under burning heaps of garbage to survive. 164 nicole hassoun leap 2 (2014) gaus, g., 2003: “liberal neutrality: a compelling and radical principle”, in perfectionism and neutrality: essays in liberal theory, s. wall and g. klosko (eds.), new york: rowman and littlefield publishers. gorr, m., 1986: “toward a theory of coercion”, canadian journal of philosophy 16, 3: 383-406. hart, h. l. a., 1955: “are there any natural rights?”, the philosophical review 64: 175-191. hassoun, n., 2009: “meeting need”, utilitas 21, 3: 250-275. — 2014: “coercion, legitimacy, and individual freedom: a reply to sondernholm”, journal of philosophical research 39: 191-198. held, v., 1972: “coercion and coercive offers”, coercion: nomos 14. hudson, c. g., 2005: “socioeconomic status and mental illness: tests of the social causation and selection hypotheses”, american journal of orthopsychiatry 75, 1: 3-18. kymlicka, w., 1992: “the rights of minority cultures: reply to kukathas”, political theory 20, 1: 142. landenson, r., 1980: “in defense of a hobbesian conception of law”, philosophy and public affairs 9, 2: 134-159. leathers, h., and foster, p., 2004: the world food problem: tackling the causes of undernutrition in the third world, colorado: lynne rienner publisher. locke, j., 1690: second treatise on civil government, 1990, ed. c. b. macpherson, indianapolis: hackett. marmot, m., 2004: status syndrome: how your social standing directly affects your health and life expectancy, london: bloomsbury. mcgregor, j., 1998/1989: “bargaining advantages and coercion in the market”, philosophy research archives 14: 23-50. nato 2007: “what’s on nato’s agenda?”, north atlantic treaty organization. nozick, r., 1969: “coercion”, in philosophy, science, and method: essays in honor of ernest nagel, ed. w. morgenbesser, st martin’s press, 440-472. pogge, t., 1989: realizing rawls, new york: cornell university press. rawls, j., 1993: political liberalism, new york: columbia university press. red cross, 2007: “american red cross urges public health precautions”, red cross: washington d.c. risse, m., 2006: “what to say about the state”, ksg working paper no. rwp06-008, cambridge, mass.: harvard university. roberts, a., 2001: “united nations”, in the oxford companion to politics of the world (second edition), ed. j. krieger, oxford: oxford university press. simmons, j., 1979: moral principles and political obligations, princeton: princeton university press. — 1999: “justification and legitimacy”, ethics 109, 4: 739-771. united nations, 2003: “security council seeks expansion of role of international effort in afghanistan, to extend beyond kabul”, press release sc/7894. security council 4840th meeting (pm) 13/10/2003. http://www.un.org/news/press/ docs/2003/sc7894.doc.htm. van de veer, d., 1979: “coercion, seduction, and rights”, the personalist 58: 374-381. waldron, j., 1987: “theoretical foundations of liberalism”, philosophical quarterly 37, 147: 133. http://philpapers.org/rec/morpsa-5 http://philpapers.org/rec/morpsa-5 globalization and global justice in review 165 leap 2 (2014) wallach, l., 2005: “slow motion coup d’etat: global trade agreements and the displacement of democracy”, multinational monitor 26: 1-2, http:// multinationalmonitor.org/mm2005/012005/wallach.html. woolcock, m., 2001: “the place of social capital in understanding social and economic outcomes”, isuma 2, 1, http://www.oecd.org/innovation/research/1824913.pdf. world health organization, 2004: “who ‘preparing for treatment’ programme”, call for tenders to who, annex table 2, geneva: world health organization. zimmerman, d., 1981: “coercive wage offers”, philosophy & public affairs 10, 2: 121-145. 166 issn 2341-1465 leap 2 (2014): 166-176 libertarian welfare rights: can we expel them? charles goodman binghamton university abstract in globalization and global justice, nicole hassoun presents a new and fundamental challenge to libertarian political thought. her legitimacy argument tries to show that natural rights libertarians are committed by their own principles to a requirement that their states recognize and meet the positive welfare rights of certain merely potentially autonomous persons. unfortunately, this argument suffers from two flaws. hassoun needs to show, but has not shown, that the libertarian state would have to infringe any of the negative rights of the merely potentially autonomous in such a way as to require consent from them. moreover, the libertarians could arrange their institutions, justifiably by their own lights, so as to expel all indigent, merely potentially autonomous persons from their territory. this second solution is intuitively unpalatable, but may be no more morally problematic than the basic natural rights libertarian view itself. keywords: ibertarianism, positive rights, nicole hassoun, autonomy, john locke. 1. introduction: the legitimacy argument much recent work on global justice has focused on attempts to convince libertarians that the processes of globalization generate significant obligations to help the global poor. the work of thomas pogge and others towards this goal has recently been supplemented by nicole hassoun’s important book globalization and global justice. hassoun presents a new, fundamental, and apparently devastating challenge to libertarian political thought. according to hassoun’s legitimacy argument, natural rights libertarians who reject anarchism, defend the state’s monopoly on force, and accept actual consent theory, cannot explain how it is morally legitimate for them to coerce certain non-autonomous but potentially autonomous persons. in order for a libertarian state to exercise jurisdiction over these persons, it must provide them, insofar as it can, with what they need to become autonomous. thus libertarian welfare rights: can we expel them? 167 leap 2 (2014) the normative legitimacy of even a libertarian state would depend on its practical recognition of certain positive welfare rights. hassoun focuses our attention, as other writers have, on the horrifying moral tragedy of our time: the plight of the global poor in a world that contains so much affluence. libertarians are aware of this tragedy, and have no need to minimize it. they propose to relieve the misery of the poor by extending free trade, the rule of law, and the institutions of capitalist society to every part of the globe. since these institutions have repeatedly succeeded where no others have in transforming poor countries into rich countries, they constitute the only approach on which we have any reason to rely for saving the world’s poor from their wretched condition. hassoun would disagree with this program; and she offers various empirical arguments for the importance of foreign aid in helping to alleviate global poverty. but regardless of the outcome of the empirical debate about what measures would most effectively help the poor, libertarians must still contend with hassoun’s case for the claim that, contrary to their view, potentially autonomous people have positive welfare rights that can be grounded in considerations about individual freedom and consent that libertarians themselves accept, and that governments cannot be legitimate if they do not appropriately respond to these rights. libertarians advocate the creation of minimal states that do nothing other than protect the negative rights of their citizens. such states would have police forces, courts, and armies, and would use them to punish crime, deter aggression and enforce contracts, but would not collect taxes from citizens for any other purpose beyond these. call a minimal political institution of this type a libertarian state. those who claim that only a libertarian state would be legitimate, because any more extensive state would violate the natural rights of citizens, i will call natural rights libertarians (see nozick 1977). two prominent theorists, thomas pogge and james sterba, have attempted to show that the natural rights libertarian position, as just explained, is unstable: under contemporary conditions, their view should imply stringent, enforceable duties to help the global poor. for example, pogge draws on the lockean understanding of property rights to try to show that unless we provide the global poor with considerably more resources than they now possess, we will be violating their negative rights (pogge 2002: 208-9). sterba claims that by enforcing property rights, the libertarian state violates the poor’s right to take what they need to survive; this conflict of rights should be resolved in favor of a duty to aid (sterba 2005: 47-48). but, as hassoun points out, libertarians have been unconvinced by these arguments. some “reject sterba’s conclusion because they do not believe that a conflict of rights generates a duty to aid the poor”. others have tried to show “that libertarians are likely to reject pogge’s baseline for harm”. (hassoun 2012: 168 charles goodman leap 2 (2014) 91). thus, the arguments of pogge and sterba remain controversial. hassoun therefore proposes her own, new argument, which attempts to show in an entirely different way that the basic moral principles that underlie natural rights libertarianism should, properly understood, require institutions that redistribute resources towards the poor. although this argument is framed in ways that address the global poor, the core of the argument is applicable to a single libertarian state. thus, despite the fact that hassoun’s book as a whole is directed to addressing issues of global justice, i will be focusing on her argument primarily as it applies domestically. on p. 92 of globalization and global justice, hassoun states her legitimacy argument as follows: 1 (1) coercive institutions must be legitimate. (2) roughly, for a coercive institution to be legitimate it must ensure that its subjects secure sufficient autonomy to autonomously consent to, or dissent from, its rules (henceforth sufficient autonomy.) (3) everyone, to secure this autonomy, must secure some food and water, and most require some shelter, education, health care, social support, and emotional goods. (4) there are many coercive international institutions. (c) so, these institutions must (roughly) ensure that their subjects secure food, water, and whatever else they need for autonomy. i will not be questioning any of premises 1, 3, or 4. premise 1 is accepted, in some form, by nearly everyone. premises 3 and 4 look like straightforward empirical truths. so what supports premise 2? 2 according to hassoun, natural rights libertarians should accept actual consent theory: they should hold that coercive institutions are legitimate only if those subject to them have actually consented to their rule. she persuasively argues that the standard objections against actual consent theory should not be acceptable to libertarians. so a libertarian minimal state must secure the actual consent of autonomous persons that live on its territory. but what about those who are merely potentially autonomous, such as children, or the curably mentally ill? they are still subject to the coercive force of the law of a libertarian state. in order for the state to be 1. the “legitimacy argument”, as discussed here, is a form of the more general autonomy argument that has been adapted to apply to libertarian theories. although hassoun believes, and attempts to show in her chapter 2, that all persons, whether autonomous or not, do have positive welfare rights, the intention of the legitimacy argument is to show specifically that, even on purely libertarian assumptions, persons who are merely potentially autonomous would have positive welfare rights against a libertarian state. 2. premise 2 starts with the word “roughly”. hassoun explains the qualifications to this premise that she thinks are necessary at 93-94. they involve those who do not respect the rights of others; those who can never become autonomous; and those who somehow give up their right to consent. none of these qualifications will be relevant to the argument of this paper. libertarian welfare rights: can we expel them? 169 leap 2 (2014) justified in infringing their rights through coercion, hassoun argues, it must do what is necessary to get their actual consent. but since these merely potentially autonomous individuals do not presently have the normative capacity to grant valid consent, so long as they remain as they are, the state cannot get what it needs from them. so it is morally required to provide them with whatever they need in order to become autonomous, so that they can eventually consent to its rule. this legitimacy argument would, then, require that the curably mentally ill should receive treatment at public expense, and that children should have their basic needs met and should be provided publicly with sufficient education to become autonomous. since these goods and services will be paid for from taxation, the legitimacy argument entails that citizens of a minimal libertarian state have robust positive duties towards the merely potentially autonomous; should these duties not be fulfilled, their state becomes normatively illegitimate. to derive premise 2 from actual consent theory, hassoun needs the plausible assumption that even a libertarian state would have to employ coercion against those living in its territory, including those who are only potentially autonomous. but how, exactly, would the libertarian state use coercion against merely potentially autonomous citizens? when we separately examine the various rights that non-autonomous persons might have, we can identify what may be a serious flaw in this argument. 2. first reply: the rights of the merely potentially autonomous for present purposes, we can say that, from the kind of libertarian perspective we are examining, individuals have natural rights to bodily integrity, property, self-defense, and punishment. the right to bodily integrity is a trivial consequence of the basic libertarian premise of self-ownership. rights to property are the result of the appropriation of unowned natural objects and their transformation through labor. various widely accepted and uncontroversial human rights, such as rights to free speech, free association, due process in criminal cases, and so on, are seen by libertarians as flowing from these two more basic rights to bodily integrity and property. the other two basic natural rights authorize responses to rights violations by others. the right to self-defense gives us limited permissions to respond to violations that are occurring in the present or are likely to occur in the future; the right to punish gives us limited permissions to respond to violations that have occurred in the past. there is no clear reason why a libertarian state would have to commit aggression against non-rights-violating potentially autonomous persons in its territory, depriving them of their rights to bodily integrity. nor would the 170 charles goodman leap 2 (2014) libertarian state arbitrarily confiscate their property. but there is a problem about whether it would be permitted to ask the merely potentially autonomous to pay for its protective services, since they are unable to give valid consent to the contract that authorizes payment for such services. of course, the citizens of such a state could agree to offer protective services to the potentially autonomous for free. in the case of merely potentially autonomous people who have no valuable resources, this may be the only option. but for those merely potentially autonomous citizens who own some resources, perhaps through inheritance or gift, another approach may be available. since they choose to pay the fee for protection, the autonomous citizens of the libertarian state apparently consider that the benefits they receive from this protection outweigh the costs. this is not because of idiosyncratic preferences on their part. the human need for protection against violence is as widely shared as the needs for shelter and food. thus, we can safely be confident that, if potentially autonomous people receive protection from the state at the expense of being required to pay for it, they will benefit, on net, from the exchange. so perhaps the state can coerce them to pay taxes, or require their guardians to pay taxes on their behalf and out of their property, for paternalistic reasons. obviously libertarians protest vigorously against paternalist coercion directed against rational adults; but it should be almost equally obvious that libertarians are not required by the logic of their position to reject the paternalist coercion of small children, animals, or other non-autonomous or merely potentially autonomous beings with interests. hassoun restricts her argument to libertarian views that do not make it easy to justify coercion of the potentially autonomous for the benefit of others (90,) but that restriction does not rule out views that allow coercing such persons for their own benefit. i conclude from these considerations that, in requiring those potentially autonomous beings on their territory who own valuable resources to contribute some of those resources to the defense of their society from violence, the libertarians would not wrong those beings. would the libertarian state need to take away the potentially autonomous inhabitants’ right to self-defense? it’s not clear why it would. most likely, citizens of a libertarian state who had the appropriate cognitive and physical abilities would retain a robust right to defend themselves against actually occurring violent attacks, especially in emergencies when the police or other agents of the state happen not to be present. some individuals who lacked the capacity for full autonomy might, in spite of their immaturity or cognitive impairments, still be capable of accurately perceiving that they were under violent attack and of defending themselves in a proportionate manner. the libertarian state could recognize the right to self-defense of both its autonomous and non-autonomous citizens in the same way. of course there might be some inhabitants of the state’s territory who are so young, or so gravely mentally impaired, that they are unable to recognize libertarian welfare rights: can we expel them? 171 leap 2 (2014) when they are under attack, or to assess the seriousness of the attack so as to be able to respond in a reliably proportionate way. but, libertarians could argue, those non-autonomous individuals don’t have a right to self-defense, and so the libertarian state can’t be accused of depriving them of any right by forbidding them to defend themselves. that leaves only the right to punish as a potential source of hassoun’s moral criticism. the libertarian state would insist on requiring all inhabitants of its territory to surrender the individual right to punish that, according to natural rights theory, they would have had in the state of nature, and providing them instead with a claim to impartial justice as administered by its courts. it’s primarily for this reason that the natural rights libertarian position is not a form of anarchism. but why is it permissible to take away, without consent, the right to punish held by the merely potentially autonomous? this deprivation can’t be justified on paternalist grounds. when the libertarian state requires a specific individual to surrender her right to punish, the motivation for doing so is not primarily to benefit that individual herself, but rather to protect others from the consequences of being punished by her in a biased or disproportionate manner. so if the merely potentially autonomous have a right to punish at all, then depriving them of it poses a serious moral problem. but do they? locke would have said, i think, that they do not. to have a right to punish in a lockean state of nature, a being must be capable of knowing the law of nature and of administering punishment in a proportionate manner. thus locke writes that a man in the state of nature has no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictates, what is proportionate to his transgression, which is so much as may serve for reparation and restraint (locke 1982: ii.8. emphasis in original). to exercise this limited power of punishment, someone would seem to need those faculties which locke calls “calm reason and conscience”. indeed, the proper use of punishment by a being in the state of nature would seem to require a fairly sophisticated deployment of rationality. locke writes that “each transgression may be punished to that degree, and with so much severity as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like” (locke 1982: ii.2). some might question whether an adult of ordinary intelligence, or even a panel of experts on criminology, would be able to do a good job of ascertaining the correct punishment for a particular offense, on this conception. but locke, defending his conception of the law of nature as including a scale of appropriate 172 charles goodman leap 2 (2014) punishments, insists that “it is certain there is such a law, and that too, as intelligible and plain to a rational creature, and a studier of that law, as the positive laws of commonwealths, nay possibly plainer...” (locke 1982: ii.12). however plausible or implausible this may be, locke surely could not have claimed, without recourse to innate ideas or other views that he explicitly denied, that a human who has not yet become rational would nevertheless be able to know this law. and if you can’t know, even approximately, what punishments it would be appropriate to administer, you can’t have or claim a right to punish others, even if they encroach upon your undoubted rights. 3 when the right to punish is understood in this lockean way, it is unclear that there would ever be a case of someone who was merely potentially autonomous, in the sense of being insufficiently rational to have the normative power to consent to the authority of the state, who would yet be sufficiently rational in certain specific respects so as to have a right to punish. nevertheless, suppose that, in rare cases, this condition is met. someone meeting this condition who was deprived of the right to punish by a libertarian state would be no more wronged than an unusually mature and responsible fifteen-year-old who is denied the right to drive a car in today’s society. a libertarian state could reasonably expect the ability to make a rational assessment about proportionate punishment to be strongly correlated with the measurable aspects of rationality that it takes to be sufficient evidence of the normative power to consent to the authority of the state. the state must draw a line somewhere; if the line is defensible on its own terms, then despite the elements of arbitrariness in its construction, those on the “may not punish” side of the line are not wronged by it. if these lockean views, or some modernized version of them, turn out to be defensible, then hassoun will be unable to support premise 2 of her legitimacy argument. it is clear that a libertarian state would sometimes have to use coercion against merely potentially autonomous persons. however, in doing so, this state could defensibly claim that it would not violate or take away any of their rights. in dealing with merely potentially autonomous persons living on its territory, the libertarian state would not take away their rights to person or to self-defense. it could take some of their property to pay for its protective services, but this can be given an acceptable moral justification; and the state would not invade their property rights in any other problematic way. if the merely potentially 3. recent scholarship on locke reaches conclusions about what the natural right to punishment requires that are consistent with the claims i make in this paragraph. see, for example, ward, 2009: 233: “the problems locke identified in the state of nature are inextricably connected to the natural power to punish, which places a heavy cognitive burden on the private judgment of individuals who are expected to resist the impulses of excessive self-love and perform ex tempore highly complex moral reasoning related to difficult questions about reparation, restraint, deterrence, and mutual assistance”. libertarian welfare rights: can we expel them? 173 leap 2 (2014) autonomous persons did have a right to punish, the libertarian state would have to take it away, and this would be difficult to justify; but since, at least in general and in typical cases, they have no such right, there is no charge to answer. however, if the libertarian state would not, in coercing the merely potentially autonomous, ever have to violate their rights, then it would not need to obtain their consent. and if it would not need to obtain their consent, it would not need to provide them with the goods and services they would need to become autonomous. hassoun has good reason to claim that libertarian theory implies that a libertarian state would need to get the consent of all autonomous persons subject to its laws; but she cannot claim the same thing about merely potentially autonomous persons. so premise 2 does not follow from actual consent theory; and no other justification for premise 2 has been provided. 4 3. second reply: expulsion suppose that i am wrong about this issue, and that hassoun can find a way to show convincingly either that there are merely potentially autonomous persons who nevertheless retain a right to punish, or that the libertarian state would, for some other reason, be morally required to get the consent of the merely potentially autonomous. libertarians will still have another way to reject premise 2, and thereby, to resist the legitimacy argument. this second strategy may not be very appealing, but it strikes me as being in accord with the basic normative logic of the overall libertarian position. to understand it, let’s begin to think through some details of the kind of situation hassoun’s argument must be invoking. of the potentially autonomous persons living in a libertarian state, some will have family members who love them and have the desire and capacity to provide them with what they need to become fully autonomous. since their needs are being met, they pose no special moral problem for the libertarian state. other potentially autonomous persons will have resources of their own, perhaps obtained through inheritance or through their own labor, with which they can purchase what they need in order to become fully autonomous. again, they pose no special moral problem. so the people we need to concern ourselves with are obviously those who do not have, and 4. note that a non-libertarian state or international institution would coerce its citizens in many more ways, and for many more reasons, than a libertarian state would. therefore the reply i have offered on behalf of the libertarians wouldn’t be available to defenders of such a state. as a result, the objection i have been pressing does not cast doubt on the validity of hassoun’s autonomy argument (45) as applied to coercive international institutions designed on a non-libertarian basis. 174 charles goodman leap 2 (2014) cannot obtain through legal, private voluntary transactions, the resources necessary to meet their needs. let’s say, then, that annie is a young and impoverished orphan, trying to survive in a libertarian utopia. almost all of the land in the libertarian society will be privately owned. the only exceptions would be facilities associated with the state’s legitimate protective role, such as police stations, courts, and military bases. it would not be difficult to justify refusing to let annie stay in these facilities. if the society’s military bases and police stations were transformed into homeless shelters, those structures would no longer be able to carry out their rightsprotective functions effectively. so libertarians would be on firm ground in claiming that, if annie is going to live in the libertarian state, she’ll have to stay on private property. would it be permissible, though, for a property owner to allow annie to stay on his land, but without providing her with what she needs in order to grow up and become autonomous? before considering hassoun’s arguments, we might have thought so. but if we adopt hassoun’s view, it will now turn out that by giving annie permission to stay on his land, the property owner in question is consenting to a situation whose moral result will be the existence of an obligation, binding on his fellow libertarian citizens, to provide annie with resources. this is because, once the property owner gives annie permission to stay on his land, she will be subject to the jurisdiction of the libertarian state; as a result, according to hassoun, she will have positive welfare rights, which the property owner’s neighbors will have to pay for. in allowing annie to stay on his land, and thereby creating a situation in which his fellow citizens acquire positive duties, the property owner is arguably violating their negative rights by imposing costs on them without their permission. given that allowing annie to stay would violate other citizens’ rights, it would be legitimate for the citizens of the libertarian state to make an agreement, perhaps at the constitutional convention that establishes their form of government, restricting the ability of landowners to harbor indigent potentially autonomous persons such as annie. according to the agreement i am imagining, the property owner is free to let annie stay, but only if he also accepts an individual obligation to ensure that annie gets what she needs to become autonomous. obviously it would also be permissible for charitable organizations to take on such responsibilities. it might turn out that annie, and all those similarly situated, would end up getting their needs met due to the voluntary charity of the libertarian state’s citizens. in such a happy scenario, hassoun would have little to criticize. of course, the happy scenario probably would not be realized. so, if no one agrees to help annie meet her needs, under the agreement that forms part of the constitution, no one is allowed to let annie stay on his property. with no place in which she can legally stay, annie would effectively be expelled from the libertarian libertarian welfare rights: can we expel them? 175 leap 2 (2014) state. the result of the agreement will be that all potentially autonomous persons who remain in the libertarian state will receive what they need to become autonomous. no residents will any longer be in a position to claim libertarian welfare rights against the state. this reply to hassoun’s argument depends on the fact that premise 2 does not explicitly address the possibility that some persons who are currently subjects of a state will not remain so. once we notice this possibility, we would have to consider modifying premise 2 to read (2*) for a coercive institution to be legitimate, it must ensure that those of its subjects who remain under its jurisdiction secure sufficient autonomy to autonomously consent to, or dissent from, its rules. if annie had a right to remain in the libertarian state, this modification would be of little significance. but the libertarians could arrange their institutions in such a way that, by their own standards, there is no place in the state’s territory where annie has a moral right to be. therefore, premise 2* does not entail the conclusion of the legitimacy argument. 5 is this solution morally acceptable? i am sure that most readers will think that it is not. the thought of wretched annie, waiting alone in the station for the train that will take her to an unknown and precarious future, is enough to inspire pity and compassion in most people, and as a result, the response that more is owed to her than she is getting. but if you had that intuition, would you have been attracted to natural rights libertarianism in the first place? the idea that it is permissible for all the property-owners in the society to agree to exclude annie from their land, as a way of avoiding the obligation to meet her needs, seems so morally objectionable as to be outrageous. but it is objectionable in the same way, to the same extent, and for the same reasons, as the libertarian position itself. 4. conclusion the history of the twentieth century showed, to everyone willing to open their eyes and learn, that markets have many important benefits and advantages. surely, though, the important truths in the libertarian position would be 5. for this solution to be available, there must be someplace outside the libertarian state for annie to go. that is, if libertarians adopt this solution, they must oppose a global government. given their emphasis on the practical importance of decentralization and competition between jurisdictions, i doubt that libertarians will find this claim unpalatable. note that, as a result, the constitutional solution defended here does not in any way undermine the appeal of the autonomy argument (45) as directed against noon-libertarian international institutions of global scope. i do not here consider the deeply problematic situation that would arise for the libertarians if other states refused to admit annie. 176 charles goodman leap 2 (2014) better expressed through a view that rests the justification of markets on those benefits and advantages. surely we can recognize, and value, the enormously important good consequences of allowing individuals broad scope to make their own choices in economic matters, while also recognizing the failures and limitations of markets in some instances, and the need for prudential regulation. surely we can recognize, and deplore, the depressing tendency for governments to make problems worse in trying to solve them, and to ignore the unintended consequences of their actions, while also recognizing that in cases of externality, asymmetric information and market failure, there is sometimes no alternative to government action. surely a consequentialist understanding of the advantages and disadvantages of markets would be better than a libertarian one. however convincing these claims may be, though, they do not fully address the theoretical motivations behind the natural rights libertarian position. that position must be shown to be unacceptable on its own terms. hassoun has offered us a novel and very interesting way of trying to do so. i regret to say, however, that her argument seems unsuccessful to me. for all its promise, the legitimacy argument turns out to leave natural rights libertarianism just as strong as it was before. bibliography hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, new york: cambridge university press. locke, j., 1982 [1689]: second treatise of government, ed. richard cox, wheeling, il: harlan davidson. nozick, r., 1977: anarchy, state and utopia, basic books. pogge, t., 2002: world poverty and human rights, malden, ma: polity press. sterba, j., 2005: the triumph of practice over theory in ethics, new york: oxford university press. ward, l., 2009: “locke on punishment, property and moral knowledge”, journal of moral philosophy 6: 218-244. 177 issn 2341-1465 leap 2 (2015): 177-189 social contract theory in the global context* peter stone trinity college dublin abstract nicole hassoun’s globalization and global justice: shrinking distance, expanding obligations (2012) offers a novel argument for the existence of positive rights for the world’s poor, and explores institutional alternatives suitable for the realization of those rights. hassoun’s argument is contractualist (in the broad sense), and makes the existence of positive rights depend upon the conditions necessary for meaningful consent to the global order. it thus provides an interesting example of social contract theory in the global context. but hassoun’s argument relies crucially upon the ambiguous nature of the concept of consent. drawing broadly upon the social contract theory tradition, hassoun relies upon actual consent theory, democratic theory, and hypothetical consent theory. each theoretical approach makes use of its own conception of consent. rather than select one of these conceptions over the others, she makes use of all three. in doing so, she introduces a crucial ambiguity into the terms that, on her account, a legitimate global order must satisfy. the resolution of this ambiguity will circumscribe any effort, on the part of hassoun or others, to specify the terms of any global social contract. keywords: consent, global justice, globalization, legitimacy, nicole hassoun, positive rights, social contract theory. 1. introduction nicole hassoun’s globalization and global justice: shrinking distance, expanding obligations (2012) brings social contract theory to bear on the problem of global poverty. she attempts to identify some of the terms that must be satisfied by any set of principles suitable for the governance of the * earlier versions of the argument made here were presented at the 2013 manchester workshops in political theory and at the conference “social contract theory: past present, and future”, university of lisbon, may 15-17, 2014. i am grateful for the comments and suggestions received at these events. work on this paper was supported by a grant from the arts and social sciences benefaction fund at trinity college dublin. 178 peter stone leap 2 (2014) global arena —by any global social contract, if you will. among these terms hassoun focuses upon a number of obligations the world order incurs towards the world’s poor. or, putting things the other way around, her focus is upon the rights that a global social contract must guarantee the poor. given the persistence and severity of global poverty, the importance of her project is hard to overstate. in bringing the idea of a social contract to bear in the global arena, hassoun is in very good company. some of the most important work on global justice over the past fifty years has made similar use of social contract theory (e.g., beitz 1999, rawls 1999a). but social contract theory carries with it a large amount of philosophical baggage. this baggage includes persistent philosophical problems that have proven very difficult to solve. in this short paper, i wish to focus upon one of these problems —the problem of consent. the concept of consent is critical to social contract theory; it does little good to speak of a contract if one cannot also speak of people consenting to that contract in some way. but there are various ways of speaking about consent in the social contract tradition. the concept of consent has, within that tradition, given rise to various conceptions of consent. 1 any effort to defend some vision of the social contract must specify a sense in which people can be said to consent to this vision, or else risk introducing a critical ambiguity. such ambiguity, i shall argue, bedevils hassoun’s efforts to defend the terms she wishes to attach to a global social contract. 2. consent in the global context globalization and global justice offers a novel argument for the existence of positive rights for the world’s poor. 2 hassoun dubs this argument the autonomy argument 3, and it proceeds as follows: (1) coercive institutions must be legitimate. (2) for a coercive institution to be legitimate it must ensure that its subjects secure sufficient autonomy to autonomously consent to, or dissent from, its rules (henceforth, sufficient autonomy). (3) everyone, to secure this autonomy, must secure some food and water, and most require some shelter, education, health care, social support, and emotional goods. (4) there are many coercive international institutions. (c) so, these institutions must ensure that their subjects secure food, water, and whatever else they need for sufficient autonomy 1. on the concept/conception distinction, see rawls (1999b, 5). 2. i examine the specifics of hassoun’s argument in more detail in stone (forthcoming-b). 3. hassoun refers to this argument, with minor differences in wording, as the legitimacy argument elsewhere in the book (92). 179 peter stone leap 2 (2014) (hassoun’s emphasis; hassoun 2012: 45; all further references will be to this book unless otherwise indicated). essentially, hassoun’s argument is contractualist in nature. 4 coercive political institutions, whether domestic or global, require consent for legitimacy. but consent requires autonomy, and the subjects of these institutions cannot grant this consent if they lack the autonomy necessary for doing so. coercive institutions must therefore ensure that their subjects have this autonomy, or else stop coercing them. few non-anarchists would suggest dismantling the world’s coercive institutions completely, whether they be national or global, and so those institutions must meet substantive obligations to the world’s poor in order to ensure them the autonomy necessary for consent. those poor, in turn, enjoy corresponding positive rights. in a world where the poorest of the poor suffer from terrible absolute levels of deprivation —malnutrition that may be sufficient to produce cognitive impairment, for example— these rights are likely to be substantial, and impose meaningful burdens upon the global order. hassoun hopes that her argument will prove convincing to many readers who might otherwise be skeptical of the existence of positive rights. she frames her argument to appeal to libertarians in particular, and devotes an entire chapter specifically to them (ch. 3). in this chapter, she usefully develops the tension between the libertarian ideas of consensualism (people can consent to anything) and minimalism (only a minimal, nightwatchman state can be a legitimate state). if an individual can consent to slavery, why can’t an entire society consent to a soviet-style command economy (97)? following a. john simmons (2005), hassoun believes that the tension should be resolved in favor of consensualism. but if consent really belongs at the heart of libertarian political theory, then libertarians have good reason to accept some version of the autonomy argument. hassoun’s autonomy argument, then, moves from legitimacy to consent, from consent to autonomy, and finally from legitimacy to autonomy. legitimacy (on the part of coercive institutions) requires consent. consent requires autonomy; those lacking autonomy cannot consent. and therefore legitimacy requires autonomy —specifically, it requires a coercive institution to ensure autonomy on the part of its subjects. it is the first move of the argument —the move from legitimacy to consent— that is especially critical. if this move is carried out successfully —if it can be established that legitimacy requires consent— then the conditions required for that consent (especially the conditions of autonomy upon which hassoun focuses her 4. i am using the term “contractualist” in the broad sense, and not the narrow sense given to it by thomas scanlon (1998). in this broad sense, the term refers to “the view that morality is based on contract or agreement” (ashford and mulgan 2012). 180 peter stone leap 2 (2014) attention) should follow straightforwardly. this first move, therefore, must be made with particular care. does legitimacy require consent? answering this question requires both a conception of legitimacy and a conception of consent. on the understanding of legitimacy endorsed by hassoun, “a coercive institution is legitimate if, and only if, the institution has the justification-right to use coercive force”. “an institution”, hassoun further explains, “has a justification-right to make coercive rules and give coercive commands if it is morally permissible for it to do so” (47, emphasis in original). this justification-right is a “liberty right”, or what hohfeld would call a privilege (hohfeld 2010: 38-50). it is permissible for a legitimate coercive institution to use coercive force —that is, nobody has a right to demand that it cease doing so— but nobody need have an obligation either to obey the institution or to help it enforce its will. obviously, this is a very limited understanding of legitimacy, one that hassoun distinguishes from justified authority. a coercive institution has the latter if and only if “individuals have a moral duty to comply with its rules” (49). this is probably closer to what many people envision by legitimacy, but hassoun’s weaker definition of the term is all she needs for her project. hassoun’s understanding of legitimacy, while not uncontroversial, is quite clear and consistent. her understanding of consent, however, is quite different. this understanding, i shall argue, is profoundly ambiguous in precisely the ways characteristic of the social contract theory tradition. hassoun addresses her argument to liberals, but only liberals of a contractualist bent. 5 she is not completely consistent here. on the one hand, she admits that her arguments “will not appeal to everyone who is concerned with freedom”. on the other hand, she claims that she is addressing “those who believe everyone should have some basic freedoms” (12, emphasis in original). on the one hand, her argument “is intended to appeal to everyone who takes a particularly liberal commitment to freedom seriously” (43). on the other hand, she explicitly contrasts liberalism with consequentialism, including utilitarianism (8). she seems to regard consequentialism and totalitarianism as equally alien to liberalism. (indeed, totalitarianism and consequentialism are the only rivals to liberalism explicitly mentioned by her). either hassoun denies that john stuart mill took “a particularly liberal commitment to freedom seriously”, or else her argument is really intended to appeal only to a particular form of liberal —essentially, a liberal who emphasizes consent as the foundation for political legitimacy. at times, hassoun acknowledges that the consent-driven approach she considers is not all there is to liberalism. “not all liberals” she admits, “will agree that respect for persons, autonomous or not, requires refraining from 5. i discuss further hassoun’s understanding of liberalism in stone (forthcoming a). 181 peter stone leap 2 (2014) forcing them to do things to which they cannot even object. still, there is one important strand of liberal thought that supports this contention” (68, emphasis in original). but at the same time, she seems very reluctant to acknowledge any theory that does not put consent at its heart as liberal, or even sane. “what would accounts of legitimacy look like that denied that subjects must have basic freedoms under coercive institutions? on such accounts, coercive institutions could be legitimate even though people living under these institutions could not even freely object to them. it is hard to see how such institutions would not be totalitarian” (63, emphasis in original). perhaps the line between consequentialism (à la john stuart mill) and totalitarianism is not (in hassoun’s eyes, at least) all that thick after all. still, the most charitable way to read hassoun’s argument (a few inconsistencies notwithstanding) is as an appeal to the contractualist approach to liberal thought, to the exclusion of non-contractualist approaches. 6 hassoun thus puts social contract theory, with its emphasis upon consent, at the heart of liberal theory (even though not all liberals are contractualists). in doing so, she acknowledges the profoundly ambiguous nature of the concept of consent that lies at the heart of social contract theory. her acknowledgement of this point is worth quoting at some length: at the heart of liberalism is concern for individual freedom. [a] powerful strand in liberal thought... expresses the idea that the actual relationship between the rulers and each person who is ruled must be voluntary in some way. still, those who are concerned about individual freedom disagree about what makes this relationship voluntary. on liberal communitarian theories, for instance, this relationship is voluntary if the rulers allow or support communities of appropriate kinds that need not be explicitly consensual. other liberal theories make consent central to legitimacy. on hypothetical consent theories, for instance, the relationship between rulers and ruled is only voluntary if (reasonable) people would agree to be subject to the rulers’ dictates were they asked. democratic theory requires more. on democratic theory, legitimacy arises through the democratic process where the majority must actually consent to the institutions to which they are subject. perhaps the most demanding theory of this type is actual consent theory. on actual consent theory, coercive institutions are legitimate only if they secure their subjects’ actual consent (57-58, emphasis in original). hassoun seems to believe that many (though not all) liberals want political relationships to be voluntary. some of these liberals are social contract theorists, 6. i am equating here contractualist approaches with consent-based approaches. this is not an uncontroversial move, but space prohibits any defense of it here. 182 peter stone leap 2 (2014) who may be actual consent theorists, democratic theorists, or hypothetical consent theorists. there are liberals, however, who are not social contract theorists and still want voluntariness to be part of political relationships. among these are liberal communitarians. hassoun never explains how this emphasis upon voluntariness works outside of the social contract theory tradition. moreover, she devotes little time to liberal communitarianism (5960), and so i take contract theory to be the focus of her attention. hassoun thus identifies three forms of social contract theory —actual consent theory, democratic theory, and hypothetical consent theory. each holds that political legitimacy depends upon some form of consent. they disagree regarding just what constitutes the appropriate form of consent. rather than select one of these three forms of theory, hassoun intends her argument to apply to them all. but as a result of this, whenever she invokes the idea that legitimacy depends upon consent —an idea upon which her autonomy argument depends— her account becomes ambiguous between three very different conceptions of consent. take actual consent theory, for example. at times, hassoun avails herself of the conception of consent usually employed in settings unrelated to political theory. this is the conception upon which actual consent theory relies. on this conception, to consent means “to permit, approve, or agree; comply or yield”. 7 in the political context, a person consents to an institution when she indicates (through whatever means are appropriate) her agreement to conform to its dictates. the idea is that coercive institutions are only legitimate if their subjects agree to accept them. hassoun appeals to this conception of consent on many occasions. she explicitly acknowledges “an idea implicit in the social contract tradition — focusing upon what social arrangements people could freely accept” (47). for people, according to hassoun, to consent to coercive institutions is for them “to autonomously agree to their rules” (9). people must “agree to be subject to coercive institutions” (10). moreover, hassoun’s understanding of why legitimacy requires consent fits well with this understanding of consent. coercive institutions require consent in order to be legitimate “because their subjects have a natural right to freedom” (18). 8 people have a right to be free, in other words, unless and until they agree otherwise. this agreement can take place at a high level. hassoun writes: 7. http://dictionary.reference.com/browse/consent?s=t, last accessed october 28, 2014. 8. hassoun follows hart (1955) here. technically, she argues that “as long as one does not violate another’s rights, justification is necessary to abridge one’s natural right to freedom” (52; see also 49). as stated, this isn’t a very demanding condition; it just means you need to have a good reason to coerce someone, which presumably even fascists think they have. but hassoun clearly means that because of the natural right to freedom, justification for coercion is owed to the people coerced, and must satisfy them. and this is effectively actual consent theory. http://dictionary.reference.com/browse/consent?s=t 183 peter stone leap 2 (2014) subjects may need to be able to process some information for autonomy, but they do not have to be able to agree to every single coercive rule to which they are subject. subjects may only need to be able to autonomously agree to the general principles underlying their coercive institutions. alternately, consent may require only that individuals autonomously agree to the general structure of coercive rules to which they are subject, not every subsidiary rule (29). the point remains, however, that without explicit consent to coercive institutions (at some level), these institutions cannot legitimately act. this understanding of consent has been present since the beginnings of social contract theory . but its limitations have been understood for almost as long . for anyone adhering to this conception of consent must either admit that no state has ever been legitimate, or else stretch the conception to its breaking point. no state, or coercive institution resembling a state, has ever obtained agreement to be bound by its rules from every one of its subjects, most have obtained such agreement from at best a handful of those subject to its rules (immigrants, perhaps), and many states have never obtained such agreement from any of their subjects. moreover, it is hard to see how the ideal of actual consent could even be approached in the real world; in a society with even the most minimal level of diversity, it is impossible to imagine any political arrangement that all its potential subjects would be willing to authorize. moreover, the costs of seeking actual consent on a wide scale (identifying possible terms, running those terms by citizens, adjusting those terms in light of the number unwilling to consent, etc.) are clearly prohibitive. contract negotiations are difficult enough with two parties, let alone millions. 9 this point poses a problem for actual consent theory, except for philosophical anarchists willing to accept the illegitimacy of all realistic political arrangements (e.g., wolff 1998). this problem pushes consent theory towards counting as “consent” actions or omissions that would not count as consent in other contexts. this approach includes locke’s reliance upon “tacit consent” —consent not overtly expressed, but made plain through one or another forms of cooperation with the government (paying taxes, using public services, etc.). but as locke’s critics have long pointed out, it is very difficult to define “tacit consent” in a way that does not render virtually all governments into “governments by consent”. but there is another way to identify actions as “consensual” without reliance upon tacit consent. one could also count the expression of political opinion —primarily through voting— as an expression of consent. this is the approach taken in what hassoun calls “democratic theory”. 9. on the central role of transaction costs in economics, see north 1990. 184 peter stone leap 2 (2014) hassoun follows the social contract tradition in this regard. she acknowledges that “actual consent theories are implausible. few who have considered consent theory have defended actual consent since john locke” (95). and her response is similar to that offered by those who have tried to save the social contract approach from the damning flaws of actual consent theory. at one point, she flirts with the lockean idea of tacit consent. “it is obviously possible”, she writes, “for an institution to... secure as much (actual or tacit) consent as possible” (57, n. 44). but more typically, she appeals to a different variant of the second conception of consent employed by social contract theorists —one considerably weaker than the one involving explicit authorization. this is the understanding of consent employed within democratic theory. using this second conception, hassoun appeals to “an idea implicit in the social contract tradition, that people must have basic freedoms under coercive rule” (43). this move transforms political consent into something like a right to political speech —or perhaps a right (following the u.s. bill of rights) to “petition” the coercive institution “for a redress of grievances”. people require autonomy so that they can “freely dissent” (56). they need to be able to “consent to, or dissent from, the rule of their coercive institutions” (28; see also 61, 62, 63). people need to be able to “shape the nature of their relationships with the coercive institutions to which they are subject” (28). hassoun’s reframing of consent here seems to turn it into something like a right of political consultation, of the sort rawls requires of all “well-ordered peoples” in the law of peoples (1999a: 63). this right includes “a right to dissent from the rule of coercive institutions by conscientious objection, non-violent protest, passive resistance, and so forth” (58; see also 62). finally, hassoun is not afraid to appeal to the third conception of consent —hypothetical consent— although it receives relatively little of her attention. “on hypothetical consent theory”, she writes, “legitimacy requires that coercive institutions be organized according to those principles that would be chosen in an appropriately specified original position. reasonable people in a liberally construed original position would only agree to be subject to coercive institutions if they are able to abide by, dissent from, or consent to their rule” (61). hassoun here follows rawls (1999b). but any meaningful form of hypothetical consent will appear very similar to this. that is, it will involve imagined consent granted under some suitably-specified set of counterfactual conditions. hassoun does not recognize any problem with appealing to these different conceptions of consent because she believes that the differences between them are unimportant for the purposes of her argument. 185 peter stone leap 2 (2014) whatever brand of contractualist you are, whatever form of consent you believe political legitimacy requires, the conclusions for her argument will be the same. but this conclusion is only tenable if one states the implications of contractualism at a very high level of abstraction. according to hassoun, “democratic, hypothetical, and actual consent theorists have to agree to this much: legitimacy requires that subjects be free to determine their actions and shape the nature of their relationships to coercive institutions” (59). but this claim is true only if one does not look too closely at just what it means for subjects to “shape the nature of their relationships to coercive institutions”. daniel dennett has observed that religious believers can only agree about the existence of god so long as they do not inquire too closely as to what they mean when they use the word “god”. dennett explains: for a thousand years, roughly, we’ve entertained a throng of variously deanthropomorphized, intellectualized concepts of god, all more or less peacefully coexisting in the minds of “believers”. since everybody calls his or her version “god”, there is something “we can all agree about” —we all believe in god; we’re not atheists! but of course it doesn’t work that well. if lucy believes that rock (hudson) is to die for, and desi believes that rock (music) is to die for, they really don’t agree on anything, do they? (dennett 2006: 209) emphasis in original. in a similar fashion, i fear that democratic, hypothetical, and actual consent theorists agree only that they like something called “government by consent”, and not on any meaningful understanding of what “government by consent” involves. a close look at the requirements of consent generated by these three conceptions bears this point out, in a manner that generates serious problems for hassoun’s argument. at one point, for example, she claims that “political liberals almost unanimously agree, for instance, that people have a right to dissent from the rule of coercive institutions by conscientious objection, non-violent protest, passive resistance, and so forth” (58). but contrary to what hassoun believes, it is not at all clear that all three types of consent theorists discussed by her would agree to any such thing. on the one hand, many libertarians are very attracted to the idea that consent authorizes practically anything. if someone wants to consent to slavery, then so be it. 10 at the same time, libertarians are usually lukewarm at best about 10. as noted before, hassoun argues that libertarians should embrace consensualism (people can consent to anything) rather than minimalism (only a minimal, nightwatchman state can be a legitimate state), because the two commitments are incompatible with one another. but hassoun’s argument for consensualism can be used against her here. if consensualism ought to trump minimalism, as hassoun believes it should, then shouldn’t it also trump political rights 186 peter stone leap 2 (2014) democratic rights; being able to “shape the nature of their relationship” with government seems less important to them than being able to avoid the relationship to the greatest extent possible. and why should actual consent theorists require political arrangements to include democratic rights anyway? if people grant consent to an arrangement with such rights, fine, but they could just as easily consent to some other arrangement. (granted, it might not be advisable for anyone to consent to arrangements without such rights, but that is of no concern to the actual consent theorist.) indeed, the entire idea of a “right to dissent” must seem strange to an actual consent theorist. why would one be entitled to a right to object to arrangements to which one has already granted consent? on the other hand, those deeply concerned with rights of democratic participation (like most egalitarian liberals) have little use for actual consent. 11 this is why rawls, while originally attracted by hart’s idea of a “right to liberty”, does not ground the natural duty to promote justice in anything resembling actual consent (rawls 1999b, §19). 12 and this difference should not be surprising at all; the conceptions are so different that they must unsurprisingly play very different roles in any theory of government employing them. finally, the relationship between hypothetical consent and the right to “shape one’s relationship” with one’s political institutions is rather complicated. consider the following claim hassoun makes about hypothetical consent theory: “reasonable people in a liberally construed original position would only agree to be subject to coercive institutions if they are able to abide by, dissent from, or consent to their rule” (61). it may be true that people would only grant hypothetical consent to political arrangements that guaranteed them certain democratic rights, such as a right to dissent. 13 in this regard, the democratic theorist and the hypothetical consent theorist may well reach the same conclusion, and endorse the same political system. but their reasons for reaching this conclusion would be very different. for the democratic theorist, it would be the democratic rights that provide the reason for calling the system consensual; the hypothetical agreement would be irrelevant. but for the hypothetical consent theorist, it would not be the democratic rights that form the critical locus of consent. as well? one could imagine a polity in which every citizen has consented to a democratic form of government, but one could just as easily imagine a polity in which everyone has consented to an authoritarian police state. while one may be (slightly) easier to imagine than the other, both must count as legitimate in the consensualist’s eyes. 11. in albert hirschman’s terms, libertarians tend to focus upon rights of exit, while democrats are centrally concerned with ensuring voice (hirschman 1972), although as hassoun notes libertarian notions of consent involve a bit more than simply a right of exit (98). 12. actual consent does, for rawls, ground obligations (as opposed to duties) which follow from accepting positions of responsibility in a just society (rawls 1999b, §18). 13. this is why most social contract theorists who believe in hypothetical consent, such as rawls, also believe in democratic rights. 187 peter stone leap 2 (2014) it would be the hypothetical consent itself. if people could conceivably consent to arrangements without democratic rights, then this would surely satisfy the hypothetical consent theorist. the democratic theorist and the hypothetical consent theorist thus have very different things in mind when they identify political systems as “consensual”, even if both endorse democratic institutions. when the democratic theorist and the hypothetical consent theorist say that the institutions they recommend enjoy “consent”, they simply do not mean the same thing, even if they happen to be speaking about the same institutions. the differences between these three conceptions of consent are deep and profound, despite hassoun’s tendency to oscillate between them. in principle, they are completely independent of each other. indeed, they will occasionally be directly at odds with each other. this would happen, for example, if an agent explicitly agreed to be subject to a coercive institution that granted no right of dissent to its subjects, or that could not be accepted by people in the correctly-specified hypothetical scenario (e.g., rawls’ original position). this is far from a hypothetical scenario. libertarians, for example, regularly place little emphasis upon democratic rights; their concern lies with preventing democratic majorities from tampling upon property rights. this places actual consent at the centre of their concerns. (at the same time, the contrast hassoun draws between consensualism and minimalism suggests this libertarian position is not completely coherent.) this is in stark contrast to democratic theorists, who wish all citizens to enjoy equal rights of democratic participation, even for those who do not place a premium upon democratic rights (like libertarians). and so not surprisingly, each conception of consent has its own defenders, with the defenders of one often stridently opposed to defenders of the other. all of this renders hassoun’s efforts to appeal to all three conceptions of consent at once deeply problematic. hassoun wants to convince all liberals everywhere that they should demand positive rights for everyone (especially the poor), on the grounds that institutions cannot be grounded upon consent without the provision of such rights. but if consent can mean three different things, then hassoun is making, not one argument, but three, each relying upon a different conception of consent. and there is no reason to assume that a political arrangement satisfying one conception of consent will satisfy the other two. but without this assumption, hassoun will not be able to win the universal liberal assent to positive rights that she seeks. 3. conclusion hassoun never commits to one or another conception of consent in globalization and global justice. this is not a simple oversight on her part. 188 peter stone leap 2 (2014) the goal that hassoun wishes to achieve in the book using the autonomy argument is quite clear. “this book”, she writes, “may help extend the consensus on some important obligations to the poor” (12). hassoun returns repeatedly to this goal throughout the book (e.g., 18). hassoun is deeply concerned about the plight of the world’s poor, particularly the “bottom billion” which lacks many of the most elementary necessities. she describes this plight with a great deal of care and sympathy. and so her concern throughout the book is to win converts to a case for recognizing the people of the world —especially the poor— as possessing certain vitally important positive rights, rights which are currently being neglected and which the global political order must acknowledge. 14 in order to win as many converts as possible, hassoun appeals to as much of the social contract tradition as she can. by starting “from an idea implicit in the social contract tradition, that people must have basic freedoms under coercive rule”, —however these basic freedoms are understood— hassoun hopes to persuade everyone who accepts this idea “that there are positive obligations to ensure that people are capable of avoiding severe poverty” (43). unfortunately, hassoun’s argumentative strategy runs afoul of the real and significant differences between the various conceptions of consent to be found in the social contract tradition. one cannot argue, as hassoun does, that legitimacy depends upon consent without specifying a conception of consent, unless the differences between conceptions are immaterial, which is highly unlikely. there may be good reasons for social contract theorists to accept hassoun’s argument. but before one can judge this claim, one must know which version of social contract theory one has in mind. references ashford, e., and mulgan, t. (ed.): “contractualism.” the stanford encyclopedia of philosophy ed., e. n. zalta, url = http://plato.stanford.edu/archives/fall2012/ entries/contractualism/. beitz, c. r., 1999: political theory and international relations, new ed., princeton, nj: princeton university press. dennett, d. c., 2006: breaking the spell: religion as a natural phenomenon, new york: penguin. hart, h. l. a., 1955: “are there any natural rights?”, philosophical review 64: 175-91. hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, new york: cambridge university press. hirschman, a. o., 1972: exit, voice, and loyalty: responses to decline in firms, organizations, and states, rev. ed., cambridge, ma: harvard university press. 14. i discuss some of the other problems posed by hassoun’s efforts to extend the consensus in (stone, forthcoming a). 189 peter stone leap 2 (2014) hohfeld, w. n., 2010: fundamental legal conceptions as applied in judicial reasoning, clark, nj: the lawbook exchange. north, d. c., 1990: institutions, institutional change and economic performance, new york: cambridge university press. rawls, j., 1999a: the law of peoples, cambridge, ma: harvard university press. — 1999b: a theory of justice, rev. ed., cambridge, ma: belknap press. scanlon, t. m., 1998: what we owe to each other, cambridge, ma: belknap press. simmons, a. j., 2005: “consent theory for libertarians”, social philosophy and policy 22: 330-56. stone, p., forthcoming a: “the pursuit of consensus in global political theory”, public affairs quarterly. — forthcoming b: “review of globalization and global justice: shrinking distance, expanding obligations by nicole hassoun”, ethical theory and moral practice. wolff, r. p., 1998. in defense of anarchism, rev. ed., berkeley: university of california press. 190 issn 2341-1465 leap 2 (2014): 190-209 sufficiency, equality and the consequences of global coercion* kok-chor tan university of pennsylvania abstract in some discussions on global distributive justice, it is argued that the fact that the state exercises coercive authority over its own citizens explains why the state has egalitarian distributive obligations to its own but not to other individuals in the world at large. two recent works make the case that the global order is indeed coercive in a morally significant way for generating certain global distributive obligations. nicole hassoun argues that the coercive character of the global order gives rise to global duties of humanitarian aid. laura valentini argues that the existence of global coercion triggers global distributive duties more demanding than mere humanitarianism, but not necessarily as demanding as cosmopolitan egalitarian duties. this review essay suggests that hassoun’s and valentini’s depictions of the global order as coercive entitle them to the stronger conclusion that there are global egalitarian duties. keywords: egalitarianism, sufficientarianism, global justice, coercion, cosmopolitanism, statism. 1. introduction coercion plays a prominent role in some current discussions on global justice. in these debates, the fact of coercion in the global domain, or its absence thereof, determines the kinds of global obligations we are said to have or not to have. michael blake, for instance, has argued that egalitarian distributive obligations take hold only among persons who need to justify to each other the coercive institutional arrangements that they are jointly supporting. according to blake, such arrangements are justifiable only if they undertake egalitarian distribution commitments to those living under them. * many thanks to nicole hassoun, thom brooks, paula casal and two readers for their very helpful comments and suggestions. i am also additionally indebted to paula for her numerous editorial input and suggestions on structuring this review essay. sufficiency, equality and the consequences of global coercion 191 leap 2 (2014) since, so blake argues, the relevant kind of coercion in need of justification occurs in the state or domestic context but not in the global arena, egalitarian obligations are state-centric and not global in scope. 1 in a similar vein, thomas nagel argues that egalitarian obligations are activated only among individuals who are members of a shared coercive political arrangement. since the global order does not constitute a shared coercive political association, global egalitarian obligations have no place in the global arena. 2 i will consider the above to be the standard form of what has been called “coercion-based theories” of global justice. this is not to ignore that there can be variations within the standard form. in fact, there is an important difference between nagel’s and blake’s positions worth noting. for nagel it is not sufficient that one finds oneself institutionally coerced for justification to be owed to one. in addition, one must also be regarded as a co-author of the institutional system in order to enjoy the standing to demand justification for the coercion. the coercive character of political institutions presents a problem of justification to members because these institutions require an “active engagement of the will of each”; they are institutions supposedly created and imposed in their name. for blake, the problem with coercive institutions that introduces the problem of justification is the more direct one of systematic restrictions on personal autonomy (nagel 2005: 129). this important difference is reflected in the way each responds to the objection that (restrictive) immigration policies of countries are coercive of outsiders wanting in. blake’s response is that this coercion is not systematic and ongoing since it is not affected via a global institutional order but through the policies of individual states. so while immigration policies can be coercive of some people, it does not constitute coercion of the relevant kind (blake 2001: 280). in contrast, nagel’s response is that while outsiders are coerced by the restrictive immigration rules of particular countries, they do not have the standing to demand justification for this coercion since they (as outsiders) are not considered to be co-authors of these policies (nagel 2005: 129-30). 3 despite this difference, however, both their arguments share the following form: (1) there is a standing moral duty to assist people deprived of basic needs. (2) egalitarian obligations, however, take hold if and only if there is coercion of a relevant kind that needs to be justified. 1. blake (2001); blake further develops this account in his recent justice and foreign policy (2013). 2. nagel (2005). blake’s and nagel’s theses have attracted much discussion, including in the two books reviewed here. for one response, see caney (2008). for a discussion on coercion and its connection to distributive equality, see sangiovanni (2007). 3. a short way of seeing the difference between the two responses is that while blake has to show that immigration restrictions are not systematically and legally enacted at the global level, nagel has to show why outsiders are not properly co-authors of such policies. 192 kok-chor tan leap 2 (2014) (3) the domestic order is coercive in this relevant way. (4) the global order is not. (5) conclusion: there is a domestic egalitarian obligation but no global egalitarian obligation. so while nagel and blake disagree about the conditions under which coercion becomes morally relevant (as specified under [2]), their arguments share the basic commitments that (a) coercion (under certain contexts) is necessary and sufficient for generating egalitarian obligation, and that (b) the global arena is not coercive in the relevant way. two important points of the standard account are worth highlighting for my present purpose. one is that the claim that the global order is not a coercive order (of the right kind) is used to block attempts at extending egalitarian arguments to the global context. at issue is the specific matter of global egalitarian justice. the other is that it is not a point of contention that we have a humanitarian duty to assist people in dire need. more importantly, this humanitarian duty or duty of assistance is independent of facts of coercion. for nagel, it is simply a “prepolitical” moral right persons have to be assisted under such conditions, and for blake it is what respect for individual autonomy requires. 4 it is not my objective to engage with nagel’s and blake’s theses in this review essay. 5 i outline them to provide a framework and context for discussing two recent books that attempt to derive obligations of global justice from claims about coercion. 6 what is common to both these works is their belief that the global order is a coercive order in a morally relevant sense. although this is a rich claim in itself and deserving of extended discussion, i am more directly interested in the normative conclusions about global justice that these authors draw from their claims about global coercion. 7 2. poverty and global inequality: humanitarian and egalitarian duties to start, let me clarify two different categories of global obligations, already alluded to above, that will be relevant to the present discussion. the brief remarks here will be mostly familiar but i rehearse them to make more concrete the backdrop of my discussion to come. 4. see nagel (2005: 127, 131-32); and blake (2001: 258), here marking the distinction between concerns of “relative deprivation” (i.e. equality) that arise only in the context of coercion, and concerns of “absolute deprivation” that arise directly from valuing personal autonomy. 5. i attempt this in tan (2006). 6. the two books i will review are nicole hassoun’s globalization and global justice: shrinking distance, expanding obligations (2012); and laura valentini’s justice in a globalized world: a normative framework (2011). 7. parts of the present discussion expand on remarks in tan (2013). sufficiency, equality and the consequences of global coercion 193 leap 2 (2014) one global obligation is the duty to alleviate poverty; the other is the duty to regulate global economic inequality. we may call the former a humanitarian duty and the latter an egalitarian distributive duty. a humanitarian duty and an egalitarian duty are distinct kinds of obligations, both in their form or structure and in their objective. a humanitarian duty, the duty to counter poverty, is “sufficientarian” in form. it is non-comparative in that in that its benchmark is some non-relation threshold based on, for example, personal well-being, standard of living, or access to opportunities. and its objective is that of bringing individuals up to the defined standard of sufficiency. an egalitarian duty has a different structure. it is inherently relational, meaning by this that its benchmark is comparative. how well one is faring, from an egalitarian perspective, is not determined by reference to some nonrelational threshold, but by reference to how well others are doing. and the objective of an egalitarian principle is to regulate the comparative gap between the advantaged and the less advantaged according to some ideal of distribution. so while a humanitarian duty is discharged when persons achieve the target of sufficiency (however that is defined), an egalitarian duty is continuous and remains in play so long as there remain inequalities to be regulated. the distinction between humanitarian and egalitarian duties is not therefore merely semantic but in fact reflects the different forms and substantive goals of these duties. 8 in contemporary global justice discussions, there is a tendency to describe the latter as a duty of justice and a humanitarian duty to be different from duty of justice. depending on how an author defines a duty of “justice”, such a characterization can often be helpful in reminding us of the different categories of these duties. so, what is more important is not how we label and classify these duties, but the awareness that these are structurally and substantively different kinds of duties (as described above). so for the present purpose, nothing turns on whether humanitarian duties are duties of justice or not. we can count these duties, humanitarian and egalitarian, as duties of global justice so long as their structural and substantive differences are kept in sight. now, taking an egalitarian duty to be conceptually distinct from a humanitarian duty does not mean that concerns of equality and poverty are independent of each other. it can well be the case that global poverty cannot be properly mitigated while significant global inequalities between 8. thus a humanitarian duty in this context should not be wrongly equated with charity or an act of supererogation. it is a moral duty and hence in this sense not optional. what distinguishes it from duties of egalitarian justice is its form and objective. for more on the difference between sufficientarianism and egalitarianism, see casal (2007). for completeness, i should note that on this understanding of egalitarianism (as comparative), prioritarianism (i.e., prioritizing the needs of the worst off ) is non-egalitarian. here see parfit (1997). 194 kok-chor tan leap 2 (2014) persons or societies remain a fact. in this case, the commitment to eradicate poverty results in an instrumental commitment to limit inequalities. but it is, however, also imaginable that significant inequalities can persist between countries without anyone or any society being impoverished. or, put another way, even when all persons in the world are lifted above the poverty line, it is still possible, and likely in practice, that significant inequalities remain. below, i will first consider a coercion-based theory that relies on the fact of global coercion to support a humanitarian duty to protect and provide for the basic needs of persons, and then i will look at another that makes the stronger claim that legitimizing global coercion will require an obligation more robust than a duty of humanitarianism but less demanding than an egalitarian distributive duty. 3. humanitarian duty nicole hassoun’s purpose, in her book globalization and global justice, is to clarify the basis of the humanitarian duty to assist the global poor, and in so doing she hopes to provide a grounding of this duty that can overcome the libertarian objection that there are no positive duties to provide for people’s basic needs. philosophers typically regard the problem of world poverty to be less of a philosophical challenge and more of a problem of the lack of political will. in a sense this is right, for few people, politicians included, will openly deny that world poverty represents a serious moral failing for humanity. it is a failure to do what many people would say is required as a matter of justice. yet the seeming lack of political will in the global response to poverty is not entirely a non-philosophical one. this inaction has to do in large measure to disagreements about the causes of world poverty, and disagreements about the basis and therefore the content and limits of our humanitarian obligations to address a recognized global problem. moreover, there remain philosophical hold-outs, in this case, global libertarians (as we can call them), who will deny that there is any obligation to assist the global poor. it is therefore not superfluous for philosophers to address and examine the source and content of the obligation to aid the global poor. at the very least, we can achieve greater clarity about obligations we believe we have. hassoun’s basic claim is that since the global institutional order is coercive of virtually all individuals in the world, this institutional arrangement is illegitimate unless it also actively attends to the basic subsistence needs of individuals. for hassoun, an institution is coercive if “individuals or groups violating its rules must be likely to face sanctions for the violation... coercion usually creates conditions under which the coerced have no good alternative sufficiency, equality and the consequences of global coercion 195 leap 2 (2014) except to do what their coercer wants them to do” (hassoun 2012: 50). 9 she points out that institutions such as the wto, nato, and the un create and enforce rules and arbitrate between rules, and hence are coercive on her account (ibid). these are institutions attendant to the phenomenon of economic globalization or whose significance and pervasive force are enhanced because of it. granting this description of the global order, why does this present a problem of justice? why is there the need to legitimize the coercive global arrangement? that is, and this is what hassoun means by to “legitimize”, why is it necessary that people living under this order and subject to its coercive authority can see it as justified? 10 hassoun’s fundamental normative premise is that failure to make legitimate this arrangement to people living under it would amount to an unjustifiable restriction of their autonomy. because individuals are autonomous agents, any coercive arrangements impacting them —since they restrict their choices on pain of sanctions— that cannot be justified to them is illegitimate. what is needed to rescue our arrangements from this crisis of legitimacy is the consent of those subject to them. however, to ensure that individuals can consent properly to these arrangements, we must do what we can to “ensure that their subjects secure food, water, and whatever else they need for autonomy” (hassoun 2012: 89). in other words, the duty to provide for the needs of persons derives from the duty to protect the autonomous capacity of agents, and the duty to protect this autonomous capacity derives from the duty to ensure that persons are in a position to consent to their coercive situation. in turn, individuals must be able to so consent if our global order is to be rescued from the crisis of illegitimacy. it seems to me that the ideal of autonomy does double-duty in hassoun’s argument. first autonomy explains why, as a default, coercive arrangements are problematic absent consent. coercion is problematic, unless justified, because of its restrictions on autonomy. second, the value of autonomy identifies the preconditions for the exercise of proper consent. persons could not consent if they are deprived of basic needs. in sum: if the global coercive order is to be legitimate, it must enjoy the consent of those it is coercing (first autonomy argument). yet we cannot presume consent to be forthcoming, at 9. now the differences among coercion theories will be affected by how each theory understands “coercion”. for instance, for blake, the normatively relevant coercion he has is mind is one that is legal, systematic, and ongoing. thus he is able to argue, against his opponents, that immigration policies of a country are not coercive of outsiders in the relevant sense. as he puts it, there is “no ongoing coercion of the sort observed in the domestic arena in the international legal arena” (blake 2001: 280). but the interesting difference between hassoun and blake concerning the global arena is not ultimately conceptual but empirical: they disagree over facts of the global order. hassoun thinks there are global institutions that impose systematic and ongoing restrictions on persons (hassoun 2012: 77ff ); blake denies this. 10. for hassoun, “legitimacy ... is just a justification-right to exercise coercive force” against subjects who have a “natural right to freedom” (hassoun 2015: 18). 196 kok-chor tan leap 2 (2014) the very least, unless the autonomous capacity of those whose consent we are seeking is developed and protected (second autonomy argument). one can’t be exercising real choice for the purpose of expressing consent unless one is an autonomous moral agent. but because there are certain preconditions for agency without which we cannot possibly speak of autonomous agency, the legitimacy of coercive institutions remains in question if these institutions are imposed against a background where the preconditions for autonomy are clearly lacking. the lack of basic subsistence is just such a case. thus it is important for the sake of winning legitimacy for our global institutional order that we accept an obligation to address basic needs deprivation. as i will try to argue below, it is not clear what role exactly coercion has in hassoun’s argumentative strategy. it seems to me that either hassoun begins with a sufficiently substantive conception of autonomy in order to generate a concern with coercion of the kind she has in mind, in which case, so i will suggest, that conception of autonomy is also sufficient to directly ground a commitment to poverty alleviation (thus rendering the idea of coercion redundant); or she begins with a less robust view of autonomy, in which case it is not clear how this notion of autonomy can ground a concern with coercion of the sort that her argument needs (thus rendering the idea of coercion inadequate to her cause). to situate hassoun’s argumentative method in the larger philosophical literature, consider thomas pogge’s account of our responsibility to address global poverty (pogge 2001). for pogge, it is the fact that the global advantaged are helping (in a variety of ways) to sustain a global economic order that is harming the poor that imposes a duty of justice on the rich to respond to the poor’s plight. the duty to address poverty is, in pogge’s account, a duty based in justice to make good the harms that we the rich are inflicting or have inflicted on the poor. that is, the moral starting point for pogge is the modest one that we have the negative duty not to do harm to others. it is our violating of this negative principle not to do harm that in turn generates our positive duties to address the plight of the global impoverished. so, the rationale for pogge’s focus on the “factual” claim that the world order is harming the poor is that he wants an as ecumenical as possible a normative starting point, one that the libertarian can also find agreeable. any plausible moral position, pogge believes, accepts that we have a fundamental duty not to harm others, and thus the uncontroversial auxiliary duty to make amends for any harm we have caused or are causing. thus his argument turns on the empirical matter of whether and how the world order is indeed harming the poor, and how the global rich are implicated as class in this wrong. consider, in contrast, a different normative starting point, say that of henry shue’s which takes that we have as a basic moral obligation the positive duty to assist those deprived of basic needs (shue 1979). on this account, it is immaterial whether the deprivation confronting us is caused by us or sufficiency, equality and the consequences of global coercion 197 leap 2 (2014) not —the fact of its existence is sufficient for creating an obligation on those able to respond. my point here is not to get into the debate surrounding these two approaches, but to point out that it is significant for pogge that he establishes the harmful or coercive character of the world order because of his modest normative presumption —that our sole responsibility to each other is to avoid interfering with one another. hassoun adopts a similar methodology in making the case for humanitarian duties in light of the libertarian objection. like pogge, she does not want to butt heads with the libertarian. instead, she prefers to engage the libertarian on the libertarian’s own terms. but unlike pogge who finds the meeting point to be the no-harm principle, hassoun engages the libertarian’s concern about legitimacy, in particular, the legitimacy of coercive institutions. 11 but just as pogge’s argument has generated interesting and lively discussions about whether or not he is implicitly relying on a philosophically substantial notion of harm to advance his case (accordingly calling into question whether pogge has in fact reduced the debate on world poverty to a simply factual one), so a parallel question arises whether hassoun is not in fact relying on a rather substantive ideal of personal autonomy to carry her argument. 12 hassoun’s invocation of autonomy invites two possible queries: one is that her normative starting point need not be one that her opponent, the libertarian, will necessarily accept; and, second, given her substantive account of autonomy, her reliance on coercion seems normatively redundant. let me elaborate on the latter first. hassoun takes it to be important that the world order be exposed as a coercive one; yet she justifies her conclusion that coercion stands in need of legitimization because its potential blow on individual autonomy (in the way i tried to explain above). indeed, she takes what she calls “the autonomy argument” to be crucial to her argument. without this understanding of autonomy, specifically the preconditions of autonomy as defined, the conclusion that legitimizing coercion requires attention to basic needs does not follow. here a question arises: if individual autonomy is that morally significant, why can’t we just draw the conclusion that we have the obligation to ensure that persons have access to food, water and so on simply because autonomy is impeded without access to basic subsistence without having to show that 11. that libertarians should be consent theorists is of course a point of debate in the libertarian literature. hassoun is aware of this, and engages the discussion on consent and libertarianism to defend her consent reading (96ff ). 12. for some discussions on this and other matters of pogge’s approach to global justice (which i will leave aside here), see jagger (2010). hassoun herself notes that she is proposing an alternative to pogge’s account because of some difficulties surrounding what counts as “harming” the poor within pogge’s theory (42-43). 198 kok-chor tan leap 2 (2014) they are also being coerced? indeed, several philosophers have made the case for a human right to basic needs on account of individual autonomy quite independently of facts about coercion or other prevailing possible wrongs. 13 if respect for autonomy entails obligations to help provide subsistence in this more direct way, then the fact of coercion seems normatively superfluous for hassoun’s objective since the ideal of autonomy already features in the argument. what is relevant is that the global order provides for people’s basic needs because individual autonomy is offended against otherwise. indeed, hassoun’s own explication of her thesis suggests this much. hassoun’s argument proceeds in the following two steps that can be summarized as follows (hassoun 2012: 89). first, autonomy means that persons have the “autonomy-based” human right to food, water and other means of subsistence they need “for sufficient autonomy”. second, “to be legitimate, coercive institutions must do what they can to ensure that their subjects secure food, water and whatever else they need for autonomy” (ibid., emphasis added). but if there is an autonomy-based human right to subsistence, it is not clear why the presence of coercive institutions is seen as a necessary condition of the duty to provide subsistence. the fact of coercion seems normatively redundant. anyone and any institution has the responsibility to assist those deprived, irrespective of coercion. indeed, in the dominant debate on global justice, the fact of coercion is often presumed to be sufficient for triggering not merely humanitarian duties but egalitarian duties. in this regard, it is helpful to recall michael blake’s position for illustration. blake takes respect for personal autonomy alone to be sufficient to ground the concern for people’s “absolute deprivation” (blake 2001). that is, the respect for autonomy straightforwardly engages a commitment to provide for people’s basic needs. for blake, the fact of coercion becomes significant not when we are asking about our duties in response to absolute deprivation but when we are considering a different question: do we have the duty to respond to inequality? that is, should we attend to people’s “relative deprivation” as well? it is only with regard to this question that coercion makes a normative difference —the fact of institutional coercion for blake, coupled with the fundamental concern for autonomy, is what generates distributive egalitarian obligations. blake’s point in his paper is that since there is institutional coercion in the domestic setting but not in the global setting, we can see how one can consistently be 13. for one recent attempt, see gilabert 2012. gilabert argues that the obligation to assist the global poor stems directly from a cosmopolitan humanitarian concern, an obligation we have he argues independently of facts of coercion, association and so on. hassoun herself in her book (chapter one) offers a human rights based defense of meeting basic needs. this thus reinforces my question: what argumentative role is coercion really playing in defense of the conclusion that there is an obligation to meet basic needs? sufficiency, equality and the consequences of global coercion 199 leap 2 (2014) a domestic egalitarian and not a global egalitarian. one might push blake on his claim there is no global systemic coercion, or even challenge him on the normative premise that coercion is the sin qua non of global egalitarian obligations, but none of this rejects his view that there is a non-coercion based duty to provide for basic needs in virtue of personal autonomy. hassoun in effect seems to have (unintentionally) raised the justificatory bar for global justice for even duties of humanitarian assistance have to be premised on facts about global coercion, which someone like blake will not deem necessary. in short, in the main discussions on global justice and coercion, the dispute is not about humanitarian assistance but the stronger claim about global egalitarian obligations. for this reason, hassoun’s method of argument —invoking coercion to ground not global egalitarian obligations but humanitarian ones— is a little disconnected from this main discussion and appears a bit like a self-imposed handicap. but this disconnect is understandable if we keep hassoun’s main target in mind. as mentioned, her concern is the libertarian who will reject even the modest duty of humanitarian aid. blake’s project to the contrary is explicitly directed at the liberal egalitarian who can accept the significance and implications of the ideal of autonomy. such claims about autonomy will not hold sway with the libertarian, hassoun’s interlocutor, who will simply resist the claim that respect for autonomy enjoins the obligation to provide for persons’ basic needs. the libertarian can of course endorse the importance of individual autonomy, but she will deny that this alone generates any positive obligations to provide for the conditions of the exercise of autonomy. so hassoun thinks she needs to introduce the issues of coercion and consent in order to extend the normative implications of the libertarian ideal of autonomy. confronting and responding to the global libertarian is not without use, and this is hassoun’s motivating goal. libertarians have been rather ignored in the debate on global justice for the most part since this debate, as mentioned, has largely focused on egalitarianism rather than humanitarian aid. hassoun’s discussion reminds us that global libertarianism remains a serious philosophical position that needs to be addressed. in this regard, however, my second observation about autonomy’s role in hassoun’s argument comes in. unfortunately, it seems that hassoun’s notion of autonomy is not one that the libertarian can endorse. as said, hassoun wants to make the case that libertarians, who are themselves concerned foremost about the legitimacy of authority, will have to acknowledge that the global order faces a certain legitimacy crises unless individuals under its sway are in a position to give consent, and to give consent one must be autonomous to some extent. but she adds, as noted, that respect for autonomy requires that persons’ basic needs be met as a precondition for exercising autonomy. 200 kok-chor tan leap 2 (2014) yet it is not clear in the end if hassoun’s invocation of autonomy is really modest (or libertarian) enough to placate the libertarian. built into her notion of autonomous consent are precisely the preconditions for autonomous choice that i believe many libertarians will reject. libertarians who are also consent-theorists will of course require that consent be given freely and be non-rights violating. so clearly all libertarians will agree that a verbal agreement forced out of me under torture is no consent at all. but what about consent made under unfavorable economic circumstance? whether such a consent is or is not freely given, or whether it involves rights violation or not, will depend on some background conception of individual freedom and rights, and many libertarians will disagree with the liberal egalitarian that consent under some economic stress is not freely given or is rights violating. so while hassoun is on track when she says that the libertarian (who is also a consent theorist) will not approve of consent given under duress, she is too optimistic in thinking that the libertarian will agree that economic deprivation per se constitutes a morally relevant kind of duress. libertarians might concede that a famished individual has fewer options in terms of what she could consent to, compared to another in a more favorable condition, but they need not conclude that such consent is thereby void. certainly they will resist the claim that we therefore have some duty to improve the condition of the famished just so that her contracting situation is improved. the latter entails positive rights and duties that libertarians will not sign-on to. hassoun’s conception of autonomy and the obligations that she attaches to it seems, in the end, to be characteristically liberal rather than classically libertarian. it includes positive rights that libertarians will find unacceptable. so in the end, it appears that a particular conception of autonomy, one which libertarians will find hard to endorse, bears the weight of her ar gument. in sum, either we accept hassoun’s ideal of autonomy (which is really a liberal rather than a libertarian conception of autonomy) and conclude that there is a duty of humanitarian aid directly on account of what it means to take autonomy seriously, in which case coercion is dispensable to the argument; or we grant the libertarian notion of autonomy, in which case, even the fact global coercion is not sufficient to show that there is any reason to take on positive duties of aid. but if hassoun does not succeed in her primary task, her careful account of how the global order is coercive in an ongoing, legal and institutional way has useful implications for the global justice debate. for if coercion provides at the very least a sufficient condition (if not a necessary one) for engaging egalitarian obligations, then her depiction of the global order as coercive entails egalitarian global obligations beyond the humanitarian assistance she seeks to defend. this is not to say that hassoun must resist this global sufficiency, equality and the consequences of global coercion 201 leap 2 (2014) egalitarian implication of her argument, but it is a conclusion different from what she sets out to defend. indeed, on the matter of global egalitarianism, one might further wonder if true consent of the sort that hassoun demands (for the purpose of legitimizing global coercion) is realizable in the presence of significant inequality between consenting parties. on her own understanding of the conditions for the exercise of autonomy (upon which true consent is predicated), which i have suggested is a characteristically liberal rather than a libertarian ideal of autonomy, one could make the argument that excessive global inequality will compromise the quality of any consent about the global order. one need not be impoverished —being disadvantaged can be enough— in order to be made an offer that is difficult to refuse. thus the legitimacy of global coercion, on hassoun’s own principles, might demand more than a duty of humanitarian aid. 4. beyond humanitarianism but not quite egalitarian? the second coercion-based theory i will discuss will agree with my suggestion above that legitimizing global coercive arrangements will require global duties of justice more robust than humanitarian duties. but this account will disagree that these will therefore be egalitarian duties. instead, it attempts to show that there is a third category of obligation that is entailed by the need to justify coercive global arrangements, and that this duty falls in between humanitarian duties and egalitarian duties in terms of its substantive content and demandingness. in her justice in a globalized world, laura valentini makes the case for this middle alternative. she calls this the “third wave” in global justice which she takes to be distinct on the one side from “statism” that supports only humanitarian duties, and on the other from “cosmopolitanism” that enjoins global egalitarian duties. on her approach, “global justice requires more than statist assistance, but less than full-blown cosmopolitan equality” (valentini 2011: 20). 14 as with hassoun, the problem of coercion is a crucial part of valentini’s account. principles of justice are principles that establish “when coercion is justified” (valentini 2011: 4). but while hassoun begins from the ideal of autonomous consent, valentini begins from the notion of freedom as independence. for valentini, principles of justice are those principles that specify the conditions under which coercion is acceptable, and coercion introduces this consideration because it “involves non-trivial restrictions of freedom as independence” (valentini 2011:178). since 14. there is affinity of views here with cohen and sabel (2006). 202 kok-chor tan leap 2 (2014) principles of justice have the function of regulating and justifying coercion, justice-considerations kick-in only among agents who are interacting or institutionally engaged with each other and thus liable to be coercing one another. the key claim in valentini’s account is that the forms of coercion that provide the circumstance of justice include not just systematic coercion (i.e., coercion due to shared institutions people are imposing on each other) but also interactional coercion (i.e., direct agent-to-agent coercion) (valentini 2011: 15). as she puts it, understanding coercion more broadly to cover both interactional and systematic forms better captures “the multiplicity of constraints on freedom” (valentini 2011: 154). the significance of this distinction between the two kinds of coercion is that each requires different kinds of moral principles for its regulation. systematic forms of coercion are formalized and institutionalized. they shape the moral terrain in which individuals interact with each other on terms of freedom. to make acceptable this background condition to all participants, the coercive formal system of rules must be regulated by some egalitarian principles in the spirit of ensuring that it equally respects the freedom of all participants. interactional coercion, which is coercion at the inter-personal or agential level, demands different conditions of acceptability. since the concern here is not with a background structure that is presumed to regard the freedom of all with equal consideration, egalitarian considerations don’t arise. rather, since individual freedom can be preserved in case of interactional coercion in other ways —such as by interpersonal principles restricting or limiting intervention and by principles barring exploitation— egalitarian principles do not get activated. valentini agrees with those statists who hold that principles of justice play the role of legitimizing coercion within the state. but her broader reading of the forms of coercion that matter for justice also allows her to regard the global arena as a coercive one in a normatively significant way as well, and therefore also an arena in which concerns of justice have a place. thus she departs from statists who tend, as she correctly sees it, to limit concerns of justice to the domestic state. but because the moral condition (the forms of coercion, i.e.) in the global arena is quite different from the domestic one, the content of global principles of justice will be different from domestic principles. specifically while domestic principles of justice will include egalitarian obligations, global principles will not. thus her “third wave” of global justice that lies in between an overly modest statism and a too demanding “all out” cosmopolitan egalitarianism. we will better appreciate valentini’s broader reading of coercion and its significance to the debate by contrasting it with blake’s, whom she regards as a representative statist theorist. as mentioned, blake limits egalitarian justice commitments to the state because he takes systematic coercion to be the normatively salient form of coercion in need of justification. thus while the sufficiency, equality and the consequences of global coercion 203 leap 2 (2014) global arena, blake can concede, is coercive, it is coercive in an interactional way and so does not present a normatively significant (for purposes of egalitarian justice) form of coercion. on this matter of the coercive character of the global order, valentini departs from blake for two reasons. one is that, contra blake, she believes that the global order involves systematic coercion even if not in as encompassing a way as domestic institutions. she gives the example of the global economic system, which is an institutional order that systematically constraints the freedom of some people through its laws and regulations (valentini 2011: 193ff ). second, as already noted, she utilizes a broader understanding of the types of coercion that create conditions for justice. unlike blake who limits his analysis to systematic coercion, valentini regards interactional coercion as normatively salient as well. accordingly, since the global order (as blake will also agree) exhibits interactional or agent-to-agent coercion, as when one state intervenes or imposes sanctions on other, it is coercive in a normatively relevant sense for valentini. in short, valentini’s disagreement with blake on the coercive character of the global order is on one front empirical (there is in fact systematic coercion) and on the other normative (interactional coercion morally matters too from the perspective of justice). the basic implication of all this is that the global order is one wherein concerns of coercion do arise as to generate considerations of justice. granting valentini her broader understanding of coercion (which is instructive and illuminating) and her description of the global order as both interactionally and systematically coercive, i confine myself to this question: why aren’t global egalitarian obligations generated as a result? what is the moral difference in the forms of coercion in the domestic order and the global plane that can account for this difference? the basic difference as valentini sees it is that there is an encompassing institutional order or a basic structure (in the rawlsian sense) in the domestic case that regulates and restraints individuals’ lives in a pervasive and profound way (rawls 1971). given the pervasiveness and profundity of this coercive structure, it itself needs to be justified as an entity. to render this shared system acceptable to all subject to it, society must guarantee all members equal political rights, equal opportunities, and adequate economic rights (valentini 2011: 176). that is, domestic justice must include some egalitarian commitments (as noted for example by the equal opportunity commitment) if the systematic coercion that is inevitable in the state is to be acceptable to all. this is where valentini concurs generally with the main statist accounts of domestic coercion and egalitarian justice. on the other hand, the global order exhibits a more limited case of institutionalized coercion, for example, through the global economic order mixed with more common instances of interactional coercion (as mentioned earlier) that occur outside of a legal structure. since the systematic coercion 204 kok-chor tan leap 2 (2014) is limited and since the main form of coercion is interactional, the moral necessity here is not so much to justify a global institutional order as such (since there isn’t one) as to regulate the specific global systems (like the global economic system) and the various inter-state or personal conduct. so there must be principles of justice to render this condition acceptable to all living in it, but the level justification called for in this situation is, so to say, weaker and does not include egalitarian commitments to render it acceptable to all involved. indeed, one might think that global egalitarianism will run counter to legitimate statist interests such as the independence and self-determination of states which are the preconditions for ensuring the freedom of citizens. so while statists are wrong to think that the global order is one in which justice has no place, cosmopolitan egalitarians are mistaken in thinking that global principles will just be domestic egalitarian principles writ large. valentini outlines some possible implications for global justice under this systematically coercive scenario that are plausible and sensible. they include ensuring symmetrical rules of interaction “with no profit exception for the powerful”, trade rules skewed to favor the less advantaged, certain redistributive commitments, compensating poor countries for “otherwise adverse effects of liberalization” for instance, greater accountability and regulation of global economic institutions and so on (valentini 2011: 200201). these are just indications of what global justice would require and not meant as a complete articulation of the principles of global justice. they can be seen as a first sketch of what global justice would require minimally under her framework. but valentini is also firm that whatever else will be required for global justice, it will not include egalitarian commitments. valentini does a thorough job pointing out how the global order is coercive both interactionally and systematically even if in a circumscribed way. but what seems a bit quick is her conclusion that the character of global coercion unlike domestic coercion does not activate egalitarian principles of justice. why should this be so? now it might be the case that interactional coercion is sufficiently regulated by principles of compensation, of forbearance, of non-exploitation and so on, and so there is no cause to introduce egalitarian commitments. that might very well be the case, and i will not pursue this point here. but what about the presence of global systematic coercion that valentini also accepts? if systematic coercion in the domestic case generates egalitarian commitments (as she agrees), why does it not do the same in the global case? it might be because global systematic coercion is limited and so is affected through specific systems or particular institutional orders and not through an all encompassing global basic institutional structure. but why would that translate into no egalitarian commitments? why can’t these particular and limited systems or arrangements be regulated by egalitarian principles? for example, why can’t the global trade regime be governed by a principle that sufficiency, equality and the consequences of global coercion 205 leap 2 (2014) says that the gains of trade should be equally distributed among the relevant parties as a default (with specifications on when departure from this default is admissible, as when it advantages the less advantaged)? this egalitarian obligation will no doubt be specific to the order or system being regulated, but it is still a global egalitarian commitment. so the fact that the institutional site that we want to justify and regulate is limited in its purview (regulating trade but not other aspects of global relations) does not alone tell us that this site cannot be regulated on egalitarian terms. it will just mean the global trade regime as a global institutional order should be governed by egalitarian principles. why isn’t this a global egalitarian commitment? a principle of distribution can be egalitarian in pattern independently of the pervasiveness of the site that is applied to. there may be something about site-limitation of this sort that precludes egalitarian regulation but arguments must be given for this. the requirement that egalitarian justice must have an institutional site is not contradicted just because the relevant global institutions to which an egalitarian principle can apply are less pervasive and encompassing than the basic structure of domestic society. it is not implausible that global distributive obligations will have different content from domestic egalitarian distributive principles, that global justice will not simply be domestic justice extended to the world. but, again as with differences in site, that there is a difference in content alone does not render global principles non-egalitarian. there are different ways of specifying an egalitarian distributive commitment, and a global principle even though differing in content from a domestic egalitarian one can still be egalitarian. different egalitarian principles can establish different conditions and limitations of acceptable inequality. for example, rawls’s difference principle is one articulation of an egalitarian obligation, and g. a. cohen’s “equal access to advantage” is another (rawls 1971; cohen 1989). thus, just as there can be different sufficientarian principles that will propose different conceptions of the threshold of entitlements or flourishing persons are entitled to, so there can be different kinds of egalitarian distributive principles with different understandings of the limits of admissible inequalities. a global distributive principle grounded on the fundamental commitment to individual freedom from domination can, we grant, limit inequality differently than a domestic principle grounded on the same fundamental commitment given the different ways personal freedom is at risk in these settings. but if this principle is in the business of regulating inequality for the sake of ensuring freedom, it is formally an egalitarian principle. one implication of the above is that it is important not to assume that cosmopolitan egalitarians necessarily hold that global principles must be identical to domestic egalitarian principles. some cosmopolitans may indeed have so argued but that is not what defines their position as cosmopolitan egalitarian. cosmopolitanism is not a thesis about the content of equality 206 kok-chor tan leap 2 (2014) (to wit that global egalitarian principles must be extensions of domestic egalitarian principles) but a thesis about the reach or scope of egalitarian commitments. but egalitarian commitments can take different shapes, and there is nothing in the ideal that egalitarian justice has global reach that requires global principles to be replicas of domestic principles. one does not forfeit one’s cosmopolitan egalitarian credentials just because one offers a global principle that specifies the limits of acceptable inequality differently from a domestic principle. to clarify, i am not arguing that global egalitarianism is the only defensible or plausible option. and certainly i have not suggested independent reasons for why a concern with coercion should create obligations of egalitarian justice. my claim is that given valentini’s concern with coercion and her engagement with the statists for whom systematic coercion is sufficient for grounding egalitarian obligations, one would want to know more why she is able to resist egalitarian conclusions under these terms. let me connect these remarks to the opening comments on the difference between egalitarianism and sufficientarianism. a duty of basic humanitarianism will have a lower target whereas a more robust duty of assistance will have a more demanding requirement, but both are essentially versions of sufficientarianism. given that so-called statists in fact have different humanitarian targets in mind when they speak of “humanitarian duty”, their position as a whole is more helpfully described as a sufficientarian rather than humanitarian. one can disagree with a particular statist’s account of our humanitarian duty because it is too weak (covering only basic needs), and advocate instead a more demanding threshold (ensuring, in addition to basic needs, that members of a society can support functioning institutions of their own). but this does not introduce a new category of distributive duty —it is still a duty of sufficiency albeit a more demanding one. and just as there can be more or less demanding forms of sufficientarianism, so there can be more or less demanding kinds of egalitarian distributive justice. just because one thinks that more economic inequality is tolerable globally than domestically (and therefore global distributive principles will have a different content from domestic ones) does not mean that one is not a global egalitarian if one is still in the business of regulating global inequality. egalitarian principles are egalitarian because of their basic form —their comparative character and objective of regulating inequality— not because of their content or the way the limits of admissible inequality are specified. presenting the contrast more fundamentally in terms of sufficientarianism versus egalitarianism, the interesting question is, contra valentini, not whether there is a third alternative but what particular versions of sufficientarianism or egalitarianism to endorse. in the end, valentini may well be able to resist the egalitarian impulse i gesture at, but this will mean that she is opting for a stronger version of sufficientarianism than basic humanitarianism (perhaps sufficiency, equality and the consequences of global coercion 207 leap 2 (2014) something closer to rawls’s duty of assistance) (rawls 1999). ultimately the dispute concerning global distributive justice remains a dispute between two basic forms of global obligations —egalitarianism versus sufficientarianism. although this basic dispute is further complicated because there are different theories of sufficientarianism (some more demanding than others) and different theories of global egalitarianism (some more demanding than others), it remains essentially a disagreement between two different forms of obligations. there is no third category or third wave of global distributive justice. 5. concluding reflections coercion-based theories are often invoked for the purpose of marking a morally significant difference between domestic justice and global justice in order to explain why it is that certain duties obtain domestically but not globally. these theories introduce both a normative premise, namely, that coercion is a sine qua non for certain obligations of justice to take hold, and an empirical premise, namely, that the morally relevant kind of coercion obtains domestically but not globally. in particular, in the current debate on global justice, these theories are invoked to explain why egalitarian commitments obtain domestically but not globally. on what i call the standard form of these theories, the premise that the global order is not a coercive institutional order in the relevant sense is in the service of an antiglobal egalitarian conclusion. 15 against these anti-global egalitarian arguments, some commentators have questioned the normative premise and have argued that there are other sufficient conditions for caring about distributive equality besides the need to legitimize coercion (mitigating misfortune, for example). so even if the global order is not coercive in the right way, there could be other reasons for taking on global egalitarian commitments. another available response is to put pressure on the factual premise, and make the case for global egalitarianism by denying the observation that the global order is not a coercive order. in their stimulating books, hassoun and valentini opt largely for the second route. 16 but what is interesting is that they do not go on to oppose the antiegalitarianism of the standard accounts. they deny the empirical premise, but they arrive at conclusions that are not, so they say, global egalitarian. in valentini’ case, however, the engagement with the standard accounts is 15. again, i am referring to blake (2001) and nagel (2005). 16. so, although valentini has a normatively broader reading of coercion, she also disagrees with the empirical claim of statists that there is no significant systematic coercion in the global domain. it is this particular observation of hers about the global order that i have focused on in my discussion of her book. 208 kok-chor tan leap 2 (2014) clear in one respect. she wants to reject the statism that is characteristic of the standard accounts. the question i pose above, however, is whether she succeeds also in resisting the anti-egalitarianism as shared by the standard view. hassoun’s coercion-theory fits with the standard debate less neatly. as said, the standard coercion theories almost always accept that there is a humanitarian duty in response to poverty. their purpose is not to deny that there are such duties but to deny that there is an egalitarian duty in addition. rejecting the empirical premise that there is no global coercion in order to derive a duty of humanitarian aid is to argue for that which the main coercive accounts already affirm. but if hassoun’s project does not engage neatly with the coercion-based literature (as represented by blake and nagel), she also extends the coercion theory outside its normal confines, to challenge the libertarian who will deny that there is a straightforward duty of assistance. yet i noted that if the global order is in fact coercive in the different ways hassoun and valentini say it is, then on the understanding of the standard versions of coercion theories, global egalitarian commitments ought to be generated. within this debate, making the case that the global order is coercive has more significant normative implications for our global obligations than what they argued for. bibliography blake, m., 2001: “distributive justice, state coercion and autonomy”, philosophy and public affairs, 30/3: 257-96. — 2013: justice and foreign policy, oxford: oxford university press. caney, s., 2008: “global distributive justice and the state”, political studies 56/3: 487518. casal, p., 2007: “why sufficiency is not enough”, ethics 117/2: 296-326. cohen, g. a., 1989: “on the currency of egalitarian justice”, ethics 99/41: 296-326. cohen, j., and sabel, c., 2006: “extra rempublicam nulla justitia?”, philosophy & public affairs, 34: 147-75. gilabert, p., 2012: from global poverty to global equality: a philosophical exploration, oxford: oxford university press, 2012. hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, cambridge: cambridge university press. jagger, a. (ed.), 2010: thomas pogge and his critics, oxford: polity press. nagel, t., 2005: “the problem of global justice”, philosophy and public affairs 33/2: 113-47. parfit, d., 1997: “equality and priority”, ratio 10: 202-21. pogge, t., 2001: world poverty and human rights, oxford: polity press. rawls, j., 1999: the law of peoples, cambridge, ma.: harvard university press. — : a theory of justice, cambridge, ma.: harvard university press. sangiovanni, a., 2007: “global justice, reciprocity, and the state”, philosophy and public affairs 35/1: 3-39. shue, h., 1979: basic rights, princeton: princeton university press. sufficiency, equality and the consequences of global coercion 209 leap 2 (2014) tan, k-c., 2013: “the demands of global justice”, oeconomia 13/4: 665-679. — 2006: “the boundary of justice and the justice of boundaries: a defense of global egalitarianism”, the canadian journal of law and jurisprudence 29/2: 319-344. valentini, l., 2011: justice in a globalized world: a normative framework, oxford: oxford university press. 210 issn 2341-1465 leap 2 (2014): 210-218 legitimate coercion: what consent can and cannot do nicole hassoun binghamton university 1. a new argument for duties to aid the global poor globalization and global justice’s first chapter sketches a traditional autonomy-based argument for human rights, arguing, like others have done, that coercive institutions must ensure that their subjects secure food, water, and whatever else they need for sufficient autonomy. unfortunately, this argument is not likely to convince skeptics about positive rights. so, the book provides a new argument for significant duties to the global poor. this symposium focuses on its most controversial claim: to be legitimate, coercive institutions must ensure their subjects secure sufficient autonomy to consent to their rule. i thank charles goodman, peter stone and kokchor tan for this opportunity to sharpen this claim further in response to their insightful criticisms and the leap editors, particularly paula casal, for constructive observations throughout this exchange. 1 2. understanding libertarianism: reply to goodman in his probing commentary, charles goodman denies my claim that libertarians must endorse actual consent theory. goodman starts with an interesting question: “how, exactly, would the libertarian state use coercion against merely potentially autonomous citizens?” (goodman 2014: 169). he wants to know what libertarian rights states violate if they do not ensure that people secure basic capacities. goodman does not think libertarians must accept actual consent theory to avoid violating rights. 2 i believe that when states claim a monopoly on the exercise of coercive force within a traditionally defined territory without securing their rightsrespecting subjects’ consent, they violate individuals’ basic libertarian rights to protect their rights. libertarians often talk about rights to person, property, 1. i am also grateful to marcus arvan, thom brooks, and darrel moellendorf for helpful comments on this reply. 2. libertarians’ reluctance to endorse any obligation to ensure that people secure basic capacities is part of what makes my argument interesting. legitimate coercion: what consent can and cannot do 211 leap 2 (2014) and punishment. nonetheless, i believe libertarians are also concerned with protection as they do not require individuals to punish rights violators. so states need justification to prohibit even potentially autonomous citizens from protecting their rights (or punishing others who pose a rights-violating threat to them). libertarians should agree that these people must be able to consent (and must actually consent) to the state, otherwise it is illegitimate. states cannot take money to pay for protective services from rightsrespecting people who have not consented to give up their property. taking money from them would violate their property rights. people may also prefer to maintain their right to protect their rights or hire others to do so. so those who would institute a state must ensure that potentially autonomous people secure the capacities they need to consent (and actually consent) before prohibiting these people from protecting their rights. of course, in our world, states already exist. still, to legitimately coerce people in the future (to exist as legitimate states) they must ensure that everyone secures what they need to consent (and secure consent). states do not take away individuals’ right to self-defense. they wrongly limit this right. they claim a monopoly on the exercise of coercive force. they specify which things count as self-defense and which do not. without consent, libertarians should maintain that this violates the basic libertarian right to self-defense. moreover, libertarians will reject goodman’s claim that we do not wrong potentially autonomous people capable of punishing without violating rights by prohibiting them from doing so. goodman misleadingly asserts that a potentially autonomous person with this capacity who is prohibited from exercising it “would be no more wronged than an unusually mature and responsible fifteen-year-old who is denied the right to drive a car” (goodman 2014: 172). libertarians believe these are both grievous wrongs. as goodman points out, some potentially autonomous people receive the help they need from their families, friends, or benefactors, but some do not. even some of those with resources require help. they must consent to others using their resources even for this purpose. 3 goodman wrongly suggests that the state can coerce potentially autonomous people for paternalistic reasons. if states can ensure their subjects secure the capacities they need to consent, the cost of doing so cannot justify riding rough-shod over basic libertarian rights. i allow that it may be acceptable to coerce people for their own benefit. still, i doubt libertarians will take this line in general. we cannot take sleeping people’s money and give them some benefit when we can wake them. even if it costs something to wake them and get their consent, we must do it. so i do not see how we can “conclude... that, in requiring those potentially autonomous 3. it is not enough if people can, in some way, obtain the help they need (e.g. if they participate in the right way in markets), they must have the capacities they need for consent. 212 nicole hassoun leap 2 (2014) beings on their territory who own valuable resources to contribute some of those resources to the defense of their society from violence, the libertarians would not wrong those beings” (goodman 2014: 170). libertarians may also deny that every person benefits from being a part of a state. 4 goodman plausibly claims that, to punish others, people “need those faculties which locke calls ‘calm reason and conscience’”, but some nonautonomous people have these abilities (goodman 2014: 171). some who have these faculties cannot consent to a state. there are schizophrenics, for example, who can work, drive, and defend themselves and others, but are unable to engage in much political reasoning. finally, consider goodman’s example of annie —intended to show that even when someone does need help, it may be impermissible for private citizens in a libertarian state to provide it. in laying out the case, goodman starts by asserting that: almost all of the land in the libertarian society will be privately owned. the only exceptions would be facilities associated with the state’s legitimate protective role, such as police stations, courts, and military bases. it would not be difficult to justify refusing to let annie stay in these facilities. if the society’s military bases and police stations were transformed into homeless shelters, those structures would no longer be able to carry out their rights-protective functions effectively. so libertarians would be on firm ground in claiming that, if annie is going to live in the libertarian state, she’ll have to stay on private property (goodman 2014: 174). so goodman asks if it would be permissible: for a property owner to allow annie to stay on his land, but without providing her with what she needs in order to grow up and become autonomous? ... by giving annie permission to stay on his land, the property owner in question is consenting to a situation whose moral result will be the existence of an obligation, binding on his fellow libertarian citizens, to provide annie with resources. in allowing annie to stay on his land ... the property owner is arguably violating their negative rights by imposing costs on them without their permission (goodman 2014: 174). 4. that is, it is a live question why it would be in their interest to be a part of a large protective organization —some may prefer to be in small organizations. incidentally, nozick has to bring in considerations of consequences to justify depriving them of their right to do so. i believe the anarchists rightly object to this and say consent is required for consistent adherence to basic libertarian principles. the upshot of my argument is that consent leads to welfarism as opposed to anarchism. legitimate coercion: what consent can and cannot do 213 leap 2 (2014) consider a few reasons to worry about this case. first, this response relies upon some questionable empirical claims. if people would consent to any state at all, they might consent to giving a state more land than needed to secure some public goods —like national parks. even if this is not the case, the libertarian state could expand to help people by purchasing land from citizens to create homeless shelters. of course, the money to do so would presumably come from taxes. so this would be a kind of libertarian welfare state. this kind of taxation poses a threat to the coherence of libertarianism, but i am completely happy if my argument establishes that libertarianism is incoherent because it both requires and prohibits a welfare state. moreover, “by giving annie permission to stay on his land” the property owner may not be “consenting to a situation whose moral result will be the existence of an obligation” that amounts to violating negative rights of co-citizens (goodman 2014: 174); many uses of property impose costs that do not violate libertarian rights. goodman must offer more argument to make his case. that said, the idea that we must prohibit private property owners from doing what they want with their property would only provide reason to think that libertarians face another terrible dilemma, and that we should reject their view. goodman’s final proposal is most promising but also unsuccessful. he says that “it would be legitimate for the citizens of the libertarian state to make an agreement, perhaps at the constitutional convention that establishes their form of government, restricting the ability of landowners to harbor indigent potentially autonomous persons such as annie” (goodman 2014: 174). 5 if no one offers voluntary aid, goodman says “annie would [have to] effectively be expelled from the libertarian state” (goodman 2014: 174-75). he takes this as an alternative to rejecting libertarianism. however, i take it that the distinction between libertarianism and anarchism hangs on whether or not states can maintain a monopoly on coercive force within a territory without having to cede land to the non-autonomous. libertarians believe they can. anarchists reject this conclusion. at least, annie cannot be removed from land she owns within the libertarian state’s borders. people would also violate her basic libertarian rights if they forced her to sell her land or removed her from un-owned (state) land. if all of this land is necessary to protect negative rights, that poses yet another problem for libertarians and provides reason to reject their theory. 5. not everyone in a libertarian state would be so uncharitable. 214 nicole hassoun leap 2 (2014) 3. beyond the social contract: reply to stone in his thought-provoking commentary, peter stone worries that many liberals will reject the claim that legitimate coercive institutions must ensure that their subjects secure sufficient autonomy. stone thinks my argument relies on an ambiguous idea of consent. moreover, he says some liberals deny “‘that people have a right to dissent from the rule of coercive institutions by conscientious objection, non-violent protest, passive resistance, and so forth’ (stone 2014: 185).” stone notes, for instance, that “the democratic theorist and the hypothetical consent theorist ... have very different things in mind when they identify political systems as consensual, even if both endorse democratic institutions” (stone 2014: 187). for the “hypothetical consent theorist, it would not be the democratic rights that form the critical locus of consent. it would be the hypothetical consent itself” (stone 2014: 186-87). my argument does not rely on an ambiguous idea of consent. pace stone (2014: 177), i do not claim people must actually consent to coercive institutions’ rules. contrary to what stone claims, i believe that people must have the capacities to consent. i give a detailed account of these capacities on which everyone must be able to do at least some (instrumental) reasoning and planning. i then derive the premise that legitimate coercive institutions must ensure their subjects secure sufficient autonomy to consent from several contractualist (and non-contractualist) theories. i argue that on plausible hypothetical, democratic, and actual consent theories, legitimate coercive institutions must ensure that their subjects secure these capacities. i believe we should reject theories on which rulers legitimately coerce people who lack basic freedoms under their rule. we should, for instance, reject hypothetical consent theories on which people cannot even object to coercive rule (stone 2014: 187). we cannot justify existing coercive institutions by appeal to the idea that people “could conceivably consent to arrangements without democratic rights” (stone 2014: 187). people should at least be able to maintain basic freedoms under coercive rule. similarly, we should reject any account of democracy that does not involve a constitution, or some other means of protecting basic capacities. such views fail to respect individual freedom. this does not beg the question against them. it provides reason to reject implausible versions of the views once we see their shortcomings clearly. stone, rightly, notes that my argument can be expanded. after explaining the general argumentative strategy, i take libertarianism to be the stalking horse for liberalism. i do not engage with the details of every, or even a wide range of, communitarian, democratic or hypothetical consent theories. however, i devote a whole chapter to arguing that on actual consent theory, and libertarianism, legitimate coercive institutions must ensure their subjects legitimate coercion: what consent can and cannot do 215 leap 2 (2014) secure sufficient autonomy. moreover, even some of those i do not address —including some consequentialists— might accept this conclusion. 6 both stone and kok-chor tan worry, however, that libertarians will reject the idea that consent requires any basic capacities. as stone puts it, “many libertarians are very attracted to the idea that consent authorizes practically anything. if someone wants to consent to slavery, then so be it” (stone 2014: 185). tan also worries that, on libertarianism, people need not have sufficient autonomy to consent to coercion (tan 2014: 200). moreover, stone points out that actual consent theorists and “libertarians are usually lukewarm at best about democratic rights” (stone 2014: 185). he says that “if people grant consent to arrangements with such rights, fine, but they could just as easily consent to some other arrangement... indeed, the entire idea of a “right to dissent” must seem strange to an actual consent theorist” (stone 2014: 186). even if libertarians maintain that people can consent into slavery, they should not deny that free consent requires basic capacities. at least, people should be able to object to coercive rule until, and unless, they give up their right to do so. the severely mentally disabled, young children, the comatose, and those deluded by hunger cannot enter into free contracts. for contracts to be free, people must be able to consent. libertarians defend slavery because they want to ensure the fidelity of free contracts. 7 still, people need basic capacities to enter into free contracts. 4. basic rights: reply to tan in his helpful essay, tan worries that my argument is circular, starting from an “‘autonomy-based’ human right to food, water and other means of subsistence” (tan 2014: 207). 8 he suggests this undermines the strand of my argument addressed to libertarians, in particular. libertarians notoriously deny a right to autonomy exists. my argument does not start by assuming a right to autonomy. rather, i address liberals who believe that people must maintain a basic minimum of 6. philosophers like john stuart mill endorse basic rights, e.g. to freedom, even if they offer an indirect or instrumental justification for them that appeals to consequentialist considerations (mill 1983, ch. 5). my argument rules out views that ride rough-shod over individuals’ rights and allow that it is normally acceptable to coerce some people just for others’ benefit. my argument will address consequentialists, and others who reject natural rights, as long as they agree that it is generally necessary to justify coercion to the coerced and this justification requires that people at least have the capacities they need to object, or consent, to coercive rule. 7. stone is right that “those deeply concerned with rights of democratic participation (like most egalitarian liberals) have little use for actual consent” (stone 2014: 186). 8. if that were the case, kok-chor tan would be right to object that since “there is an autonomy-based human right to subsistence, it is not clear why the presence of coercive institutions is ... a necessary condition of the duty to provide subsistence” (tan 2014: 198). 216 nicole hassoun leap 2 (2014) freedom under legitimate coercive rule. 9 the key idea is that people should be free to shape their relationships with their coercive institutions. 10 different liberals understand this freedom in different ways but, i argue that, on plausible liberal theories, it entails a commitment to sufficient autonomy. although people might not be able to do without coercive institutions, they should at least get to decide for themselves how to react to their subjection. 11 people should at least be able to object, or consent, to coercive rule. if people require assistance to secure the requisite autonomy, and no other agent or institution provides it, their coercive institutions must do so, on pain of illegitimacy. it is easiest to see how my argument against libertarians does not presuppose a right to autonomy. libertarians believe people have basic rights to person, property, and to self-defense. 12 i argue that libertarians must endorse actual consent theory because coercion constrains an individual’s exercise of these basic libertarian rights. roughly, if rulers claim a monopoly on coercive force over all of their rights-respecting subjects within a traditionally defined territory without securing their consent, they violate people’s rights to protect themselves. 13 at least rights-respecting potentially autonomous people must consent to such coercive rules. to actually consent to coercive rules, people must be able to consent. 14 moreover, this requires sufficient autonomy (the ability to reason and plan). so, if no one provides these people with the assistance they need, even libertarians should agree that their coercive institutions must do so. 15 tan rightly suggests that my argument provides the missing premise in an argument for egalitarian duties. i argue that many coercive international institutions exist. so, if coercion grounds egalitarian duties, like michael 9. coercion threatens to violate individual’s basic freedom (as well as their equality and autonomy). it does not always undermine freedom, equality, autonomy, or harm people, but it is certainly capable of doing so. 10. i take it we should respect everyone, free or not; people should be able to shape their relationships with their coercive institutions. 11. hassoun 2012: 58. 12. although i am not convinced people have such inviolable rights, in addressing the libertarian, i consider what follows from this claim. one might worry that in attempting to address all liberals, the book does not adequately address any of them, but doing so fully would have been exhausting. so the book focused on providing a detailed look at how the argument might go in the hard case of the libertarian and on illustrating the general argumentative approach. i hope that it provides fertile ground for future inquiry. whether or not one sees the book as offering a unified argument or several distinct arguments will depend on whether one looks only at the major premises of the argument or at its sub-premises. 13. ggj does not address anarchists who think that states can simply cede territory to rightsrespecting people who do not consent to their rule nor those who claim international institutions’ coercion can be justified without ensuring that all of their subjects secure sufficient autonomy. 14. on the view that libertarians are committed to requiring actual consent, see, e.g., simmons 1999 and long and machan 2008. 15. on some liberal views, autonomy is constitutive of the basic freedom at issue, but my argument does not rely on this being the case. legitimate coercion: what consent can and cannot do 217 leap 2 (2014) blake, for example, maintains, there are international egalitarian duties. 16 i also agree with tan that people might not have the capacity to consent to, or reject, coercive offers in situations of extreme inequality. 17 none of this, however, undermines my response to the libertarian. moreover, pace tan, i do not endorse skeptics’ attempts to raise “the justificatory bar for global justice ...[or] duties of humanitarian assistance” (tan 2014: 199) by recognizing their existence and taking the time to see where their arguments go astray. rather, i try to extend the consensus on these important duties. 5. conclusions let me recap. first, pace goodman, libertarians hold that if we prohibit people from protecting their rights without consent, we wrong those capable of protecting their rights without violating others’ rights. people can only be deprived of the right to protect their rights with consent. most libertarians do not believe we can coerce such people for paternalistic reasons. rulers cannot rightly expel these people from, at least their own, privately held property. if we must prohibit private land owners from letting nonautonomous people onto their land, that only worsens the dilemma at the heart of libertarianism. it provides further reason to reject the view. second, pace stone, my argument does not rely upon an ambiguous understanding of consent. i argue that, whatever account of consent contractualists endorse, they should agree that legitimate coercive rule requires that people have basic capacities to consent. moreover, my argument addresses many non-contractualists, including some consequentialists. third, pace tan and stone, even if libertarians believe that people can freely consent to whatever contracts they like, they should agree that people need some basic reasoning and planning capacities to enter into free contracts. finally, pace tan, my argument is not circular. the idea of freedom from which it starts does not presuppose, but grounds a right to, autonomy. libertarians, for instance, hold that people only have basic rights to person, property, and punishment. i argue that coercion, in constraining the exercise of these basic rights, requires justification. on libertarianism, i suggest, states must secure consent to avoid violating rights and people require sufficient autonomy to consent. tan and stone are right, however, that it is possible to extend my argument in many ways. it may even ground global egalitarian obligations. much room remains for future research. 16. i do not, however, endorse blake’s view. 17. elsewhere (e.g. hassoun 2013) i defend much more robust obligations to aid people above this threshold than in the book. 218 nicole hassoun leap 2 (2014) bibliography goodman, c., 2014: “libertarian welfare rights: can we expel them?”, law, ethics, and philosophy 2: 166-176. hassoun, n., 2012: globalization and global justice: shrinking distance, expanding obligations, cambridge: cambridge university press. — 2013: “human rights and the minimally good life”, res philosophica 90, 3: 413-438. — 2014: “coercion, legitimacy, and individual freedom: a reply to sondernholm”, journal of philosophical research 39: 191-198. long, r., and machan. t., 2008: anarchism/minarchism: is a government part of a free country?, london: ashgate press. simmons, j., 1999: “justification and legitimacy”, ethics 109: 739-771. stone, p. 2014: “social contract theory in the global context”, law, ethics, and philosophy 2: 177-189. tan, s., 2014: “coercion and global obligations: a commentary”, law, ethics, and philosophy 2: 190-209. 219 issn 2341-1465 leap 2 (2014): 219-226 two pictures of the global-justice debate: a reply to tan* l aura valentini london school of economics and political science 1. introduction kok-chor tan’s review essay offers an internal critique of my perspective on global justice. tan grants my coercion-based account of the triggers of justice-obligations, but takes issue with my claim that, on that account, “global justice requires more than statist assistance, but less than full-blown cosmopolitan equality” (valentini 2011: 20, quoted in tan 2014: 201). in particular, tan thinks that, at the very least, my denial that egalitarian justice applies globally is under-argued. principles of international/global justice, he suggests, may well differ in content from principles of domestic justice, but this need not mean that they are not egalitarian in form. for example, he asks: “why can’t the global trade regime be governed by a principle that says that the gains of trade should be equally distributed among the relevant parties as a default (with specifications on when departure from this default is admissible, as when it advantages the less advantaged)?” (tan 2014: 204-5). this principle differs in content from the principles of justice that liberals defend at the domestic level —which do not concern the gains from trade— yet it seems egalitarian in form. and on the face of it, tan suggests, there appears to be little in my coercion-based account that rules it out as a candidate demand of global justice. tan’s thoughtful discussion gives me a welcome opportunity to clarify a misunderstanding about my view, which i suspect drives his critique. tan takes me to hold that “whatever [is] required for global justice, it will not include egalitarian commitments” (tan 2014: 204). but this is not what i argue in justice in a globalized world. instead, i only deny that “the egalitarian principles liberals adopt to assess domestic distributions of liberties, opportunities, and economic goods should apply to the world at large” (valentini 2001: 6, emphasis removed). the expression “full-blown cosmopolitan equality” in the passage quoted by tan does not refer to formally egalitarian principles in general, but to one specific class of such principles. * many thanks to paula casal, christian list, miriam ronzoni, and andrew williams, for their comments on an earlier draft of this response. 220 laura valentini leap 2 (2014) once this semantic difference in our understandings of “cosmopolitan equality” is clarified, our perceived disagreement on whether there could be principles of global justice that are egalitarian in form disappears. the semantic difference, though, reveals what is probably a deeper dispute between the two of us: a “meta-dispute” about what the debate on global justice is, or should be, about. tan and i operate with different pictures of that debate. to better substantiate these claims, in what follows, i will (i) characterize the controversy between cosmopolitans and statists, (ii) sketch my position in justice in a globalized world and, on this basis, (iii) outline where i suspect the disagreement between tan and myself really lies. 2. cosmopolitanism and statism in justice in a globalized world, i aim to offer an account of international justice that steers a middle course between statism and cosmopolitanism. these two perspectives, as i characterize them in the book, offer different answers to what i call “the question of extension”, namely “whether [liberalegalitarian] principles of domestic justice should extend to the world at large” (valentini 2011: 5). cosmopolitans answer the question in the affirmative, statists in the negative. 1 before proceeding further, it is worth noting that tan’s critical discussion of my book appears to be implicitly conducted not against the background of this question, but of a different one: “what socio-economic distributive principles, if any, apply beyond borders?” 2 this question is both narrower and broader than the one i address in the book. it is broader insofar as it does not focus exclusively on justice. it is narrower insofar as it concentrates on the distribution of a specific class of goods, i.e., socio-economic goods, while justice simpliciter ranges over other types of goods too (e.g., liberties). 3 having said that, the contrast between statism and cosmopolitanism i draw in justice in a globalized world can be recast as a disagreement about socioeconomic distribution, and thereby rephrased in terms of different answers to the question implicitly underpinning tan’s critique. to do so, let me begin by noting that principles concerning the distribution of socio-economic goods may differ along the following three dimensions: their grounds (g); the distributive pattern they mandate (p); and the recipients of the relevant 1. in valentini (2011: 6-10) i offer an overview of these two positions. furthermore, chs. 2 and 3 of the book discuss cosmopolitanism; chs. 4 and 5 discuss statism. 2. this emerges from the section of tan’s review titled “poverty and global inequality: humanitarian and egalitarian duties”. 3. by “socio-economic goods” i mean resources broadly construed. for simplicity, i do not problematize how exactly socio-economic goods are conceptualized, namely the relevant “distribuendum”. for discussion see gosepath 2011. two pictures of the global-justice debate: a reply to tan 221 leap 2 (2014) distribuendum (r). the general structure of these principles is the following: “ground g requires socio-economic goods to be distributed in line with pattern p between recipients r”. different ways of specifying parameters g, p, and r lead to substantively different socio-economic distributive principles. statists and cosmopolitans specify the parameters differently. first, all cosmopolitans hold that justice grounds global distributive obligations. justice is a special type of moral concern, one that generates obligations correlative to rights, which are in principle rightfully enforceable. for instance, the obligation to pay the (fair) price for a good that one has purchased is a paradigmatic obligation of justice: it is correlative to the seller’s right to payment and in principle rightfully enforceable, e.g., by the state. justice is contrasted with humanity. obligations of humanity are neither correlative to rights, nor rightfully enforceable. they require us to help needy strangers, using resources to which we are entitled on grounds of justice (barry 1991; buchanan 1987). while both cosmopolitans and statists hold that obligations of humanity apply across borders, for some statists humanity exhausts our international distributive obligations. concerns of justice simply do not arise beyond the state (nagel 2005). second, cosmopolitans hold that socio-economic goods should be distributed in accordance with broadly egalitarian distributive patterns. in other words, they are concerned with global relative as opposed to absolute deprivation. statists, by contrast, are unanimously committed to sufficientarian distributive patterns: for them, international justice requires that all relevant recipients have “enough” socio-economic goods. once the relevant threshold is met for all recipients, inequalities above that threshold are not morally significant. third, cosmopolitans hold that the recipients of global socio-economic justice are individual human beings. statists, by contrast, focus on internally legitimate political communities. in sum, cosmopolitans typically argue that global justice is domestic justice writ large, and requires egalitarian socio-economic distributions between individuals. 4 this is the sense in which they answer the “question of extension” in the affirmative. statists, instead, either argue that there is no such thing as “socio-economic justice beyond borders” (only global humanity), or require justice-based sufficientarian distribution between states (rawls 1999; miller 2007; blake 2001). against this backdrop, in justice in a globalized world, i articulate a view that attempts to steer a coherent middle course between these two families of positions. 4. in turn, this conclusion may be defended on either relational, or non-relational grounds. for the former, see e.g. beitz 1999 and pogge 1989. for the latter, see e.g. caney 2005 and beitz 1983. 222 laura valentini leap 2 (2014) 3. a brief sketch of my view after exposing what i take to be the shortcomings of cosmopolitanism and statism (valentini 2011: chs. 2, 3, 4, and 5), i develop a coercion-based account of the “triggers” of principles of justice (valentini 2011: ch. 6). i start from the liberal premise that individuals have a right to a mutually justifiable distribution of freedom, one under which each enjoys the social conditions to lead an autonomous life. since coercion always involves non-trivial restrictions of freedom, instances of coercion stand in need of justification: they must be shown to be consistent with a mutually justifiable distribution of freedom between the parties involved (valentini 2011: ch. 7). i call the principles establishing the conditions under which coercion is justified “principles of justice”. it is important to emphasize that my notion of coercion is somewhat heterodox. 5 i do not equate coercion with the imposition of commands backed by the threat of sanctions but, more broadly, with the imposition of non-trivial constraints on freedom. moreover, i suggest that coercion so understood comes in two variants. it can be perpetrated either by an agent (interactional coercion) or caused by a system of rules supported by a large enough number of agents (systemic coercion). from my perspective, both interactional and systemic coercion stand in need of justification. equipped with this normative framework, i argue that what principles of justice apply beyond borders —at any given time— depends on the forms of coercion existing in the international arena. in today’s world, both interactional and systemic coercion are present. instances of interactional coercion primarily involve states as collective agents (e.g., think about aggression or bilateral state relations more generally). instances of systemic coercion involve global or near-global systems of rules such as those sustaining the global economy (trade and finance). 6 i argue that the justification of international interactional coercion demands respect for the sovereign equality of internally legitimate (i.e., reasonably just) states. sovereign equality, in turn, requires every state to be in a position to control their affairs without being continuously interfered with or subtly dominated by other states and non-state actors. for example, consider the influence exercised by the united states over latin american countries during the cold war; or the influence that powerful corporations exercise over weak states. while states susceptible to these forms of 5. it thereby differs from other coercion-based accounts of the triggers of demands of justice, such as the one offered by blake 2001. 6. in valentini (2011: 193), i am explicit, however, that the rules governing the global economy need not exhaust global systemic coercion. two pictures of the global-justice debate: a reply to tan 223 leap 2 (2014) interference may be “formally sovereign”, they are much less sovereign, from a substantive point of view, than others (valentini 2011: 191). 7 my account of the justification of global systemic coercion is more tentative —as i admit in the book, and tan rightly notes. in particular, i argue that the rules governing global finance and trade should be compatible with a mutually justifiable distribution of freedom among those falling under their purview: states and their citizens. having said that, i also note that “[g] iven the cultural diversity and social complexity characterizing the global economy, instead of aiming for a specific and complete account of what global socio-economic justice requires, we are [...] on firmer ground simply establishing what it must exclude” (valentini 2011: 200). 8 i then go on to offer a few examples of policy reforms that would lead in this direction — including the implementation of more equitable rules in wto settings, and the creation of institutions to combat harmful tax-competition and global financial volatility. since i am not offering a full picture of what global justice, at the systemic level, requires, but merely pointing to practices that it must exclude, my account is rather open-ended. what i offer, as the book’s subtitle suggests, is a “normative framework” for thinking about global justice, rather than a definitive account of what global justice positively requires. 4. what tan and i really disagree about based on this sketch of the view in my book, it should be transparent that i do not deny that the “global trade regime [should] be governed by a principle that says that the gains of trade should be equally distributed among the relevant parties as a default” (tan 2014: 204-5); or indeed that principles of justice that are egalitarian in form should apply beyond borders. unlike other critics of cosmopolitan egalitarianism, i simply remain agnostic about this. i adopt a minimalist strategy suggesting only what global systemic coercion must exclude in order to avoid being unjust for sure. in light of this, i could perhaps be reasonably criticized for saying too little. but tan thinks i say too much, specifically, that “whatever [...] will be required for global justice, it will not include egalitarian commitments” (tan 2014: 204). i suspect that this misunderstanding is prompted by my claim that, on my view “global justice requires more than statist assistance, but less than full-blown cosmopolitan equality” (valentini 2011: 20). tan reads 7. for related discussion, see ronzoni 2012. 8. in valentini (2011: ch. 7), i draw a very similar conclusion in relation to domestic principles of justice concerning the distribution of income and wealth. i accept that domestic justice requires equality in the distribution of civil and political liberties, as well as opportunities, but i claim that “[w]hat economic inequalities are permissible beyond [a] basic-needs threshold is a question to be answered on a case-by-case basis, and which should be ultimately decided through the democratic decision procedures of each political community” (19 and 176-77). 224 laura valentini leap 2 (2014) the emphasis of this sentence as being on “equality”, and from this infers that i am generally averse to any form of egalitarianism beyond borders. but that sentence, and the book more generally, express aversion to “fullblown cosmopolitan equality”. as i have explained earlier, by this i mean the view that the principles of egalitarian socio-economic justice that apply domestically should extend globally, in the world as it is today. so i agree with tan that “egalitarian commitments can take different shapes, and there is nothing in the ideal that egalitarian justice has global reach that requires global principles to be replicas of domestic principles” (tan 2014: 206). the book does not argue against egalitarian commitments so broadly construed. having said that, tan’s reading of what i say may reveal a deeper disagreement between the two of us. for tan, “ultimately the dispute concerning global distributive justice remains a dispute between two basic forms of global obligations —egalitarianism versus sufficientarianism” (tan 2014: 207). that is, tan seems to focus exclusively —at least in his response— on disagreements concerning the distributive pattern mandated by principles of international political morality (probably taking “individuals” for granted as the relevant recipients). but as i have suggested above, principles of global socio-economic justice might differ along other dimensions too, specifically: grounds and recipients. 9 i take these further dimensions of disagreement to be central to the cosmopolitan-statist controversy as i understand it, namely the controversy i address in the book. 10 it should thus be no surprise that much of the book is concerned with those other dimensions as well (especially grounds) and thereby somewhat de-emphasizes the centrality of the “sufficiency versus equality” contrast. once those other dimensions are taken into account, contrary to what tan suggests, it is not true that “there is no third category or third wave of global distributive justice” (tan 2014: 207). 11 my view —whether one finds it plausible 9. as i said earlier, the specific nature of the “distribuendum” is also a possible, and important, locus of disagreement, which i omit here for brevity’s sake. 10. tan might object that “[o]ne does not forfeit one’s cosmopolitan egalitarian credentials just because one offers a global principle that specifies the limits of acceptable inequality differently from a domestic principle” (tan 2014: 215). this strikes me as a matter of definition, with little substantive import. what is more, i myself acknowledge a distinction between “strong cosmopolitanism” (i.e., the direct extension of domestic egalitarian justice to the global realm), and “weak cosmopolitanism”, which “places limits on permissible global socio-economic inequalities without insisting that they should coincide with those placed on domestic ones” (valentini 2011: 16-17). in valentini (2011: ch. 3), after an extensive critique of strong cosmopolitanism —my main target— i provisionally suggest that a “weaker” cosmopolitan position may be more defensible (without endorsing it). 11. the claim isn’t true even if it is understood as meaning that principles of global distributive justice can only be either egalitarian or sufficientarian. here are two simple counterexamples: “the gains of trade should be distributed so as to maximize the sum-total of utility” and “the gains of trade should be distributed in proportion to participants’ contributions”. these distributive principles exhibit neither a sufficientarian nor an egalitarian pattern. two pictures of the global-justice debate: a reply to tan 225 leap 2 (2014) or not— can be described as occupying a middle ground between statism and cosmopolitanism. specifically, like cosmopolitanism and some (but not all) variants of statism, my view holds that demands of socio-economic justice apply beyond borders. unlike cosmopolitanism, however, the view also acknowledges that states —provided they are internally legitimate— are important subjects of international justice. and unlike statism, it implies that global justice demands something more than the transfer of resources between “independent” political communities aimed at meeting a given threshold of sufficiency (what i call “statist assistance”): it requires deep restructuring of the rules governing international finance and trade, so as to remove clearly unjustifiable constraints on the freedom of states and their citizens. 5. conclusion tan and i do not disagree about the possibility that international/global socio-economic justice might include principles exhibiting an egalitarian distributive pattern. tan’s discussion of my work has been helpful in giving me the opportunity to clarify this point. that said, tan and i may well disagree about the relative importance of the “equality versus sufficiency” distinction in the global-justice debate, and possibly about how other parameters within that debate —e.g., grounds and recipients— should be specified. bibliography barry, b., 1991: “humanity and justice in global perspective”, in liberty and justice: essays in political theory 2, ed. b. barry, oxford: clarendon press, 182-210. beitz, c., 1983: “cosmopolitan ideals and national sentiment”, journal of philosophy 80: 591-600. — 1999: political theory and international relations, princeton, n.j.: princeton university press. blake, m., 2001: “distributive justice, state coercion, and autonomy”, philosophy & public affairs 30: 257-96. buchanan, a., 1987: “justice and charity”, ethics 97: 558-75. caney, s., 2005: justice beyond borders, oxford: oxford university press. gosepath, s., 2011: “equality”, the stanford encyclopedia of philosophy, ed. e. n. zalta, url = http://plato.stanford.edu/archives/spr2011/entries/equality. miller, d., 2007: national responsibility and global justice, oxford: oxford university press. nagel, t., 2005: “the problem of global justice”, philosophy & public affairs 33: 113-47. pogge, t., 1989: realizing rawls, ithaca: cornell university press. rawls, j., 1999: the law of peoples: with “the idea of public reason revisited”, cambridge, ma: harvard university press. 226 laura valentini leap 2 (2014) ronzoni, m., 2012: “two conceptions of state sovereignty and their implications for global institutional design”, critical review of international social and political philosophy 15: 573-91. tan, k. c., 2014: “sufficiency, equality and the consequences of global coercion”, law, ethics and philosophy 2: 190-209. valentini, l., 2011: justice in a globalized world: a normative framework. oxford: oxford university press. 227 issn 2341-1465 leap 2 (2014): 227-229 a brief rejoinder to valentini kok-chor tan university of pennsylvania laura valentini’s gracious but incisive response to my criticism helpfully clarifies her own position and puts into greater relief the point of contention between us. she says that my claim that she rejects global egalitarianism is a “misunderstanding” since she only rejects “full-blown cosmopolitan equality” and not global egalitarianism as such. however, the basic difference between both remains unclear. i should first note that valentini’s basic aim in her book, namely to discover a distinctive third position, is to be commended and encouraged. in fact, bold, ambitious undertakings of this sort, of developing new positions or frameworks for assessing lingering problems, is what makes for really interesting and engaging philosophical work. so my rejoinder here should not be read as a dismissal of her project. to the contrary, i will put pressure on her claim in order to encourage more investigation into the possibility of a third position on global justice along the lines she suggests. her approach to global justice, she stresses, is open to the possibility that certain global practices be regulated by egalitarian principles (of the sort i hinted at) although she did not argue for them in her book. but if this is so, it only reinforces my central objection that her approach to global justice is not a distinctive position that provides a third alternative to statist humanitarianism and cosmopolitan equality. as she says, my reading of her “reveals a deeper disagreement between the two of us”, and this is the significant point. this disagreement in the first instance has to do with how we characterize cosmopolitan equality and what would make a position non-cosmopolitan. whether we should call a position “cosmopolitan egalitarian” or not might seem to some readers to be a pedantic dispute. but in the context of the present discussion this is more than a terminological quibble, for my claim in my review is that the interesting and crucial difference between humanitarian obligations and cosmopolitan egalitarian obligations reduces to the difference between sufficiency and equality (or sufficientarianism and egalitarianism). what is substantively at stake in the debate on global distributive justice, in fact what i would consider the fundamental challenge, is whether global distributive principles should be sufficientarian or egalitarian. valentini, in contrast, takes the dispute to involve not just the pattern of distribution 228 kok-chor tan leap 2 (2014) but also the grounds and recipients of distribution. our disagreement, as valentini also points out, far from being merely semantic, is ultimately a disagreement about what is really at issue in the debate. in my view, valentini’s position as clarified in her reply is more clearly a variant of cosmopolitan egalitarianism. valentini offers two reasons why her position is distinctive from cosmopolitan egalitarianism and occupies a middle position. one of them is that she takes the basic recipients of distribution to be states. this alone, however, does not make her position anti-cosmopolitan since she also conditions the normative standing of states on their respecting the equal freedom of their respective individual members (freedom here defined as independence). cosmopolitans do regard individuals, in the world as a whole, as the basic units of equal moral concern and, in this sense, adopt a normative individualist position. but this does not mean that a global distributive principle that takes states to be the recipients is non-cosmopolitan, if the qualification of states to be recipients of justice is contingent on how they treat individuals within their borders. for instance, if states’ normative status as recipients of global justice is conditional on the respect for the equal freedom of each individual (as in valentini’s theory), this is not fundamentally distinguishable from the cosmopolitan position. cosmopolitans can allow states to be the main recipients of global distribution for a variety of reasons, including administrative, heuristic, or appeal to the virtues of a division of labour. their position remains basically cosmopolitan if what fundamentally guides their vision is how individuals fare under the distributive arrangement. her other reason for distinguishing her position from a cosmopolitan egalitarian one is her understanding of the grounds of global obligations. but the ground of a principle and the pattern of the principle are distinct, and a principle is egalitarian depending on its pattern and not its ground. what distinguishes cosmopolitan egalitarianism from statist humanitarianism is not that the former is grounded in justice and the latter is not, for it is open to humanitarians to say that their minimalist commitments are nonetheless obligations of justice (and some will indeed hold this). more to the present point, cosmopolitan egalitarianism need not be tied to any particular ground of equality. valentini herself recognizes this (allowing that there can be relational and non-relational grounds for cosmopolitan equality), but this then only further confirms my point that the ground of a principle is distinct from its pattern. to make my central point from a different direction: valentini means to only reject “full-blown” cosmopolitan equality, meaning by this the position that egalitarian principles for the global domain are identical to those for the domestic one. that is, on this view, global egalitarianism is just domestic egalitarianism writ large. as i noted in my review, while this is certainly descriptive of some cosmopolitan egalitarian positions, 229 kok-chor tan leap 2 (2014) “full-blown” cosmopolitan equality is only a variant of cosmopolitan egalitarianism. valentini may well be correct that global egalitarian justice is not simply domestic justice replicated in the global arena but should take the more limited though egalitarian form she suggests. but to claim that this is a distinctive (and non-cosmopolitan) position and not just a variant of cosmopolitan equality distracts from the key dispute about global distributive justice, which is that of sufficiency versus equality. and appealing to the dimensions of grounds and recipients does not necessarily provide a resolution of this quarrel nor does it bring the two sides to a common middle ground. statist humanitarians can accept that humanitarian obligations are obligations of justice but insist that these global obligations remain sufficientarian in form; and cosmopolitan egalitarians can accept that states are the recipients of distributive justice but insist that the global distribution remain egalitarian in form. in short, valentini’s thesis that there is a third approach rests on a particular characterization of cosmopolitan egalitarianism which includes features that are not essential to the view. however, since cosmopolitan egalitarianism is neither (i) uniquely based on some specific moral grounding nor (ii) incompatible with involving the state in its distributive enterprise, valentini’s acceptance of global distributive principles with egalitarian pattern and whose normative starting point is the equal freedom of individuals puts her on the cosmopolitan side even though she denies the team colours. as noted above, this is not a quibble over a label but a comment on what the debate between statist humanitarianism and cosmopolitan egalitarianism is really about. leap 3 2015 law, ethics and philosophy leap eric blumenson harry brighouse paula casal michael da silva ana de miguel luara ferracioli anca gheaus jesús mora valeria ottonelli gina schouten sarah stroud adam swift victor tadros pierre-étienne vandamme philippe van parijs andrew williams law, ethics and philosophy (leap) leap is a new peer-reviewed, open access international journal dedicated to work in ethics, legal theory, and social and political philosophy. it welcomes clear, rigorous and original submissions that address concrete issues of public concern as well as more abstract theoretical questions. it also has the distinctive aims of (a) fostering work drawing on a variety of disciplines within the social and natural sciences, including biology, economics, history, and psychology; and (b) promoting dialogue between the anglophone and non-anglophone worlds. we invite submissions of articles up to 10,000 words, discussion notes up to 5,000 words, and replies and exchanges not exceeding 3,000 words. all published submissions will have undergone blind review, and the journal will notify authors of submitted pieces about the progress of their submission within six weeks. although leap accepts exclusively submissions in english, the journal strongly encourages submissions f rom authors who also w rite in languages other than english, and will always strive to ensure that their work is assessed on the basis of its content and not primarily its mode of expression. where necessary the editorial process provides authors with guidance regarding matters of english style. the journal is published by pompeu fabra university and hosted by raco, the catalan repository of open access journals (http://raco.cat/index.php/leap) enquiries regarding the journal may be directed to: leap.journal@upf.edu. http://raco.cat/index.php/leap mailto:%20leap.journal%40upf.edu?subject= law, ethics and philosophy vol. 3 2015 law, ethics and philosophyleap editorial board editors paula casal, icrea & pompeu fabra university iñigo gonzález-ricoy, university of barcelona josé luis martí, pompeu fabra university serena olsaretti, icrea & pompeu fabra university hugo seleme, national university of córdoba, argentina andrew williams, icrea & pompeu fabra university associate editors ingvild almås, norwegian school of economics samantha besson, fribourg university jordi ferrer, university of girona ernesto garzón valdés, johannes gutenberg university, mainz cristina lafont, northwestern university genoveva martí, icrea & university of barcelona lukas meyer, university of graz josé juan moreso, pompeu fabra university félix ovejero, university of barcelona zofia stemplowska, university of oxford editorial board aulis aarnio, tampere university lucy allais, university of the witwatersrand elizabeth anderson, university of michigan richard arneson, university of california, san diego gustaf arrhenius, stockholm university michael baurmann, university of düsseldorf juan carlos bayón, autonomous university, madrid carmen bevia, autonomous university, barcelona david bilchitz, south african institute for advanced constitutional, public, human rights, and international law geoffrey brennan, university of north carolina at chapel hill ian carter, university of pavia joseph chan, university of hong kong thomas christiano, university of arizona bruno celano, university of palermo antony duff, university of minnesota john ferejohn, new york university víctor ferreres, pompeu fabra university roberto gargarella, university of buenos aires robert goodin, australian national university axel gosseries, university of louvain lori gruen, wesleyan university riccardo guastini, genova university alon harel, hebrew university of jerusalem daniel hausman, university of wisconsinmadison jános kis, central european university matthew kramer, university of cambridge david lefkowitz, university of richmond kasper lippert-rasmussen, aarhus university frank lovett, washington university in st. louis stephen macedo, princeton university jeff mcmahan, rutgers university jane mansbridge, harvard university adèle mercier, queens university, ontario liam murphy, new york university ingmar persson, university of gothenburg philip pettit, princeton university thomas pogge, yale university wlodek rabinowicz, lund university joseph raz, columbia university debra satz, stanford university julian savulescu, university of oxford seana shiffrin, university of california, los angeles anna stilz, princeton university victor tadros, university of warwick larry temkin, rutgers university jeffrey tulis, university of texas at austin philippe van parijs, university of louvain georgia warnke, university of california, riverside ruth zimmerling, johannes gutenberg university mainz pompeu fabra university http://www.raco.cat/index.php/leap contents law, ethics and philosophy (leap) vol. 3, 2015 page 1. offsetting the harms of extinction .................................................. 8 michael da silva 2. the limits of moral argument: reason and conviction in tadros’ philosophy of punishment .............................................. 30 eric blumenson 3. response to blumenson ................................................................... 56 victor tadros symposium on philippe van parijs’ ‘four puzzles on gender equality’ 4. unjust gender inequalities .............................................................. 74 paula casal 5. four puzzles on gender equality ..................................................... 79 philippe van parijs 6. distributive justice and female longevity ...................................... 90 paula casal 7. women’s greater educational efforts as a consequence of inequality ........................................................ 107 jesús mora 8. do women enjoy a political advantage? majority position and democratic justice ....................................... 116 pierre-étienne vandamme page 9. a blatant case of over-accommodation .......................................... 125 valeria ottonelli 10. are unequal incarceration rates unjust to men? ........................... 136 gina schouten 11. the rich also cry .............................................................................. 151 ana de miguel 12. real freedom for all women (and men): a reply ............................ 161 philippe van parijs symposium on harry brighouse and adam swift’s family justice:the ethics of parent-child relationships 13. family values: an introduction ........................................................ 178 andrew williams 14. egalitarian family values? ............................................................... 180 sarah stroud 15. is there a right to parent? ................................................................ 193 anca gheaus 16. why the family? ............................................................................... 205 luara ferracioli 17. advantage, authority, autonomy and continuity: a response to ferracioli, gheaus and stroud .................................. 220 harry brighouse & adam swift acknowledgments we wish to acknowledge the help of marcos picchio, laura sánchez de la sierra and hannah weber in proofreading the papers of this volume, also to john french for typesetting. the symposium on harry brighouse’s and adam swift’s family values and the ethics of parent-child relationships was funded by serena olsaretti’s erc consolidator grant (648610) on justice and the family: an analysis of the normative significance of procreation and parenthood in a just society. funding was also provided by the department of law at pompeu fabra university. leap 3 (2015) offsetting the harms of extinction1 m ich a e l da si lva university of toronto abstract many people assume that the extinction of humanity would be a bad thing. this article scrutinizes this apparent badness and demonstrates that on most plausible consequentialist frameworks, the extinction of humanity is not necessarily bad. the best accounts of the badness of the extinction of humanity focus on the loss of potential utility, but this loss can be offset if it is the result of sufficiently large gains by the present generation. plausible mea ns of ca lcu lat i ng t he good ness of outcomes accord i ng ly sug gest hastening extinction even in some circumstances where the alternative is a long period of human existence at a high level. keywords ethics, consequentialism, existential risk, harms, extinction introduction many fear the potential extinction of humanity due to the common intuition that extinction is bad and should be avoided.2 yet what it means for extinction to be ‘bad’ is not obvious. this article scrutinizes the apparent badness of extinction. the most plausible candidate explanations for the badness of extinction do not rely on extinction itself being bad but on extinction pairing with other negative effects or forestalling other potential goods. not all extinction scenarios have these implications. extinction is not an impersonal bad and need not be personally bad even if we grant potential persons some moral personhood. extinction is thus not necessarily bad. even imminent extinction may be preferable to the continued existence of humanity for 1 thank you to derek parfit and jeff mcmahan for comments on the earliest version of this article, which was drafted for their graduate seminar at rutgers universit y. thank you also to the other students in that course for thoughtful conversations on many issues and to the anonymous reviewers for feedback on more recent drafts. 2 as larry temkin notes, “anything…anyone…writes on this topic should be taken with a large grain of salt” (2008: 193). it is hard to know what the futures below would look like. this may affect intuitions about some cases and the theories used to explain them. ‘extinction’ here refers to the extinction of humanit y. the argument has implications for other extinctions. offsetting the harms of extinction 9 leap 3 (2015) very long periods of time on plausible means of calculating the value of outcomes if the extinction is brought about under the right circumstances. once one recognizes that the badness of extinction is reducible to this lost potential utility, confidence in the intuition that imminent extinction is a bad thing that is to be avoided and/or delayed can be challenged on most plausible forms of outcome analysis that take potential utility into account. the lost potential utility of even a large number of future generations living lives that are worth living could be less than the amount of utility accrued by the current generation.3 extinction scenarios thus do not give one reason to choose between competing theories of outcome valuation. the argument for these claims consists of six substantive parts. the first section assesses competing theories of the good and demonstrates that the badness of ex t inct ion is reducible to t he lost potent ia l ut i lit y of f uture generations that could exist but for the extinction (and any negative effects on existing persons). the second section brief ly canvasses the best means of calculating the value of potential utility and outcomes including potential utility. i argue that intuitions that extinction is a bad thing to be avoided and/or delayed are undermined regardless of which mainstream position one takes. on total-, averageor perfection-based analyses, the badness of extinction can be outweighed if it takes place as a consequence of an act that creates sufficiently good benefits for existing persons. the third and fourth sections demonstrate that this is true in cases where there is a choice between extinction and humanity continuing to experience lives worth living for a short period and cases where the alternative to extinction is humanity continuing to exist with very good lives for very long periods. the f if t h sect ion exa mines t he sig nif ica nce of potent ia l f uture f lourishing generations in the analyses of the badness of outcomes. the final substantive section further defends the approach to extinction above by highlighting how it explains a separate intuition that the death of the last person is not the worst death in the history of humanity. 1. approaches to valuing extinction the claim that extinction is bad could mean several things. this section presents several alternatives and demonstrates weaknesses with many of them by way of defending the relative plausibility of a particular view. the most common view on the value of extinction is probably something like: a. extinction is intrinsically bad. john broome helpfully explains the structure of this view (but does not 3 ‘utility’ here refers to whatever is valuable in life. those who are queasy about hedonfocused utilitarianism can substitute their own units of measurement. 10 michael da silva leap 3 (2015) defend it) (2012: 180-181). contrary to (a), however, there are cases where many would not want to avoid (even near-term) extinction. all-else-beingequal, it is implausible to deny that one should choose extinction now over a million years of people living lives not worth living. moreover, this position seems confused on terminological grounds. non-existence has no intrinsic features/properties. if the badness of extinction is not intrinsic, it is likely tied to its effects on the amount of utility that is realized in the world. this raises issues in moral mathematics that can be fruitfully explored in extinction cases. one type of value assessment appeals to purely person-affecting principles in which the goodness and badness of outcomes is determined by their effects on persons. the most common response to extinction may be best explained by what derek parfit calls the narrow person-affecting principle, according to which one of two outcomes cannot be worse if it would be worse for no one (1984: 393-395). common aversive responses to extinction likely stem from imag ined lin ks bet ween suf fering a nd ex t inct ion. in severa l plausible scenarios, painful deaths act as a prelude to full extinction. common responses to such cases support: b. ex t inct ion is bad because t he ef fects on (including ha rms to) existing persons are sufficiently great to render it bad. if extinction were to take place as a result of a disaster that brought untold suffering with few benefits, (b) would be true. but determining whether extinction is necessarily (even comparatively) bad or necessarily includes bad-making features requires sifting out contingent facts. extinction need not include such effects on ex isting persons. a n impartial non-human obser ver interested in utilit y could lament the suffering in (b), but this would not entail lamenting the fact of extinction. if the early deaths are the price for a shorter period of an extreme well-being greater than the amount of well-being expected for any potential extra years of life, it is plausible that early death would not harm them. imagine an extinction case where this is true for all existing persons such that no one currently alive is harmed by extinction. (b) is false in such circumstances and many others. further, strict person-affecting views, which calibrate the goodness of outcomes using the effects on persons alone, tend to have unintuitive determinations about the supposed badness of extinction. on these views, extinction is bad iff the sum of utility of existing people lost by the act of extinction is larger than the sum of the utility gained. this does not always hold true. therefore, offsetting the harms of extinction 11 leap 3 (2015) extinction is not always bad here.4 issues with (b) lead theorists to seek other ways in which extinction is a bad thing. one attempt merely modifies the person-affecting principle. this implausible approach can be dealt with brief ly. the badness of extinction is often thought to go beyond its effect on the currently living. some thus suggest that extinction is bad because of its effects on future persons. they explain the badness of extinction by extending the scope of the personaffecting principle to include potential future persons who do not exist because humanit y goes extinct prior to their birth. on such v iews, the badness of extinction can be calculated by some mixture of the effects on existent and potential persons, resulting in views like: c. extinction is bad because the effects on potential persons (which do not include direct harms) are sufficiently great to render it bad. and d. extinction is bad because the effects on ex istent and potential persons are sufficiently great to render it bad. these views likely describe the common views of lay persons, but are mistaken. at the time of extinction, potential future persons do not exist and cannot be harmed in the person-affecting sense.5 if potential persons cannot be harmed, future generations are not directly harmed by extinction either. it is not, then, enough to appeal to person-affecting principles about what might be in or against the interests of presently existing people and future people when analyzing outcomes if one wants to salvage the intuition that extinction is always bad. the modified person-affecting view nonetheless hints at an important point: there is reason to take future generations into accou nt when ma k i ng mora l decisions today a nd t he sense i n wh ich f ut u re persons a re mora l ly releva nt ex pla i ns why we shou ld usua l ly avoid/delay extinction. it is more plausible that the badness of non-existence stems from the fact that the history of the world would be better if extinction came later or never came about. the badness of extinction is impersonal. jeff mcmahan 4 complex person-a f fecting ca lcu li better demonstrate t he potentia l badness of extinction. james lenman (2002) suggests we care about future generations for selfish reasons (e.g., joy of knowing about future generations analogous to the joy of having children). this const r uct ion i ncludes a persona l bad, but ha rd ly suppor ts t he idea of ex t i nct ion a s a n impersonal bad whose badness extends beyond its effect on persons. samuel scheff ler (2013) suggests that the badness of extinction partly stems from the way that it negates our ability to value and thus destroys utilit y in the present and future. these contingencies may be undermined in some cases below. 5 they w ill not ex ist unless we act in certain ways. slight policy changes produce different future persons. recall derek parfit (1984: chapter 16). 12 michael da silva leap 3 (2015) (2013) plausibly ties together this impersonal bad and the potential interests of future persons. he suggests that the non-existence of a potential person is an impersonal loss. one cannot care for these persons morally for their own sake. mcmahan nonetheless holds that one has a reason to bring a better off person into existence rather than a worse off person, which he suggests implies a reason to bring the better off person into existence rather than no person at a l l. to br i ng a person i nto ex istence is to con fer a “non[-] comparative” benefit on him/her (9). extinction is potentially problematic because it forestalls the granting of many non-comparative benefits and thus produces a history with less utility than a history in which extinction either never takes place or comes much later and non-comparative benefits are bestowed on new persons. the most important implication of mcmahan’s view for the extinction case is that there are impersonal reasons to bring people into existence due to the value they will add to the world. the perspective of the aforementioned impartial non-human observer interested in utility is the best point of view from which one can assess the potential badness of extinction. from this perspective, extinction is bad because it forestalls potential utility. potential persons do not lose something by failing to come into existence. instead, if causing people to exist would be good for them, their not coming into existence is bad despite not being bad for them.6 if these people could have had lives worth liv ing, their non-ex istence is an impersonal loss of value. the lack of benefits is a detriment in the history of the world. comparisons of the utility of worlds with future generations and those without them help identify the bad of extinction: potential utility is not realized in the world where extinction is earlier. one should, then, count the potential future utility of presently nonexistent people when choosing between outcomes. this is not because of a duty to potential persons or because existence would be good for them. it is because it is comparatively better to have more utility in a given history than less utility. all-else-being-equal, it is better to bring about an outcome that realizes more of what is now merely potential utilit y than one that rea l i z es less of it . i f we cou nt potent ia l ha r m s i n ou r c a lc u lu s of t he badness of extinction, two plausible views arise. given the contingency of an extinction scenario harming current individuals, one may adopt a view focused on impersonal loss alone: e. extinction is comparatively bad if the loss of potential utility that would have accrued had the currently living people existed for a longer period of time and had other persons lived in the future is greater than 0. 6 our “moral reason to ensure the existence of future generations is at least in part a moral reason to provide, or not to prevent, the enormous benefits of life for the enormous number of people who might exist in the indefinite future” (mcmahan 1986: 335). offsetting the harms of extinction 13 leap 3 (2015) yet even the truth of (e) depends on how extinction arises. those interested in utility more broadly should take account of the utility of existing persons as well. while the badness of extinction may be reducible to (e), full utilitybased outcome analyses cannot ignore when an outcome includes the suffering of current existing persons; contingent suffering is relevant when present. the impartial non-human observer cannot ignore it. an alternative thus combines person-affecting and impersonal perspectives: f. extinction is comparatively bad if the sum of the suffering it imposes on living persons, the loss of potential utility that would have accrued had the currently living people existed for a longer period of time and had other persons lived in the future, or some combination of the two is greater than 0. richard kraut, an opponent of absolute/intrinsic value, supports something like (f). for kraut, the extinction of any species is bad iff the loss of the species is bad for the earth’s other creatures (2011: 169). the loss of beings that can and do experience and produce more good is worse than the loss of being who can and do experience and produce less good (185). humans, including future humans, can experience and produce more good than any other species. thus, the extinction of humanity would be the greatest of all catastrophes (164). like mcmahan, kraut takes future generations into account when assessing outcomes. he thereby commits to a v iew whereby potential utilit y must be weighed in our moral calculations. both the last generation of humanity and their possible beneficiaries in future generations would be negatively affected by an extinction scenario, reducing total utility in the world (164165). occasionally, kraut makes it sound as if future generations could be harmed by extinction, but to the extent that he can be plausibly be read as endorsing (f ), his view appears more plausible than alternatives. extinction scenarios, then, are most likely bad because of their negative impact on existing persons (to the extent that such effects are present) and because of the loss of the possible goodness of the people who might have ex isted and had good lives. the follow ing explains how to compare the values of histories including the potential utility of future persons and how plausible ca lcu lat ions st i l l lead to scena rios where ex t inct ion today is preferable t ha n ma ny yea rs of cont inued huma n ex istence. it t hereby explains why one should adopt a new approach to the badness of extinction, which is introduced in the next section. 2. calculating the badness of extinction there is, then, a comparative harm in future people failing to come into existence if they would experience utility that would not otherwise be realized. 14 michael da silva leap 3 (2015) this harm is impersonal. if the badness of extinction is comparative and its value is exhausted by the loss of potential utility (and perhaps the disutility experienced by existing persons when the extinction scenario arises), this raises questions about how to calculate potential utility and the overall utility of an outcome. the loss of potential utility stemming from an early extinction is a badmaking feature of an extinction scenario. comments on how bad it would be are necessarily speculative,7 but an impartial non-human observer would likely possess better measurement tools than i do. this piece thus assumes determinations on how much potential utility future persons would realize if brought into existence can be made, bracketing one source of uncertainty in population ethics, uncertainty about value, to assess the badness of extinction. one cannot place potential utility valuation completely in a black box, but attempts to answer hard questions about such valuation raise several problems. pract ica l decisions rely on informat ion ava i lable to modern humans, not impartial non-human observers. when comparing potential histories, we want to know if, for example, we should discount benefits to future persons or if potential utility is equivalent to actual utility (see e.g., bostrom 2002: 15-16). black boxing may thus be practically problematic. for present purposes, however, it suffices to note that the loss of potential utility is non-negligibly bad.8 regardless of how one values potential future 7 john broome agrees that we must take potential persons into account (2012: 175). the absence of persons accounts for our intuitions about the badness of extinction, even if we do not think it can explain why we think extinction is any worse than any other massive drop in the potential population. yet broome is more skeptical than mcmahan about the ultimate badness of large absences of persons: intuitively it seems most plausible that…[absences] are bad….but…we still have a lot of work to do before we can be sure that this is so….[e]ven if we can be sure a collapse of population would be bad, we have no idea how bad it would be. we have empirical work to do in predicting what would have been the well-being of the absent people, had they lived (183). this provides reason to question (e), (f), and (g). broome suggests we cannot be sure of our utility calculations and thus may not be able to do the moral mathematics necessary to support the views. if this is true, any comments on the value of potential utility, including comments on the value of outcomes that rely on potential utility calculi, are necessarily speculative. 8 i am tentatively wont to provide such a discount based solely on the uncertainty identified by broome, but the claim that the badness of extinction can be outweighed by other relevant circumstances even when the alternative would be many years of continued human ex istence does not depend on such a discount. e.g., parfit offers a two tier view, according to which we give greater weight to the badness of outcomes that would be worse for particular people, but give some weight to non-person-affecting good and bad outcomes (2011: 219-233). questions concerning whether extinction is always bad and whether we should always attempt to delay it arise even on versions of the two-tier view that give significantly less weight to effects on future well-being that do not affect particular people. offsetting the harms of extinction 15 leap 3 (2015) utility, it should be included in assessments of the good of outcomes. the more pressing concern is how to calculate the overall utility of an outcome given fixed inputs of the utility of existing persons and potential utility of future persons.9 two popular candidate principles for such determinations are the total principle and the average principle. the former holds that “other things being equal, the best outcome is the one in which there would be the greatest quantity of whatever makes life worth living” (parfit 1984: 387), but unfortunately entails the repugnant conclusion (388). the latter holds that the best scenario is one in which the average amount of utility experienced by each person is highest and may have similar implications in its widest form (399). it is also subject to further critiques, including the levelling down objection (described in temkin 2012: 75-76). there is thus reason to question the most intuitive non-person-affecting views. nearby views suffer from similar defects10 and extinction cases like the ones below raise similar problems.11 all principles of valuation suffer from some defects and are thus not obvious candidates for use in the valuation of the badness of extinction. the following possibility, which is agnostic about the competing principles, helps avoid these problems, but also supports the view that extinction is not necessarily bad: g. extinction is not comparatively bad if the sum of any negative disutility experienced in the process bringing about extinction and the impersonal negative effects of the potential utilit y of ex istent and future persons failing to be realized can be negated by earlier benefits conferred on existing persons. the scenarios below suggest followers of total-, averageand perfectionbased outcome valuation principles should all prefer imminent extinction 9 for simplicit y’s sake, calculations here ignore different people choices, wherein different persons will be born depending on which of two scenarios arise and we assess the relative value of their lives (parfit 1984: 356). the choice is between only this generation existing and any future generation existing. 10 given space limitations, other principles cannot be canvassed. yet it should be reasonably clear that nearby view suffer from similar defects. e.g., those who understand the case demonstrating how the average principle may lead to repugnant conclusion should understand how these arguments also apply to the average utility principle. small differences in particular cases are dealt with brief ly below. the key is that the treatment of (e)-(g) above remains true when reformulated to account for average utility. 11 t he i mper sona l tot a l a nd average p r i nc iples a l so ent a i l t hat, u nder cer t a i n circumstances, extinction is preferable to long periods of continued human success. indeed, the cases below suggest that extinction may be preferable on any plausible valuations. given the similar problems between these views and their nearby alternatives on the margins, it is likely that the total badness in (e) and (f) can be negated by earlier benefits conferred on existing persons regardless of whether the loss of utility is calculated in totals or as deviations from an average. 16 michael da silva leap 3 (2015) provided that the limit on the amount humans are able to flourish is sufficiently high. (g) is thus true regardless of whether one calculates the value of outcomes from a total-, averageor even perfection-based perspective.12 given that the most plausible outcome valuation theories all rely on one of these principles, one should not choose a theory solely to account for one’s pre-theoretical intuitions that extinction is bad and should be avoided or delayed to the greatest extent possible. regardless of whether one assesses the comparative badness relative to the possible total sum of utility that would have been contained in the lives of people who would have otherwise existed, on their quality of life, or some combination of these, imminent extinction may be preferable to long continued periods of human existence even at a high level of well-being. this does not entail that extinction is always the better outcome, but only that an early extinction may be a better outcome than a later one (from an outcome perspective) and a history with extinction in it may be preferable to one without it. this is an argument against those who consider extinction to be intrinsically bad and argue that it is always the worst, including those who say it would be intrinsically worse than humanity’s continuing to exist for longer.13 the main arguments for this claim are case-based and appear below. following theories to their logical extremes to derive implausible results is common in ethics. i hope to show that any view on valuation may have the implausible result that extinction could be preferable to continued human instance. this is not meant to be an argument against consequentialism, but it should help demonstrate that one should not accept a particular form of consequentialism just to avoid the conclusion that extinction is preferable to alternatives.14 for instance, mcmahan uses the badness of extinction as a datum for why one should admit non-comparative benefits, the aforementioned benefits that “cannot be explained in counterfactual comparative terms” (2013: 9), into one’s moral mathematics (26). for mcmahan, extinction appears to be “the worst of those possible tragedies that have more than a negligible 12 perfectionists believe ensuring people have a high quality of life is most important. perfectionism too produces results where extinction is preferable to even long periods of continued human existence. e.g., the impartial perfectionist who is only concerned with the potential humanity being fully realized may prefer a world in which humanity f lourishes to the greatest extent possible now even if the non-existence of many future generations who would otherwise exist is a necessary consequence. 13 i will not address an extreme view one could read into david benatar (2006: 194): h. earlier extinction is preferable to a later one because coming into existence is always harmful. we are obligated not to harm people and thereby obligated to hasten extinction by not procreating. 14 if (g) is true, those who believe that extinction is necessarily bad need to look outside utility-based analyses for justification. a rule-based approach to ethics may justify this belief. adopting such an ethics may be the right application of the argument’s conclusion. this piece merely seeks to identify implications of utility-based analysis. offsetting the harms of extinction 17 leap 3 (2015) probability of actually occurring”, not merely due to its effects on existing persons, but also due to the loss of potential future utility by potential future persons (26). since potent ia l f uture persons when choices concerning extinction are being made, there may be no relevant counterfactual in which they are comparatively benefitted or harmed. the purported losses of extinction thus appear non-comparative. extinction produces impersonal losses. mcmahan’s view’s ability to explain the general plausibility of (e) and (f ), in which extinction will almost always be at least comparatively bad, cou nts i n its favor. t he loss of potent ia l va lue i n (e) a nd (f ) a re best understood as non-comparative or impersonal. one should not, however, assume that (e) and (f ) are true. indeed, even mcmahan’s mathematics can be used to create a choice scenario where extinction is not the worst outcome. plugging non-comparative harms into (e) and (f) can still result in ‘extinction is bad’ reading false. the badness of extinction alone thus does not justify admitting non-comparative benefits and harms into our moral calculations. mcmahan is aware of other problems with non-comparative benefits and harms, but these considerations suggest that the extinction case may not provide adequate reason to accept them in the first place. to the extent that one prefers one’s intuitions about the badness of extinction to one’s ability to make plausible moral calculations, this is a problem with utility-based theor y. others should be moved to reconsider their distaste for certain imminent extinction scenarios. the remainder of this piece will demonstrate that one should not admit the potential utility of future persons into one’s moral calculations merely to explain pre-theoretical intuitions about the badness of extinction. this is because the addition of these people into our moral calculus will not always allow us to maintain these intuitions. providing future individuals with the means to realize their potential utility is good. since this good is merely comparative, however, it is not morally necessary that one bring it about in all cases. since it is impersonal, no one is harmed by failing to realize it. when the potential utility calculus is paired with the most plausible means for analyzing the overall goodness of outcomes, the loss of potential utility of a hastened extinction will not rule out choosing extinction over histories where human beings live longer in certain circumstances. extinction today may be preferable to millions of years of continued human existence in some circumstances. 3. easier cases the extinction of humanity, then, is not intrinsically bad and any potential negative effects on existent and potential persons can in principle be negated by earlier benefits conferred on ex isting persons. the follow ing cases, focused on the use of pills that are unavailable in the physical world but 18 michael da silva leap 3 (2015) common in phi losophy, suppor t t he more f unda menta l f irst conjunct concerning the intrinsic value of extinction. one may prefer a history with an earlier extinction to a latter one and a history with extinction in it to an alternative without it. moral mathematics does not always demand choosing an outcome that avoids extinction. nick bostrom notes that it is not “a conceptual t r ut h t hat ex istent ia l catast rophes a re bad or t hat reducing existential risk is right” (2013: 24). if one is solely concerned with outcomes, it also may not be a substantive truth that extinction is necessarily bad. harder cases below suggest early extinction may be preferable to circumstances in which humanity survives for a very long time. i first address less contentious cases where humanity will only continue to exist somewhat longer. the supposed badness of extinction is often demonstrated with hypothetical scenarios, but such scenarios also undermine this supposed badness. larry temkin provides an example of a scenario in which mass sterility leads to extinction to suggest that an outcome where regular regeneration continues is better than one giving current people immortality; contra jan narveson, if we developed a pill enabling each of us to live wonderful lives for 120 years, it would be terrible for us to take the pill if the cost of doing so were the extinction of humanity. this is so even if taking the pill were better for each individual who took it, and hence everyone whoever lived, collectively….[i]f the cost of immortality would be a world without infants and children, without regeneration and rejuvenation, it wouldn’t be worth it….[t]his is so even if each immortal would be better off than each mortal (2008: 208)15. intuitions about similar cases are supposed to demonstrate the badness of extinction. yet i suspect that our intuitions about the case will differ if it is altered such that existing persons are made sufficiently well off. extinction may be the worst outcome of a given decision, but if we remove personal ha rms f rom t he scena rio, ex t inct ion ca n be persona l ly good. in such circumstances, the impersonal loss is merely a function of the lost potential utility of future generations that would have otherwise existed. a sufficient level of personal good for existing persons could outweigh this loss. from a pure outcome perspective, case-based reasoning suggests that a histor y including extinction may be preferable to an indefinitely long history without one.16 imagine a choice between: 15 my thoughts on this topic were furthered by two temkin-inspired cases in nick beckstead’s doctoral dissertation (2013: 63). gregory kavka provides another famous pill case (1982: 98). 16 t hese i nt u it ions a f f i r m l en ma n’s cla i m t hat “[f ]rom a n i mpersona l, t i meless perspective it is hard to identif y good reasons why it should matter that human extinction comes later rather than sooner” (2002: 253). offsetting the harms of extinction 19 leap 3 (2015) the highest high: an intergalactic travelling salesman arrives on earth. the salesman offers the earth’s inhabitants a pill that allows ever yone currently alive to reach the highest level of f lourishing possible. infertility is a side effect. the salesman is only on earth for a brief period of time and will not make the offer again, but will only provide it to the current generation on the condition that everyone agrees to take it. ever yone agrees to take the pill. humanit y goes extinct when the last currently alive person dies.17 rejecting the offer 1: the intergalactic travelling salesman makes his offer, but it is rejected. humanity continues to develop, but extinction comes within a few hundred years due to natural circumstances. rejecting the offer 2: the intergalactic travelling salesman makes his offer, but it is rejected. humanity development plateaus due to unforeseen technological problems. extinction comes within a few hundred years due to the natural circumstances from rejecting the offer 1. return to the repugnant conclusion: the intergalactic travelling salesman makes his offer, but it is rejected. human development regresses. a large number of humans continue to exist for an indefinite period of time with lives barely worth living. the pill’s extraterrestrial origin removes contingencies in other pill cases.18 many of the worries surrounding extinction are also removed. preferences can be satisfied. voluntariness is not undermined. even the violent ends of the last generation that add to the badness of extinction in similar scenarios are not present.19 most forms of uncertainty are removed from the comparative equation. the possible outcomes are stipulated to identif y whether one with the extinction of humanity in it is necessarily 17 for simplicity’s sake, assume that the last people die together, everyone enjoys full material comforts, and no family members see each other suffer. this avoids pains in lenman (2002: 255). 18 in the absence of an ‘all or nothing’ decision on whether to take the pill, it is best to delay taking it until either scientists develop it without the sterility side effect or it is clear t hat t he side ef fect cou ld not be remedied. it rema ins importa nt to determine whet her extinction following f lourishing is problematic rather than focusing on when one can know the follow ing periods w ill not be better. if the side effect could not be remedied, the case would be akin to the extraterrestrial introduction in all relevant respects. 19 lenman provides a famous example of such a scenario and poses two questions: suppose it is w ritten in the book of fate that one day we w ill be w iped out in a nast y catastrophe. many millions of people will die in terrifying circumstances involving great pain and distress. the only thing the book of fate is silent about is when this is going to happen….the question is – should we care? does it matter how soon this happens? (2002: 255). 20 michael da silva leap 3 (2015) worse than the alternatives.20 it is not obvious that the highest high is the worst scenario. it is thus not obvious that extinction sooner rather than later is necessarily a bad outcome. human beings’ ability to f lourish could be limited by their nature and psychology. if so, a relatively small number of future generations existing below the limit may produce a larger number of posit ive benef its t ha n t he pi l l. if, however, t he level of f lou r ish i ng is sufficiently high, then the highest high creates more utility than rejecting the offer 1 and 2. it thus appears to be the preferable outcome. the choice above may be a mere choice between existential risks,21 but this does not undermine the broader implications of the example. w hen compared with return to the repugnant conclusion, the mere presence of extinction in the rejecting the offer scenarios does not make the situation worse than an alternative without it in any substantial way.22 nick beckstead (2013) is likely right that a given period with people in it is better than a period without sentient life, but the preceding choice scenario suggests that the disvalue of empty periods can be outweighed by sufficiently good periods when we look only at histories. 4. harder cases one may charge that the important comparison involves not just a few more centuries, but a much longer survival of humanity. parts of parfit’s reasons and persons (1984) and other influential works in population ethics assume that the human race could continue to exist for a long time.23 they then question whether an earlier extinction would be preferable to such long histories. even those who prefer the highest high to rejecting the offers 1 and 2 would likely find it less obviously preferable to a future where human beings continue to live for longer periods. 20 broome’s uncertainty about value potentially remains. this lingering uncertainty about the extent to which things are good or bad is no worse than what we find in any other scenario. even broome notes that expected value theory will not help with this uncertainty (2012: 184). 21 e.g., rejecting the offer 2 includes a long period of stagnation (which is not nick bostrom’s “permanent stagnation” (2013: 20) since extinction occurs). 22 one may argue that this would result in a decrease in morally relevant diversity, but a fully realized human contributes to diversity in the history, resulting in a tradeoff of the loss of diversity. there is reason to question the long-term relevance of this diversity criterion even in the absence of that tradeoff. as lenman argues (2002: 255), it seems more important that humanity exist at some point in a history to contribute to diversity than for it to continue to exist indefinitely. diversity could be a bad-making feature of extinction at any given time, but if we take a sufficiently impartial view and analyze outcomes of whole histories, it is no longer relevant. diversity over a history may additionally benefit from humans failing to exist if some species can only exist where humans do not. 23 bostrom suggests this is an issue with many existential risks (2013: 22). offsetting the harms of extinction 21 leap 3 (2015) it is important to examine these harder cases comparing early extinction to a history where humans continue to live for longer periods. yet the only fundamental difference where one is using the most plausible outcomes valuations is that the amount of utility the current generation would need to experience to make imminent extinction preferable is much higher than it is in the easy cases. even if we grant that the loss of potential persons could make a history worse, extinction is not worse than even alternatives where humans continue to live even very good lives for thousands or even millions of years if it came about as a consequence of existing people being guaranteed lives that were very much better. consider: rejecting the offer 3: the scenario in rejecting the offer 1 takes place but thousands of years pass before the extinction of the human race due to natural circumstances. rejecting the offer 4: the scenario in rejecting the offer 2 takes place but thousands of years pass before the extinction of the human race due to natural circumstances. given a sufficiently long period of time, one may plausibly believe that the gains in quantity of lives in these outcomes when compared with the highest high would be outweighed by the lower quality of people’s lives. much longer time periods make hastened extinction less compelling.24 if one accepts beckstead’s claim that “it is not absurd to consider the possibility that civ ilization continues for a billion years, until the earth becomes uninhabitable” (43), rejecting the offer 3, in which humans continue to develop, or rejecting the offer 4, where human development plateaus, could be plausible constructions of these long histories.25 variations on rejecting the offers 3 and 4 suggest that extinction should often be avoided, but, given certain assumptions, the highest high may still be preferable. from an outcome-based perspective, extinction should be avoided where the positive benefits of an act that w ill result in or hasten extinction will not outweigh the loss of potential utility of future generations. for any given comparison with a potential future, one should focus on the potential utilities of future histories. to determine whether the highest high is preferable to rejecting the offers 3 and 4, one must be able to calculate the total amount of utility in each. whether the highest high will outweigh 24 one may worry that these additional numbers will eventually lead to return to the repugnant conclusion. the structure of rejecting the offers 3 and 4 ensures a relatively high amount of well-being in both scenarios. i nonetheless discuss this concern below. 25 return to the repugnant conclusion is unlikely. broome says “we cannot reduce t he cha nce of ex tinction to zero” (2012: 179). richa rd k raut ag rees (2011: 163). they a re likely right. 22 michael da silva leap 3 (2015) rejecting the offers 3 and 4 depends in part on what ‘the highest level of f lourishing possible’ in the highest high means. it is easy to see how, allelse-being-equal, much longer periods of time w ill create much greater amount of utility over the history of humanity. rejecting the offers 3 and 4 thus include more utility than rejecting the offers 1 and 2 respectively. whether they will include more utility than the highest high is not obvious. it is natural to assume that we will eventually reach a point where the amount of time is sufficient long that even a much smaller amount will sum (or even average) to a higher amount than the pill in the highest high could possibly reach. return to the repugnant conclusion is supposed to make this clear. in cases where extinction will eventually take place, albeit millions of years later, the question of whether more people experiencing less good for longer periods of time includes more utility than everyone alive today experiencing the highest amount of utility possible depends on how much utility the present generation could enjoy. it is hard to imagine ‘indefinite utility’ that could offset any potential lesser good in the future. there likely is a limit to the amount of utilit y any person could experience, but (g) remains true where the alternative histor y extends for thousands or even millions of years iff the limit on the amount of utility currently existing persons could accrue is sufficiently high that they could accrue more utility than many future generations. if the limit is sufficiently high, it may be such that the good current persons get from taking the pill is greater than thousands, millions or even billions of years of existence in any of the four rejecting the offer scenarios. if the gap between present utility levels and our maximal utility levels is sufficiently high and one is only interested in choosing bet ween better outcomes, then, one may choose the highest high over rejecting the offers 3 and 4. given what we know about human physiology and psychology, the gap between humanity’s current utility level and the maximum amount we could enjoy is likely insufficiently large to offset millions of years at current or even lesser levels of utility. but imagine a pill that brings us beyond our current maximal capacity such that the highest level of utility is beyond current human limitations and results in each of us experiencing bliss much greater than the cumulative well-being of hundreds of persons at our current level living long lives. if this is the pill on offer in the highest high, humanity would not err in collectively agreeing to take it on risk of sterility. even if humanity would continue to develop such that future generations would flourish much more than we do today, experiencing goods far beyond our current capacities, a pill that could take existing persons beyond that level and provide the maximal amount of utility possible could produce more ut i l it y prov ided t hat t he ma x i ma l a mou nt of ut i l it y possible is suf f icient ly high. offsetting the harms of extinction 23 leap 3 (2015) one may suggest t hat beings who took t hat pi l l wou ld no longer be recognizably human. the pill would then result in the immediate extinction of humanity by another name. yet most theorists agree that any history of humanity that will continue for thousands, let alone millions, of years needs to appeal to human beings’ descendants (e.g., beckstead 2013: 43). the relevant comparison thus assumes we are dealing w ith beings that may not be recognizably human (but are closely related). while some will reject this assumption, it is sufficiently pervasive to support my demonstration that there is a way of understanding the highest high that makes it preferable to rejecting the offers 3 and 4.26 if the limit of human flourishing is sufficiently low, the highest high may not be preferable to different rejecting the offer scenarios. eventually there w i l l be a long enough period of t ime t hat w i l l ma ke reject ing t he pi l l necessary given a sufficiently long period of time and some cap on the highest level of utility possible. a problem for this salvation of anti-extinction-based intuitions nonetheless threatens. perhaps any time extension of this sort would create a gap between the level of well-being of pill takers and future generations such that the scenario would mirror return to the repugnant conclusion in certain respects. the idea that a world with more persons who are less well-off could be better than a world that has a smaller but still considerably large number of persons (and, indeed, more than enough for society to function) who are much better off strikes many as implausible, but the source of the repugnance of the repugnant conclusion is hotly debated. the repugnant conclusion seems to demonstrate that, once a sufficient number of persons exist, the aim should not merely be to ensure more people exist, but also to ensure that each person experiences a certain level of well-being. given that the persons in both worlds are living lives worth living, the problem cannot be that the level of well-being in either world is too low in an absolute sense. the repugnance of the repugnant conclusion only occurs in comparative analyses. one explanation for it is that the gap in well-being bet ween persons in the first possible world and those in the other is too large to be justifiable. the gap in quality of life across worlds makes the creation of lives worth living seem repugnant even when the lives would otherwise be worth living. if return to the repugnant conclusion is problematic not because of the much lower amount of well-being allotted 26 depending on how one individuates species, it is possible that beckstead’s multiple pha ses of hu ma n it y/post-hu ma n it y w i l l cont r ibute to d iversit y more t ha n t he i nsta nt development of the pill in the highest high. one may argue that this would be a further bad-ma k ing feature of ex tinction in t his circumsta nce t hat is not adequately covered by utility calculations. even if one grants that the manner of species individuation that would undermine my position is correct, it is possible that the number of species that could f lourish in the absence of humanity would be greater than the number of post-human species. such speculation should be examined elsewhere. 24 michael da silva leap 3 (2015) to each person in the world with more persons as such, but because it is much lower than what we take to be acceptable, perhaps a sufficiently high level of maximal utility could make existence even at the a very good level seem repugnant compared to the blissful level produced by taking the pill. even the existence of many more persons for a long period of time at a current level of well-being may seem repugnant when one compares the quality of life at the blissful level with the quality of life at our current levels of wellbeing. rejecting the offer 4, where human development plateaus, seems particularly problematic here, though development at a slow enough pace in rejecting the offer 3 could also be worrisome. i suspect that the comparative explanation for the repugnance of the repugnant conclusion is the wrong tack, but the fact that the lives in return to the repugnant conclusion are wor t h l iv i ng ma kes t he cla i m t hat t he y a re absolutely, r at her t ha n relatively, bad implausible. defenders of rejecting the offers 3 and/or 4 need to ex pla i n why we prefer t he hig hest hig h to ret u r n to t he repug na nt conclusion without appealing to the large gap in the relative well-being of persons across the scenarios or risk a similar gap in the relative well-being of persons in the highest high and rejecting the offers 3 and 4 undermining their position. the badness of extinction is still not as obvious as it seemed. if we can limit the maximal amount of utility that could be brought about by the pill, lengthen the amount of time in the rejecting the offer scenarios to a sufficiently long period that the total utility in the scenario would be g reater t ha n t hat a mount, a nd ex pla in why return to t he repug na nt conclusion is worse than the highest high without appealing to a comparison that is mirrored by any rejecting the offer scenario and the highest high, then it is easy to construct scenarios where even one who is only concerned with total utility in an outcome should refuse to take the pill. the number of conditions here would, however, likely surprise many. laypersons likely believe their intuitions that hastening extinction is a bad thing will survive most scenarios. this jolt to intuitions strengthens the claim that the highest high reveals a non-obvious truth about the badness of extinction on outcomebased analyses: it is comparative and can be offset. 5. possible future generations who would greatly flourish if beckstead’s speculation about the future is correct, however, it is more likely that anyone who will approach the blissful level will do so through a gradual process of development (like in rejecting the offer 3). the intergalactic salesman is unlikely to arrive soon. even if s/he could exist, it is likely that s/he w i l l on ly v isit in a fa r f uture in which we ca n communicate w it h extraterrestrials and interstellar commerce can be done efficiently. it is more likely that the highest level of flourishing will require continued technological offsetting the harms of extinction 25 leap 3 (2015) development.27 it is, in other words, unlikely that we will f lourish more than any potential future generation that could exist. it is thus worth considering what we should believe about the possible existence of people whose lives would be vastly better than the lives of the most fortunate actual people, but a few comments will have to suffice here. if an impartial observer knew that the highest high would take place 1,000,000 years from now, then, all-else-being-equal (e.g., assuming there are no periods where everyone has lives that are not worth living in the interim), s/he would have reason to prefer a history that lasted that long. consider: weak batch: the pill from the highest high is offered to humanity in a diluted form that will only bring the existent generation up to level of the best life anyone is currently living. the salesman says s/he could provide a better batch in the future that would bring a future generation up to the highest high. ingesting the weak batch now will produce infertility that would make such a trip useless. humanity takes the weak batch. the value calculations above suggest humanity should not take a pill that could raise all existing persons up to the level of the best currently existing persons with the same infertility side effect as the pill in the highest high if it knows that a much higher level of flourishing could be experienced by a future generation. the future generation would not be harmed by not being able to take the pill, but the history of the world would be worse if they were given the opportunity. even a massive boost in well-being for the current generation beyond what anyone experiences today cannot justify hastening extinction to an earlier date. a ‘stronger batch’ situation produces the same resu lt. from a n impa r t ia l perspect ive, t he current generat ion has no specia l standing. yet more interesting questions arise when we contemplate future periods of great levels of f lourishing below the maximal level in the highest high. consider: good times ahead: development in rejecting the offer 3 creates a period of overwhelming positive utility in the future, much higher than 27 bostrom posits a technological completion conjecture: “if scientific and technological development efforts do not effectively cease, then all important basic capabilities that could be obtained through some possible technology will be obtained” (2009: 190). one can imagine a version that brings humanity to its highest level of f lourishing. given certain technological developments, we may reach a point where humanit y’s highest ends can be realized even without the intervention of an intergalactic traveler. if reaching this point requires sterility a nd we k now t his side ef fect is unavoidable, t he choice scena rio is simila r to t hat of t he intergalactic traveler. this piece provides guidance on how to make that choice. see note 18. 26 michael da silva leap 3 (2015) the level any human experiences today. the forgoing provides the tools necessary to decide whether one should prefer this to the highest high. if its “overwhelming utility” is greater than one would get by taking the pill, good times ahead is preferable to the highest high. if the maximal level of utility in the highest high is sufficiently high and the “overwhelming positive utility” in good times ahead is less than the maximal level, it is possible that the gap is such that even the addition of other periods could not result in utility at the level of the highest high. the highest high would thus be preferable. 6. explaining another intuition extinction, then, is not bad in certain circumstances on most plausible outcome-based analyses. this helps explain common intuitions about the relative badness of the deaths of the last person and others. many do not think the death of the last person is worse than the death of others who preceded him/her. the fact that one death would bring about the extinction of humanity is not seen as conclusive proof that it is worse than others. the simplest explanation for this intuition that does not run afoul of other plausible ethical stances is that the outcome of this death, extinction, is not worse than the outcome of other deaths where other persons remain. the intuition about the relative badness of deaths is most easily raised when comparing the death of the last human and the death of the human immediately preceding him/her. it is stronger where we imagine that the last humans know each other. many people do not believe that the last human death would be worse than the penultimate human death. the penultimate death may even be worse since the last person will mourn the penultimate person’s death in the circumstances, if s/he knew that person, and then live alone without interpersonal connections that provide most of life’s meaning. s/he could be deeply affected by the death of the penultimate person even if s/he did not know the penultimate person, but only knew of his/her existence. samuel scheffler “would choose not to live on as the only human being on earth even if the alternative were not that human society would survive after my death but rather that everyone including me would die… [this preference most importantly] ref lects the strongly social character of human valuing” (2013: 80). this claim is supposed to be evidence for the badness of extinction, but can support the claim that the death of the last human may not be the worst one. for scheff ler, knowledge of imminent extinction renders one’s life plans meaningless and one’s projects valueless. one’s current values are likewise tied to the existence of other persons at the same time. we need other people to value our lives. if scheff ler is right, the death of the last person is less bad than the death of second last person. offsetting the harms of extinction 27 leap 3 (2015) desires to ensure that one last person remains alive, even indefinitely, are thus curious. the fact that the last and penultimate persons are among the last members of society obscures a larger truth: we often think that the fact that the last person alive is the last person alive does not make his death any worse than the death of many, and perhaps even any, other persons. the mere fact that s/he was the last person in existence does not make his/her life any more valuable than another. barring circumstances in which the person’s status as the last person was the result of virtues fully in his/her command, we often think that this status is arbitrary and could easily be otherwise. if this is the case, there is little reason to mourn his/her death any more than we would mourn the death of an equally valuable contributor to society today. the claim that the deaths are not worse than one another is slightly different from the claim that there is no reason to mourn one more than the other. the latter claim is trivially true if we consider mourning to be a strictly post hoc determination: there is by definition no one to mourn the last person on earth after his/her death. we must instead examine the former question in an ex ante manner and compare which of two deaths we would prefer not to take place in certain circumstances. this determination is similar to one on which death is worse all-things-considered from the standpoint of the impartial observer judging outcomes. many think neither death is worse than the other. some believe that the death of the last person on earth is better than the death of earlier persons in certain circumstances. the easiest explanation for these intuitions, treating one death as worse than the other seems arbitrary, is not the best explanation. the relative badness of the deaths of two persons who are otherwise the same should not be determined by the order of their death. reversing the order seems morally irrelevant. intuitions about the relative badness of the deaths of the last and penultimate persons thus cannot be fully explained by the irrelevance of the moral order of actions. the order of actions affects their independent moral status elsewhere.28 this could be true where the order ot her w ise seems to be a n a rbit ra r y dist ing uishing ma rk bet ween t wo cases. the best explanation for intuitions supporting the v iew that the death of the last human on earth is sometimes no worse than and even preferable to earlier human deat hs is simply t hat sometimes t he later deat h is preferable despite bringing about the extinction of a species. in other words, the best explanation is that the ultimate outcome of extinction is preferable to an alternative in which persons continue to live in limited circumstances. (g) helps explain intuitions about the relative badness of 28 mcmahan plausibly argues that “the order does make a difference” in determining the permissibility of certain actions in the domain of abortion and prenatal injury (2006: 649). 28 michael da silva leap 3 (2015) deaths without appealing to questionable claims about the moral irrelevance of the order of actions. this provides further reason to accept it. conclusion t he ex t i nct ion of hu ma n it y, t hen, is not i nt r i nsica l ly bad a nd m ig ht be comparatively bad only by being an absence of what would have been good. this absence can be out weighed by current goods. thus, the extinction of huma nit y is not a lways worse t ha n a lter nat ive possible f utures. even t he i m m i nent ex t i nc t ion of hu ma n it y may be prefer able to t he c ont i nue d existence of humanity for long periods of time at high levels of well-being on most plausible valuations of outcomes provided that extinction takes a certain for m. met hodolog ica l ly, t hen, one shou ld not choose a mea ns of va luing outcomes merely to avoid imminent extinction. extinction may be preferable in certain circumstances regardless of what view ones takes. the insights here, then, have methodological value. they should also help clarify why extinction should not be hastened now and when it may not be the worst outcome. bibliography beckstead, n., 2013: on the overwhelming importance of shaping the far future, phd thesis, department of philosophy, rutgers university. benatar, d., 2006: better never to have been, oxford: clarendon press. bostrom, n., 2002: “ex istentia l risks: a na lyzing human extinction scenarios and related hazards”, journal of evolution and technology 9. — 2009: “the future of humanity”, in new waves in philosophy of technology, ed. jan-kyrre berg olsen, evan selinger and soren riis, 186-216, new york: palgrave mcmillan. — 2013: “existential risk prevention as global priority”, global policy 4: 15-31. broome, j., 2012: climate matters, new york: w.w. norton & company. kavka, g., 1982: “the paradox of future individuals”, philosophy and public affairs 11: 93-112. kraut, r., 2011: against absolute goodness, new york: oxford university press. lenman, j., 2002: “on becoming extinct”, pacific philosophical quarterly 83: 253-269. mcmahan, j., 1986: “nuclear deterrence and future generations”, in nuclear weapons and the future of humanity, ed. avner cohen and steven lee, 319-339, totowa, nj: rowman & allanheld. — 2006: “paradoxes of abortion and prenatal injury”, ethics 116: 625-655. — 2013: “causing people to exist and saving people’s lives”, the journal of ethics 17: 5-35. pa r f it, d.,1984: reasons and persons, oxford: clarendon press. — 2011: on what matters: volume 2, oxford: oxford university press. — 2013: “death and the afterlife”, in death & the afterlife, ed. niko kolodny, 15-110, oxford: oxford university press. http://philosophy.rutgers.edu/dmdocuments/nuclear%20deterrence%20&%20future%20generations.pdf leap 3 (2015) temkin, l., 2008: “is living longer living better?”, journal of applied philosophy 25: 193210. — 2012a. rethinking the good: moral ideals and the nature of practical reasoning, new york: oxford university press. offsetting the harms of extinction 29 leap 3 (2015) the limits of moral argument: reason and conviction in tadros’ philosophy of punishment1 e r ic blu m e nson suffolk university abstract for generations, philosophers of punishment have sought to revise or combine established t heories of punishment in a way t hat cou ld reconci le t he utilitarian aims of punishment with the demands of deontological justice. victor tadros’ recent work addresses the same problem, but answers it w it h an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. the unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between tadros and his critics on many of the individual claims that, linked together, comprise his argument. this critique focuses instead on tadros’ theory as a whole and the methodology he uses to support it. it proposes that tadros’ argumentative strategy can’t justify his rationale by virtue of (1) the extent and complexity of the moral reasoning he invokes, (2) the counter-intuitive results his theory produces in an array of specific cases, and (3) the superiority of a negativeretributivist account in which moral reasoning and intuitive judgments, and the principles and applications that f low from each, are coherent and mutually supportive. victor tadros responds to these arguments in an essay following this critique. key words : moral philosophy, punishment, criminal law theor y, moral reasoning, tadros the philosophy of punishment covers enormous ground, but if one problem endu res at its core, it is t he con f l ict bet ween t he ut i l ita r ia n a i ms of punishment and the demands of deontological justice. they seem mutually 1 i am particularly grateful to victor tadros for responding to this critique, to participants at the nyc criminal law colloquium for their comments, and to carol steiker and harvard law school for arranging the symposium with tadros at which i presented an early version of this paper. thanks are also due to jeff alsdorf, jeffery atik, claire blumenson, jeanie fallon, stanley fisher, gabriel lev in, steven nathanson, derek parfit, pat shin, ken simons, ror y smead, marion smiley, rayman solomon, and terrell ussing for their comments and counsel. the limits of moral argument 31 leap 3 (2015) exclusive in theory, and may often generate different sentences in practice. finding a principled way to combine them has motivated generations of criminal law theorists. this challenge has served as a kind of conceptual rosetta stone that, if met, might clarify much of the field. the philosopher victor tadros has applied his considerable skill to the problem and believes he has solved it. in his highly regarded 2011 book the ends of harm and in papers since refining some of his views,2 tadros offers a truly original justification for state punishment, and does so with impressive dept h a nd cla r it y. t he a ston ish i ng advent of a new mora l accou nt of punishment has already inspired three journals to publish symposia on its merits, and prompted punishment theorists to revisit widely varied areas of the field. tadros and his critics have commenced a robust dialogue on many of the individual claims that, linked together, comprise his argument. i join that endeavor in part 1(b), infra, enumerating what i see as weak or missing links in tadros’ argument. although i raise these substantive objections to particular claims, my principal interest is in the argument as a whole, and the methodology tadros uses to construct it – subjects that are necessarily excluded from the piecemeal analyses that have occupied tadros and his interlocutors to date. a central claim is that this methodology is out of balance: it places too much faith in conceptual argument and too little in intuitive moral judgment; its extreme reliance on distended chains of reasoning leaves no role for deeply held convictions about specific cases.3 one can’t reach an end-point of reflective equilibrium with such a methodolog y, and i believe this, more than any 2 tadros has developed and in some respects revised his theory in response to critics (2012; 2013; 2015a) and in his response to this critique (2015b). 3 rawls distinguished three categories of normative beliefs that should play a role in the method of moral reasoning he called wide reflective equilibrium: considered judgments about specific cases, moral principles and rules, and moral theories (rawls 1971: 19-21, 48-51). the distinctions are orthogonal and overlapping, however, because we may also have considered judgments about moral principles and theories (rawls 1999: 286, 289; also see brun 2014). “considered judg ments” a re a k in but not identica l to what ot hers ca ll “pre-t heoretica l convictions” or “moral intuitions.” as an example, one might believe that slavery to be immoral (a) by virtue of an intuitive conviction that such is the case, or (b) by inference from other beliefs that yield that conclusion; judgment “a” would qualify as a considered judgment in rawls’ usage if it also satisfied certain epistemological safeguards – stability over time, relevant knowledge, impartiality, etc.. “considered judgments about specific cases” thus supply two ingredients to mora l inquir y, bot h integ ra l to t he met hod of ref lective equilibrium: mora l conv ictions regarding particular cases, which in their specificit y can act as a check on more general principles and theories (and vice versa); and moral intuitions as provisionally credible sources of moral knowledge. both dimensions of a moral belief are important to my critique. regarding its degree of generality, section 3 argues that specific sentences the duty view would generate are so unacceptable as to warrant rejecting the theory. regarding its grounding, section 2 argues that intuitive moral judgments matter, and cast more doubt on tadros’ counter-intuitive conclusion than his distended chain of inferential reasoning can support. 32 eric blumenson leap 3 (2015) particular weakness in tadros’ reasoning, accounts for the theory’s failure to persuade t he numerous commentators who have sought to pick his argument apart. methodological imbalance is not a problem for tadros alone, but constitutes an occupational hazard for moral and legal philosophy generally, given that conceptual argument is at the heart of what philosophers and law yers are trained to do. but tadros’ argument is an especially fruitful example with which to consider t he use of reason, intuit ion a nd judg ment in mora l argumentation generally: it is precisely because tadros’ moral reasoning is so exhaustive, accomplished and transparent that its frailties and limits come into view. this study proceeds as follows. part 1 describes tadros’ justificatory theory of punishment, distilling his argument down to eleven sequential steps a nd ident if y ing severa l wea k or missing lin ks a mong t hem. the balance of the article puts these piecemeal critiques aside and evaluates the methodolog y and strength of the argument as a whole. part 2 argues that tadros’ argumentative strategy can’t take him as far as he seeks to go, simply by v irtue of the extent and complex it y of the moral reasoning he invokes. part 3 demonstrates the counter-intuitive results his theory would produce in an array of specific cases, and argues that results so at odds w it h st rong a nd sett led conv ict ions count heav i ly aga inst t hat t heor y. fi na l ly, pa r t 4 demonst rates t hat a n a lter nat ive – a for m of negat ive retributivism -remains more persuasive than tadros’ theory because it leaves us in a position of ref lective equilibrium, in which moral reasoning and intuitive convictions, and the principles and applications that f low from each, are coherent and mutually supportive. 1. tadros’ theory of punishment on one view, punishment is justified by the intrinsic goodness of a criminal’s suffering in proportion to his desert. tadros entirely rejects this idea; he believes that no one deserves to suffer and that suffering is never valuable in itself, whomever it aff licts. for tadros, the only possible ground for punishing someone lies in its beneficial effects. his rationale for punishment is exclusively instrumental. tadros calls his philosophy of punishment “instrumentalist” rather than “consequentialist” because he wants to distinguish clearly between his justification of punishment and the comprehensive theory of morality known as consequentialism (2011: 25, 39-40). were his theory consequentialist in the latter sense, he would face the familiar devastating objection: because the limits of moral argument 33 leap 3 (2015) results are all that count, the theory could require imprisoning a mobster’s innocent mother when there would be utilit y in doing so, and even her execution if it would deter more killings than the one it would inf lict. this is unacceptable to tadros, but so is the retributivist solution that grounds punishment in the offender’s desert. tadros’ third way is a hybrid position: an instrumentalist rationale for punishment situated within a non-consequentialist moral theory. he insists that the value of punishment lies in its deterrent impact, but also recognizes deontological side constraints on pursuing it – most importantly, the means principle prohibition on using a person merely as a means to another’s benefit (13, 23). in tadros’ telling, this constraint places very stringent limits on government actions (so much so that only a libertarian state would seem to comply with it.4) we punish in order to reduce crime, but the means principle restricts its inf liction to the guilty, tadros claims, because only the guilty have a duty to submit to it. for that reason, tadros calls his theory the “duty view” of punishment. of course, everything depends on establishing that this duty exists, and that it derives from something other than desert. (otherwise all tadros has done is change words, substituting a “duty to suffer punishment” for “just deserts.”) tadros’ starting point is the example of one person attacking another: uncontroversially, the assailant is morally liable to be harmed by defensive force. tadros then argues that if the assailant completes the crime, his liability to suffer harm persists, extending to a series of residual and remedial duties that culminate in a duty to deter crime by submitting to punishment. 4 tadros argues that the state may not tax people to finance retributive punishments, both because (1) liberal neutrality would rule out compelling people to finance a controversial, non-neutral conception of the good, and in any case, (2) citizens are not bound to expend resources to pursue the good unless they have a duty to do so (2011: 79-83). he argues that measures protecting people from crimes are not subject to either objection, because citizens have rights to securit y t hat create co-relative duties to prov ide it (82-3). by contrast, he classifies retributive justice as an impersonal good and “it is much more difficult to justif y forcing a person to make a contribution to the pursuit of goods that are not grounded in the rights of others,” like the promotion of natural beauty, because each citizen is entitled not to pursue them (81). of course, this objection would eliminate large areas of government funding well beyond the promotion of natural beauty or the arts. massive infrastructure projects like america’s rural electrification project in the ‘30s or interstate highway system of the ‘50s are also not “grounded in the rights of others.” even funding such things as health care or occupational safety would seem to require a showing that people have rights to them and co-relative duties to provide them through the state. for that reason, the implications of tadros’ argument seem to approach the strict libertarianism robert nozick (1974) propounded, and bring to mind nozick’s famous claim that redistributive taxation is akin to forced labor. compare nozick 1974: 169 with tadros 2011: 79, wherein tadros argues that to “use resources that a person produces for the pursuit of [a] goal is perhaps not as coercive as forcing them to work for the sake of that goal, but the difference is not terribly significant.” 34 eric blumenson leap 3 (2015) that’s a very long road to travel. how does tadros get all the way from the permissibility of defensive force to the permissibility of state punishment? a highly distilled and simplified version of tadros’ argument as i understand it consists of the following multiple-step progression. 1.1 tadros’ argument in eleven steps liability to be harmed by defensive force i. all persons have a moral duty to refrain from wrongful aggression against others. ii. if wrongful aggressor a commences an attack upon victim v, a has a residual duty to prevent its completion or harmful impact on v if possible. a’s obligation includes incurring a proportionate degree of harm if necessary to thwart the crime. note: a's obligation to incur harm does not arise because he deserves it. it stems in part from a principle of distributive justice, the choice principle. on this principle, if someone must suffer, it is better that it be a person whose choice created the situation than someone merely trapped in it. (whether it is “better” prudentially because we all have reason to value choice, or morally because it is fairer, neither view treats deserved suffering as good.) here it was a’s choice to attack v that made the threat of harm inevitable (2011: 56).5 iii. v (or a third person) may enforce a’s duty to avert her threat by using defensive force against a that inflicts no more harm than a would have been liable to suffer in discharging her own duty to avert her threat. residual duty to compensate victim by protecting against other crimes iv. if a’s attack succeeds and harms v, a has a residual duty to provide a remedy to the victim. v. the remedy a must provide v is protection from future crime, even at significant cost to herself, as long as that harm is (a) no more than a was liable to suffer from v defending himself at the time of the crime, and (b) proportional to the harm it would prevent. 5 tadros (2011: 56) says that while the opportunity to avoid being harmed will often coincide with culpability, it is the element of choice rather than desert that is basic. the obligation to submit to defensive force appears over-determined in tadros’ theory. w hether the choice principle is necessary to his argument is left unclear given his sporadic reliance on the aggressor’s breach of her duty of non-aggression to justify, by itself, the residual duty to suffer defensive force that follows. if it is the latter, there is a question whether forcing the aggressor to do what he had a duty to do can fulfill the duty, because it may completely bypass the aggressor’s agency. (see duff 2013: 116-117.) the limits of moral argument 35 leap 3 (2015) note: suppose a 1 has just shot v when a 2 arrives on the scene and independently attempts to shoot v. v may use a 1 as a protective shield against a 2 ’s attack even though a 1 was not responsible for it, based on a 1 ’s remedial protective duty. w hile this uses the aggressor as a means, it does not v iolate the means principle because she has a duty-based liability to suffer that harm. regarding the specification of protection as the remedy, tadros argues that monetary compensation is ordinarily an inadequate remedy for a serious crime, and often unavailable in any event, so something more akin to specific performance is required of the aggressor: to protect the victim against a future crime of similar gravity (2011: 2, 277-78). vi. on efficiency grounds, criminal wrongdoers are obligated to pool their protective duties and take responsibility for protecting each other’s victims (193-94, 280). note: consider two assailants, each responsible to protect her particular victim from a future crime. if each assailant is unable to protect the person she attacked, but is able to protect the other’s victim, both have an enforceable duty to do so. in the previous example, a 1 was liable to be used as a shield to protect v from a 2 . as a result of this implied exchange, a 1 may now be used as a shield to protect someone else. duty to submit to punishment v ii. if punishing wrongful aggressors can deter crimes against the victims they are responsible to protect, they have a duty to submit to punishment, subject to the same limits as step #5 (279-80, 291). state’s exclusive right and responsibility to punish viii. the state may enforce a wrongful aggressor’s duty to submit to pu n ish ment by punishing her (395). ix. because all citizens have a modest duty of mutual protection, all victims are obligated to use their right to protection-through punishment to protect others as well as themselves (298). x. for reasons of prudence, effectiveness and fairness, the state is best able to fulfill the v ictim’s dut y to punish. therefore, all victims have an obligation to transfer their rights to punitive compensation to the state (297-99, 304-05). x i. as the exclusive instrument of enforcement of both citizens’ and aggressors’ protective duties, the state is obligated to punish w rongful aggressors (293, 299-305). 36 eric blumenson leap 3 (2015) hence the core principle of the duty view: the state has the exclusive right and responsibility to punish a wrongful aggressor for the purpose of general deterrence, provided that (a) the harm the punishment inf licts is proportional to its beneficial consequences, and (b) does not exceed that which the aggressor was liable to suffer in order to avert his crime. 1.2 some weak links in the argument critics who quarrel with a particular step in an argumentative chain often assume that the argument is only “as strong as its weakest link.” in fact, as the next section argues, an inductive chain of reasoning is not as st rong as a ny of its indiv idua l lin ks, however wea k or st rong, a nd t his problem may prove fatal to an argument as distended as tadros’. but first, with tadros’ individual claims now in mind, it is worth noting some particularly weak or missing links in that argumentative chain. step 5 the prior step has established that if a wrongdoer does not thwart the crime he started, he must do the next best thing: he must provide a remedy to the victim. step 5 specifies that “[t]he appropriate way to remedy that wrong is by providing protection to victims and other citizens against future harm.” (2011: 2). but that claim dismisses alternative types of rectification – monetary payment in a theft case, for example, or surgery and long term care in a maiming case. this move has spurred a fair amount of argument between tadros and his critics which i need not repeat here, other than to note that nothing in tadros’ further arguments obviates the two problems noted in the margin.6 step 6 this step seeks to establish the aggressor’s obligations to people he has never threatened: he has a qualified duty to exchange responsibilities with other wrongdoers, so that each victim will be protected by somebody. the duty to pool responsibilities is contingent on the greater effectiveness 6 first, ma ndating a protective dut y rat her t ha n permitting moneta r y or ot her compensation deprives the victim of any choice in assessing how she might best overcome the damages she suffered. in a theory largely concerned with assuring respect for the moral status of autonomous persons, why shou ld t he state a rrogate t his choice to itself ? (see tanguay-renaud 2013: 154; ferzan 2013: 193-94). responding to this criticism, tadros has argued that leaving this choice with the victim “may lead her to violate the duty of protection that she owes to others.” (2013: 307). as i argue later in this section, it is more likely that the state will violate its duty to protect the victim’s compensatory right by aggregating it with all others and trading off among them on utilitarian grounds. second, t he residua l dut y is supposed to be t he nex t-best t hing to f u lf illment of t he original duty, and it is far from clear that the victim would be better off with protection from a possible future crime than with a remedy aimed at mitigating or compensating for damages the victim has already suffered (tanguay-renaud 2013; ferzan 2013). tadros assumes monetary compensation is inadequate, but a remedy that is contingent on the possibilit y of future v ictimization may be more so. the limits of moral argument 37 leap 3 (2015) of doing so. suppose a assaulted v, and now wants to fulfill her protective obligation by purchasing a guard house on v’s street and spending hours a day there insuring v’s safety. assuming a’s work is sufficiently onerous so that it not only provides the protection but also exacts the degree of harm a could be required to bear, is a then exempt from the exchange, and thereby lacking the special duties to protect other victims that would ground a’s liability to punishment? if so, punishment will be imposed unequally, based on arbitrary factors like the wrongdoer’s wealth or the victim’s age. step 7 step 7 specifies that the wrongdoer’s protective duty is to submit to punishment. having already established the wrongdoer’s duty to avert someone else’s threat – serving as a shield, for example tadros says, “if punishing each wrongdoer can protect other victims of crime from future of fending, each w rongdoer ought to accept t hat he must be punished. (tadros 2011: 280) assume punishment can protect victims from future crime via deterrence; note that step 7 still doesn’t establish that wrongdoers are restricted to fulfilling their protective duty by that means when there are other effective methods available. punishment is only one of many methods of deterrence, and deterrence is only one of many methods of protecting people from crime. we may achieve deterrence w ithout punishment by increasing the neighborhood police presence, and we may reduce crime without deterrence through social work, job training, or other programs that ameliorate criminogenic conditions like poverty; so obligating offenders to undergo or help finance such programs might also fulfill their protective obligations. given the suffering that punishment inflicts and tadros condemns, he needs a persuasive argument to bypass such non-incarcerative alternatives. as this step makes clear, tadros’ justification for punishment is entirely contingent on the effectiveness of deterrent punishments, a relationship that is notoriously contested and hard to determine; and if the required deterrent value is present, contingent as well on what other consequences might accrue, as tadros recognizes (2011: 40; also see ch. 15, sec. v discussing what consequences may properly count in determining proportionality; and 30, 338, 348, 352-53).7 steps 9 and 10 here tadros seeks to transform the victim’s individual right to protection-through-punishment into a collective right exercised exclusively by the state. in step 9, he establishes that victims have a duty to use their right to punish so as to protect others as well as themselves, based on the modest duty all citizens have to provide mutual assistance to each 7 america’s mass incarceration policy arguably resulted from an unduly narrow focus on crime control, to the exclusion of the social damage that would result from the removal of vast numbers of men from their communities, the diversion of resources away from policies that might ameliorate criminogenic conditions, etc.. 38 eric blumenson leap 3 (2015) other (“easy rescue”). step 10 then argues that the victim’s duty to punish includes the obligation to authorize others to punish if they will do so more effectively and fairly, and that because the state is such an agent, the victim must transfer her individual compensatory right to protection-throughpunishment to the state to enforce (301; also see 297-99, 302-07). one difficulty with this two-step argument is that it depends on a duty of mutual assistance that can’t support it. at the least, the duty of mutual assistance morally (though not legally) requires a passerby to undertake relatively costless rescues, like calling 911 or throwing a lifejacket to a flailing sw immer. does it a lso require t hat a v ict im’s compensator y rights be transferred to the state and transformed into a system of deterrent punishment benefitting victims and non-victims alike, as tadros argues? that strikes me as a bridge too far. even if the duty of mutual assistance could justify some loss in benefits, it cannot justif y the loss of the v ictim’s right to the remainder. a lthough step 10 is framed as a matter of more effective enforcement of the rights and duties of each victim, the state can only enforce them in the aggregate. my right to compensation for theft, and your right to compensation for torture, and all other v ictims’ compensator y rights, become subject to trade offs based on factors such as which punishments of which kinds of crimes will have the “biggest bang for the buck.” rights may be defeasible, but they cannot not be subject to such maximizing cost-benefit calculations and remain rights. indeterminacy and arbitrariness a more general substantive problem with the duty view is the degree of indeterminacy and arbitrariness that comes with the proliferation of a large number of duties and rights, each with uncertain borders and relations to the others. among those that play a role in tadros’ argument are a wrongdoer’s duties to thwart her crime, to prov ide a remedy, to pool her protec t ive dut ies w it h t hose of ot her wrongdoers, and to submit to deterrent punishment; a victim’s duties to punish wrongdoers and transfer his right to punish to the state; and the state’s duties to protect citizens from crime and from unjust punishment. according to tadros, some of these duties may fade over time as the dutyholder becomes less psychologically connected to the person he was when he committed the crime. needless to say, with duties as inherently broad, vague, and temporally unstable as many of these are, problems of interpretation and application are daunting. for example, when is the remedial duty satisfied and the debt paid? how should we measure the state’s duty to punish in proportion to t he good t hat wou ld accr ue -ca se-by-ca se, or system ica l ly w it h a l l the limits of moral argument 39 leap 3 (2015) punishments treated collectively? if the former, how would we isolate the effect of the individual’s punishment? as duties and rights proliferate, and as more than one applies (or is available to be applied) to a particular circumstance, attempts to define, apply and balance them will generate a large margin of error that, with successive iterations, threatens to take over the page. as i shall now argue, we get closer to justice with a discourse that is tied more directly to our moral intuitions and capable of finer distinctions than the abstract discourse of rights and duties that constitutes the duty view. 2. a methodology of diminishing returns l et u s now put a side t hese subst a nt ive c r it iques, a ssu me t hat a l l of tadros’ subsidiar y claims are indiv idually plausible, and consider how they operate collectively in an argumentative chain. i want to examine two inherent limits on the persuasiveness of highly distended moral reasoning of this type. the first problem is that, as a general rule, the more complex and lengthy the argumentative chain, the less confidence we should have in its conclusion. a chain of inductive reasoning is weaker than the sum of its parts. the second problem is comparative. w hen such an extended chain of reasoning is necessary to establish a position as revisionist as the duty view, we may think that it isn’t enough to justify rejecting much more deep-seated and immediate intuitive beliefs. however strong the argument, it will lack plausibility if it is incompatible with fundamental moral convictions that are too compelling to doubt. (i leave aside a third methodological critique that has been persuasively demonstrated elsewhere: tadros’ reliance on highly idiosyncratic hypotheticals to elicit far broader principles than they can support. see husak 2012: 19) consider first tadros’ argument on its own terms. its initial steps invoke cer t a i n i nt u it ively plau sible pr i nc iples, such a s a mor a l dut y of nonaggression; succeeding steps are mainly established inductively by taking a preceding step’s principle and eliciting responses to hypotheticals testing its extension. this multiple-step moral argument is essential because the ultimate principle it seeks to establish -that state punishment is permitted only insofar as it may fulfill the wrongdoer’s protective duty -is not at all intuitive by itself. this kind of moral reasoning suggests the construction of a building, starting with the foundation and progressing upward as each successive f loor is built. it appears to make progress by addition. but addition is a misleading metaphor for viewing this kind of argument. each successive step should reduce our confidence in the conclusion,8 for three reasons: 8 unless, of course, it adds to the plausibility of a prior one. 40 eric blumenson leap 3 (2015) (i) the longer the chain, the greater the chance for a substantive error to infect it. each additional step brings with it an additional risk of failure. (ii) the second reason applies even if every step is highly likely to be correct. it reflects the mathematical truth that a chain of inductive reasoning is not “as strong as its weakest link” but weaker. the “weakest link” adage does apply to deduct ive reasoning, where t he t r ut h of t he log ica l ly-enta i led conclusion rests entirely on the truth of its premise. but tadros’ argumentative steps are based on inductive inference, analogy, and intuition, none of which can supply the 100% confidence that logical entailment does. in this case, each step can only be judged more or less plausible, and each step makes the chain weaker by compounding the possibility of error, however minimal. a bayesian calculation would treat each step as probabilistic to the degree of it s plausibility, and the likelihood of the concluding proposition as a product of the multiplication of fractions, just as the chances of tossing two tails in a row are ½ x ½ = ¼. we can illustrate how severely tadros’ methodology undermines his thesis by assuming that each individual step in tadros’ argument is amply persuasive, with all intuitive and inferential claims highly plausible. if we represent this arithmetically by assuming a 90% level of confidence in each of the eleven steps, the likelihood of the conclusion being correct is just 31%. we may wel l have more confidence in the brute conviction that only desert can justify and calibrate punishment. now this 31% figure is illustrative and subject to reasonable disagreement. one might deem some step unnecessary, or deductive, or so self-evident as to be incontrovertible, for example. but at least five of the eleven steps would have to be entirely discounted on such grounds to render tadros’ conclusion even slightly more likely than not. (iii) some may question whether this mathematical likelihood of error is su f f icient to d iscred it a mora l a rg u ment i n t he absence of speci f ic counterarguments, or whether mathematical probabilities can be attached to moral judgments at all. but a third reason to doubt tadros’ distended argument needs no mathematical proof to warrant acceptance: occam’s razor, the principle that the simpler explanation for a proposition is more likely to be true than a complex one, all else equal. given its fruitfulness in directing scientific investigation over centuries, we need not be able to the limits of moral argument 41 leap 3 (2015) explain why this principle is true to be justified in presuming it is.9 by this standard, tadros’ 11-step argument should be rejected as unnecessarily complicated, if only because the same principle tadros uses to justify the v ictim’s right to self-defense – the choice principle – would justif y state punishment directly if punishment deters crime. if imposing the death penalt y on conv icted killer a w ill deter the unprovoked murder of b, the choice principle provides a reason to execute a because, as one of the two will die, it is fairer that it be the one who had the opportunity to avoid the risk. in his response to my “diminishing returns” argument, tadros does not contest the math, or the inverse relation between the number of steps he uses and the likelihood his conclusion is correct. he argues instead that all moral claims rely on the truth of many subsidiary claims, so all moral claims are vulnerable on this analysis, including the ones i propound elsewhere in this essay. my “diminishing returns” argument would lead to a general moral skepticism, he claims. (2015b: 58) but that’s the wrong lesson. my argument is not an invitation to moral skept icism, nor a cla im t hat intuit ions a re infa l lible, but a n appea l to consider the relative persuasiveness of different legitimate modes of moral d i scer n ment on t he quest ion at ha nd. a s mor a l a rg u ment becomes increasingly abstract and distended, the intuitive plausibility of its conclusion increases in importance. this creates a burden that highly revisionist moral arguments may not be able to meet. the problem with tadros’ multi-step argument is that it culminates in a rationale that opposes the fundamental intuitive convictions most people have about the morality of punishment, and this forces us to decide which ground of belief is more trustworthy on the issue. t h is is one a nswer to tad ros’ cla i m t hat my a rg u ments a re a s v u l nerable a s h is ow n because t hey a lso i nvolve mu lt iple steps. t he conclusions to those arguments that it is unjust to inf lict punishment in the absence of desert, and that it is unjust to the v ictim for the state to ignore his victimization – do not require us to choose between an extended chain of reasoning and our considered moral convictions. the bottom line is that tadros’ methodology places his conclusion in a less plausible i n it ia l posit ion before a ny quest ion is ra ised about t he soundness of individual links in the chain. this doesn’t obviate exploring the merits of those links, see sec. 1(b) above, but it does provide a substantial, independent ground for skepticism. 9 richard swinburne (1997) claims that “it is an ultimate a priori epistemic principle that simplicity is evidence for truth.” some argue that this principle is self-evident, constitutive of rationalit y, or another kind of foundational truth that cannot be further justified. others, however, accept occam’s razor is an appropriate methodological ma x im but not by itself indicative of truth. 42 eric blumenson leap 3 (2015) 3. counter-intuitive sentences the last section examined the intricate structure of tadros’ reasoning and whether it can support the principles he derives from it. if we examine how these principles would apply to specific cases, the difficulty multiplies. they produce results so counter-intuitive that something has to give. apparently recognizing this, tadros modifies the duty view to make it cohere with moral common sense, but to such an extent that it largely disappears; as i shall argue, with tadros’ many work-arounds in place, what remains is something very much resembling negative retributivism. this is not surprising, as so many obv ious sentencing factors are easily understood in terms of retributive desert but invisible to the duty view in its unvarnished form. 3.1 losing proportionality in punishment consider the case of dzhokhar tsarnaev, recently convicted for his part in the 2013 boston marathon bombings that killed three people and injured hundreds of others. the duty view would prohibit punishing tsarnaev if he were innocent, but is it capable of generating a proportional sentence to tsarnaev given his conviction? i doubt it, unless we so revise our moral convictions as to make irrelevant numerous factors that anglo-american jurisprudence has consistently viewed as important considerations in sentencing. for ex a mple, i n pla nt i ng t he bombs tsa r naev acted w it h ex t reme premeditation. others may kill on impulse, or after being provoked, or by negligence, or by accident. retributivism can explain the enormously different sentences imposed in killings perpetrated w ith these different levels of culpability: a premeditated killing displays a degree of blameworthiness that doesn’t exist in a negligent one, for example, and therefore deserves far harsher punishment. on the other hand, tsarnaev was a teenager, and we are likely to think he therefore deserves a different, lesser sentence than a fort y year old career criminal who committed the same crime. these factors have been important to sentencing judges because of their obvious relation to desert. retributive sentences are straightforward in that way; most retributivists believe that a punishment should ref lect the gravity of the crime and the blameworthiness of the perpetrator in committing it. if premed itat ion, yout h, a nd pr ior conv ict ions a re releva nt sentenci ng considerations under the duty view at all, there is nothing straightforward about why this is so. on the dut y view, we impose sentences based on many factors, but most centrally on the factors that governed the wrongdoer’s liability to be harmed defensively at the time of his crime. the two primary sentencing limitations are that the harm it inf licts on the wrongdoer not exceed that the limits of moral argument 43 leap 3 (2015) which (a) he would have been liable to suffer from the victim defending himself (2011: 347), and (b) is warranted for the sake of the net benefit it will produce (333-34). that sets the baseline for the wrongdoer’s liability to su f fer ha r m i n pu n ish ment, wh ich is t hen adjusted by ma ny factors, including inter alia reductions based on repentance (347-48), the passage of time since the crime (347-48), the difference between “eliminative” selfdefense and “manipulative” punishment for deterrence (319-320), and the offender’s absence of responsibilit y for the threats his punishment w ill deter (348). as to “a”, note that this proportionality requirement has little to do with t he rect if icator y basis t hat tadros invokes as t he prima r y g round for liability. the sentence is limited not by what would be required to make the victim whole, nor by what would now be required to avert a new but similar crime against him, but by how much harm the v ictim was permitted to i n f l ict defensively at t he t i me of t he cr i me. t h is seems to ma ke t he aggressor’s liability to punishment dependent on the factors that govern t he per m issibi l it y of sel f-defense. key a mong t hem a re necessit y a nd proportionality: the defender may use only the amount of defensive force that is necessary to repel the crime and proportional to the gravity of the threat it is defending against. there are other factors that may limit defensive force, but none of them are sensitive to the age, record, or culpability of the aggressor because those factors do not change the moral preference afforded the victim given that one of the two must suffer harm. nor do age, record and culpability have much bearing on compensation to someone victimized by a crime; whether the aggressor’s threat is a product of negligence, recklessness, or design is not at issue, only the degree of harm that must be rectified. on the other hand, some factors that are relevant to self-defense have little obvious bearing on punishment. most inapt is the self-defense element of necessity. a victim defending himself may use only the amount of force necessa r y to repel t he agg ressor, which mea ns t hat dif ferences in t he circumstances – such as the type of weapon the aggressor is using -will cha nge t he a mou nt of defensive force per m it ted. if one’s l iabi l it y to punishment depends on one’s liability to suffer defensive force, punishment may var y greatly among w rongdoers who are identical in ever y respect except the morally arbitrary circumstances in which they acted. the result will be sentences that, intuitively, seem much too low or much too harsh. consider as examples: a, a bank teller, embezzles v’s account. b, a purse snatcher, grabs v’s purse. should a and b’s liability to punishment vary according to the fact that v is entitled to use defensive force against b but not a? 44 eric blumenson leap 3 (2015) a shoots v and misses, leaving v unaware of his narrow escape. v has no need to defend himself and no right to compensation. does this have any bearing on whether a should be liable to punishment for attempted murder? a threatens v with a knife. v is able to retreat safely and therefore defensive force is unnecessary; but v fails to retreat, parries a’s thrust unsuccessfully, and dies. does the fact that a was not liable to be ha rmed in self-defense have a ny bea ring on what his liabi lit y to punishment should be? in his response to this last hypothetical, tadros seems to argue that the permissibility of defensive harm does not have bearing in that case, but that seems impossible to reconcile with his fundamental argument against desert.10 3.2 tadros’ work-arounds this mismatch between permissible self-defense and proportional punishment should not be surprising. even if we assume the purpose of both is to prevent crime, the factors relevant to averting a wrongdoer’s imminent threat are not the same as those relevant to using a wrongdoer as a means of preventing crimes by other people against other victims at some time in the future. tadros allows that the “transition from self-defence to punishment may not be entirely smooth,” (2011: 348) and develops a number of arguments for departing from the self-defense template he had adopted. the challenge he faces is to cha nge t he scope of pu n ish ment l iabi l it y -ex pu ng i ng t he irrelevant factors and incorporating the relevant ones -while somehow maintaining the self-defense rationale for liability. in my judgment it is a challenge that defeats him: the independent proportionality rationales he marshals become so ad hoc, and so divorced from the self-defense and compensatory grounds that preceded them, that we may wonder what the self-defense template for punishment has accomplished. some illustrations: punishing environmental crimes most criminal codes include environmental crimes that cause harm without harming any particular person – for example, the intentional killing of the last member of a marine species. duties of victim compensation can’t apply to such a case, so one can’t justify punishment 10 tadros says that v wrongs a because his defensive force was unnecessary, but that “given his wrongful act he is permitted to defend himself. it follows that there is no asymmetry between liabilit y in self-defence and liabilit y in punishment of the kind that blumenson’s argument relies on.” (2015b: 71). this seems to contradict the central argument tadros used to show t hat l iabi l it y to defensive force is just i f ied by t he choice pr i nciple, not by t he aggressor’s desert. that principle of distributive justice holds that if harm is inevitable, it is better that it befall someone who was responsible for creating the situation than one who is not. in this case, harm is not inevitable given the victim’s opportunity to retreat; and when he fails to do so, he is the person responsible for making harm to one of the two inevitable. the limits of moral argument 45 leap 3 (2015) by extending the compensatory duty. but tadros doesn’t interpret that fact to bar punishment of such crimes. rather, he develops some much more direct grounds for punishing them. on tadros’ alternative rationale, the wrongdoer had a duty to respect the natural environment, and his violation of that duty may give rise to “a duty to protect that aspect of the natural environment from further damage. if the first duty is not owed to anyone, neither is the second…. hence, it may be permissible to punish [him] to deter others from causing further damage to the natural environment.” but the duty not to commit a criminal act applies to all crimes, raising the question of why these grounds don’t obviate his more complex (and therefore, ceteris paribus, less persuasive) primary argument. why isn’t that duty sufficient to ground a protective duty to prevent further such crimes, without relying on a particularized duty to victims at all? richard burgh (1997: 316) has made an argument along these lines, characterizing a crime as a social harm that requires the offender to compensate society through punishment. punishing attempts similarly, an attempted crime does not harm a particular victim who has no knowledge of it. if the perpetrator of such an attempt is to be punished, it can’t be because of any liability to submit to defensive force or provide compensation to the victim. however, tadros thinks these crimes can be punished because attempted crimes divert police resources and make everyone less safe, thereby establishing the attempter’s dut y to compensate ever yone (2011: 326-27). a lexander (2013) has criticized the factual premise of this claim,11 and ferzan (2013: 185-86) has criticized its rationale, both because it offers no way to determine what degree of harm a wrongdoer’s diversionary act has caused, and because it holds her strictly liable for it. but even if tadros could answer these critiques, his rationale would still dictate an entirely implausible proportionality calculus. for example, it suggests that attempted drug smuggling should be punished more harshly than attempted murder, given the greater police resources devoted to preventing smuggling. since publication, tadros has turned to a different argument to justify punishing attempted crimes. he argues that it is implausible that “attempting to harm others makes no difference to a person’s liability to be harmed as a means…i do not see what argument could be provided for it. even if we think that causing a threat is very important to ground a person’s liability to avert the threat, why should we conclude that attempting to cause harm 11 alexander (2013: 172) argues that because many failed attempts would go unnoticed but for their criminality, it is “ludicrous to assert that were they not criminalized, they would be causing us to devote security resources away from averting harmful acts.” 46 eric blumenson leap 3 (2015) is insufficient on its own to make any difference at all to a person’s liability to be harmed?” (2013: 320). tadros’ intuition is clearly explainable on grounds of desert, but given his rejection of that ground, and the inapplicability of tadros’ compensatory theory, i would argue this gets the burden of persuasion backwards, that the argument missing is his own. punishment beyond compensation attempted crimes present one of several difficulties that confront tadros’ effort to justify punishment on the basis of the offender’s residual compensatory obligations. as commentators have noted, this basis also produces the unacceptable corollary that wealthy offenders may be able to buy their way out of punishment (ferzan 2013: 189-91; walen 2012). most people would find this unacceptable on grounds of inequa lit y, but because t heir measure of inequa lit y is compa rat ive desert, that can’t be tadros’ worry. his worry is that an offender who does not bear any significant cost in protecting the victim “cannot claim to have fulfilled his rectificator y dut y….[f ]or he would only have done what he would have had a duty to do independently of his wrongdoing” – the duty to rescue each other from harm if it can be done at little cost (2011: 286). so tadros annexes an independent basis of punishment liability to the duty view. he claims that: our compensatory duties are fulfilled when we have done what is required to rectif y the harm that we have caused. the duties that underpin punishment, in contrast, are not…because i could have been harmed as a means to avert a threat that i posed as a result of my wrongdoing, i may now be harmed as a means to an equivalent degree to avert other threats, even threats of a greater magnitude than the harm that i caused (288, 291; also see 283-91 discussing punishment beyond rectification). the question is, why? tadros offers two rather vague answers. the first is the analogical argument that because a guarantee of compensation does not obviate the prohibition on tortious conduct in advance, ex post compensation does not fulfill the offender’s duties either (2015a: 82-83). but this analogy works only if the reason compensation is insufficient ex ante also applies ex post, the limits of moral argument 47 leap 3 (2015) and it doesn’t. that reason depends on the act not having occurred: at that point, compensation is second best to preventing the tort to begin with. ex post no such preference exists. in fact, there can’t be a preference as to type of remedy, because both the compensatory and further duties are paid in the same currency protection from future crime. the best we get is the discussion of a hypothetical -three threats, described below12 that suggests that committing a crime subjects the wrongdoer to conscription as a utilitarian means for crime control. tadros’ grounds are that (1) the victim is in serious danger, (2) the offender is harmed to no greater degree than he is liable to be harmed to avert the threat he imposed, and (3) he could have avoided that liability simply by refraining from his wrongful act (2013: 303, enunciating these reasons for the three threats conclusion; 2011: 291). but these grounds prove too much twice over. the first difficulty is that these grounds cannot distinguish bet ween using w rongdoers to prevent crime and using them to supply organs or fulfill other important social needs. in order to avoid making the offender fair game generally, tad ros of fers some except ions to t he above rat iona le ; whet her t hese exceptions are persuasive i leave to the reader to consider.13 12 in three threats, tadros imag ines t hat bob has propelled a bou lder t hat w ill injure jane. on the duty view, jane would have been permitted to harm bob to y degree in order to stop the boulder, but the boulder is unstoppable. she can, however, use bob to divert either boulder 2 or boulder 3, each of which have been pushed towards her by others. if she uses bob to avert boulder 2, she will avert the same degree of harm that bob’s boulder will cause, at minimal injury to bob. if she uses him to avert boulder 3, she will avert twice the deg ree of injur y t hat bob’s bou lder w ill cause, but bob w ill be much more bad ly injured, though in an amount less than y (2011: 289). tadros argues that it is strongly intuitive that jane may use bob to avert boulder 3, even though using him to avert boulder 2 would fully satisf y bob’s compensatory obligation with less injury to him (291). 13 tadros says that certain kinds of punishment w ill always exceed the offender’s liability. on his account, even if an offender was subject to lethal defensive force at the time of the crime, capital punishment is impermissible given the passage of time and the difference between eliminative and manipulative harm (2013: 308). w hat about the non-lethal harm of organ removal for transplantation? tadros rules this out as well on the following grounds: (1) “it is wrong to harm a person to tackle a problem that is utterly different from criminal offending.” (2011: 354). w hether a particular punishment is excluded thus depends on what kind of differences matter and why, but we get no more than the conclusory term “different.” without a definition, the criterion cuts both ways: others would find the difference between (a) harming a wrongdoer to defend against his aggression and (b) harming him to deter the aggression of others sometime in the future sufficient to make the latter impermissible. (see quinn (1985). (2) “it may be t hat t here is somet hing specia l about organ distribution…. perhaps using a person’s organs is a particularly pernicious way of using a person…” (2013: 309). but again, without specifics we are hard-pressed to explain why incarcerating a person regardless of his desert is not similarly pernicious. (3) institutional reasons to constrain punishments: for example, the likelihood that the institutions administering transplant pu n ish ments w i l l act u n fa i rly, t he ava i labi l it y of less d racon ia n but equa l ly ef fect ive alternatives, and the expansive tendencies of criminal justice systems (2013: 308-09). notably, however, all three grounds may easily apply to exclude prison sentences as well. 48 eric blumenson leap 3 (2015) the other way that tadros’ reasoning proves too much is that it seems to leave the duty of compensation superfluous. its justification reaches all the punishments that were prev iously grounded in the compensator y dut y. the latter now seems beside the point as arguably it should be, given that a victim may be fully compensated through the civil system. let us consider a different explanation for the intuition that wrongdoers have an extra-compensatory duty to deter crime by their own punishment. daniel farrell (2015) has argued that this putative requirement must be a duty of retributive justice; tadros disputes this on the ground that “retributivist views of punishment are not grounded in duties of offenders, or the relevant duties have nothing to do with protection.” (2015a: 81) i believe tadros is right to deny that this additional duty constitutes the pure form of ret ribut iv ism t hat requires t he inf lict ion of suf fering on offenders, because his theory prohibits doing so solely for that purpose. but i find it difficult to view his claim as plausible except as an implicit if diluted version of the negative retributivist theory i argue for in the following section – the view that desert is a necessary but not sufficient condition for punishment. on the duty view, the offender has a duty to exceed compensation to the full extent of his liability to be harmed, but this duty should only be enforced if some utilitarian benefit will accrue. and on what basis does that duty exist? not on the basis of either utility or compensation, because the duty exists apart from both. in the absence of some other specification by the author, it seems t hat t he dut y persists beyond f u l l compensat ion because t he offender deser ves to suffer the additional burden. that seems to be the best ex pla nat ion for tad ros’ statement t hat a ssa i la nt ja ke st i l l owes something after he has fully compensated his victim sally: “if jake manages to benefit sally at little cost to himself, we will have a sense that he has ‘got away’ with his crime.” (2011: 289). 4. the inexorable significance of desert i have just argued that the duty view generates highly counter-intuitive instructions to a sentencing authority unless modified beyond recognition, and that retributivism offers a better account of the factors that must inform the proportionality calculation. this should count heavily against the theory unless its retributivist rival is itself lacking in some greater way. so we must assess the comparative strength of the retributivist alternative and tadros’ arguments against it. tadros argues that retributivism is not an option because it is both false and incoherent, and what intuitions seem to support it can be better explained the limits of moral argument 49 leap 3 (2015) in other ways. his central objection, and the one i shall explore here, is that retributiv ism rests on a false premise – the premise that a w rongdoer’s suffering is intrinsically valuable to the degree it is deserved (2011: 26, 45).14 but there are many retributivisms, and only some of them depend on that premise.15 therefore tadros’ critique cannot establish the dut y view’s comparative advantage over retributivism tout court. more specifically, tadros’ definition does not encompass retributivists who believe that punishing criminals is at least sometimes a duty of justice, a claim i shall argue in part 4(b). nor can it apply to the prominent version known as negative retributivism. negative retributivists do not believe that the state should punish a criminal to the extent she deserves. rather, they believe that the state must not punish the innocent, nor punish the guilty beyond what they deserve. for them, desert is a necessary but not sufficient condition for punishment; therefore punishment is justified only if there is also an additional, non-retributive basis. negative retributivists quite clearly do not believe that the “goodness” of deserved suffering requires the punishment of a criminal, and there is no reason to think they believe such suffering is good at all. but desert is still the central element in their theory: its absence bars punishment, and its presence places a n upper limit on t he permissible sentence. negat ive retributivism illustrates the error in tadros’ argument: one can’t eliminate the importance of desert to sentencing by showing that deserved suffering is, li ke a l l suf fering, bad. we ca n believe t his but a lso believe t hat t he inf liction of suffering in proportion to desert is sometimes justified as a necessary evil. there is a reason tadros dismisses negative retributiv ism, but not, i think, a good one: he believes there can be no such thing. he claims that by its terms, retributivism provides a putative reason to punish the guilty but no reason at all against punishing the innocent, or against punishing the guilty beyond what they deserve. he further argues that if it did protect the innocent, the idea would be incoherent. the next section challenges these t w o c l a i m s. fol low i ng t h at , s e c t ion 4 ( b ) s how s how a br oader nonconsequent ia l ist t heor y of pu n ish ment m ig ht just i f y bot h a l i m it on punishment (through negative retributivism) and an affirmative duty to punish (grounded on other considerations of justice), as one example of a theory incorporating desert that is not subject to tadros’ critiques. i suggest that this theory is more compelling than the duty view, given its superior ability to account for our considered sentencing judgments and its greater 14 more precisely, tadros believes that only a retributivism built on that premise would be weighty enough to justif y an incarcerative system of punishment. 15 those that do include the theories argued in moore (1997) and kirshnar (2000). 50 eric blumenson leap 3 (2015) coherence as a theory. 4.1 desert as prerequisite: is negative retributivism possible? retributivists disagree about whether their theory commands punishment of the guilty or only permits it, but it seems all retributivists believe that their theory bars punishment of the innocent, and consider this a unique and powerful point in their favor. remarkably, this is precisely the opposite of tadros’ novel rendition of retributivism, which to him constitutes only a sword, not a shield. this fol lows, he says f rom “t he ver y simple t r ut h t hat t he existence of a reason to do something does nothing to exclude the possibility that the thing (and more) could not adequately be justified on other grounds.” (2011: 36; also see 35-7, 312-13). he claims that only the duty view protects the innocent from punishment. the oddity is that the basis for tadros’ claim that the duty view bars punishment of the innocent is identical to the reason retributivism purports to do so. that reason is the means principle. the claim in both cases is that only the guilty may be punished consistent with the means principle either because only they deserve it (according to retributivists) or because only they have a protective obligation the state may enforce (according to tadros). given the parallel structure, there are no good grounds to claim, as tadros does, that the duty view bars punishment of the innocent but retributivism does not. perhaps tadros believes that the duty view includes the means principle, whi le t he ret ribut ive v iew does not. but why shou ld he t hin k t hat? the retributivist tradition since kant has most centrally embodied respect for the right of autonomous individuals to choose their ends for themselves, a constraint that restricts punishment to those who will it on themselves by their own blameworthy acts. tadros (2015b: 59) also argues that if negative retributivism did protect the innocent it would be incoherent because desert necessarily cuts both ways: i think that ‘x deserves o’ implies that there is good reason for x to get o irrespective of any further good that will be secured if x gets o. if so, there is no such thing as negative desert in blumenson’s sense. a negative retributivist may believe it bad (or unjust) for someone to get what he doesn’t deserve without being logically committed to the view that it is necessarily good (or just) for him to get what he does deserve (wasserstrom 1978: 309-10). but let us assume that tadros’ first proposition is correct. his second sentence would not follow from it if any one of the following is true: i. a reason may be overridden. an offender may deserve punishment, and this may entail that punishing him is good in one way, but the limits of moral argument 51 leap 3 (2015) the net costs of punishment may be so great as to foreclose it. here’s an analog y: equality is intrinsically good in one way; if achiev ing it wou ld require redist ribut ion t hat lef t ever yone almost as impoverished as the worst off were, doing so may be bad in a greater way; therefore, whether states should aim for equality in any particular case is contingent on the costs and benefits it would produce. ii. a mora l side-const ra int might ba r t he state f rom a iming to cause offender suffering even when deserved. that constraint would not rule out state punishment for other reasons. iii. even if “x deserves o” entails that x should receive o, desert w i l l not require punishment if “o” sig nif ies “for feiture of a libert y right” rather than “punishment.” the question here is whether one can deser ve to lose a right by his blameworthy actions, and surely it is at least coherent to think one can. some of one’s rights may be contingent on respecting the rights of others. alternatively, blameworthiness may be the fairest criterion for the distribution of individual punishments when a punishment regime w ill produce enough benefit to be justifiable. there is nothing unintelligible or inconsistent in recognizing both a moral prohibition on punishing the blameless and a humane directive to impose punishment on the guilty only when something would be accomplished by doing so. rights-forfeiture theories differ over what rights a criminal forfeits by her conduct. depending on the theory, she might retain rights against punishments that serve no utilitarian benefit, or inflict pain, or are imposed by vigilantes, for example (see wellman 2012). there are many versions, but to qualify as a form of negative retributivism, the forfeited right against punishment must be limited to punishments proportional to the offender’s desert. 4.2 beyond desert: why punish? the second and third interpretations conceive negative retributivism as a matter of principle – one that that limits who may be punished and by how much – but by itself provides no reason to punish anyone. if there is to be any punishment at all, negative retributivists must look to some other theory that provides an affirmative reason to impose punishment on an offender. many negative retributivists find that reason in the utility of punishment as a crime-preventive deterrent. that hybrid view parallels tadros’, except that the permissibility of punishment is grounded in desert rather than a forward-looking remedial duty. 52 eric blumenson leap 3 (2015) but there is powerful intuitive support for another reason to punish as well: as tadros notes, most people believe that “something is amiss when a serious wrongdoer is not punished,” even in the absence of deterrent value (2011: 276). in this final inquiry, i add this conviction to the mix and ask whether it weighs for or against either theory. if we credit this intuitive conviction as roughly ref lecting some moral truth, we must ask what exactly is amiss. tadros thinks it is the fact that “offenders who are not punished have a duty that is unfulfilled.” (276). the ret ribut iv ists he ta rgets believe it is t he fa i lure to inf lict suf fering on wrongdoers who deserve it. one might argue that a negative retributivist who rejects both views, as i have, can’t explain this intuition and that this should count heavily against his theory. there are two rejoinders. first, even if true, that criticism would not count against the theor y in a pair-w ise comparison with the duty view, which itself leaves a wrongdoer unpunished when deterrent value is lacking. second and more importantly, a negative retributivist can answer that challenge because, unlike tadros’ theory, nothing prevents him from combining a desert-based limit on punishment with a non-utilitarian rationale for imposing it. here is a rudimentary sketch of one possibility: a hybrid theory that asserts as state deontological obligations (1) a prohibition on inflicting undeserved punishment, and (2) a responsibility within that limit to impose punishment when required as a matter of justice to the victim. (whether utilitarian benefit is also a reason to impose a permissible punishment is a separate question.) the intuitive appeal of the second element is currently illustrated by the demands for “justice for michael brown” by residents of ferguson, missouri, following a grand jury’s failure to indict the police officer who killed him, and by the startling number of similar cases since. what is “amiss” in such cases, and in a state’s refusal to sanction any grave crime, is the injustice that inf licts upon the victim: the devaluation for a second time of someone who has a lready been t reated by t he per pet rator as no more t ha n a n instrument to his ends. for george fletcher, this constitutes state complicity in the crime that leaves “the victim’s blood…on our hands.” (fletcher 1995: 6, 205; also see hampton 1992: 1684, 1692; burgh 1987). complicity may be too strong, but at the least, such state inaction betrays the protective role that largely underwrites its own legitimacy, and treats the victim as an outcast. on this account, the state’s obligation to punish crime derives from the injustice it does to victims when nothing is done. but to be clear, this rationale for punishment is a qualified one: punishment is not the obligation, only a means of fulfilling it, and whether other means may also do so is necessarily the limits of moral argument 53 leap 3 (2015) dependent, at least in part, on the social meanings that prevail in a culture.16 in ours, many people believe that a long term of imprisonment is the only way of taking victimization seriously. yet it is possible to imagine a cultural shift towards less draconian methods, such as fines, community service, house arrest now enforceable through the use of gps ankle bracelets -and even non-criminal restorative justice resolutions, in which case this justification for punishment would dissolve. to be sure, the duty view is also concerned with justice to the victim - unlike the prevailing punishment theories, which neglect the victim as an independent subject of justice17 -but its conception of justice is quite different, and is contingent on its crime-prevention utility. tadros believes that the state’s obligation to repudiate crime and vindicate its victims can’t justify punishment, (2011: 87-8, 91-2, 107, 109; 2013: 255) and argues that because a v ictim’s moral status “is incapable of being eroded through w rongful action….it is difficult to see why the obligation to protect people against lack of respect is very significant in itself” (2011: 108).18 but this misses the real stakes involved in a state’s response to victimization, and leads tadros to severely underestimate its importance. w hat is involved is not merely the wrongdoer’s violation of a victim’s inalienable moral status, but the very existence of the victim’s civil status as a member of the political community. in the united states, it is unconstitutionally cruel and unusual punishment to strip a person of “his individual status in organized society”.19 a state that ignores crimes against its citizens withdraws that status. there are other hybrid theories, of course. h. l. a. hart’s distinction bet ween t he ut i lita ria n “genera l just if y ing a im” of punishment a nd a deser t-based dist ribut iona l const ra int is perhaps t he most inf luent ia l among many (hart, 1968: 8, 10). the only point here is to demonstrate the inexorable signif icance of desert in punishment as a restriction on its permissibilit y, and its compatibility with a range of affirmative rationales 16 a further, necessary question, of course, is whether any particular cultural take on the requirements of justice may be morally unacceptable. w here permissible cultural diversity ends and moral imperatives begin is a vexing problem, and one that increasingly confronts institutions of global justice. for the international criminal court, that issue takes legal form as the question whether non-criminal, transitional justice alternatives are sufficient to bar icc prosecution under its complementarity principle. rome statute of the icc, art. 17, un doc. a/confr. 183/9 (july 17, 1998). over time, icc decisions on the issue will define minimum requirements for criminal justice systems throughout the world. 17 consequentialism is concerned with the collective benefit, presumptively leaving the victim with no greater significance than any other individual; retributivism classically treats justice to the victim as if it were a mere by-product of, or necessary identical to, the punishment that is required to treat the offender as she deserves. 18 see a lso 2013: 277-79, in which tadros rejects adil a hmad haque’s cla im t hat punishment can be justified because we owe it to the victims; see haque 2013. 19 trop v. dulles, 356 us 86, 101-102 (1958). 54 eric blumenson leap 3 (2015) for punishment. w hat’s fatally counter-intuitive in the dut y view is its exclusion of any direct role for desert as a prerequisite to the permissibility of punishment. conclusion i have argued that the duty view is unpersuasive as a theory of punishment, and that an alternative theory – one that recognizes both a defendant’s right against undeserved punishment and a victim’s right to vindication – comes closer to a point of reflective equilibrium in which principles, theories, and intuitive judgments cohere and support each other rather than forcing us to choose among them. yet what a fruitful thing it is for the philosophy of punishment that tadros has made his case for the duty view! there are not many works within the field that cover so much criminal law ground with such originality, and even fewer with the potential to stimulate a new wave of thought on numerous issues in the field. and, it is to be hoped, not just in the realm of philosophy. one of the gifts of a theory of punishment as imaginative and revisionist as the duty view is that it allows us to v iew our correctional policies through a new lens, rethink old choices, and discover alternative routes to security that don’t always go through a prison gate. that route, which the united states has traveled for the last half century, has left us with over 2.2 million prisoners and the distinction among nations of imprisoning the largest percentage of its population, five times the world’s average (bureau of justice statistics 2012: 3). tadros asks us why, and what we have to show for it. his approach presses us to take the suffering of inmates seriously as a central moral element in punishment, and in so doing, to consider alternatives. for consequentialists, retributiv ists, policy-makers, judges and others who long for a morally defensible criminal justice system, that is the best place to start. bibliography alexander, l., 2013: “can self defense justify punishment?”, law and philosophy 32: 159-75. brun, g., 2014: “reflective equilibrium without intuitions?”, ethical theory and moral practice 17: 237-52. bureau of justice statistics 2012: “correctional population in the united states, 2011”, in bulletin ncj 239972 : 3.7-52. bu rg h, r., 1987: “gu i lt, pu n ish ment, a nd deser t”, in responsibilit y, character, and the emotions: new essays in moral responsibility, ed. f. schoeman, 316-37, cambridge: cambridge university press. the limits of moral argument 55 leap 3 (2015) duff, r a., 2013: “punishment and the duty of offenders”, law and philosophy 32: 109-27. farrell, d.m., 2015: “using wrongdoers rightly: tadros on the justification of general deterrence”, criminal law and philosophy, 9: 1-20. ferzan, k.k., 2013: “rethinking the ends of harm”, law and philosophy 32: 177-98. fletcher, g., 1995: with justice for some: victims’ rights in criminal trials, new york: addison-wesley publishing company. hampton, j., 1992: “correcting harms versus righting wrongs: the goal of retribution”, ucla law review 39: 1659-1702. haque, a.a., “retributivism: the right and the good”, law and philosophy 32: 59-82. hart, h.l.a., 1968: “prolegomenon to the principles of punishment 1”, in punishment and responsibility, 1-27, oxford: clarendon press. husak, d., 2012: “retributivism in extremis”, law and philosophy 32: 3-31. k irshnar, s., 2000 : “a defense of retributiv ism”, international journal of applied philosophy 14: 97-117. moore, m.s., 1997: placing blame: a theory of the criminal law publisher, oxford: oxford university press. nozick, r., 1974: anarchy, state and utopia, new york: basic books. quinn, w., 1985: “the right to t hreaten and t he right to punish”, philosophy & public affairs 14: 327-73. rawls, j., 1971: theory of justice, cambridge, ma: belknap pess of harvard university press. —1999: “the independence of moral theory”, in rawls, j., collected papers, ed. samuel freeman, 286-302, cambridge, ma: harvard university press. swinburne, r., 1997: simplicity as evidence for truth, milwaukee, w i: marquette university press. tadros, v., 2011: the ends of harm: the moral foundations of criminal law, oxford: oxford university press. — 2012: “replies”, jerusalem review of legal studies 5: 89-109. — 2013: “responses”, law and philosophy 32: 241-325. — 2015a: “answers”, criminal law and philosophy 9: 73-102. — 2015b: “response to blumenson”, law, ethics and philosophy 3: __. tanguay-renaud, f., 2013: “victor’s justice: the next best moral theory of criminal punishment?”, law and philosophy 32: 129-57. walen, a., 2012: review of the book the ends of harm by victor tadros, at rutgers university, criminal law and criminal justice books, http://clcjbooks.rutgers.edu/ books/ends_of_harm.html wasserst rom, r., 1978 : “some problems in t he def in it ion a nd just if icat ion of punishment”, in values and morals, ed. a. i. goldma n a nd j. k im, 299-315, dordrecht: d. reidel. wellman, c., 2012: “the rights forfeiture theory of punishment”, ethics 122: 371-93. http://clcjbooks.rutgers.edu/books/ends_of_harm.html http://clcjbooks.rutgers.edu/books/ends_of_harm.html leap 3 (2015) response to blumenson v ic tor ta dros university of warwick abstract this paper defends some of the central claims in the ends of harm: the moral foundations of criminal law against challenges by eric blumenson. key words: punishment, duties, retributivism, desert, proportionality introduction i am ver y grateful to eric blumenson for his thoughtful, insightful and wide-ranging essay engaging with my book the ends of harm: the moral foundations of criminal law (hereafter, ends). blumenson makes many points which he thinks count against the duty view of punishment (dv) that i defend in ends which need careful thought. i won’t attempt to address all of his concerns. i will focus on those objections which i think he finds more telling, and where i have said less to defend the view outlined in ends.1 before continuing, let me clarif y one feature of the general moral and polit ica l v iew out lined in ends t hat blumenson brief ly engages w it h. blumenson suggests that the account of the means principle in ends is so strict and wide ranging that it implies a form of libertarianism akin to that defended by robert nozick in anarchy, state, and utopia (nozick 1974). i would like to clarify the similarities and differences between my approach and nozick’s. i have some sympathy with nozick’s general methodological approach to political theory. like nozick, i think that the duties and constraints on state action are to be defended in the light of a more basic set of moral principles that govern individual interactions with each other. the state, and the principles that govern it are not, i think, sui generis. nozick’s account is more d i rect ly rel ia nt on a set of r ig ht s t ha n t hat defended i n ends. nevertheless, otherwise there is a broad similarity between us with respect to methodology. 1 i have responded to some points that are similar to those advanced by blumenson in tadros 2012, 2013 and 2015. response to blumenson 57 leap 3 (2015) furthermore, like nozick, i think that there is a constraint on compelling some people to provide for others – the constraint on using some as a means to the good of others. where nozick and i differ, though, is in our understanding of the content of these rights and duties. nozick was much more skeptical than i am about enforceable positive duties, and this feature of his moral theory is central to his defence of libertarianism.2 in contrast, i believe that there are enforceable positive duties. the scope and stringency of these duties may depend on a number of factors, including the extent to which people are mutually engaged in cooperative beneficial activities. i do not provide a full account of the scope and source of positive duties in ends – i leave that as an open question, even though it has implications for criminal justice. nevertheless, my account of the means principle emphasizes the limits of that principle in a way that nozick’s account does not. this prov ides t he possibilit y of broad ranging socia l prov ision and development aid, depending on the scope of domestic and international mora l obligations. my ow n v iew is t hat positive enforceable duties are quite extensive, and hence i believe that we have powerful obligations of these kinds that can be enforced by the state.3 this also helps to address one of blumenson’s concerns – he thinks that relying on the ‘duty of easy rescue’ to secure the permission of the state to punish offenders is inadequate because indiv iduals do not have a ver y powerful dut y to transfer their compensatory rights to the state to ensure that other people are protected from offending. i doubt that this is right. this is so in part because victims of crime are provided with substantial benefits from a system of punishment. requiring them to allow the state to have control over their punitive rights is not typically onerous (on the contrary) and any cost that they bear as a result is more than compensated for by the benefits they are provided with. blumenson also complains that funding health care and occupational safety would, on this view, depend on the existence of duties to provide these things through the state. but it is highly plausible that the provision of these things does depend on such duties – when we fail to provide adequate health care or occupational safety, or for that matter adequate security from crime, we fail to do what justice requires, and hence we fail to satisfy our duties to others. when we provide health care beyond these limits, the appropriate complaint does seem to be that citizens do not owe this level of health care to each other. if the state fails to demonstrate that we owe some level of health care to each other, it has failed to justify that level of health care. 2 nozick 1974, especially 30-3. 3 see, also, tadros 2011b. 58 victor tadros leap 3 (2015) i think, therefore, that the provision of social justice depends on citizens underlying duties to each other. this is not a libertarian view, at least if libertarians are committed (as nozick was) to the non-existence of general enforceable positive duties. 1. methodology blumenson thinks that the fact that there are many duties, with uncertain scope, involved in dv provides some reason to reject that view. this is not a reason to reject dv. if these duties ex ist, we ought to tr y to fulfill them. it may be that we are likely to fulfill them only approximately, but that fact does not free us from these duties. in any individual life, many of us are confronted with a wide range of duties, some of which are in conf lict with others. we have many complex duties as parents, children, professionals, friends, and simply as human beings, and it is often difficult to know whether we have fulfilled these duties. we are likely to do so only approximately at best. this fact hardly frees us of these duties, or makes them irrelevant to the way we live our lives. blumenson also thinks that the fact that dv has many steps should incline us against it. the success of the argument for each step, he suggests, is necessary for the success of dv. even if we have a great deal of confidence in each step in the argument, our confidence in the conclusion should be limited if there are many steps in the argument. unfortunately, blumenson’s argument would rule out being persuaded by any philosophical argument that relies on many steps, even where we have very powerful reasons to endorse every step in the argument. it is difficult to accept this conclusion. furthermore, any particular moral claim relies on the truth of many other controversial claims – for example claims about moral claims. blumenson’s argument would thus lead to more general skepticism about all particular moral claims. finally, blumenson’s argument makes philosophical argumentation too easy. consider the truth or falsity of act utilitarianism. act uilitarianism is false if any non-act-utilitarian claim is true. there are many non-act-utilitarian claims. even if we have very low levels of confidence in any particular claim, blumenson’s view implies that we ought not to endorse act utilitarianism in virtue of the fact that there is some relatively high probability that one of these claims is true. i take it that this argument against act utilitarianism is not valid – to show that we ought not to accept act utilitarianism, we ought to demonstrate that we have confidence in some particular claim that is in conf lict with act utilitarianism. response to blumenson 59 leap 3 (2015) it is also worth noting that some of the steps in the argument provided in ends are not necessary to justif y punishment generally – they justif y punishment of particular people for particular purposes. for example, i defend the v iew that it is sometimes permissible to harm a person as a means to avert threats to people other than their immediate victims, even when they are not responsible for posing these threats. if the argument for this claim fails, punishment may still be justified in many cases. it will be justified in cases where offenders, through their offending, create threats to others. this will sometimes be so, because by offending they may undermine the effectiveness of the criminal law. it will also be justified in cases where punishing the offender helps to protect the victim from future offending. i don’t find these limits on punishment plausible, and i argued for a more expansive view. but the question under consideration is not about whether we should accept dv, but rather about what version of dv we should accept. 2. blumenson’s alternative as punishment is difficult to justif y, we should not be surprised that an argument for punishment has many steps to it. take blumenson’s justification of punishment. one idea amongst many controversial ideas that blumenson relies on, in defending his negative retributivism, is that punishment of the innocent is ruled out by something like the following principle: negative desert: it is permissible to use d as a means to the good iff d deserves to be used, and in virtue of this fact. negative desert is not a very clear principle. we need to know what desert means, and there are many possibilities. we also need to know what it means to deserve something ‘negatively’. i have some doubts that we can make good sense of negative desert in this sense. like many friends of desert, i think that ‘x deserves o’ implies that there is good reason for x to get o irrespective of any further good that will be secured if x gets o. if so, there is no such thing as negative desert in blumenson’s sense. negative desert is not a coherent view, i claim, because it is a fact about desert, as i understand it, that if d deserves o, the value of giving o to d does not depend on any further value that giving o to d will secure instrumentally. negative desert is in conf lict w ith this claim about desert. it makes the reason to give d o depend on something external to d getting o – that o is a means to some further good. hence, it is not a v iew about desert, as i understand it. perhaps blumenson has a different conception of desert in mind in negative desert. without an account of that conception, i continue to find negative desert confused. 60 victor tadros leap 3 (2015) my suspicion that blumenson’s view is confused was strengthened by his response to the incoherence objection. there blumenson swithers between two different views. on the one hand, he seems to accept that desert implies that there is a positive reason to give d o, but a reason that can be outweighed. this view accepts that it is intrinsically valuable to give d what he deserves, but that this value can be out weighed. but this v iew is in conf lict w ith blumenson’s denial that retributivists are committed to the view that it is intrinsically valuable that offenders suffer the burdens of punishment. all sensible retributivists claim that the good of offenders getting what they deserve can be outweighed. so this view is just accepts positive desert, with all of its difficulties. another view is the ‘rights forfeiture’ view. d, this view claims, loses his right against being punished in virtue of having acted wrongly. this view is not best seen as a form of retributivism at all. one reason is that rights forfeiture does not depend on desert.4 a second reason is that it is not clear how desert adds anything to a rights-forfeiture view. rights-forfeiture views of punishment claim that punishment may permissibly be inflicted to serve certain ends on condition that a person has forfeited her right against such treatment. they then argue that a person forfeits her right against such treatment by acting wrongly. it would add nothing to such theories also to claim that wrongdoers deserve to lose these rights. the language of desert adds nothing substantial to rights-forfeiture theory – it is not even clear what it means to deserve to lose a right. dv is a version of a forfeiture view. so if, by negative desert, blumenson simply means ‘rights forfeiture’, we are roughly in the same camp. but traditional rights-forfeiture views of punishment are superficial – the idea that wrongdoers lose rights is, of course, true on any justification of punishment. what needs explaining is why offenders lose their rights against being harmed as a means to the ends of punishment. claiming that they have lost their rights to be used in this way is a conclusion that needs defending. the duty view offers a defence of this claim: it suggests that wrongdoers lose their rights against being used for the ends of punishemnt because they incur duties to serve these ends. i also claim that nothing, or almost nothing, else is sufficient – a person loses her right not to be used to serve an end, i claim, only if she has a duty to serve that end, or would have such a duty were she able to pursue it. blumenson does not show that this view is false. if blumenson wishes to defend a rights forfeiture view of punishment, he ought not to refer to desert. the idea that d has forfeited her right against being treated in a certain way does not depend on desert. if he rejects the 4 see, for example, mcmahan 2009: 8-9. response to blumenson 61 leap 3 (2015) kind of rights forfeiture view defended in ends, he should supply an alternative explanation how wrongdoers lose their rights against being punished. furthermore, any convincing and complete account of rights-forfeiture will be controversial. a rights-forfeiture theorist needs both to provide an account of why people lose rights, and an account of the extent to which they lose rights. one reason why the argument in ends is complex is that it attempts to make substantial progress with both questions. simple rights-forfeiture views seem comparatively simple, but that is only because they avoid making progress with the difficult questions about why people lose rights, and the extent of the rights they lose. let’s suppose that there is such a thing as negative desert. let's suppose that there is such a thing as negative desert. like dv negative desert relies on very controversial premises if it is to play the role in the justification of punishment that blumenson wants it to play. defending some particular account of desert against others will be controversial. this is obviously so as there are many different claims that f riends of deser t ma ke about t he nature of deser t.5 fur t hermore, a ny interpretation of negative desert is extremely controversial. even if there is such a thing as negative desert, it is not uncontroversial that we can deserve to be used. it is not uncontroversial that anything like criminal wrongdoing is the desert basis for being used. and it is not uncontroversial – in fact it is clearly false that it is only permissible to use a person as a means to the good only in virtue of the fact that the person deserves to be used. that this is clearly false is demonstrated by the fact that we can mount relatively uncontroversial arguments for the permissible using of others without relying on desert. negative desert is by no mea ns t he most cont roversia l element of blumenson’s view, though. it relies on another claim: that the state has an obligation to punish wrongdoers even when this will produce no net social benefit ‘when this is obligatory in order to fulfill the state’s social contract obligations to the victim because no less draconian route is sufficient to do so’. this element of blumenson’s view also relies on many controversial claims, and so is vulnerable to blumenson’s own argument. it relies on the success of following argument: the state has social contract obligations to victims. these social contract obligation that the state owes to the victim require the state not to ignore wrongdoing. 5 even within the camp of the intrinsic goodness desert view, there is an enormous range of possibilities, many of which have gone unnoticed. for an exhausting, but perhaps not exhaustive, exploration of many of them, see kagan 2012. 62 victor tadros leap 3 (2015) if serious wrongdoing is not punished, the state ignores wrongdoing. therefore the state must punish serious wrongdoing. this argument is even more controversial than negative desert. first, the socia l cont ract t radit ion is ex t remely cont roversia l. i doubt t hat state obligations are grounded in social contract obligations. more importantly, it is not clear why the state, in failing to punish, necessarily ignores wrongdoing. there are many different non-punitive responses that the state might make to wrongdoing that would demonstrate that the state takes wrongdoing seriously. given that punishing offenders is necessarily burdensome to the offender, but not necessarily burdensome to the state, it is also not clear why punishing offenders is sufficient to demonstrate that the state takes wrongdoing seriously. if i want to show that i take something seriously, it is i that should demonstrate a willingness to bear burdens for the sake of that thing. in punishing offenders, the state only demonstrates that it is willing to burden someone else – the offender. this may simply show that the state does not care much about the offender, not that it takes the wrongdoing seriously. furthermore, it is not clear that by refraining from punishing a person who has committed a serious wrong against the victim the state withdraws the status of citizens as valued members of the political community, as blumenson cla ims. to demonst rate its commit ment to t he v ict im, t he sensible thing to do is to help the victim. punishing the offender may be one way to help the victim. the argument in ends is intended to demonstrate that. but it is not the only way. the victim could be helped by being provided with extra protection by the state, or by being compensated in other ways. and the state could publicly express the importance of the v ictim, and educate its citizens about how terrible it was that the victim suffered in the way that she did. none of this requires punishing the offender. if the state does these things, is it really true that the state devalues the v ictim or denies his civic personhood? so spelling out and defending negative retributivism requires an argument with many steps in it. as we have reason to doubt each of these steps (in my view, decisive reasons to reject some steps), blumenson’s ‘diminishing returns’ argument, if successful, defeats his own view as well as mine. blumenson responds t hat a n a rg ument w it h mu lt iple steps is more credible if its conclusion is independently intuitively attractive. he thinks that negative retributiv ism is intuitively more attractive than the dut y view. i don’t find retributivism intuitively attractive. blumenson’s version seems unclear. negative retributivists can simply assert that those who we response to blumenson 63 leap 3 (2015) intuitively think ought to be punished lack a right against being punished. but then the theory does little more than reporting our considered convictions about punishment rather than explaining them. more standard retributivist views are also unclear, and seem barbaric. few claims need more careful defence than the claim that it is impersonally valuable that wrongdoers suffer. though some people believe this claim, it is not by itself intuitive – it rests on the idea that suffering and harm are sometimes to be sought for their inherent properties, and many recoil at this thought. furthermore, i don’t think that the explanation that dv gives for the permissibilit y of punishment is intuitively unattractive. first, the vast majority of people, when asked why we punish offenders, cite prevention as the aim. dv offers an argument why it is permissible, subject to certain constraints, to harm offenders to secure this aim. but the aim that dv advocates is familiar and attractive. secondly, the idea that offenders may permissibly be used to secure this aim in v irtue of their w rongdoing is attractive. dv then gives an answer to the familiar objection that offenders may not be used merely as a means to secure this aim – that offenders can be expected to serve the end of protection in virtue of having acted wrongly. this is the most original part of dv, but i don’t think that the response to the objection is itself unintuitive. 3. other ways of fulfilling the duty dv relies on t he idea t hat t he permissibi lit y of punishing of fenders is grounded in the (primarily protective) duties that offenders incur as a result of their wrongdoing. blumenson, in challenging step 6 of his summary, argues that it is a weakness of dv that this would allow uneven punishment of offenders in cases where offenders have discharged the protective duties that they owe to their victims in other ways. i think that this implication of dv is one of its strengths. 3.1. who gets to decide one question that blumenson raises, that has also been raised by kim ferzan, is why the state should be in a position to decide how the duty that the offender owes to the victim is satisfied. ferzan raised the following objection to dv. she argued that if the offender owes a duty to the victim, it is for the victim to determine what the offender does for her. if she wants protection, she can secure protection from him. if she wants her car washed, she can secure that end (ferzan 2013). in response, i 64 victor tadros leap 3 (2015) argued that it would be w rong for the v ictim to impose any significant harm on the offender for the sake of her car. the offender can be harmed for the victim’s sake only if any harm imposed on him is proportionate to the end sought (tadros 2013). blumenson does not think that this obviates the problem that ferzan raises. i do not see why. the first thing to note is that offenders obviously do owe very stringent duties to the victims of their wrongdoing. blumenson’s challenge of explaining how these duties can best be fulfilled is thus quite general. if punishment does not vitiate these duties, offenders retain them. if blumenson thinks that offenders retain these duties, how does he think they ought to be fulfilled? does he think, for example, that after the offender is punished, the offender may nevertheless be seriously harmed again for the sake of the victim? nevertheless, we should meet the challenge posed by blumenson. why does blumenson doubt that dv can meet it? it is not completely clear, but perhaps blumenson believes something like this: if d owes a duty to act for the sake of v at some cost n, v may impose n on d for any end whatsoever. this v iew, though, is not credible. it is not generally true of duties. for example, the fact that i have promised to deliver a television to your house implies that i must bear the cost of driv ing to your house. that, though, does not imply that you may impose on me the cost of driv ing to your house for some other end. the most important restriction on the duty imposed on offenders is that any cost that the offender is compelled to bear must be proportionate to the end sought. for example, if d kills one of v’s children, it is plausible that v can kill d as a means to protect another of v’s children if that is the only way to protect the second child. this is so in virtue of the stringent protective duty that d incurs to v, and to v’s child. this does not imply that it would be permissible for v to kill d for fun, or to use d’s skin to make a handbag, for the harm imposed on d would be disproportionate to the good of having fun or getting a handbag. hence, if the victim has a right to decide how the duty that the offender owes to her is satisfied, she has a right to decide only within a certain range of goods that are sufficiently important to justify the harm imposed on the offender. now, there might be some circumstances in which the victim does have a right to decide, and the state would act wrongly in making the decision for her. for example, suppose that both v and x, who is v’s husband, are now threatened with death. d can be used as a means to protect either v or x but not both. it is plausible that v is permitted to determine whether to use d to protect v or to protect x. it follows that it would be wrong for the state to use d to protect v if v would prefer that x be protected. needless to say, response to blumenson 65 leap 3 (2015) though, the fact that it would be wrong, in these circumstances, for the state to decide for the victim does not militate powerfully against dv, for these circumstances very rarely arise. it is also worth noting that the state does sometimes give the v ictim cont rol over how t he of fender’s dut ies a re sat isf ied. for exa mple, it is common in restorat ive just ice prog ra ms to prov ide t he v ict im w it h a n opportunity to decide what the offender should do in response to having offended. within some limited range of options, this will sometimes be appropriate. in determining whether the state or the victim ought to decide how d’s duty is satisfied, we must also bear in mind a number of other factors that count against victims making decisions. first, if victims are entitled to make decisions about how the offender’s duty is satisfied, they will be at risk of coercion from offenders.6 secondly, victims, who will often feel resentment towards offenders, may be inclined to seek retribution by imposing heavier costs on offenders than necessary. thirdly, the victim owes duties to other citizens, including protective duties, and she may be required to select a particular way of satisfying the duty that the offender owes to her because this will best satisfy these protective duties.7 fourthly, if the state punishes the offender, certain other values, such as communicative values, can be advanced, and this provides some reason for the state uniformly to determine how the offender is punished. if the victim does not have a strong reason to prefer that the duty that is owed to her is satisfied in one way rather than another, it is permissible to ensure that the duty owed to her is satisfied in a particular way to advance other values. overall, the idea that the victim should have complete choice over how the offender’s duty is morally abhorrent, unrealistic and impractical. hence, the fact that victims typically have a right to determine how the duties owed to them are satisfied is not a significant challenge to dv. 3.2 duties and the wealthy the second part of blumenson’s challenge concerns wealthy offenders. there are three features of this challenge that should be separated. one question is whether it is plausible that w rongdoers who have taken on burdens for the sake of their victims ought nevertheless to be punished. dv implies that if these burdens are sufficiently large they ought not to be. a second question concerns the relationship between punishment and compensation. 6 see, also, the discussion concerning giv ing the v ictim control over prosecution decisions in tadros 2011a: 296. 7 see tadros 2011a: 297-9. 66 victor tadros leap 3 (2015) does dv deny the victim the right to seek monetary compensation from her offender? a third question is whether dv has plausible implications for the punishment of the wealthy, who may have the means to provide a great deal of protection to others at little cost to themselves. to assess the first question, suppose that v is attacked by a gang, including d, x, y and z. d assaults v. let us suppose that it would have been permissible to harm d as a means to avert this threat, harming him to degree x. if the harm that d does to v is large, x will be even larger. this is for the reason that it is generally permissible to harm a person to avert a threat that they culpably pose, even if the harm that is necessary to avert the threat is greater than the harm that the person would do if the threat they pose were realized. d then realizes that what he did was wrong. v still faces a threat from x, y and z. d, recognizing the duty that he owes to v, now protects v against x, y and z. he is harmed to degree x in the process. blumenson implies that the state nevertheless ought to punish d. this seems wrong. d has borne a great cost in order to protect v against x, y and z. it is wrong to harm d even more for punitive reasons. the idea that we should punish people who have already voluntarily borne great costs for the sake of their victims fails adequately to acknowledge the idea that people can redeem themselves for their wrongdoing through their voluntary actions. in response to blumenson’s second challenge, there is nothing in dv that rules out the provision of monetary compensation to victims where monetary compensation is available, and can help to ameliorate the victim’s loss. in evaluating the comparative merits of a compensation scheme against a punitive scheme, we ought not simply to consider what would be beneficial to indiv idual v ictims where most offenders are punished. we ought to consider the circumstances of victims were no one punished. in a system where compensation was the only available remedy for theft, for example, people would be very insecure in their property. in those circumstances, a compensatory scheme would be wholly inadequate to secure property rights. hence, there would be powerful reasons to criminalize theft. nevertheless, even if theft is criminalized, victims may seek monetary compensation from offenders. to explain why this is so, notice the following feature of dv. obligations to compensate others are subject to two constraints – a constraint on the maximum amount of harm that can be imposed on the wrongdoer (what i have called the maximum harm threshold) and a constraint on the maximum amount of benefit that can be secured from the wrongdoer (the maximum benefit threshold). dv accepts that there is a maximum harm threshold beyond which the offender may not be harmed, though not a maximum benefit threshold. below the former threshold, we must consider how the offender response to blumenson 67 leap 3 (2015) is to be ha rmed, a nd for whose benef it. ha rm may be imposed on t he offender to provide monetary compensation to the victim, to deter, or a combination of the two. this has the attraction that it limits the overall harm that an offender suffers as a result of his wrongdoing. if the offender provides compensation to the victim, and this is very burdensome to him, the amount that he may be punished is reduced. blumenson’s claim that, according to dv, offenders who are punished owe no compensation to their victim is thus false. that depends on how much the offender is punished. it is true that if an offender is punished up to the maximum harm threshold, he may not be harmed further to compensate the victim. but this is an attractive implication of dv. if, though, the offender is punished to some degree less than the maximum harm threshold, compensation may be extracted from him for the victim’s sake. given that the victim will typically have been rendered much worse off than she would have been by the offenders action, there is good reason to ensure that we should aim to improve the victim’s circumstances. the question is how best to do this. the third feature of blumenson’s challenge concerns the way in which we should respond to the greater protective resources available to the wealthy. as i have said a great deal about this elsewhere, i will make my comments brief. in compensatory justice, the maximum benefit threshold is normally set at the level of full compensation. it is contested how full compensation should be understood,8 but in standard cases, if the wrongdoer has rendered the victim as well off as she would have been had the wrongdoer not wrongfully harmed her, he has fully compensated her. the maximum harm threshold implies that there is a limit to how much the w rongdoer may be harmed in order to prov ide the v ictim w ith full compensation. if full compensation to the victim would require us to harm the wrongdoer a great deal, it is impermissible to extract full compensation from the wrongdoer. with respect to serious wrongdoing, whilst there is a maximum harm threshold, there is no maximum benefit threshold. wrongdoers cannot satisfy the duties incurred through wrongdoing simply by providing full compensation to victims. if the provision of full compensation is not onerous, they can be expected to do more to protect the victim, and perhaps to protect others. given this, the fact that the wealthy can provide a great deal of protection to victims at little cost does not imply that they may not be punished to produce further protection if they provide this level of protection.9 8 i discuss this further in tadros 2014a. 9 for further defence of this view, demonstrating how it comes apart from retributivism, see, tadros 2011a: 286-91; 2012: 99-102; 2013: 300-9. 68 victor tadros leap 3 (2015) blumenson, i think, agrees w ith this verdict, but thinks that this is tantamount to a form of negative retributivism. this is false. first, the scope and stringency of the duties that we owe in virtue of wrongdoing are not, in general, best explained by desert. when we act wrongly, we incur duties. we do not incur them because we deserve to incur them. of course, we should explain why we have these duties – for example, because we can redeem ourselves by responding appropriately to our wrongdoing, or because we could have avoided having them, or some other explanation. it is difficult to see how desert claims figure in an explanation of the duties that we incur. of course, we could define retributivism in a way that corresponds to the duties that we incur through wrongdoing. we could simply claim that when a person incurs a stringent duty in virtue of having wrongdoing, that just is her getting what she deserves. but if the retributivist claims this, she just accepts dv, but mangles the terminology. now, blumenson looks for a n ex pla nat ion why serious w rongdoers cannot satisfy their duties simply by providing full compensation to their victims. he complains that my defence of this is vague. i agree that there is more to say about this issue than i said in ends. there i noted the fact that it is implausible that the duties of serious wrongdoers are satisfied when full compensation is provided, and gave an explanation for this by considering complaints that wrongdoers and victims could make to the scope of these duties. i also showed that the view that i endorse is intuitive in protection cases such as three threats. i have since done more to explain this idea, and i will say no more about it here. but whatever the merits of my explanation, blumenson’s reference to desert does nothing to help. it is simply a bad redescription of the idea that wrongdoers incur stringent duties that are not satisfied by providing victims with full compensation. it does nothing at all to explain the source of these duties. the explanation that i provided in ends may have been vague and incomplete. blumenson offers no explanation at all. 4. empirical support dv justifies punishment only if punishment is effective in deterring crime. i am poorly placed to do the empirical work to that is necessary to determine whether it is effective, and in which circumstances. this is partly due to my lack of empirical skills. it is also due to the fact that the empirical work could not realistically be done. w hat would be required would be a study that compares reasonably just large-scale liberal societies w ith and w ithout response to blumenson 69 leap 3 (2015) systems of punishment. but there is no reasonably just large-scale liberal society without a system of punishment. the question is whether dismantling a system of punishment and replacing it w ith some intrinsically better a lternat ive wou ld be det rimenta l to t he crime rate. if it wou ld not be detrimental to the crime rate, our system of punishment is unjustified.10 the fact t hat dv justif ies punishment only contingent ly on it being effective in deterring crime and on it not having disproportionate bad side effects is no objection to it. any sensible theory of punishment is contingent in this way. any system of state punishment is enormously costly. it will harm not only offenders, but innocent people as well. these costs need to be justified. the idea that they can be justified by anything other than crime reduction is implausible. even if it is true, as retributiv ists claim, t hat punishment is impersonally valuable, it is very difficult to believe that any impersonal value that it has is sufficiently great fully to justify the costs of any realistic criminal justice system. if state punishment is ineffective in reducing the crime rate, state punishment ought to be abandoned.11 5. proportionality blumenson thinks that dv cannot explain why some factors that intuitively ought to affect the sentence that we ought to impose on an offender are relevant to punishment. i am not sure why he thinks this. though it is true that i ought to have said more about this issue in ends, it is highly plausible that both a person’s duties to avert the threats that he poses and the strength of the duties he incurs through his wrongdoing depend on the kinds of factors that blumenson outlines as relevant to punishment. furthermore, retributivism seems to me less well placed to explain these factors. blumenson rightly claim that retributiv ists t y pically think that punishment shou ld ref lect t he g rav it y of t he crime a nd t he of fender’s blameworthiness for it. w hat they lack is an explanation why this is so. there is little reason to think that, on the best view of desert, what we deserve is determined by the properties of our actions. it is more plausible to think that what we deser ve depends on our v irtues and v ices.12 but this more plausible view of desert has troubling implications for a theory of punishment. retributivists typically tailor their theory of desert to provide plausible 10 for further discussion, see tadros 2012: 91-3. 11 for a compelling argument for this view, see husak 2010. 12 see, further, tadros 2011a, ch.4.ii. it is not uncommon for friends of desert in moral philosophy to think that virtue and vice over a whole life is the proper desert basis. see, for example, kagan 2012: 6-12. ch.4.ii response to blumenson 70 leap 3 (2015) implications for punishment. but if so, their justification of punishment is unsatisfactory. it is no good to begin from a conventional view about what punishment ought to be imposed for which crimes under which circumstances and justify this conventional view simply on the basis that doing what we do is impersonally valuable. what is needed is an independent argument that shows that desert explains why punishment should fit the gravity of crimes and blameworthiness for them. such arguments are hard to find, and blumenson offers none. blumenson is also wrong to think that the necessity constraint on selfdefence creates problems for the relationship bet ween self-defence and punishment outlined in ends. i w ill restrict myself to an evaluation of blumenson’s first case, as i think this the most interesting: unnecessary defence. a threatens v with a knife. v is able to retreat safely and therefore defensive force is unnecessary; but v fails to retreat, parries a’s thrust unsuccessfully, and dies. as harming a was not necessary to avert the threat he poses, it might be argued that a is not liable to defensive harm. blumenson then concludes that dv implies that he is also not liable to be punished. this argument is much too quick. first, it is not clear that a is not liable to defensive harm. it is a matter of dispute whether harming a wrongs him where harming him is unnecessary.13 i am inclined to the view that v wrongs a if v unnecessarily harms a. but this does not imply that a incurs no duties as a result of wrongfully killing v. the fact that v wrongly chose to attempt to harm a rather than retreating does not vitiate the duties that a incurs for wrongfully harming v. it is also false that a is not liable to defensive harm to avert the threat that he later poses in unnecessary defence.14 to see this, consider a variation on unnecessar y defence where x, a t hird pa r t y, cou ld inter vene a f ter v attempts to parry a’s thrust to avert the threat that a poses to v. if x harms a to avert the threat that he poses, x does not wrong a. although v acts wrongly in attempting unnecessarily to harm a, this does not vitiate a’s liability for threat that he later poses.15 furthermore, whilst it is true that, if v successfully harms a in unnecessary defence, v wrongs a, it is false that it is wrong for v to harm a given that v 13 for some discussion, see, for exa mple, mcma ha n 2009 ; firt h a nd quong 2012; frowe 2014. 14 blumenson also considers the problem of criminal attempts and the significance of intentions to punishment. i say more about these issues in tadros 2013: 313-22, so i leave them aside here. 15 for related discussion, see further tadros 2014b. 71 victor tadros leap 3 (2015) has decided to stand his ground rather than to retreat. suppose that v stands his ground. suppose, also, that by standing his ground he gives up the opportunity that he had to retreat. he must now decide whether to harm a, parrying the blow that a aims at him, or to allow himself to be harmed by a. he may recognize that he was wrong to stand his ground, but this does not vitiate his permission to harm a. he wrongs a in virtue of the fact that he had another option which rendered his defensive force unnecessary. but despite the fact that the existence of this option renders his defensive harm wrongful, given his wrongful act he is permitted to defend himself. it follows that there is no asymmetry between liability in self-defense and liability in punishment of the kind that blumenson’s argument relies on. conclusion obviously, there is a great deal more that would need to be done fully to meet blumenson’s interesting and important objections to the arguments in ends than i have done here. i hope, at least, to have shown that some of blumenson’s objections can either be met by clarifying dv, or by showing that the seemingly counterintuitive implications of dv are more attractive than he thinks. dv is a new theory of punishment. i do not claim to have worked out all of the details of the theory in ends. i continue to think that it has a great deal of promise, despite the powerful objections that have been mounted against it. bibliography ferzan, kk., 2013: "rethinking the ends of harm", law and philosophy 32: 177-198. firth, j. and quong, j., 2012: “necessity, moral liability and defensive harm”, law and philosophy 31: 673-701. frowe, h., 2014: “non-combatant liability in war”, in how we fight: ethics in war, ed. h. frowe and g. lang, oxford: oxford university press. husak, d. n., 2010: “why punish the deserving?”, in the philosophy of criminal law: selected essays, oxford: oxford university press. kagan, s., 2012: the geometry of desert, oxford: oxford university press. mcmahan, j., 2009: killing in war, oxford: oxford university press. nozick, r., 1974: anarchy, state and utopia, oxford: blackwell. tadros, v., 2011a: the ends of harm: the moral foundations of criminal law, oxford: oxford university press. — (2011b) “independence without interests?”, oxford journal of legal studies 31: 193-213 — (2012) “replies”, jerusalem review of legal studies 5: 89-109. — (2013) “responses” law and philosophy 32: 241-325. response to blumenson 72 leap 3 (2015) — (2014a) “what might have been” in philosophical foundations of tort law, ed. j. oberdiek, oxford: oxford university press. — (2014b) “resource wars”, law and philosophy 33: 361-389. — (2015) “answers”, criminal law and philosophy 9: 73-102. leap 3 (2016) symposium philippe van parijs' four puzzles on gender equality leap 3 (2015) unjust gender inequalities 1 pau l a c a s a l icrea & pompeu fabra university many papers on gender inequality focus on one or more respects in which women, as a group, fare worse than men, with some also noting respects in which gender discrimination and oppression is bad not only for women and children but also, as john stuart mill recognized, for society as a whole (1869: eg. 471-5, 558, 564). all this is, of course, consistent with men being harmed by patriarchal institutions or worse off than women in some respects either because of those institutions or for independent reasons. in his controversial paper “four puzzles on gender inequality,” based on a provocative talk presented at a feminist forum, philippe van parijs lists some peculiar gender inequalities. such inequalities are puzzling not because they indicate dimensions in which women fare better than men but because they show a lack of shared and clear criteria to determine when inequality involves injustice, which is not due to predictable differences between left and right. whether some inequalities require some sort of compensation or institutional reform is unclear even within a single position in distributive justice, including positions as elaborated as that of john rawls. as readers will notice, the paper is different from the standard scholarly pieces that appear in academic journals like leap. however, it still serves a valuable philosophical function because the puzzles it describes raise important questions regarding which statistical differences between two social groups identify an injustice and which merely contain information t hat is eit her irreleva nt or t hat bea rs a more indirect relat ion to socia l justice. the va lue of discussing t hese questions, stressed by van parijs’ response “real freedom for all women (and men),” thus extends well beyond feminism. in addition, each instance of gender inequality van parijs describes is a lso intrig uing in its ow n right, and not only as an illustration of t he general problem just described. so, the discussion published here aims to contribute to an exchange that is informative and engaging not only for those interested in gender but also for those working on distributive justice more generally. 1. i thank philippe van parijs and all participants for their cooperation and contributions a nd serena olsa retti for usef u l comments on t his introduction. for help w it h t he entire exchange, i thank andrew williams for excellent philosophical advice, and laura sánchez de la sierra and hannah weber for their conscientious editorial assistance. unjust gender inequalities 75 leap 3 (2015) the first potential injustice van parijs’ paper discusses concerns the fact that women live longer than men. this issue, prev iously discussed not only by conservatives like john kekes (1997: 100ff ) and men’s rights advocates like david benatar (2012: 57ff ), but also by luck egalitarians like shlomi segall (2010: 105ff ), brings out the controversy over whether there are normative differences bet ween natural and social inequalities. the authors who successively agreed to contribute a piece on this puzzle turned out to be unable to deliver it. and so, despite the fact that leap editors do not normally contribute to any exchanges, i ended up w riting a (doubly blind refereed) reply to this first puzzle not to delay publication further. the response, “distributive justice and longevity,” claims that on plausible liberal egalitarian views men’s lack of female longevity is not an injustice. the second potential injustice concerns women’s greater educational achievements. this new trend is worth attending to inter alia because women’s lower educational achievements used to be deemed an important cause of gender inequality (e.g. okin 1989: ch. 7, esp. 142-7). in “women’s greater educational efforts as a consequence of inequality,” jesús mora denies there is any injustice here because society does not offer men any less educational opportunities. instead, men reject or squander their equal or greater educational opportunities because society already offers them such good opportunities that they do not need qualifications as desperately as women, who, by contrast, in view of their greater likelihood of suffering domestic and workplace exploitation, take up the opportunities they have more conscientiously. a third puzzle highlighted by van parijs concerns the fact that most voters are women, both because women live longer and because educated individuals tend to vote more. in “do women enjoy a political advantage?” pierre-étienne vandamme denies this inequality is an injustice or even an advantage because mere membership in a majority group cannot plausibly be judged so. moreover, i f women a re not vot i ng sel f-ser v i ng ly, it i s i nappropr iate to respond to t hei r d ischa rg i ng t hei r dut y to vote a nd protect public goods or v ulnerable groups, like children or animals, by depriving them of resources we other w ise deem theirs. a fourth and final puzzle arises from three distinct inequalities, which may or may not represent injustices: inequalities in the possession of certain hormones, in incarceration rates, and in sexual desire. in fact, the final puzzle actually contains three distinct puzzles, which is why there are three responses to it. “hormona l inequa lit y” is t he claim t hat men are handicapped by possessing more hormones linked to undesirable behaviors such as those involving imprudence or aggression. in “a blatant case of over-accommodation,” valeria ottonelli grants that the set of propensities van parijs describes as 76 paula casal leap 3 (2015) linked to male hormones could, in some sense, be understood as disabilities. but she argues that the over-accommodation of the unfortunate traits has effectively turned them into advantages. one cannot thus claim hormonal inequality is an injustice that needs to be rectified or that diminishes the inequality between men and women. inequalities in incarceration rates are a ver y different matter. first, incarceration is something only a minority of men experience, rather than part of men’s normal constitution, like male hormones. second, incarceration is not something that happens “naturally” but is instead a social method to prevent a murderer or rapist from committing further crimes and to deter other individuals from acting likewise. third, unlike hormones, incarceration rates bring back the debate between natural and social inequalities and causation. van parijs compares the higher incarceration rates suffered by men w ith those suffered by the v ictims of social injustice, povert y and racial discrimination, despite the fact that it is women that are more often the v ictims of social injustice, povert y, and discrimination. however, in “are unequal incarceration rates unjust to men?” gina schouten answers affirmatively, even if men are the beneficiaries of injustice and guilty of the crimes for which they have been imprisoned. a final issue involves the fact that men tend to be more interested in sex than women, and hire prostitutes or act foolishly, harming themselves and others in the pursuit of sexual gratification. in “the rich also cry,” ana de miguel not only addresses the issue of prostitution and male desire. in addition, she also tries, to some extent like vandamme, to explain why van parijs’ original audience reacted with hostility to his talk. one reason for the adverse reaction seems to be the way van parijs’ comments on prostitution sit outside decades of feminist work on the fact that almost all clients of prostitutes– including child prostitutes – are male, and how the sex industry and much of society caters to male desires for sex and domination that men do not regret. 2 van parijs, of course, does not claim that since men have certain desires women should give in to men’s demands. however, at least part of the hostile reaction appears to have been caused by his unawareness of the way, vividly illustrated by de miguel, in which portraying male sexual “greediness” as a burden men bear can be used, and has been used, for oppressive purposes. 2. for example, since men want novelt y and ethnic variet y, pimps regularly relocate prostitutes, preventing t hem f rom forming attachments t hat ca n undermine t he pimp`s control (de miguel 2015:165). in the wider society, too, sexual access to women is maximized by keeping them poor, voiceless, isolated, homebound, or foot-bound, in harems or brothels, and by inventing religions like that of trokosi, deukis, and devadasi that sanctify sexual slavery, or by brainwashing girls into “wifely duties” and obedience because “men can’t help it.” unjust gender inequalities 77 leap 3 (2015) van parijs was moved by the desire to understand distributive justice better and was not thinking about possible misuses of his questions nor about t he ex istence of a men’s right movement, w it h which he has no connection. however, as women’s position slowly improves in developed societies, and men’s rights groups grow and become more vocal academically, legally, and politically, these sorts of misencounters and heated reactions are only likely to multiply and escalate. it is, therefore, preferable to examine calmly and separately each claim about a potential injustice to men. some disputes may be solved by mere exposure to the relevant empirical research and by clarifying misunderstandings or faulty patterns of reasoning, whilst others may involve reasonable disagreements, or refer to an important unfairness to men that needs to be institutionally addressed. in all cases, however, it seems preferable to discuss such matters amicably when one has well-disposed interlocutors eager to do so, than to ignore potentially reasonable considerations. failing to discuss such concerns is likely to fuel the growing resentment that is already brewing in the men’s rights movement. some general recommendations one can extract from the exchange between van parijs and the other six political philosophers who respond to him are also likely to prevent other inequalities from being misconstrued as injustices. the first is that we should not zoom in and focus on an isolated inequality, for example, on education or longevity, without also zooming out to take a wider picture that may change the significance of the observed inequalities. the second is that we should not assume all statistical regularities indicate the existence of constraints reducing individuals’ options, responsibility, or liabilities. for example, the fact that there is a strong statistical correlation between excessive power and corruption does not mean that power reduces people’s options and should be seen as an attenuating circumstance making the powerful less liable to punishment for corruption. finally, we cannot assume inequalities are reduced whenever the better-off engage in unadvisable behavior. for example, we may have reasons not to count the badness of being corrupt as something that diminishes the inequalit y bet ween the very powerful and the powerless. 3 3. one example can illustrate all three points. it was statistically very normal for slaveowners to pick a slave and force her to satisfy whatever sexual whim they had. the way the slave’s family looked at the slave-owner doing so or perhaps the expression of the slave-owners’ wife or daughter if they saw him may have caused him a temporary discomfort. however, it would seem odd to focus on that discomfort as an inequality justice requires amending, once we zoom out and take into account the circumstances that surround the discomfort and explain it. second, the fact that it was common for slave-owners to exploit slaves sexually does not automatically mean slave-owners were constrained or lacked sufficient opportunity to act differently. finally, it would be strange to deem the slave-driver’s greater tendency towards additional wrong doing as something that reduced the inequality between masters and slaves. 78 paula casal leap 3 (2015) the following exchange discusses several inequalities seen both from a narrower and a wider focus by van parijs and his commentators, ref lecting on relevant factors that surround each of them. after all, it is by placing all the pieces together rather than by staring at each one in isolation that puzzles are usually solved. bibliography benatar, d. 2012: the second sexism discrimination against men and boys. oxford: wiley-blackwell de miguel, a. 2015: neoliberalismo sexual. el mito de la libre elección. valencia: cátedra. kekes, j. 1997: against liberalism. ithaca: cornell university press. mill, j.s. [1869] 1998: “the subjection of women”, in on liberty and other essays. oxford: oxford university press. okin, s. 1989: justice, gender and the family. ny: basic books. segall, s. 2010: health, luck and justice. nj: princeton university press. leap 3 (2015) four puzzles on gender equality philippe va n pa r ijs université catholique de louvain abstract there are dimensions a long which men seem to be disadvantaged, on average, relative to women. for example, they can expect to live less years; in a growing number of countries they are, on average, less educated than women; they form an electoral minority; and their greater propensity to misbehave means that the overwhelming majority of the prison population is drawn from their ranks. these disadvantages, if they are real, all derive from an unchosen feature shared by one category of human beings: being a male. does it follow that these advantages are unjust? key words : gender equa lit y, socia l just ice, polit ica l power, crimina lit y, phi losophy preamble part of my job consists in giving talks. many of them leave hardly any trace in my memory, but some of them i shall remember forever. one of these is the short speech i agreed to give in brussels on the 25t h of april, 2013 at the 2013 jump forum, a big annual event “for advancing women in the workplace.” what happened? over a year prior to the event, i had been asked by jump’s wonderfully dy namic director, my ex-student isabella lenarduzzi, whether i would agree to take part in a débat des philosophes on gender equality before an audience of hundreds of bright and active women. despite my lacking any specific expertise on the subject, i accepted her kind invitation to open that debate, on the assumption that it would provide an opportunity for a common ref lection on real and difficult issues, rather than for a rambling rehearsal of well-meaning platitudes. given the time limit (ten minutes for the initial input), i asked whether i could be gently provocative. “excellent,” isabella said. because of unexpected technical difficulties, the debate had to take place without simultaneous translation, and hence in english rather than 80 philippe van parijs leap 3 (2015) in dutch and french, as initially announced. for this reason, i probably skipped some qualifications. i did warn my audience that some of what i was going to say would be said ‘tongue-in-cheek’ but did not realize that this opaque metaphor meant nothing to many of them. yet, as at least part of the audience laughed when i expected them to laugh, i felt confident that i was being understood. i started realizing that something had gone wrong when booing joined t he clappi ng a f ter i f i n i shed. t h i s w a s soon con f i r med by t he f i r st com mentator: my speech, t he ma n sa id, had been a n i nsu lt to bot h women and philosophy. after several other reactions in a milder tone but a similar vein, i was given a couple of interrupted minutes to start clarifying what badly needed clarifying – obviously not enough to convince the lady in charge of the conclusion that, behind the appearance of some of the worst bullshit she had ever heard, something was hiding that even she might have found palatable. t he r e s u lt , i c on fe s s, w a s s ome pr e d ic t a ble f r u st r at ion . fac i ng a disapproving, even indignant, audience is part of the price we have to accept paying occasionally for playing our role as academics – i.e., people whose fate is not dependent on their popularity and who therefore have the freedom and responsibility to say what they believe is right even if their audience does not like to hear it. but the source of my frustration, in this case, was different. the part of the audience i had unintentionally upset, i felt, was not indignant because of what i said and thought, but because of what they had some reason to believe i said and thought, though never said or thought. and the fault, i realized, was mine. w hat follows is a w ritten version of what i did say on that occasion, without any significant alteration in substance or form. however, after the introduction and each of the four puzzles i presented, i have added (in italics) a slightly longer comment. these comments are meant to spell out more clearly what my ten-minute speech tried to say. i conclude with a brief epilogue on the connection between the philosophical questions i wanted to raise and the struggle for greater gender justice. 1. background: multi-dimensional injustice towards women i was invited to introduce a philosophical debate on equality between men and women. i want to do so in a way that befits a philosopher, that is, by questioning assumptions that are too easily taken for granted, by asking questions that may sound incongruous or that one would prefer not to ask four puzzles on gender equality 81 leap 3 (2015) oneself. in particular, as i am addressing an audience with an overwhelming majority of women, i want to draw attention to four dimensions along which gender inequality does exist, but in women’s favor. i am not claiming that they are all of the same importance, nor that they can, without qualification, be regarded as dimensions of gender injustice. i am claiming even less that the disadvantages incurred by men along these four dimensions currently offset the disadvantages incurred by women along many others. [t hese other dimensions do not only include those most commonly mentioned, such as the income gap on both an annual and hourly basis, the extent to which women and men occupy positions of political or economic power, or the extent to which men and women perpetrate violence on members of the other gender. they also include, for example, the fact that, on average, women (have to) spend more time and money on their external appearance, wear more uncomfortable shoes, cover or uncover parts of their body, or are de facto denied access to public spaces or means of public transport at certain times. this last aspect is of particular and growing importance, as highlighted, for example, by the conjunction of the motivation behind last year’s “picnic the streets” action on brussels’ central lanes and of sofie peeters’ superb documentary “femme de la rue.”1 sustainability will require us to live more and more packed together in cities, with urban housing becoming ever more expensive and hence private space ever smaller. this makes the quality and safet y of public spaces ever more important for the well-being of all, and freedom from threats and harassment in those places increasingly crucial for a fair distribution of access to such well-being between women and men.] nothing in what i am going to say amounts to belittling the importance of these various dimensions or to denying that the disadvantages incurred by women along these dimensions far exceed the advantages i am about to sketch. but i do want to question the view that the latter is true as a matter of necessity or that it will be true forever. 2. life expectancy life expectancy at birth is currently 82.5 years for european women and 76 for european men. one might be tempted to regard this as a minor advantage: an additional six years of life would be of greater value if they could be squeezed i n at age 30 or 40 rat her t ha n added at age 80. but t h is is a 1 “picnic the streets” is a movement that started with a massive unauthorized sit-in triggered by the opinion piece i published under that title in the belgian press in may 2012 and that led to the city’s decision to pedestrianize brussels’ central lanes. “femme de la rue” is a short film first broadcast in july 2012 that documented how women were being harassed in some streets of central brussels. 82 philippe van parijs leap 3 (2015) confusion. w hat hides behind the gap bet ween the average lengths of women’s and men’s lives is a greater probability for a woman to reach and enjoy her forties, her fifties, her sixties, and so on, not only her nineties. one necessar y consequence is that the gap bet ween men’s and women’s incomes is smaller on a lifelong basis than on an annual basis: on average, men get a significantly higher income than women in every year they live, but they live less years. my point, however, is more fundamental. as regards inequalities in life, there is something that is presumably even more valuable than income: life itself. [perhaps a better way of conveying my point is as follows. imagine a society in which one gender dies on average at age 50, the other at age 55, but the former has an average annual income 10 % higher than the latter (with everyone guaranteed a decent minimum income). if this is all you know, which gender would you prefer to belong to? my guess is that many of us would go for the longer life. if instead, you would prefer to belong to the gender with the higher annual income, reiterate the thought experiment with a 5% , a 1% or even a 0.1% income gap, while leaving the respective life expectancies unchanged. i doubt that anyone would need to go to such a low income differential before indicating a preference for the gender with a longer life expectancy. as long as most people would be willing to give up some income in order to live longer, women’s higher life expectancy reduces the inequality between men and women. this claim is not self-evident, as shown by two interesting objections. firstly, whereas the socially produced income inequality between the two genders is an injustice, should we not say that the inequalit y in life expectancies is not, because it derives either from a biological difference or a difference in lifestyles (or a combination of both)? in the former case, it is a natural fact, not a social injustice. in the latter case, it is a matter of choice for which people need to be held responsible, not of social circumstances which social justice requires us, as far as possible, to neutralize. but are just institutions not also required to reduce natural inequalities, say, between the more talented and the less talented, between the able-bodied and the handicapped? and are gender-specific lifestyles not a matter of social norms at least as much as of individual choice? secondly, doesn’t the alleged advantage of women in terms of life expectancy overlook the inequality in the distribution of care work generated by this very advantage? women do not only live five or six years longer than men, they are also on average two or three years younger than their male partner. this means that far more women than men are likely to still be around when their ageing partner is becoming frail and dependent. as long as much of the elderly care required in these circumstances is performed within the household, the necessar y consequence is a ver y significant inequalit y in the amount of four puzzles on gender equality 83 leap 3 (2015) domestic elderly care work performed by the two genders, which — as lives get longer and children fewer — may approximate or even exceed the size of the inequality in the respective amounts of domestic child care. note that this holds even under the unrealistic assumption that both the will and capacity to care for their partner are the same for men and women. in this light, men’s lower life expectancy might be interpreted as a trick to extract more care work out of women. its impact could only be neutralized if elderly care work were 100% outsourced — which hardly seems desirable, even if it were affordable — or if women had male partners on average 5 or 6 years younger than them — which, for whatever reason, does not seem on the horizon.] 3. educational achievement ever since the invention of school, men have long enjoyed a huge educational advantage over women. in most, if not all, developed countries, this has ceased to be the case for some years. in the european union, for example, the percentage of women with a higher education degree is 25%, compared to 22% for men. and in sweden, often regarded as the forerunner in matters of gender equality, the corresponding figures are 35% for women and 25% for men. isn’t the concern to reduce this inequality overshooting? [one may reply that some overshooting would do no harm. after centuries of massive inequalit y favoring men, a few decennia of some inequalit y favoring women would be welcome. however, even if today’s men were the descendants of yesterday’s men only and today’s women of yesterday’s women only, thereby forming two separate lineages, this sort of intergenerational revenge would have a hard time passing as justice between members of the current generation. if only because today’s men are just as much as today’s women the descendants of the female victims of yesterday’s injustice, i doubt anyone will, on reflection, take this objection seriously. far more serious is the objection that even though women are, on average, more highly educated than men, they still earn lower incomes. this would seem to make the injustice even worse: not only do women get paid less than men, but they do so despite studying harder. no doubt this paradoxical situation is due in part to the time it takes for differences in educational accomplishment to be reflected in differences in professional success, but also and probably to a larger extent to the fact that women choose studies that lead to less lucrative careers. if this is the main factor, can the paradox still be viewed as amplifying the injustice? whatever the verdict on the previous two issues, there is a third consideration worth pondering. irrespective of its specific content, the level of education 84 philippe van parijs leap 3 (2015) matters for reasons irreducible to earning power: it has a significant impact on health, for example, or on empowerment as citizens and household members. this is arguably why it features as an important separate variable in indexes of a countr y’s human development proposed as alternatives to gdp per capita. if we accept this proposition, we seem led again to the same sort of tradeoff as in the case of life expectancy: women’s emerging educational advantage should then be regarded as offsetting (albeit in small part) men’s economic advantage. or can this only be said if the educational advantage is due to a difference in innate ability rather than to a difference in effort?] 4. political power if you combine the first two inequalities, you are in a position to predict the growth of a third one. from women’s longer life expectancy, it necessarily follows, with universal suffrage, that they form a majority in the electorate. moreover, in countries in which voting is not compulsory, there tends to be a significant statistical correlation between level of education and actually using the right to vote. even in belgium, where the vote is supposed to be obligatory, the less educated, i gather, are over represented in the growing percentage of non-voters. consequently, the growing educational gap between women and men can be expected to express itself in a continuous strengthening of women’s electoral majority.2 if as a result of these trends women regularly cast over 60% of the votes, can it not be said that there is a political inequality in their favor, no doubt less outrageous as regards both size and source than the one that long prevailed in our so-called democratic past, but nonetheless real? moreover, this inequality would hold even if the people elected into power by t his predomina nt ly fema le electorate kept being most ly men. on t he assumption that the electorate is not stupid or blind, these people, whether women or men, w ill only be elected and re-elected if the policies they propose or adopt match the preferences of the female majority. [again, a simple thought experiment may make the point more vividly. suppose you can choose between two electoral systems: one in which only women can vote and only men can be elected, and one in which only men can vote and only women can be elected. which would you prefer? isn’t it obvious that those concerned with the fate of all women, rather than the career prospects of a few, should prefer the former to the latter? if this is the case, shouldn’t the fact that women form a growing proportion of the voters (if it is a fact) count as a significant political inequality in their favor? 2 this must be asserted with some caution, as one would need to verif y that, for any given level of education, men do not vote more than women and that the overall positive correlation between education and voting holds for both genders taken separately. four puzzles on gender equality 85 leap 3 (2015) moreover, this inequality in electoral power is one which, if they so wished (and contrary to the institutional assumption in the thought experiment of the previous paragraph), women could convert into an even greater inequality in their favor among those who hold political responsibilities. this would be the case, for example, if our electoral system were organized so as to aggregate the votes of women and men in a way essentially analogous to the way in which belgium’s electoral system aggregates the votes of flemings and walloons in belgium’s federal elections or the votes of (supposedly) french and dutch speakers in brussels’s regional elections: women would be required to vote for women only and men for men only.3 the seats in parliament would then be automatically distributed in proportion to the number of men and women in the electorate. if all the government needed were support of a majorit y in t he pa rlia ment (w it hout a f ur t her inst itut iona l const ra int analogous to the parity rules in the belgian and brussels governments), an all-female government supported by the female majority could rule the country in impeccably “democratic” fashion. there a re of course good reasons to avoid ex tending to t he gender divide the electoral pathology of belgium’s language community divide. it is important that those who want to govern a country should be electorally accountable to its whole population. but even w ith a strict analogue of belgium’s current electoral system, and hence in the absence of a guaranteed proportional representation of men and women in the elected assemblies, it is within the power of the electoral (and even greater voting) majority of women to vote into office a corresponding majority of women. indeed, under the french or british system of single-member constituencies, and on the reasonable assumption that women form the majority of the voting public in every one of them, women have the power to make sure that only women get into the parliamentary assembly. however, the point to which i want to draw attention holds irrespective of whether women use their power in this way. it holds even if they elected into office only male candidates, those ambitious enough to fancy exercising the increasingly unattractive job of politician, but driven by their very ambition to advocate and implement policies favored by the female majority.] 3 for its federal elections, belgium has a list-proportional system w ith prov incial constituencies. in flemish prov inces, there are only flemish candidates. a nd in walloon prov inces, there are only walloon candidates. for the regional elections in the officially bilingual region of brussels capital, there are two electoral colleges, with only dutch-speaking parties standing in one, and only french-speaking parties in the other. brussels voters can choose in which of these two colleges they wish to vote and are assumed to do so according to their own native language — an increasingly problematic assumption in a region with hundreds of distinct native languages. 86 philippe van parijs leap 3 (2015) 5. hormonal inequality the fourth inequality to which i want to draw attention is more delicate. a lthough part of what i am going to say w ill be said, as i hope you w ill notice, tongue-in-cheek, it is meant to draw attention to another important and difficult issue relating to the connection between gender injustice and gender inequality. as a point of departure, take the rather unsurprising fact i recently heard that over 95% of the consumers of prostitution services are men. why is this? this might have something to do with the fact that men’s annual incomes exceed women’s by a significant amount and that men therefore have more pocket money to spend on this expensive form of leisure. though pretty ignorant on these matters, i suspect that the cause is more basic and has something to do with the difference between male and female libido, their respective hormonal endowments, or some other physiological difference. no doubt this difference can be said to generate some of the most despicable cases of domination of women by men (whether clients or pimps). but does it not also reflect a gender-based inequality of needs, i.e., a form of handicap? men’s greedier libido turns them into handicapped individuals, sometimes even super-handicapped à la dominique strauss-kahn. whether the price to be paid for this handicap takes the form of expenditure on sexual services or of a fall into a reputational precipice, isn’t there here something to pity as well as to be indignant about? [attributing the frequency of some form of misdemeanor to the fact that the perpetrators are men rather than women does not disculpate them: an explanation is not an excuse, let alone a justification. most men, after all, are not prostitution clients, and however plausible the claim that the strong statistical correlation with maleness ref lects a genuine causal link, the role played by free will in the causal process is by no means irrelevant. this is arguably one key reason why we believe that prostitution services should not be subsidized in the way we believe psychiatric services and other forms of medical care should be. all of this hardly needs saying, i thought, but some of the reactions to the rather abrupt punch line of my speech suggest that stating the (fairly) obvious is not always a waste of time. there is, however, a deeper challenge here. consider the fact that young men are massively over represented among perpetrators of violent crimes (partly against women, but to a large extent against other men), and hence (luckily) four puzzles on gender equality 87 leap 3 (2015) also among prison inmates. here again, the hormonal story is not implausible.4 but the argument need not be fundamentally different if men and women had equally aggressive dispositions but men gave way to them more often simply because their genetic endowment makes them physically stronger. under modern conditions, it is fortunately less easy to get away with violence than in the era of genghis khan. has an advantage not thereby be turned into a disadvantage? can it not be said that men are handicapped relative to women because of their greater propensity to end up in jail as a result of acts they would not have committed had they been women? here again, it may be prudent to add that this is no excuse, nor justification, for their behavior. after all, there are men who have not spent one minute in prison any more than one cent on prostitution. however, think about the way we react to similar figures displaying strong correlations between social background and smoking, or between social background and criminality. people who grew up in poor families tend to smoke far more than people from rich families (which makes the tobacco tax one of the most regressive taxes ever implemented), and they are disproportionately in prision (in part, no doubt, but not only, because they tend to be sentenced more severely for the same crimes). is it not plausible to regard this as an aspect of the injustice they suffer? they did not choose to be poor, and had they been rich rather than poor they would not (probabilistically speaking) be wasting their money on cigarettes or their time behind prison bars. this should not prevent us from taxing the smokers or punishing the offenders, but should it not temper our indignation – especially if we happen to enjoy a more privileged background? indeed, should we not view such facts as one of the expressions of the injustice inflicted on the poor? in this light, let us return to those men who waste their money on prostitutes or misbehave in a way that gets them into trouble (whether incarceration or reputational precipice). they did not choose to be men any more than those born poor chose to be born poor, and had they been women rather than men, they would not (probabilistically speaking) have to bear these burdens. is the analogy between the two cases not so strong that it would be inconsistent to regard the inequalities mentioned as an aspect of an injustice suffered by the poor, but not as an injustice suffered by men? (note that the analog y holds irrespective of the validity of the hormonal diagnosis. if the difference between the behavior patterns of men and women has nothing to do with testosterone or any other physiological difference, but rather with the way in which boys 4 see paula casal’s striking piece, which helped inspire the formulation of this fourth puzzle: “love not war. on the chemistry of good and evil,” in arguing about justice, louvain-laneuve: presses universitaires de louvain, 2011, 145-156. freely downloadable at www.academia. edu/2396206/arguing_about_justice_essays_for_philippe_van_parijs_pul_2011_free_pdf www.academia.edu/2396206/arguing_about_justice_essays_for_philippe_van_parijs_pul_2011_free_pdf www.academia.edu/2396206/arguing_about_justice_essays_for_philippe_van_parijs_pul_2011_free_pdf 88 philippe van parijs leap 3 (2015) are socialized – say, being encouraged to play with guns rather than dolls –, the analogy would arguably be even closer). this brings us to my philosophical question. why is it that my intuition – and presumably yours – is different in the two cases? is it simply because of the contingent fact that these handicaps suffered by men can hardly be said to offset the many unjust inequalities that favor them, whereas in the case of the poor they are added to a whole series of other clearly unjust inequalities in the same direction? or is there a deeper, less contingent difference between the two cases? is the key difference, for example, that it is hardly controversial that a world without poverty would be a better world, whereas some doubt (perhaps wrongly) that a mankind without males would be a better mankind? if this is not the key difference, what is?] epilogue: a philosopher’s job as mentioned at the start, part of the job of a philosopher is to question assumptions, and one effective way of doing so is by formulating puzzles by asking, for example, (1) if society gives group b more money per unit of time while nature gives group a more units of time, can it always be said that there is an unjust inequality at the expense of group a? (2) if society gives group b more money and group a better education, can it always be said that there is an unjust inequality at the expense of group a? (3) if group b enjoys a majorit y among power holders and group a a majority among those who choose the power holders, can it always be said that there is an unjust inequality at the expense of group a? (4) if group b’s genetic endowment makes its members more likely to end up in prison, can this ever be counted as an injustice suffered by its members, none of whom chose not to be born a member of the less incarceration-prone group a? are these questions outlandish, far-fetched, deprived of any relevance to the most pressing issues and most urgent struggles for the sake of greater justice between men and women? at first sight, several of them certainly are. yet they are worth asking. for each of them is meant to invite further thinking on the ideal of equality of opportunity that underlies much of the struggle for greater gender justice. the equalization of opportunities requires that one should neutralize the impact on our life prospects of circumstances beyond our control – including our being born women or men –, while making us bear the consequences of the choices we make – including those made by virtue of preferences that may happen to differ markedly between women and men. four puzzles on gender equality 89 leap 3 (2015) taking seriously the questions raised above and addressing the difficulties they reveal is essential to clarify, refine, and sharpen this ideal, and thereby to strengthen the struggles they inspire. dismissing them, by contrast, deprives us of an opportunity to give a sounder basis to the struggle for greater justice along the gender dimension, as along any other. in particular, articulating the ideal in response to puzzling challenges is essential to put any particular struggle in a broader context: the concern for opportunities, the real freedom of those with least real freedom, irrespective of their gender, but among whom women are massively overrepresented. leap 3 (2016) distributive justice and female longevity1 paul a c asa l icrea & pompeu fabra university abstract this paper discusses philippe van parijs’ claim that men’s lack of female longevity constitutes an injustice, whether this is caused by asocial factors or by gendered lifestyles. this response argues that, like others, such as john kekes and shlomi segall, van parijs underestimates the resources of egalitarian liberalism to avoid this implication. one explanation treats individuals as liable for gendered life-shortening behavior, for example, when they value either life-shortening lifestyles or the choice between lifestyles, and one cannot say society has not “done enough” for them. a second explanation claims a trait is not a relative advantage when it is systematically part of a package of traits that do not constitute a relative advantage. a third explanation claims a trait is not an advantage when its value to the trait bearer is conditional, and the relevant conditions are unlikely to be fulfilled. keywords: r. m. dworkin, hypothetical insurance, john kekes, gender, natural and social inequality, t. m. scanlon, shlomi segall introduction in “four puzzles on gender inequality” (2015), philippe van parijs presents his first puzzle thus: “as long as most people would be willing to give up some income in order to live longer, women’s higher life expectancy reduces the inequality between men and women” (2015: 82). this first puzzle is probably the most familiar of the four van parijs addresses. for example, when john kekes (1997) sets out to discredit egalitarian liberalism, he uses the idea of women having to compensate men for lacking female longevity as a reductio 1 i thank aurora pujol, josé luis martí, and particularly andrew williams for helpful comments on an earlier draft. i also thank two ver y thorough anonymous referees. i also t h a n k je s ú s mor a , l au r a s á nc he z de l a sier r a , a nd ha n n a h web er for t hei r e x c el lent editorial assistance. distributive justice and female longevity 91 leap 3 (2015) of t he ta rgeted v iew.2 rat her t ha n f inding it absurd to t reat women as relatively advantaged by their greater longevity, van parijs cannot think of a way to avoid the conclusion. he envisions only two ways to challenge it. one is to cla im t hat g reater fema le longev it y is eit her (i) due to men’s lifestyle and, therefore, something men are liable for, or (ii) biologically based and, thus, something justice does not require society to amend. he states that (i) is not available to those who hold that social norms shape gender-specific lifestyles, and (ii) is not an option for those who believe just institutions should also reduce inequalities derived from natural talents or disabilities (82). a final option he considers involves deny ing female longevity is a significant benefit, given the way those final years are spent. i shall follow this useful map to describe in more detail the territory it charts, and draw some routes he does not consider. like van parijs, i shall not establish the facts, but focus on the normative implications of different factual assumptions. kekes finds the idea of compensating men for their lower longev it y particularly ridiculous because he regards the variation as a product of biology rather than of unjust social practices (1997: 104). however, i agree with van parijs that it is not plausible to regard greater female longevity as an entirely asocial phenomenon and then argue that only inequalities that are socially generated can be unjust (nagel 1997; daniels 2007; pogge 1989: secs. 15-16, 1995 and 2000). along with kekes, and others such as shlomi segall (2010: 105-10), van parijs gives the impression that liberal egalitarianism lacks the resources to deny plausibly that it is unjust that men lack female longevity. in contrast, i shall argue that there are plausible liberal egalitarian views that hold individuals l iable for t he ha r m f u l consequences of their gendered lifestyles, and that deny that individuals lacking a certain trait are owed compensation when they identif y w ith t hei r t ra it-dest roy i ng lifestyles or when they value having the choice between different lifestyles. furthermore, even if we assume the variation in longevity between men and women depends entirely on asocial factors, plausible liberal egalitarian responses are still available. one such response claims a trait is not a relative advantage when it is systematically part of a package of traits that do not constitute a relative advantage. a final option, which van parijs also considers, is to deny a trait has value to the trait bearer if its value is conditional, and the relevant conditions are unlikely to be fulfilled. i shall proceed to examine the options just noted, referring both to mainstream normative theories and to scientific explanations. my main hope 2 for convenience, like van parijs, i shall compare men and women; and like kekes, i shall refer to “compensations.” the relevant measure, however, is not how far individuals or groups are from one another but how far they are from what they would have in a just society. 92 paula casal leap 3 (2015) is to show the complexity of van parijs’ first puzzle. some deem compensating men for their lesser longevity obviously absurd whilst others find it just as obv ious that liberal equalit y rightly mandates such compensations. in contrast, i think that both reactions are mistaken, and that the puzzle is not only very difficult but also an interesting litmus test to sort important variants of plausible forms of egalitarian liberalism. i am also sure that if a random mutation resulted in women starting to die far ahead of men many of those who currently find van parijs’ suggestion absurd would start listing lesser longevity as one of the disadvantages women suffer. but i shall leave the defense of his position to van parijs, and focus on some plausible responses liberal egalitarians could give, and which he has so far neglected. 2. the social hypothesis: life-shortening gendered behaviour a lthough women live longer on average than men, there are remarkable differences in the variation among different societies. this suggests that social factors play some important role in explaining gender-based variations in longevity. for example, in 2013 women outlived men by twelve years in belarus, but only by one year in san marino, and men outlived women by four years in tonga (who 2015). in europe, women outlive men by eleven years in lit hua nia, whi le in more gender ega lita ria n societ ies li ke sweden, netherlands, and the united kingdom, the gender gap is just around three years (eurostat 2015). further evidence of the importance of social factors refers to changes in the gender gap within one society across time. for ex a mple, a s gender equa l it y i ncrea ses i n eu rope, t he longev it y gap is shrinking (eurostat 2015). in china, the projection of current trends shows that as more people survive their 80th birthday, women become more prevalent in the last age group (fig. 1). fig 1. chinese life expectancy pyramids in 2000 and 2050. source: world population prospects, 2004 revision (2005)3. 3 http://www.prb.org/publications/articles/2006/chinasconcernoverpopulationagingandhealth.aspx percentage percentage male malefemale female http://www.prb.org/publications/articles/2006/chinasconcernoverpopulationagingandhealth.aspx distributive justice and female longevity 93 leap 3 (2015) now, longevity may depend on social factors without also depending on gender-specific lifestyles. for social factors could include, for example, a reform in the publicly-funded health service or the adoption of a certain tradition or sport w ith an unexpected differential impact on male and female life expectancy. improved hygiene and obstetric care, for example, reduced women’s death in childbirth, creating a longevity gap which was not so noticeable before. longevity varies from one society or one period to another for social, but not always gendered, reasons. let us assume, however, as van parijs does, that if the causes are social, they involve gender-based variations in lifestyle (see also segall 2010: 108). the causes generally listed involve different factors. some are unhealthy habits such as some pleasurable forms of consumption like drinking alcohol, smoking, taking drugs, or eating without measure whatever one fancies. others involve risky activities such as speeding, drunk driving, dangerous sports, and the sort of behav ior displayed in internet v ideos w ith labels such as “extreme idiots.”4 a third factor involves occupational hazards, and a fourth, violence or a greater tendency to commit suicide or homicide, or to be killed or injured in fights (see fig. 2). white, non-hispanic black, non-hispanic hispanic men women men women men women injuries 70.8 22.3 49.0 14.8 55.7 13.0 homicide 6.4 2.6 102.2 11.3 28.0 4.0 suicide* 24.6 5.0 14.5 2.4 12.8 2.9 cancer 6.0 4.5 6.7 6.3 5.7 5.4 heart disease 5.0 3.0 13.8 7.4 4.6 2.0 hiv** — — — 5.7 — — fig. 2: leading causes of death for men and women aged 20-29 in the us in 2007, deaths per 100,000 (prb 2010). most feminists, and perhaps most liberal egalitarians, tend to hold social rather than biological explanations of gendered behavior, and so they may find the lifest yle explanation of longev it y plausible. this, however, does not commit them to the view that if a man’s behavior is gendered, he is not liable to bear the burdens arising from it. there are different explanations of why inferring a lack of liability is a non sequitur. i cannot rev iew them all but several are not hard to guess. first, denying liability for the bad consequences of gendered behavior would 4 see, for example, https://w w w.youtube.com/watch?v=px a xbzegtua https://www.youtube.com/watch?v=pxaxbzegtua 94 paula casal leap 3 (2015) have undesirable consequences as it would leave us w ithout important incentives to avoid behavior that is both undesirable and gendered. leaving consequences aside, one may argue that it is not fair that, while men can indulge in drinking and eating without gaining weight or being so strongly penalized by society, women must exercise self-restraint and then compensate men for not having exercised it. this is unfair because if a already had all the fun of a carpe diem lifestyle, b should be allowed to keep the benefits of the self-restraint exercised. otherwise it would be like making women who diet pay for the slimming treatment of those who overeat. second, since male violence and risk-taking are already among the main causes of death for young women, one cou ld a rg ue t hat women have a lready pa id w it h a significant reduction in their own longevity and shared in the costs of male behavior. regarding occupational hazards, some would argue that if both a and b want jobs, and jobs that involve (on-balance advantageous) combinations of benefits and drawbacks, it will be unfair to give a the job, and make b compensate a for the job ś drawbacks (including possible longevity losses). assuming it is not the dead but living people to whom compensation is or is not owed raises further problems. it would not make sense to compensate men who avoid all life-shortening behavior and are thus likely to live long. for then there will be nothing they have to be compensated for, and they will be unfairly enjoying both the extra years and the compensation for lacking them. but it would make even less sense to compensate individuals who, despite engaging in all the life-shortening gendered behavior, still escape the fate for which they are supposed to be compensated. we would be giving extra resources to people who remain alive despite their eating without selfrestraint or their indulging in other imprudent activities. this seems just as implausible, if not more. it may seem more plausible if, instead of granting monetary compensations to the men who stay alive, we invested more on men’s health and spent less on pregnancy or cervical cancer, as shlomi segall at one point suggests to illustrate the case (2010 : 108). but if pecuniar y compensations are not justified, neither are these in-kind compensations. if there is nothing to compensate men for, they will be enjoying both the extra years and the compensation, and this would be unfair. (both pregnancy and cervical cancer, moreover, come about because of sperm, which arguably makes it even more unfair). another possibility would be to force men to adopt female lifestyles. but men may resist this option. this could be because they prefer life-shortening lifestyles or because they value having the choice, the mere opportunity of engaging in activities with some risk of self-harm. adapting an example proposed by scanlon to explain the value of choice, let us imagine that there is an area with extremely nasty nettles in bloom distributive justice and female longevity 95 leap 3 (2015) that cause a terrible rash (scanlon 1998: 256).5 the authorities mark the area and warn people about the consequences of wandering through the flowering nettles. scanlon argues that even if it is difficult to see any value in getting a nasty rash, there is generic value in being able to choose rather than be forced to do the right thing all the time. thus, having fenced off the area and issued all the warnings, we could say that society had done enough to protect individuals from the danger (see scanlon 1998: 249-294; voorhoeve 2008; williams 2006). scanlon then asks us to imagine there is a curious woman who really wants to see what is happening in the fenced area, and so decides to go in to check it out (scanlon 1998: 257). he denies she will then have a claim on society for help or compensation, since she had an adequate opportunity to avoid the harm. there could be exceptions to this conclusion that scanlon would accept. for example, if we can stop her rash by showering her with the public park’s watering hose, it would be such an easy rescue that she could have a complaint if she were not showered. in other cases, perhaps during a drought, she could not make such demands. another plausible exception would be that of individuals or groups who are already victims of injustice or live below a minimum threshold and take some risks to escape their dire condition. since such exceptions do not apply to the case of men indulging in unhealthy habits, let us add to the picture some gender stereot y pes and claim that the woman was a victim of female curiosity or love for f lowers, and so was engaging in self-harming gendered behavior. or suppose a man wants to enter the fenced area to show off how tough he is or because of a gendered sensat ion-seek i ng desi re, or a gendered aut hor it y-def y i ng attitude. would this change anything? it is implausible to assume that the mere fact that such behavior can be associated with gender stereotypes makes a difference. it would make a difference if the signs were unclear or if the individuals were children. but adults who chose to ignore the clear sig ns do not have a leg it imate compla int if t hey come out w it h a rash, regardless of whether theirs was a case of typically male, female, sport-fan, or ideological foolishness. in t he ca se of l i fe-shor ten i ng gendered behav ior, t he ca se aga i nst compensation is even stronger that in the example of the nettles because incursion into the fenced area is a one-off event rather than recurrent behavior, like eating and drinking excessively, driving recklessly, picking fights, and general carelessness. if the behavior that causes a man to have 5 i have modified scanlon’s original example because it involved hazardous waste, which may suggest corporate responsibilit y for extremely nast y and premature deaths in deprived areas. 96 paula casal leap 3 (2015) a shorter life span is traceable to choices that men pursue repeatedly, and even identify with, the case for compensation is even less plausible. given that we cannot plausible claim society has not done enough for men, or compare the case to that of an easy rescue, liberal egalitarians who believe in accommodating t he va lue of choice would not compensate men for undesirable, gendered behavior. needless to say, for desert theorists, making the prudent, non-violent, law-abiding poor reward the imprudent, violent, careless rich is exactly the opposite of justice (see, for example, arneson 2007). but let us now examine what follows if sex variations in longevity do not depend on behavior but respond to some other explanations scientists have proposed, and which i sum up below. 3. the asocial hypothesis: the evolutionary explanations on average, women live longer than men. it would be puzzling for scientists if they did not, as this is normal for females in other species. a traditional explanation in the case of humans is that estrogen protects women from cardiovascular disease. another explanation is that having only one copy of the x chromosome makes males more vulnerable to harmful recessive mutations (pan 2012).6 the latter explanation could also account for the alleged female tendency to form a tighter cluster near the mean while more males are outliers, occupying more extreme (desirable and undesirable) positions (cronin 2008). sexual differences in longevity, however, are greater in species with a history of polygyny (i.e., of males mating with several females) and tend to be g reater t he la rger t he si ze of t he ha rems. thus, in ver y polyg y nous mammals, like elephant seals, males are almost twice as large as females and females almost twice as long-lived as males.7 in contrast, in less polygynous species, sex differences in either size or longevity may be much smaller. the massive bowhead whales can sur v ive t wo centuries, whi le small insects may survive only two weeks because, across species, a large size correlates with longevity. by contrast, between the sexes of the same species, the reverse obtains: if the females of a species are much smaller than the males of the same species, they tend to live much longer. 6 a recent ly proposed ex pla nat ion is t hat t he qua l it y-screen i ng process of ou r mitochondrial genes only happens through females, and so mitochondrial mutations may be weeded out when t hey a re ha rmf u l to fema les but not when t hey a re ha rmf u l to ma les (camus 2012). 7 male southern elephant seals weigh 11,000 pounds and live around 15 years, whilst female southern elephant seals weigh 2,000 pounds and live around 24 years. see, for example, http://www.marinebio.net/marinescience/05nekton/esbody.htm. http://www.marinebio.net/marinescience/05nekton/esbody.htm distributive justice and female longevity 97 leap 3 (2015) in species with a polygynous history, when compared to females, males are: (i) larger and better armed or ornamented; (ii) more aggressive; (iii) more drawn to competitive interaction and aggressive play; (iv) more likely to engage in escalating violence, leading to injury or death; (v) more eager to mate; (vi) less discriminating about mates; (vii) more prone to high-risk behav ior, particularly when pursuing females (dar w in 1872; thornhill and palmer 2000 : 37); (v iii) more likely to die prematurely in accidents, combat, or f rom d isea se (da ly a nd w i lson 1983); (i x) less long-l ived through physiological malfunction (hamilton 1966); and (x) conceived and born in larger numbers, roughly balancing their dying prematurely in larger numbers from violence, disease, malfunction, or imprudence (alexander et al. 1979). these characteristics could cause men to lack some of the selfrepair mechanisms that women have because there would not be much point in nature investing in self-repair systems for those likely to die of other causes any way (diamond 1993: 110). other explanations refer to the social usefulness of females for youngsters of eit her sex. in polyg y nous species, ma les a re more ex pendable t ha n females not only because fewer males are needed for reproduction, but because offspring benefit more from females. one example is the grandmother effect, observable in matriarchal societies like those of orcas, where older females guide and protect the young, surviving menopause and outliving males by several decades (brault and caswell 1993). think too about how male lions wait for the females to bring home the bacon, and having killed all the cubs they did not sire, leave only scraps for their own offspring to eat. youngsters sometimes do so much better without their large, sexually aggressive male parent around that the best such males can do for their offspring is what some actually do: go away and die to avoid competing with their own kin. longevity is known to correlate not only with size in the two ways explained above but also with cultural transmission. elephants, great apes, and other highly intelligent, self-aware, cultural creatures, like orcas, lactate for many years. they do so not because they need the milk, but because they need to intersperse the pregnancies to allow mothers enough time to provide their offspring with an education. lactation, however, is also connected to the high incidence of polygyny in mammals, since such devoted mothers are very easy to exploit: they will not abandon the offspring in which they have invested so greatly, even if they are abandoned or exploited themselves. the large investment per infant typical of these species is adaptive because its members are long-lived, so education and cultural transmission tends to pay off. in the case of humans, the large human brain required for extensive learning involves large additional costs for child-bearing women, and this 98 paula casal leap 3 (2015) may have also resulted in their greater longevity: a very large brain for babies, combined with a pelvis not initially designed for bipedal walking, makes human births exceptionally dangerous even for young and healthy mothers. given these facts, if women died younger and were fertile until they were about to die, both mothers and their infants would die in even larger numbers. female longevity might then be a consequence of how much more costly it is to have offspring for female humans compared to other female primates (diamond 1993: 117). and since mothers pass their genes to their sons, men could have then benefited from an increase in their longevity (relative to that of all other apes) without having to pay the costs. appealing to these considerations, some may respond to van parijs in at least four ways. first, one may respond by arguing that the main beneficiaries of female longevity are actually men. female longevity is not a trait that is explained by its benefits for females but by its benefits to offspring of both sexes. moreover, possessing this trait comes at a high price for women since it is connected to the extraordinary danger and difficulty involved in giving birth, as well as to smaller size in females, and inequality and reproductive exploitation. without pay ing these costs, men also benefit from female longevity since they benefit when they are young males, they benefit from their own offspring being safe, and it is likely that they have also benefited with increases in their own longevity. on this view, then, one could argue that is not males, but rather females that ought to be compensated for the costs of securing collective longevity. a second reply would involve arguing that the inequality in longevity is not unjust because its removal would make humans worse off. if so, rawlsians, for example, would deny such beneficial inequalities are unjust. if these explanations are correct, van parijs’ assumption that, if longevity has a biological explanation, then men’s lack of female longevity is unjust, would be a non sequitur. a third answer to van parijs would be to argue that if males die younger because of their propensity to attack others in order to monopolize more females, while females live longer because of their useful caring services, in a way we are back to the explanation of longevity in terms of “gendered” lifestyles discussed earlier. van parijs, however, may argue that evidence of gendered lifestyles having evolutionary roots only reduces men’s liability. but this is too rushed. first, everything has evolutionary roots, and we do not generally deny all liability. second, for some theories of liability, the fact that humans have an evolutionary past is taken for granted and makes no difference at all. third, we are sufficiently monogamous and sufficiently unlike seals, orcas, and lions that although some may be tempted to behave like such animals, we are not hardwired to do so, and most of us do not. distributive justice and female longevity 99 leap 3 (2015) a fourth and final answer to van parijs is to deny compensation on the ground that a trait cannot be considered an advantage when it is inextricably linked to other traits that cannot, on the whole, be considered an advantage, which is precisely what scientists are telling us with these explanations. ronald dworkin and other advocates of equality of resources (dworkin 2000), for example, would deny that individuals have any claim simultaneously to enjoy the advantages of a condition and the advantages of lacking the condition. take a case (suggested to me by andrew williams) involving a basketball player whose exceptional success depends on unusual height that is also correlated with premature death and terrible backaches. dworkin would deny another shorter player is relatively disadvantaged in a compensationsupporting sense when he prefers only the taller player’s success, and does not regret lacking the package of traits on which it depends. on this view, men have no legitimate complaint regarding female longevity because, as the biological explanations suggest, giving birth and living a few more years are tightly linked and part of the same package, like the height and the backache, the suffering and the medals. and people are not entitled to have their cake and eat it too, enjoy an able body and yet insist in competing in the paralympics, or be compensated for not being able to do so. there are, moreover, further arguments against compensating men inspired by dworkin’s work on equality. as many readers probably know, for dworkin a fair distribution of external resources is one which could have emerged from a hypothetical auction where individuals enjoy equal bidding power (2002: 67). when the process is complete nobody envies the bundle of resources others have ended up with, since they could have also bid for those resources themselves. against this background of equality of resources, equally situated individuals then purchase insurance against what they by their own lights consider a relative misfortune (clayton 2000; williams 2002, 2004). now, since men do not normally regard being male as such a misfortune, they are not entitled to compensation for lacking female longevity, or female hormones, or female breasts. by contrast, some transgender persons who very much want to have female bodies, and even give birth and breastfeed, w ith or w ithout the extra longev it y, but have a male anatomy, should be compensated. dworkin’s view supports assisting these individuals with their sex-reassignment needs through a publicly-funded health ser v ice because people would have insured against being born with a body which does not match their self-identified sex when others possess such a body. some may worry that this dworkinian criterion for justifying or denying compensations depending on whether individuals identify with their condition may not always favor feminist demands. in response to this worry, one may 100 paula casal leap 3 (2015) a rg ue t hat t he d work i n ia n cr iter ion ca n not be used aga i nst fem i n ist demands because what women want (equal pay, respect, political representation, and so on) has nothing to do with being male or female. few expressions in the history of thought are as unfortunate as the freudian and lacanian “penis env y,” when what women want and demand does not depend on maleness or anatomy. thus, if men do not suffer from the reverse condition (say “womb env y”) but are perfectly happy to be men, and identif y with being men and do not consider being male a misfortune, they have no claim to compensation because in their own opinion they are not the victims of bad luck. they would have insured against illness or disability but not against being male. the same will apply to a religious believer who ends up not only with a lower life expectancy but lower welfare throughout his life because of the constant fasting that his religion demands. if this person identifies with his faith and does not regard it as a craving or disability, he does not have a complaint. he cannot both pity the atheist’s lack of faith and think of his own faith as a blessing whilst still plausibly claim to suffer from relatively bad luck. similarly, there is no injustice if this believer dies younger purely as a result of a faith he welcomes and the corresponding religious activity he willingly pursues (dworkin 2002: 119, 138; williams 2002: 378). dworkin’s account, thus, is an example of a view that does not claim that justice concerns exclusively that which has a social origin, and still denies that men’s lack of female longevity constitutes an injustice. van parijs may want to reject dworkin’s account and all forms of egalitarian liberalism that conclude men’s lack of female longevity is not unjust, and he may be able to offer good reasons for doing so. my main point, however, is that his road map is not exhaustive: there are more exit routes on offer than he allows. in fact, van parijs even omits to mention his own proposal regarding how to evaluate variations in internal assets, namely undominated diversity, according to which targeted transfers and other measures must make sure that no person’s lifetime internal endowments are regarded by all as inferior to that of someone else (van parijs 1997, ch. 3). on this view, men are owed no compensation because there is no agreement on their endowment being inferior – there may even be a consensus on the denial of this claim. so it seems that not only scanlonians and dworkinians but even van parijsians may deny it is unjust that men lack female longevity. regarding rawls, his theory of justice has been widely interpreted as denying that it is unjust that men lack female longevity (barclay 1999; segall 2010, 99ff and clayton 2001). the first statement of his view was understood as claiming that justice requires equalizing individuals’ natural primary distributive justice and female longevity 101 leap 3 (2015) goods when a deficit in those goods resulted in an unequal access to social primary goods, namely income, wealth, the basic liberties, and the social bases of self-respect. since men are not disadvantaged in their access to social primary goods, however, there is no injustice that needs to be corrected. rawls’ later justice as fairness. a restatement (2001), however, contains a section on sen’s capability approach (rawls 2001: 168-176), which suggests that the widely held interpretation may not be the only position a rawlsian may take in this debate. instead, some rawlsians may argue that longevity is a capability and that enjoying greater capabilities matters even if it does not alter an individual’s access to primary goods. so rawlsians may accept that differences in longevity can have independent relevance for justice. since most people disregard this aspect of rawls’ restatement of his theory, we can safely conclude that most liberal egalitarians deny that men’s lack of female longevity is unjust. let us now turn to the final question van parijs raises which concerns the value rather than origins of greater female longevity. 4. is female longevity a significant benefit? van parijs begins by granting that hav ing some extra years may not be significantly valuable, and that concession seem plausible. women’s extra years may come when they are too old, weak, disabled, or dependent to achieve anything very valuable with the extra time. they may spend most of the time asleep, ill, in and out of hospital, and with their mind and energy focused on coping with the problems of female old-age: frequent falls and fractures, arthritis, incontinence, deafness (cutting people off socially, which affects women more), stress, insomnia, depression, and dementia, which claim more female than male victims. longevity, then, is only conditionally valuable, and the last few years of one’s life are the ones more likely to detract from the total value of one’s overall existence. as van parijs notes, it would be great to have some extra years if they could be “squeezed in at age 30 or 40” (2015: 82) rather than prolonging the worst bit of one’s life. i agree again. van parijs, however, goes on to add: “but this is a confusion. what hides behind the gap between the average lengths of women’s and men’s lives is a greater probability for a woman to reach and enjoy her forties, her fifties, her sixties, etc., not only her nineties” (82). van parijs does not indicate the extent to which men’s prospects of reaching middle age are smaller than women’s, and if that gap is not itself significant, he has not made any progress in showing that women enjoy a significant benefit here. moreover, van parijs does not cite any data supporting his claim, and population pyramids like those indicated earlier (fig. 1) suggest that the number of males and females at ages 30 and 40 remain largely the 102 paula casal leap 3 (2015) same until we reach the very last, and least desirable, stage of life. thus, even if his qualification is relevant, the differences in probabilities may not be sufficiently large as to constitute a significant advantage. there are also likely to be regional variations, and so depending on your birthplace you may be a victim of female infanticide or die in childhood from “the pattern of neglect” (the systematic dismissal of a daughter’s nutritional or medical needs), you may be killed by your rapist, stoned by religious fanatics, burned for witchcraft, killed for dowry, or die in childbirth or from domestic violence. as different factors combine, over a hundred million women are missing (sen 1990). of course, things are different in developed societies. but there, if you are prudent and look after yourself, the chances of dy ing young are so small for both women and men that some small difference in what is already a remote chance may not be very significant. in addition, as van parijs notes, women are not only poorer but also need to stretch their scarcer resources over more years, which makes them in one respect poorer still. having said this, however, he adds that there is an income difference (and he mentions income differences of 5%, 1% and 0.01%) that individuals would accept in exchange for increased longevity. three observations are needed here. first, women do not only have to stretch the fewer resources they have over a few more (equally costly) years. in fact, it is in those final years that the costs of surviving often skyrocket. second, women are not only poorer but much poorer than men and much worse paid. and so that the reader is not left with the wrong impression, it is worth noting that income differences are much larger than those van parijs suggests in his thought experiment. in spain, for instance, the gender income difference is 33.7% (eurostat 2015b), so that if a man makes 1,000€€ a month, the woman would only make 666€, receiving just 2€€ for every 3€€ a man secures. third, just as we cannot imagine that the extra years are additional years in our 30’s or 40’s, we cannot imagine these are additional years of a typical male life, with all the drinking or speeding included. for the alleged advantage consists mainly in the final years of a female life, with its poverty, illness, stress, and subordination to men. it is unlikely, then, that men would prefer these female ‘advantages’, and if they are tempted to do so they should consider van parijs’ final, and most original, observation regarding longevity. he notes that besides living longer, women are also on average two or three years younger than their male partner. this means that far more women than men are likely to still be around when their ageing partner is becoming frail and dependent. as long as much of the elderly care required in these circumstances is performed distributive justice and female longevity 103 leap 3 (2015) within the household, the necessary consequence is a very significant inequality in the amount of domestic elderly care work performed by the two genders, which — as lives get longer and children fewer — may approximate or even exceed the size of the inequality in the respective amounts of domestic child care. note that this holds even under the unrealistic assumption that both the will and capacity to care for their partner are the same for men and women. in this light, men’s lower life expectancy might be interpreted as a trick to extract more care work out of women (2015: 82). what this means is that women’s somewhat longer lives are not really theirs: whatever their vocation, they are effectively conscripted as nurses, cooks, and cleaners. not long after they finish cleaning and feeding their children, they may end up stuck with the far less pleasant chore of cleaning a nd feeding old men, of ten f irst t heir ow n fat her a nd t hen t heir elderly spouse. hav ing looked after their partner day and night, they then see them die, and go on to age and die alone themselves. van parijs sees no way out of this. since deterring men from marr y ing younger women seems difficult, if not impossible, and getting them to outsource their elderly care seems to him not only costly but undesirable, he thinks we face here a blind alley. if we accept this pessimistic conclusion, it becomes easier to deny men are missing out on any significant benefit. but perhaps we should explore ways to change women’s situation in those final years. let us consider the age gap first. the age between spouses correlates with higher divorce rates (francis-tan and mialon 2015), and so we may have additional reasons to nudge people into reconsidering divorcing to marry somebody much younger. van parijs himself once proposed a tax on the age difference between partners to reduce the chances of the wife leaving a less senior job than her husband’s in order to care for their children (van parijs 2001). such a tax could serve other functions too, and it could even be progressive: the rate could be adjusted so an elderly millionaire starting his fourth marriage to a barely adult beauty queen would pay a higher tax than a less wealthy man whose marriage involves a smaller age gap. and since the gap correlates with income inequality and other aspects of the social structure (casterline 1986), it may also spontaneously shrink as society becomes more just. regarding elderly care, i favor more outsourcing. some countries out source care by combining the elderly individual’s savings with state aid, for exa mple, by adva ncing f unds t hat t he state ca n t hen recover once t he deceased’s home is sold. most developed countries outsource childcare despite the fact that it is important for the development of the child (but often not for the elderly) to be cared for by a specific person, and despite 104 paula casal leap 3 (2015) the fact that it is far more delightful for a person to wash and feed her own child than an old man. one may prefer to see and talk to one’s spouse or female relative rather than a paid carer, but then one can always invite them to visit rather than force them to be there performing all sorts of tasks, such as treating bedsores, that not everybody is cut out for. caring for an elderly person often requires the ability not to feel faint or nauseous when confronted with certain sights and smells, the ability not to take criticisms personally, and the strength not to drop a man’s body when moving it. if a young male professional is much better than an aging wife at all of this, it is not desirable to rely on her performing such tasks. moreover, it is unfair that after a lifetime of being paid so much more, men cou ld go on to ex pec t women to c a re for t hem g rat is. i n stead, ever y body should feel under a duty to save to avoid becoming, in effect, slave-drivers in their old age. i certainly do not see how one could have a right to turn a rare and modest advantage for women into yet more unpaid and unchosen female labor. as dworkin would say, we may disagree about to what extent we should compensate people for a certain disability, but we should agree that a just society will not turn individuals’ natural advantages into a liability by engaging in some sort of slavery for either the talented or the long-lived. conclusion van parijs claims that lacking female longevity is an injustice against men, if it is caused by a gendered lifestyle. i have argued that on some plausible views, such as thomas scanlon’s, at least under some circumstances in which society can be said to have "done enough" for some individuals, they can be expected to bear the consequences of their life-shortening behavior, whether or not it is influenced by gender stereotypes. van parijs also argues that if men’s lack of female longevity is due to asocial factors, then it is an injustice against men. i have argued that on some plausible views, such as ronald dworkin’s, it is not an injustice if, as scientists suggest, having female longevity is inextricably linked to being female, and men identify with their condition and do not consider it bad brute luck. finally, van parijs notes various reasons to deny female longevity is a significant benefit. one of them concerns the informal conscription of unpaid female labor for elderly care. i have argued such conscription should end. until it does, however, i agree with van parijs that it greatly diminishes the value of what was already at most a very modest benefit. distributive justice and female longevity 105 leap 3 (2015) bibliography alexander, r. et al., 1979: “sexual dimorphism and breeding systems of pinnipeds, ung ulates, primates and humans,” evolutionary biolog y and human social behaviour, ed. n. chagnon and w. irons. north scituate: duxbury. arneson, r., 2007: “desert and equality”, egalitarianism. new essays on the nature and value of equality, ed. n. holtug and k. lippert-rasmussen. oxford: oxford university press. barclay, l., 1999: “the answer to kekes’ question,” ethics 110: 84-92. brault s. & h. caswell, 1993: “pod-specific demography of killer whales,” ecology 74: 1444-54. camus, m. f., d. j. clancy and d. k. dowling, 2012: “mitochondria l, materna l inheritance and male aging,” current biology 22: 1717-21. casterline, j., l. williams and p. mcdonald, 1986: “the age difference between spouses,” population studies 40: 353. clayton, m., 2000: “the resources of liberal equality,” imprints 5: 63-84. — 2001: “rawls and natural aristocracy,” croatian journal of philosophy 1: 239-259. cronin, h., 2008: “more dumbbells but more nobels,” edge http://edge.org/annual-question/2008/response/10670 daniels, n., 2007: just health, cambridge: cambridge university press. darwin, c., 1872: the origin of the species, london: penguin. daly, m. and m. wilson, 1983: sex, evolution and behaviour, north scituate: duxbury. dworkin, r., 2000: sovereign virtue, cambridge ma: harvard university press. 2002: “sovereign virtue revisited,” ethics 113:106-143. eurostat, 2015a: mortality and life expectancy statistics, http://ec.europa.eu/eurostat/ statistics-explained/index.php/mortality_and_life_expectancy_statistics. eurostat, 2015b: gender pay gap statistics http://ec.europa.eu/eurostat/statisticsexplained/index.php/gender_pay_gap_statistics. francis-tan, a. and h. mialon, 2015: “a diamond is forever and other fairy tales,” economic inquiry 53:1919-30. hamilton, w. “the moulding of senescence by natural selection,” journal of theoretical biology 12: 12-45. kekes, j., 1997: against liberalism, ithaca: cornell university press. nagel, t., 1997: “justice and nature,” oxford journal of legal studies 17: 303-321. pan z, c. c., 2012: “gender and the regulation of longevity,” autoimmun review 11: a393-403. population reference bureau 2010: young us adults vulnerable to injuries and violence, http://w w w.prb.org/publications/articles/2010/usyoungadultinjury aspx (12.12.2015). pog ge, t., 1995 : “t h ree p roblems w it h cont racta r ia n-consequent ia l ist way s of assessing social institutions,” social philosophy and policy 12: 241–266 and in the just society, ed. e. f. paul et al. cambridge: cambridge university press [1995]: 247-250. — 20 0 0 : “ju st ic e for pe ople w it h di s a bi l it ie s — t he s em i-c on se quent ia l i st approach,” americans with disabilities: exploring implications of the law for individuals and institutions, ed. l. francis, and a. silvers. new york: routledge: 34–53. http://edge.org/annual-question/2008/response/10670 http://ec.europa.eu/eurostat/statistics-explained/index.php/mortality_and_life_expectancy_statistics http://ec.europa.eu/eurostat/statistics-explained/index.php/mortality_and_life_expectancy_statistics http://ec.europa.eu/eurostat/statistics-explained/index.php/gender_pay_gap_statistics http://ec.europa.eu/eurostat/statistics-explained/index.php/gender_pay_gap_statistics http://www.prb.org/publications/articles/2010/usyoungadultinjury.aspx http://www.prb.org/publications/articles/2010/usyoungadultinjury.aspx 106 paula casal leap 3 (2015) scanlon, t., 1998: what we owe to each other, cambridge ma: harvard university press. segall, s.: 2015: health, luck and justice, nj: princeton university press. sen, a., 1990: “more than one hundred women are missing,” new york review of books, december 20. thornhill, r. and c. palmer, 2000: a natural history of rape, cambridge mass: mit press. van parijs, p., 1997: real freedom for all, oxford: oxford university press. — 2001: “real freedom, the market and the family,” analyse und kritik 23:106-31. — 2015: “four puzzles on gender inequality,” law, ethics and philosophy 3. voorhoeve, a., 2008: “scanlon on substantive responsibility,” journal of political philosophy 16:184-200. w ho, 2015: “life expectancy data by countr y” http://apps.who.int/gho/data/ node.main.688?lang= en. williams, a., 2002: “equality for the ambitious,” philosophical quarterly 52: 377-389. — 2004: “equality, ambition and insurance,” proceedings of the aristotelian society, supplementary volume lx xviii: 131-150. — 2006: “liberty, liability, and contractualism,” egalitarianism ed. n. holtug and k. lippert-rasmussen. oxford: clarendon press: 241-61. http://apps.who.int/gho/data/node.main.688?lang=en. http://apps.who.int/gho/data/node.main.688?lang=en. leap 3 (2015) women’s greater educational efforts as a consequence of inequality1 jesús mor a carlos iii university of madrid abstract contrary to philippe van parijs’ assumptions, women’s greater educational achievements do not indicate that gender inequalities are smaller than assumed or that the efforts to achieve gender equality are overshooting. being more qualified may be women’s best hope to escape poverty, unemployment, or single-parenting, as well as domestic and workplace exploitation. they a re t hus sy mptoms of gender inequalit y, not signs of its disappearance. in addition, they do not translate into greater access to income and wealth, positions of power and authority, social standing, or the chance to have several children, in the same way as they do in the case of men. having to work so much harder to be rewarded so much less is, as van parijs at one point suspects, one of the forms of compound injustice that women face. keywords: gender inequality, education, poverty, traditional gender roles, leadership positions introduction in his second puzzle on gender equality, philippe van parijs draws attention to the fact that, in some places, women are now more successful than men in securing degrees in higher education. this is not true everywhere, but i shall not dispute the trend in some countries and instead note that this already happened in the united states in the mid-1980s (schwartz and han 2014: 605). this paper disputes some of the lessons van parijs draws from these events. van parijs points out that higher education “has a significant impact (...) on empowerment as citizens and household members” (2015: 84), and so wonders whether “women’s emerging educational advantage should then 1 special thanks to paula casal for her thoughtful suggestions, and multiple revisions and corrections. i also thank two anonymous referees 108 jesús mora leap 3 (2015) be regarded as offsetting (albeit in small part) men’s economic advantage” (84). my v iew is that it is true that education could potentially, in some possible world, offset men’s economic advantage. in ours, however, it does not. income and employ ment gender differentials persist, as van parijs admits (84 ). a nd, in fact, such inequa lit ies compel women much more than men to achieve higher education. women’s income and employment are much more dependent than men’s on qualifications and so, rather than indicating the end of inequality, women’s greater educational efforts appear to be just one of the many consequences of the pervasive inequality favoring men. women’s greater dependence on extra educational effort is one of the many disadvantages women suffer. it is well known that women, whether they are secretaries or mps, also have to make a greater effort than men to look good and dress well to avoid mockery. the fact that they try so much harder and sometimes succeed and do look better than men is not a sign of the end of injustice, but just one of the respects in which, as it is often said, women have to “try twice as hard, to be granted half as much.” and this makes men like myself wonder why they do persist in trying rather than give up in the face of such obstacles. 1. protection from poverty, single parenting and domestic exploitation one of the most relevant disparities between men and women is what we may call “the poverty risk,” which refers to the chances of ending up liv ing in poverty. while in the past there were a variety of reasons why somebody could end up liv ing in povert y and the ranks of the poor were made up to a greater extent of people from a variet y of groups, povert y statistics and projections clearly show single (especially, never-married) mothers and their children as making up a large and growing2 percentage of people living below the poverty line in developed societies (see bianchi 1999: 313; targosz et al. 2003: 716). women’s poverty risk is higher than men’s. in addition, poverty (income inequality) involves additional harms for women because of how deeply and irreversibly it can affect their children and because it correlates with increased risks of violence, harassment, and rape (w haley 2001: 550), as well as depression and other t y pes of mental disorder (targosz 2003: 721). in the united states, the poverty risk increased for women relative to 2 in the words of bianchi, “since the mid-1980s, the percentage of mother-child families in poverty has fluctuated, and the ratio of their poverty rate to that of married-couple families has been higher than in 1984.” she also notes that the relative poverty ratio between motherch i ld fa m i l ies a nd t wo-pa rent fa m i l ies, f luc t uated bet ween t he 1970s a nd t he 1980s. never t heless, i n 198 4 mot her-ch i ld fa m i l ies' pover t y rat io w a s st i l l f ive t i mes t hat of t wo parent-families. women’s greater educational efforts as a consequence of inequality 109 leap 3 (2015) men in the period from 1950 to 1980 (bianchi 1999: 310), precisely the period in which women applied themselves enough to catch up with men educationally. despite such a great educational effort, however, women’s poverty rates still remained higher than men’s during the 1990s (bianchi 1999). recent data shows that the efforts of european women have also failed to liberate them from a higher poverty risk (see van lancker et al. 2015: 45-54). given this explanation of women’s educational efforts, the prediction can only be that the trend will remain while sexism remains. a f unda menta l factor in ex pla ining women’s g reater pover t y risk is single-parenting, which is strongly connected to their education. since the chances of finding a co-parent increase for women as they obtain diplomas and degrees, women with higher education reduce their poverty risk, for even if their educational efforts do not secure them permanent employment, they reduce their risk of single-parenting in poverty (diprete and buchmann 2006: 4). this offers an excellent deterrence against dropping out of school. since men do not face the same risk, they do not have the same deterrent. education diminishes women’s chances of being abandoned while pregnant and giving birth alone, and when the relationship continues, education remains one of the few protections (and perhaps the only protection) women can secure against the man then insisting that since he earns more, she should stay home, cook ing a nd ra ising t he chi ldren. this is a risk y opt ion for women, as with every pregnancy and every year into the marriage, women become less desirable both in the love and the labor markets, becoming less employable and attractive, not only because of the physical deterioration usually caused by motherhood, but because when children come with the package, women become less attractive both to other men and employers. meanwhile, the man is promoted, takes senior positions and his stocks in both markets go up. with very poor exit options, the woman then tends to lose her voice and have to accept any deal she is dealt (okin 1989: 137-8), including affairs or sexual activities she does not want, while living with the fear of being abandoned for another woman, or seeing this happening and becoming poor. even renouncing motherhood and staying in paid employment is no guarantee against being expected to do most of the household chores after work (hochschild 1989: 4). men need not fear such exploitation, and do not need a degree to gain protection against such fate. 110 jesús mora leap 3 (2015) 2. protection from unemployment and exploitative wages out side t he home, women a re a l so at g reater r i sk of u nemploy ment, underemploy ment, a nd unfa irly low wages a nd so need to have more qualifications for these purposes than men. in addition, in the 1980s and 1990s, the value of higher education has been grow ing faster for women than for men, not only regarding family returns but also the labor market (diprete and buchmann 2006). the gap in income bet ween college and high-school educated women increased enormously after the 1980s and remained always larger than that of men (13 and 20). this shows that women’s income is more dependent on higher education than men’s, for whom high school is often enough to provide adequate earnings. similar trends appear in relation with access to employment. in the european union, men’s rates of employ ment are superior to women’s in all levels, with the exception of tertiary education (eurostat 2014). only at that level are female rates able to achieve men’s possibilities to find a job. this provides an additional good reason for women to accomplish higher education: it constitutes an irreplaceable tool for them to achieve levels of employability similar to men’s. becoming well qualified may also be the only way in which women can reduce (rather than eliminate) the rate of patronizing comments, demeaning and intimidating attitudes, and bullying. it seems, then, that educated women are penalized for being women less than less educated women are by all those who select them as either employees or as co-parents or partners. if so, even if female higher educational efforts do not make women wealthier, they are worth pursuing, for it is their protection, and perhaps the only one, against being short-changed at work and at home. thus, female educational efforts, far from signaling the arrival of equality, are the knotted rope women use to escape the f lames of discrimination, domestic and workplace exploitation, and poverty. van parijs doubts there is any inequality “if society gives group b more money and group a better education” (2015: 88). this is misleading because societies do not reserve school places for women or otherwise offer women something it denies to men. to understand something complex we may need to take its simpler constitutive pieces apart and place them together again. but we may mislead rather than contribute to a better understanding if we greatly simplify something and just leave it at that. women’s greater educational efforts as a consequence of inequality 111 leap 3 (2015) 3. women’s lowly occupations van parijs admits that “not only do women get paid less than men, but they do so despite studying harder” (2015: 83). he then suggests, however, that t his may be because “women choose studies t hat lead to less lucrat ive careers” (83). if that is the case, he doubts whether their studying more and earning less could “still be viewed as amplif ying the injustice” (83). this speculative monistic explanation, again, stops the inquiry short. we need to ask why women pursue badly paid careers. there are several w idely discussed explanations of this phenomenon in the literature. one well-known explanation refers to social conditioning, stereotypes, and the systematic undermining, from a young age, of women’s confidence in their being able to per for m wel l i n cer ta i n occupat ions. a not her t heor y is t hat some occupations have low status and are badly paid because so many women work in them. we know, for example, that when women started to occupy the respectable positions of “clerk” and “administrator,” though the tasks remained the same, the position was demoted to that of “secretary” and the salary lowered (see reskin and hartmann 1986: 31). a third, extensively documented explanation of why women take such occupations is that other occupations are less compatible w ith women hav ing to do most of the housework and childcare. it seems that the three best known accounts do not imply that there is no injustice to worry about, but on the contrary direct us to the existence of ot her injust ices ex pla ining women’s actua l occupat ions. va n pa rijs would have to show that none of these explanations or any other alternatives referring to some background of unfairness is even partially correct. he would then have to prov ide a more conv incing account which does not u lt i mately refer to u n fa i r phenomena. it is u n l i kely, however, t hat a complete description would not involve elements from all three explanations. a starting point to analyze the traditional attribution of certain professional pathways to each of the sexes can be the common association between women and childrearing. regardless of whether women decide or not to have children, most gender differences in employment and economic opportunities are parasitic on the sexual division of labor (nagel 1997: 318). the assumption of the interconnection between womanhood and childrearing has had the widespread effect of denying women the ability to specialize. the interruption that the need to care for children necessarily generates makes women engage in a whole set of different tasks that involve lower cognitive, emotional, and aesthetic demands, without fully concentrating on any of them (wilson 2004: 261, 272). women’s work should not be too absorbing or dangerous, as it must always allow them to maintain their socially assumed maternity function (261, 272). statistical ev idence shows that the presence of women in full 112 jesús mora leap 3 (2015) time work decreases enormously after the birth of the first child (paull 2008: f18) and small children at home increase the likelihood that a woman is employed part time (rosenfeld 1996: 209). the different expectations generally attributed to men’s a nd women’s work ma ke it necessa r y for t he latter to choose careers that allow little specialization and great ability to combine childrearing w ith work outside the household. as a consequence of the assumption that it is them who will have to take care of children, women accommodate their fertility to their labor force participation and vice versa (brewster and rindfuss 2000: 289-290). consequently, women tend to be overrepresented in fields characterized by their functional or symbolic proximity to the traditional female domestic role, which cover health related careers (nursing), education, and humanities (charles and bradley 2002: 581, 590). these occupations provide more poorly paid jobs than those that require specialization, like math, science, and engineering (mse), which are characterized by the abundance of men (580). the traditional absence of women from mse domains has also had effects on men’s and women’s self-perception of their skills. as a result of common stereot y pes, women w it h equa l scores in mat h tests to men tend to rate their own mathematic skills much lower (fine 2010: 48). differences in rating of one’s own skills derive also in a different disposition to choose one or another professional path (48), so that, even though women are not necessarily less competent than men for mse, they will be more reluctant to lead their careers in this direction. these stereotypes, though, do not only work against women’s fitting in particular domains, they also affect their position within different occupations. both in traditionally male and female spaces, the disproportionate upholding of leadership spots by men hinders women’s upwa rds ca reer mobi lit y (maume 1999: 1436, 1452). managers often associate positions of power with the exercise of abilities like aggressiveness and ambition (1436, 1452), which are more commonly coupled with men. there are, however, other abilities, like social and psychological skills or ability to negotiate, which can be more useful in some managerial positions. in contrast, managers’ preconceptions about women tend to describe them as ‘gentle’ or lacking a mbit ion, wh ich creates problems for t hose who t r y to cl i mb up t he leadership ladder (fine 2010: 52). the exercise of leadership is simply not seen as feminine, and when women manage to achieve positions of power they are commonly regarded as ‘competent but cold’ (52). therefore, the situation of women in access to leadership is hindered by the interplay of first, the assumption of their lack of competence to exercise power and, second, t he negat ive percept ion of t hose women who at tempt to put leadership-associated abilities into practice. women’s greater educational efforts as a consequence of inequality 113 leap 3 (2015) the traditional exclusion of women both from mse domains and leadership positions makes it harder for them to fit into those spaces still nowadays. as radcliffe-richards (1980: 113) points out, if a group is kept out of a particular area long enough, it is overwhelmingly likely that activities will develop in a way unsuited to the excluded group. mse careers and the achievement of leadership (both in traditional male and female domains) are currently linked to capacities which are uncommonly associated with women. men’s sociallydesigned biographies define workplace expectations and successful career patterns (mackinnon 1987: 36). these long-lasting stereotypes are hard to break for women who, as we have seen, are at the same time regarded as incompetent for leadership and valued negatively when they try to exercise power in ‘masculine’ ways. even if women were truly less attracted than men by mse careers, that interest is clearly not impervious to outside influence (fine 2010: 50), so that social stereotypes condition enormously women’s predisposition to enter such domains. in addition, the assumption of their lack of competence for leadership blocks women’s career mobility both in traditional male and female domains, in which men are commonly ‘kicked upstairs’ on the belief that they are too competent for low-rank posts (50) or that leading is a special talent men have. randall filer offered an alternative explanation of women’s lower income. he argued that women are badly paid because they care more about the nonpecu n ia r y a spects of a job a nd so systemat ica l ly pick bad ly pa id but otherwise attractive positions (see filer 1985: 426-37). this did not sound prima facie implausible and points to a potential, exonerating explanation which probably helped those who already wanted to do nothing about existing inequalities. however, as j. s. mill had already argued against adam smith, and as contemporary social scientists confirm, the worst paid jobs have a systematic tendency to be the worst jobs in all the nonpecuniary dimensions of job desirability as well. moreover, women’s jobs in particular are worse t ha n men’s in t welve of t he four teen non-moneta r y measures used by christopher jencks and his co-authors (jencks et al. 1988: 1352). thus, “if it is true that women value non-monetary factors more than men, what this shows is that women fair worse than men even in what matters to women most” (casal 2016: sec. v.b). therefore, the fact that women are badly paid, far from being explicable by some exonerating factor, constitutes a clear case of compound injustice. so, the answer to van parijs’ question regarding whether the fact that women today are both more qualified and worse paid should be seen as “amplifying injustice” (2015: 83) is “yes,” because women are worse paid within the same occupat ion, a nd t he most li kely ex pla nat ions of t heir being in cer ta in occupations refers to further injustice. 114 jesús mora leap 3 (2015) it is also important to note that having an education which those in the opposite sex lack has ver y different consequences for men and women, regarding non-pecuniary or promotional aspects of their lives. men with very successful careers in the hard sciences often have several children, while successful female scientists often have no families at all, as they have to compete with men who have housewives that do everything for them whilst lacking one of their ow n. so a group of well qualified women are childless or even entirely alone. for another group, their qualifications have just brought them additional sadness and frustration in realizing that the price of having children was having to leave their phd on the shelf and put on their cleaning gloves, while their less qualified husbands pursue their careers. a third group of women lives with extraordinarily high levels of stress as breadwinners who still make sure their children keep medical and social appointments, do their homework, have all they need for school, and either do all the housework or have to chase the man so that things get done to what they consider an acceptable level. for, while getting married does not affect male careers negatively – rather the opposite – (see wolfinger et al. 2008: 394), the weight of housework forces women either to delay their decision to form a family or to forsake it if they want to succeed in the professional world (390-1, 398-402). having an education, thus, does not bring women the benefits it brings men. conclusion women’s educational achievements do not show that the efforts to achieve gender equality are overshooting. being more qualified may be women’s best (or sometimes only) hope to escape poverty, unemployment, or singleparenting, as well as domestic and workplace exploitation. it is thus a symptom of gender inequality, not a sign of its disappearance. in addition, it does not translate, in the same way as it does with men, into greater access to income and wealth, positions of power and authority, social standing, or the chance to have several children. having to work so much harder to be rewarded so much less is, as van parijs at one point suspects, one of the forms of compound injustice that women face. women’s greater educational efforts as a consequence of inequality 115 leap 3 (2015) bibliography hochschild, a., 1989: the second shift, new york: penguin books. bianchi, s., 1999: “feminization and juvenilization of poverty: trends, relative risks, causes and consequences,” annual review of sociology 25: 307-33. brewster, k. and rindfuss, r., 2000: “fertility and women’s employment in industrialised nations,” annual review of sociology 26: 271-96. casal, p., 2016: “mill, rawls and cohen on incentives and occupational freedom,” utilitas: forthcoming sec. v. charles, m. and bradley, k., 2002: “equal but separate? a cross-national study of sex segregation in higher education,” american sociological review 67: 573-99. diprete, t. and buchmann, c., 2006: “gender-specific trends in the value of education and the emerging gender gap in college completion,” demography 43: 1-24.eurostat, http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=lfsa_egaed&lang=en filer, r., 1985: “male-female wage differences: the importance of compensatory differentials,” industrial and labour relations review 38: 426-37. fine, c., 2010: delusions of gender, london: icon books. jencks, c. et al., 1988: “what is a good job? a new measure of labor-market success,” american journal of sociology 93: 1322-57. mackinnon, c., 1987: feminism unmodified: discourses on life and law, cambridge, ma: harvard university press. maume, d., 1999 : “occupationa l segregation and t he career mobilit y of w hite men and women,” social forces 77: 1433-59. nagel, t., 1997: “justice and nature,” oxford journal of legal studies 17: 303-21. okin, s., 1989: justice, gender and the family, new york: basic books. paull, g., 2008: “children and women’s hours of work,” the economic journal 118: f8-f27. radcliffe-richards, j., 1980: the skeptical feminist: a philosophical enquiry, london: routledge and kegan paul. reskin, b. and hartmann, h., 1986: women’s work, men’s work: sex segregation on the job, washington: national academy press. rosenfeld, ra, 1996: “women’s work histories,” population and development review 22: 199-222. scwartz, r. and han, h., 2014: “the reversal of the gender gap in education and trends in marital dissolution,” american sociological review 79: 605-29. ta r gosz , s., et a l. 20 03 : “l one mot her s, soc ia l e xclu sion a nd depre s sion,” psychological medicine 33: 715-22. van lancker, w., et al. 2015: workshop on main causes of female poverty, brussels: policy department c, citizens rights and constitutional affairs. van parijs, p., 2015: “four puzzles on gender equality,” law, ethics and philosophy 3. whaley, rb, 2001: “the paradoxical relationship between gender inequality and rape: toward a refined theory,” gender and society 15: 531-55. wilson, c., 2004: moral animals: ideals and constraints in moral theory, oxford: clarendon press. wolfinger, n. et al., 2008 “problems in the pipeline: gender, marriage and fertility in the ivory tower,” the journal of higher education 79: 388-405. http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=lfsa_egaed&lang=en leap 3 (2015) do women enjoy a political advantage? majority position and democratic justice1 pi e r r e -é t i e n n e va n da m m e université catholique de louvain abstract philippe van parijs suggests that there might be a political inequality in favor of women, taken as a group, stemming both from their life expectancy and their supposed higher participation in elections due to their higher level of educat ion. he a lso wonders about t he status of t his inequa lit y. is it advantageous? is it unjust? does it partially counterbalance other disadvantages or injustices? this papers starts by assessing and qualif ying the alleged inequalit y from an empirical perspective. it then considers van parijs’ normative questions and argues that we should not consider the inequality as an advantage, nor an injustice, because mere membership in a majority group cannot plausibly be judged so. where women have strong common interests, they have no power; where they have electoral power, they have no overarching common interests. key words: political equality, gender equality, life expectancy, education, democratic justice introduction in his provocative and stimulating paper on gender inequalities, philippe van parijs discusses four puzzles. i focus on the third, which concerns an alleged political inequality in favor of women, taken as a group, stemming both from their life expectancy and their supposed higher participation in elections due to their higher level of education. van parijs recognizes that, all things considered, women suffer many more disadvantages than men, but wonders about the status of this inequality: is it advantageous? is it 1 i am very grateful to paula casal for her numerous useful comments on earlier drafts of this paper and linguistic advice. i also thank siba harb and leap’s anonymous reviewers for various excellent suggestions. 117 pierre-étienne vandamme leap 3 (2015) unjust? does it partially counterbalance other disadvantages or injustices? i argue that we should not consider this inequality as an advantage, nor an injustice, because mere membership in a majority group cannot plausibly be judged so. 1. a general puzzle about these puzzles before considering van parijs’ puzzle, i feel i should say a more general word about the questioned appropriateness of his paper, if only because it has engendered offended reactions. i have found around me that most men considered the puzzles amusing and stimulating, whereas most women found them inappropriate, if not stupid. it is certainly easier to discourse with lightness over the possible advantages of being a woman when you do not experience everyday domination nor bear the symbolic weight of an enduring oppression. therefore, even though i agree with van parijs that the questions he raises are “worth asking” (van parijs 2015: 88) and take this puzzle as an invitation to ref lect upon the interesting issue of democratic justice, i also agree with several of his critics that the puzzles are of little practical relevance and therefore somewhat odd in the writings of such a philosophe engagé. 2. the extent of gender political inequality van parijs ma kes t wo empirica l hy pot heses. first, t hat women form a potential majority in all constituencies with universal suffrage where they enjoy longer life expectancy. although men are more numerous at birth almost every where in the world, it is true that women outnumber them in the population of most advanced democracies, such as western europe and north america. by contrast, the sex ratio tends to be reversed in africa and asia.2 second, he suggests that this unequal balance of electoral power might be increased by a larger participation of women in elections, thanks to their higher level of education in several countries. this is more controversial. it has generally proven true in the history of democracy that the level of education increases electoral turnout (norris 2004: 175). the correlation between education and women’s turnout is expressed by the fact that in developed countries, where they are likely to have a more equal access to education, the gender gap has disappeared: women participate in elections 2 see the cia’s “world factbook” https://www.cia.gov/library/publications/the-worldfactbook/fields/2018.html https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html do women enjoy a political advantage? 118 leap 3 (2015) at least as much as men (norris 2002).3 in contrast, in newer democracies, where unexamined religious norms and/or sexist social norms reducing women’s educational opportunities tend to be more pervasive, women’s turnout to elections is lower. in recent history, though, there seems to be a clear secular trend, expressed in the generational variations in women’s turnout (norris 2002) and political orientation (stevens 2007: 52-58). is it then the case that, in contexts where women are on average more highly educated, the inequality in electoral turnout is reinforced? not really. in advanced democracies, w it h t he exceptions of t he united states and sw it zerla nd – which somet imes a lter t he genera l picture –, educat ion seems to have almost no effect anymore on turnout (przeworski 2010: 94). the impact of education on electoral participation is generally higher in less aff luent countries, which usually show less gender equality and less female participation in elections.4 therefore, where the impact of education on turnout is high, women might not otherwise enjoy high turnout or a higher level of education. what is more, even where higher education does increase turnout, a reversed tendency might counterbalance it, as a low education profile seems to affect women’s (lower) turnout much more than men’s (norris 2002). in sum, the accumulation of the t wo advantages env isioned by van parijs – participation and education – is plausible in the u.s., and possibly switzerland, yet much less elsewhere. this does not affect his hypothesis that longer life expectancy might constitute a political advantage, but it restricts the extent of the supposed inequality of political power. now, what could somewhat increase the plausibility of van parijs’ claim is the amusing fact that “sur veys find more people say ing that they have voted than the actual polling figures confirm” (stevens 2007: 49) and “men are slightly more likely than women to misrepresent having gone to the polls” (verba et al. 1997: 1054). this, however, is unlikely to increase significantly women’s actual electoral power. a more promising path for van parijs could be to consider the effects of age on turnout, which used to worry him (van parijs 2011). as he knows, older people tend to vote more than younger people (norris 2004: 125; van parijs 2011: 35). and contrary to what he seems to assume (van parijs 2015), the ratio of elderly women to elderly men is higher than the ratio of women to men at younger ages (cia 2014; casal 2015). in light of developed democracy’s 3 they often have more or less equal rates of turnout, and as they often outnumber men in those societies, they often (yet not always) outnumber them in elections. 4 this with reservations, as little information is available about turnout rates broken down by sex. see norris 2002. 119 pierre-étienne vandamme leap 3 (2015) tendency to face an ageing population, one might thus think that the imbalance of electoral power is increasing in the west. however, the sex differential in life expectancy is now narrowing with the years in developed countries after having peaked between 1970 and 1980 (glei and horiuchi 2007). so, while differences in turnout according to age may slightly increase the imbalance of electoral power, ageing will probably not. political action, however, is not reducible to participation in elections.5 this brings in another reason for tempering van parijs’ hypothesis that women could enjoy some political advantage. it seems that “[w]ith respect to most forms of political activity other than voting, women are slightly less active than men” (verba et al. 1997: 1053).6 this comes from the fact that they generally have less resources to spend on political activity than men, but also that they have on average less interest in – and knowledge about – politics. this difference, it appears, “persist[s] at each educational level” (1060), and can be explained both by their perception of politics as a man’s game – their interest and knowledge increase in constituencies with female (potential) representatives – and a gender differentiated political education. in addition to this, their lower participation in the workforce also negatively affects women’s engagement with politics in the broader sense (et al. 2001: 198-218). finally, the potential electoral advantage cannot be taken in isolation from the rest of the process characterized by a marked underrepresentation of women in parliaments, local government, media, or lobbying. elections constitute only a part of politics and turnout does not amount to political engagement. rather than a political inequality in favor of women, it would thus be more appropriate to talk about a potential electoral inequality in their favor or, more precisely, a potential inequalit y in active suffrage, dwarfed by an unfavorable inequalit y along most other dimensions of inf luential political action. 5 this is not denied by van parijs, but somewhat obscured by his tendency to use a schumpeterian model of democracy. see van parijs 2011. 6 marien et al. (2010) recently arrived to the opposite conclusion, using a broader data set t ha n burns, sch lozma n a nd verba, who ma in ly focused on t he us. more crosscountr y investigation wou ld be necessa r y. yet what seems to account for t he dif ference is mainly a different understanding of political participation. marien, hooghe and quintelier conclude that women are more active in non-electoral politics because they consider charity donations and products boycotting – both performed more often by women than men – as i mpor ta nt “pa r t icipat ion acts.” yet it seems to be i n act iv it ies produci ng i n f luence on institutionalized politics (party membership, party meetings, direct contacts with politicians) that women are generally less active than men – except for signing petitions (marien et al. 2010). furthermore, if you consider the money invested in political action beside the time dedicated to it, the imbalance of influence in favor of men becomes more apparent (burns et al. 2001: 68). do women enjoy a political advantage? 120 leap 3 (2015) 3. is this inequality unjust? is it even an advantage? having a qualified picture of the extent of the (potential) inequality in active suffrage in favor of women, we can consider its normative implications. if the inequality in active suffrage is only caused by an unequal use of an equal opportunity to vote, one might argue that there is no injustice. for there being procedural injustice, one needs to trace back the unequal turnout to unequal opportunities. w hen men’s turnout is lower than women’s, it might be because they are on average younger and less educated. life expectancy does not affect men’s opportunities to vote, since at each age, all other things being equal, they have equal opportunities to do so. what about their lower educational achievements? they cannot plausibly stem from unequal educational opportunities, but they might result from unequal educational abilities. if this were the case, one may argue that this involves some procedural injustice in countries where education has an impact on turnout. this small disadvantage, however, would be cancelled by all the other advantages politically enjoyed by men, which provide them many more opportunities of political influence than women. moreover, if women’s higher educational achievements are due to unequal opportunities in the job market (mora 2015), men suffer neither unequal educational opportunities nor unequal voting opportunities, and there is no procedural injustice. van parijs seems nevertheless more concerned w ith people’s use of their votes than with procedural justice. what he invites us to consider are the implications of being in a majority or minority position in a constituency. here the problem is not procedural. that women have more power because t hey a re more numerous is procedura l ly irreproachable : it is t he ver y implication of the basic principle of political equality – one person, one vote. the worry is that they could turn this numerical advantage into a substantial injustice. van parijs’ approach is radically consequentialist, as illustrated by his past discussion of the disenfranchisement of the elderly (van parijs 2011: 31-66). to be member of a minority group cannot by itself be considered as an injustice, but a minority position makes groups more vulnerable to injustices. as people differ along many lines in characteristics, we are all potentially members of a minority group. what can be considered as democratically unjust – or can lead to substantive injustices – is to have political institutions 121 pierre-étienne vandamme leap 3 (2015) arranged in such a way that majority groups are allowed to exert domination over minorities.7 but domination should not be understood here as philip pettit (2012) does. according to him, it is sufficient for there being domination that one agent has the possibility or power to arbitrarily interfere with the choices and actions of another. yet such understanding of domination is of little use for exploring democratic justice in group relationships because virtually all potential majorities dominate potential minorities. ian shapiro, for example, defends a conception of domination that is more useful for our purpose. he suggests that having the capacity to interfere with people’s basic interests “does not itself constitute domination; rather it creates the potential for domination” (shapiro 2012: 324).8 what matters for democratic justice is therefore to assess the plausibility of the threat that one group will take advantage of a favorable balance of power to actually dominate another by systematically favoring its ow n interests at the expense of the other’s. it is the case, for example, when an ethnic group outnumbers another one towards which it is hostile, or because the employed largely outnumber the unemployed. there you find ground for justifying constitutionally protected rights for minorities, in order to avoid this specific kind of domination. to the contrary, we do not consider people with blue eyes as disadvantaged because in a minority, as it is unlikely that they are going to suffer a political disadvantage because of this imbalance of power. they can take part in multiple more plausible majority coalitions, as does the minority sometimes formed by men. i mean by this that it will prove easy for men, as for the blue-eyed, to build a coalition of interests or convictions cross-cutting sexes and eye color. now, it seems quite implausible to consider the fact that women generally outnumber men as an advantage, because where they could take advantage of their number, they lack the interest in doing so. the only common interest of women which could bring them together despite the diversity of their socio-economic interests and their diverging values is the avoidance of male domination. this explains general progresses towards more gender equality since the advent of universal suffrage. yet, in the countries where they are the most oppressed – say, saudi arabia –, women are not allowed to vote. in oppressive democracies, where they are entitled to vote but lack education 7 i say “democratically unjust” because social injustices are not reducible to domination. nevertheless, contrary to a just society, a just democracy cannot eliminate all kinds of unfair advantages. politically relevant majorities will always enjoy an advantage – stemming from the inescapable use of majority rule –, which it should be the aim to minimize, at least in such a way as to reduce political domination. 8 as shapiro suggests, pettit’s understanding of domination “partly accounts for [his] schizoid attitude toward the state” (shapiro 2012: 321), as it pushes him to defend multiple veto players that can lead to a political stand still. do women enjoy a political advantage? 122 leap 3 (2015) and freedom of conscience, they can vote but either do it less than men – see india –, or do it against their common interest – be it under the pressure of their male relatives or because they have internalized some oppressive ideology. only in countries where they have equal access to education and are freed from ideological domination could they use their number as an advantage and “convert [it] into an even greater inequality in their favor” (van parijs 2015: 85). but in those contexts, their common interest – reducing male domination – does not seem strong enough to offset their divergent interests and values.9 take the u.s. as an example. since the 80s, contrary to their previous tendency, women have tended to support democrats more than men at every election (stevens 2007: 55-56). moreover, since 1964, women systematically outnumber men in presidential elections, with a difference reaching 7.2 million votes in 1996 (norris 2002).10 one could then wonder why republicans do not adapt t heir prog ra ms – on reproduct ive issues for ex a mple – to catch more fema le votes. such a n i nt u it ion seems to be endorsed by van parijs when he says that “on the assumption that the electorate is not stupid or blind, [the representatives], whether women or men, w ill only be elected a nd re-elected if t he policies t hey propose or adopt match t he preferences of the female majorit y” ( van parijs 2015: 84). yet the latter preferences vary along many dimensions and are not sufficiently tied together to ma ke women’s votes a n at t ract ive speci f ic ta rget for republicans. conflicts of economic interests and (religious) values largely dominate the competition for votes. targeting one gender group at the expense of consistency regarding those more sensible issues is risky for both parties. women, as everyone, assign priorities to some political goals over others, and seldom are their special interests – those they share only w ith women – on top of the list. this probably explains why historical attempts to create women’s parties “have generally proved short-lived” (stevens 2007: 100). for all these reasons, it seems implausible to characterize the larger number of women among voters as an actual advantage, and even more as an injustice. it could be advantageous for them in a hy pothetical world with full consciousness of their common interests and no division along other lines. then, only, would we have to take it seriously and possibly design institutions in such a way as to reduce their possibilities of turning this 9 w hat is more, these countries have generally adopted strong anti-discrimination laws which undermine the possibility of a domination of men by women. these laws do not make male domination disappear, as it is rooted in pervasive social norms, but they would most probably impede new forms of domination. political power is not unchecked. 10 this could be due both to demography and education, as the latter does have an effect on turnout in the us. 123 pierre-étienne vandamme leap 3 (2015) advantage into an injustice.11 in the meantime, men can sleep soundly. conclusion i have argued that the electoral power imbalance between men and women is a fact in advanced democracies, yet not very significant – contrary to van parijs’ hy pot hesis –, a nd to be considered a longside a reversed power imbalance along other dimensions of political action neglected by his a rg u ment. t hen i have cla i med t hat for a major it y to exer t pol it ica l domination, and thus turn a numerical advantage into an unjust democratic advantage, it needs power and overarching common interests. where women have strong common interests, they have no power; where they have electoral power, they no longer have overarching common interests. the fact that they constitute a potential electoral majority is thus unlikely to constitute an injustice someday nor to counterbalance (even modestly) other political disadvantages – such as the fact that women are underrepresented, less politically stimulated, and have fewer resources for political engagement. bibliography burns, n., schlozman, k. and verba, s., 2001: the private roots of public action: gender, equality, and political participation, cambridge: harvard university press. casal, p., 2011: “love not war. on the chemistry of good and evil,” in arguing about justice: essays for philippe van parijs, ed. a. gosseries and y. vanderborght, 145155, louvain-la-neuve: presses universitaires de louvain. — 2015: “distributive justice and female longevity,” law, ethics and philosophy 3: 90 106. cia, 2014: “the world factbook,” https://w w w.cia.gov/librar y/publications/theworld-factbook glei, d., and horiuchi, s., 2007: “the narrowing sex differential in life expectancy in high-income populations: effects of differences in the age pattern of mortality,” population studies 61: 141-159. marien, s., hooghe, m. and quintelier, e., 2010: “inequalities in non-institutionalized forms of political participation: a multi-level analysis of 25 countries,” political studies 58: 187-213. mora, j., 2015: “women’s greater educational efforts as a consequence of inequality,” law, ethics and philosophy 3: 107-115. norris, p., 2002: “women’s power at the ballot box,” voter turnout since 1945: a global report, international institute for democracy and electoral assistance: 95-102, 11 note that this hypothetical power imbalance might bring, overall, more justice, as it seems that most crimes and injustices are committed by men (casal 2011; pinker 2011), and van parijs argued elsewhere (van parijs 2011) that we should opt for the democratic arrangement most favorable to justice, even at the cost of political equality. https://www.cia.gov/library/publications/the-world-factbook/ https://www.cia.gov/library/publications/the-world-factbook/ do women enjoy a political advantage? 124 leap 3 (2015) http://w w w.idea.int/publications/v t/upload/v t_screenopt _ 2002.pdf 2004: electoral engineering: voting rules and political behavior, cambridge: cambridge university press. pettit, p., 2012: on the people’s terms: a republican theory and model of democracy, cambridge: cambridge university press. pinker, s., 2011: the better angels of our nature: the decline of violence in history and its causes, london: penguin books. przeworsk i, a., 2010 : democracy and the limits of self-government, new york: cambridge university press. shapiro, i., 2012: “on non-domination,” university of toronto law journal 62: 293-335. stevens, a., 2007: women, power and politics, new york: palgrave mcmillan. van parijs, p., 2011: just democracy. the rawls-machiavelli programme, colchester: ecpr press. — 2015: “four puzzles on gender equality,” law, ethics and philosophy 3: 79-89. verba, s., burns, n., and schlozman, k., 1997: “knowing and caring about politics: gender and political engagement,” the journal of politics 59: 1051-72. http://www.idea.int/publications/vt/upload/vt_screenopt_2002.pdf leap 3 (2015) a blatant case of over-accommodation1 va l e r i a ot ton e l l i genova university abstract van parijs asks whether the fact that men engage in regrettable behavior at much higher rates than women could be seen as a “handicap” due to their hormonal set-up, and therefore as a dimension of gender inequality to men’s disadvantage. i argue that this suggestion rests on unwarranted assumptions about the meaning of gender equality and the causes of men’s behavior. moreover, even if for the argument’s sake we grant these unwarranted assumpt ions, it is easy to show t hat no unfa irness is suf fered by men because of their (supposedly) unbalanced hormonal constitution. indeed, if any injustice is done by our current social arrangements, it is injustice to those who suffer from the over-accommodation of this highly dangerous and destructive trait of men’s character. keywords: gender equality, hormones, disabilities, violence introduction it is a known fact that men get themselves into trouble much more often than women do. they commit 95% of murders worldwide (unodc 2013), over 95% of recorded rapes in europe (heuni 2014), and every where have a greater tendency to engage in inappropriate or wrongful sexual behavior. the vast majority of serial killers, prostitute killers, serial rapists, and sociopaths in general are also male. as a result, men are more likely than women to spend long terms in jail and suffer from social disgrace. in his piece on gender equality, van parijs suggests that this phenomenon can be traced to hormonal causes. he does not produce any account of how this may be so, but refers to an intriguing article by paula casal (2011) in which scientific evidence on the correlation between high testosterone levels, typical of males, and aggressive, unempathetic, careless, and anti-social 1 for helpful suggestions, i thank paula casal and three anonymous referees. 126 valeria ottonelli leap 3 (2015) behavior is discussed. van parijs asks whether the fact that men engage in regrettable behavior at much higher rates than women could be seen as a “handicap” and therefore as a dimension of gender inequalit y to men’s disadvantage. van parijs’ puzzle about hormonal inequalit y relies on a biased and incomplete description of the facts at hand. once the facts are reassessed a nd more accurately described, it becomes clea r t hat no unfa irness is suffered by men because of their (supposedly) testosterone-driven behavior. indeed, if any injustice is done by our current social arrangement, it is injustice to those who suffer from the over-accommodation of this highly dangerous and destructive trait of men’s character. moreover, van parijs’ argument not only assumes a description of our social world that is deeply misleading and inaccurate, but also rests on factual and normative assumptions that are highly controversial. i intend to accept such assumptions for the sake of my argument. however, it will be worth making them explicit and show how disputable and unwarranted they are. this is where my discussion will start. 1. two unwarranted assumptions behind the fourth puzzle van parijs’ arguments rest on two main premises. the first concerns t he meaning of gender inequality; the second concerns the hormonal bases of men’s behavior. let’s start with his notion of gender inequality. from the way in which van parijs frames the puzzle on hormonal inequality and the other puzzles he considers, it looks as if what he has in mind by gender inequalit y are differences in opportunities for welfare or resources bet ween men and women. this is not a n obv ious presupposit ion. in t he rich a nd high ly sophisticated literature on gender inequality (for some useful surveys, see squires 2000, ch. 4; walby 2004; verloo and lombardo 2007), indeed, such a metric of equality is far from central. even when comparisons between levels of achievement in terms of resources or welfare are made (see for example young 2001; phillips 2003), in most cases they are not taken as releva nt per se, but as indicators of ot her dimensions of injust ice a nd gender inequa lit y. for exa mple, women’s higher unemploy ment rates, lower income, a nd g reater ha rdship resu lt ing f rom divorce a re ta ken as signs of the domination, oppression, and exploitation that women suffer in our societ y. considering the intricate and fascinating philosophical questions that are involved in these debates, it is puzzling that van parijs a blatant case of over-accommodation 127 leap 3 (2015) assumes as unproblematic that the relevant notion of equalit y at stake must be some version of equality of opportunity for welfare or resources. w hat is even more disconcerting is that this unwarranted assumption evidently leads van parijs to believe that the only alternative to posing the unorthodox questions he asks is to restate mere “well-meaning platitudes” (van parijs 2015: 79). once we assume a different notion of gender equalit y than the one chosen by van parijs, such as equality as non-domination or democratic equality as the equal access to full citizenship, it becomes evident that his remarks are in need of much further analysis. merely pointing at a highly circumscribed welfare loss or an unsatisfied preference will not do. the second highly controversial assumption that van parijs makes is that men’s criminal and sexually inappropriate behavior is explained by hormones. this cannot be the full story. if violent behavior were simply driven by male hormones, we would not be able to explain why, for example, in 2012 in south africa there were 31 homicides per 100,000 people (and 64.5 in 1995), 39.3 in jamaica, 90.4 in honduras, 7 in moldova, 7 in west bank and gaza, and just 1 in the netherlands, italy and spain (unodc 2013). of course, in all these countries most killers are men, but such huge variations in homicide rates suggest that the reason cannot be an evenly spread feature like testosterone. the same should be noted about sexual behavior. rape, sexual harassment, or paid sex cannot be interpreted as the mere satisfaction of an impellent physiological urge (pateman 1988: 198). in truth, at a point in his discussion, van parijs considers the possibility that the bases of men’s behavior are not hormonal, but rather social and environmental. he suggests, however, that his analysis of the disadvantage suffered by men “holds irrespective of the validity of the hormonal diagnosis” (van parijs 2015: 87). in the following discussion, i will treat van parijs’ puzzle in its straightforward, unqualified version based on the hypothesis that men suffer from a “handicap” caused by their hormonal constitution. in fact, as i will note at the end, van parijs is right that the conclusions we may reach on this puzzle can easily be extended to the case in which men’s behavior is determined by environmental factors rather than hormones. 2. why is men’s “handicap” not treated? i interpret the hormonal puzzle as a matter of justice. i do so not only because this is how van parijs formulates it when summing up the four puzzles at the end of his discussion (2015: 88), but also because the debate about gender equality he contributes to is in fact a debate about justice. discussing gender inequality is not making humorous lists of relative pros and cons of being 128 valeria ottonelli leap 3 (2015) a woman or a man, or asking ourselves which gender we should “pity” the most. we ask about inequalities between men and women because we worry that they are a matter of social injustice. i therefore assume that van parijs points to hormonal inequality because he thinks that there is something wrong with the fact that, in our society, a biological feature leading to dysfunctional behavior, which therefore can be described as an unchosen “handicap,” determines the fate and opportunity for welfare and resources of those affected. in order to assess whether men’s levels of testosterone can be treated as a handicap that raises issues of justice, we may compare it to standard cases of disabilities, for example someone who has lost her capacity to walk. given the conception of equality that we are assuming here, she suffers injustice to the extent that her unchosen handicap affects her prospects of success in terms of welfa re or resources. in order to redress t hat injust ice, if her disability is due to a reversible medical condition, she should have access to adequate healthcare. when this is not possible, society should accommodate her needs and abilities, by removing all the architectural barriers, social rules and practices that cause her physical constitution to be a disadvantage. to the extent that this is unfeasible, she must be compensated. now, consider van parijs’ worry about men’s hormonal constitution. what is the nature of this alleged genetic handicap? van parijs admits that high levels of testosterone do not imply that men can never manage to repress their instincts in order to avoid their worst expressions, but believes that high levels of testosterone induce a tendency to lose control and engage in various forms of anti-social behavior (yildirim and derksen 2011). in fact, mu rders a nd rapes a re on ly t he most d ra mat ic ex pressions of such a biological disposition. in the literature van parijs indirectly refers to, high levels of testosterone are associated with aggressive (montoya et al. 2012), uncaring, unempathetic (zilioli et al. 2014), and risk-taking (stanton et al. 2011) behav ior; t his not on ly ma kes men prone to v iolent crimes, but a f fe c t s a l l t hei r i nter ac t ion s w it h ot her p e ople a nd t hei r e v er yd ay activ ities (legato 2006). if we assume that it is something built into men’s constitution, then this actually looks like a ver y unfortunate condition, w h ich shou ld be recog n i z ed a s a ha nd ic ap. i f we a re wor r ied about injustice, then we should ask whether our society is doing enough to treat, accommodate, or compensate men for such an impairing disability. if not, men could legitimately complain about our current social arrangement. as a matter of fact, in our societies we witness no attempt to treat male’s hormonal handicap. however, once we start inquiring about this lack of treatment, we realize that the analogy with other central cases of disability breaks down. the reason why men are not treated, in fact, is not because a blatant case of over-accommodation 129 leap 3 (2015) males are carelessly left to themselves with their impairing handicap, as is the case with other conditions that could be treated but are not. rather, the reason why men are not treated is that male aggressive, unempathetic, careless, and risky behavior is taken, and has been taken for centuries, as the norm rather than a handicap. our whole social world has been organized around the notion that male behavior, as sociopathic as it may look to an enlightened mind, is just normal – if not the model to emulate. of course, the norm is not described as being aggressive, unempathetic, and prone to risk-taking; the use of these disapproving descriptions is ruled out exactly because male behavioral predispositions have always been and still are very much taken as the golden standard. rather, those attitudes, typically feminine, that depart from the male constitution taken as the norm are described as feeble, overly risk-adverse, and women are taken to be exceedingly prone to swooning, fainting, and crying. in this respect, like in others, women are conceived as men “minus certain attributes whose paradigm is morphological” (irigaray 1985: 27); women’s feeble character is traced to their ill-developed biological constitution. in fact, the proposal that men’s disposition to v iolent and aggressive behav ior could be treated as a handicap and changed through a direct i nter vent ion on t hei r hor mona l con st it ut ion wou ld be perceived a s horrif y ing. a lthough the alteration of female hormonal constitution is of ten read i ly accepted, be t hat for bi r t h cont rol or ach ievement s i n competitive sports, any curtailment of male hormonal constitution tends to be perceived as an unbearable form of violence. this is exactly because those hormonal traits that make males so unfit for healthy social interactions are, in fact, cherished by our culture. 3. how men’s handicap is over-accommodated with other disabilities, it is often the case that when they fail to be recognized as unchosen handicaps, they fail to be accommodated by social institutions as well. this is the case, for example, with many conditions that received scientific and social recognition only recently, such as fibromyalgia, seasonal affective disorder, or genetic proneness to obesity. here is another point at which the parallel between men’s handicapping hormonal constitution and other central cases of disability breaks down. in fact, the failure to recognize men’s “handicap” as such does not result in a lack of accommodation by social institutions, since it is, indeed, seen as perfectly normal and even valuable. as a consequence, the tastes, values, and needs of men, and especially of the most aggressive among them, have shaped our entire social and political system, reaching an almost perfect level of accommodation. 130 valeria ottonelli leap 3 (2015) van parijs seems to suggest that this was true once, in the remote times of genghis khan, but it is no longer the case in our highly civilized society in which physical violence no longer provides a social advantage. however, the genetic trait we are considering here is not violent behavior per se, but the high levels of testosterone that make males aggressive, competitive, ca reless, a nd prone to risk. those t ra its, in fact, st i l l const itute a ver y valuable factor of social advancement and prestige, and are still associated w it h h ig her probabi l it ies to occupy top-ra n k posit ions i n econom ic orga ni zat ions a nd polit ica l inst itut ions. the capacit y for “leadership” continues to be celebrated in our society and its major economic and social domains; empirical studies show that such capacity is consistently associated with aggressive, competitive, and careless behavior (alimo-metcalfe 2010). not surprisingly, a strong association has been found between possessing high testosterone levels and being rewarded as a “leader” in firms and social h iera rch ies i n genera l (sher ma n et a l. 2015). l ack of “r isk-aversion” a nd “compet it ive agg ressiveness” a re considered const itut ive of good entrepreneurship (rauch et al. 2009), and this is seen as giv ing men a comparative advantage (sapienza et al. 2006; lim and envick 2013). even in the apparently peaceful, enlightened, and highly civ ilized academic world, being competitive, aggressive, and not “too nice” is rewarded in terms of career and prestige ( van den brink and benschop 2012: 515-16; bell and king 2010). there’s more. in fact, if we look at how our major institutions and social pract ices a re bu i lt a nd work, we rea l i ze t hat ou r t reat ment of ma les’ unfortunate hormonal constitution represents indeed a rare case of overaccommodation of an impairing disabilit y. to see how this may be so, consider that wherever a public policy for the accommodation of people with disabilities exists, an important condition is included, which we might call a “safety proviso”2: the accommodation and inclusion in social, political, and economic institutions of people with disabilities should not cause grave risks to the safety and health of third parties. for example, in many western countries, as people get older they have to pass physical examinations at increasing ly shor ter inter va ls in order to renew t heir driver’s license. someone who suffers from narcolepsy cannot be hired as an air-traffic controller or as a school bus driver. of course, this does not mean that their disabi lit ies shou ld not be addressed or t hat t he cost of ca rr y ing t hem should fall only on those affected. people who cannot drive should have access to cheap and easily available public transportation; those who, for medical reasons, cannot be hired in certain jobs must have an adequate choice of alternative careers. however, no wrong is done to them if they are 2 a much discussed example is section 504 of the americans with disabilities act of 1990 a blatant case of over-accommodation 131 leap 3 (2015) prevented from engaging in those activ ities which would result in very h ig h r i s k s for ot her p e ople. i nde e d, t he s a fet y pr ov i s o i s si mpl y a requ i rement of justice; it rightly protects the welfare and opportunities of those who might be affected by risky or dangerous activities. if we take seriously the idea that due to their high testosterone levels men tend to engage in agg ressive, risk y, ca reless, or even sociopat hic behavior, then we immediately see that not only the hormonal disability that affects men is largely accommodated in our society, but, in fact, it is unduly over-accommodated, since in t heir case t he sa fet y prov iso is massively violated. unlike poor-sighted people wanting to f ly planes, men are not prevented from engaging in activities and taking up roles that are likely to put other people at risk if carried out by someone with such an unbalanced constitution. in fact, men represent the vast majority in those jobs in which testosterone-driven aggressive, risky, and careless behavior is most likely to cause serious damages. in western countries, 75% to 90% of those who work in law enforcement a re men; women a re on ly 10 % of t he police workforce in portugal,3 13% in spain,4 13% in italy and the u.s.,5 15% in france, 22% in the netherlands and 28.2% in the u.k.6 men still occupy the vast majority of public offices and are still dominating politics, especially in those executive roles that require making life-and-death decisions on the fate of millions of people. men represent 93% of political leaders (heads of state or heads of government) in the world;7 88% of u.s. state governors are men; 88% of mayors of u.s. major cities are male; 8 in europe, 66% of members of national supreme courts are men;9 they make up 82% of those sitting in decision-making bodies of central banks;10 they are 73% of senior ministers in national cabinets; and 89% of leaders of major political parties 3 http://w w w.theportugalnews.com/news/only-one-in-10-psp-officers-is-awoman/6061 [last accessed 12 february 2016]. 4 http://w w w.elnortedecastilla.es/salamanca/201510/17/mujeres-ganan-poderrepresentan-20151017123638.html [last accessed 12 february 2016]. 5 http://w w w.criminaljusticeschoolinfo.com/women-law-enforcement.html [last accessed 12 februar y 2016]. 6 http://sputniknews.com/europe/20151202/1031099667/uk-women-police. html[last accessed 12 february 2016]. 7 http://w w w.unwomen.org/en/what-we-do/leadership-and-politicalparticipation/facts-and-figures [last accessed 12 february 2016]. 8 http://w w w.fairvote.org/election-of-women-in-our-100-largest-citiesdisadvantaged-by-districts [last accessed 12 february 2016]. 9 http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/ judiciary/supreme-courts/index _en.htm [last accessed 12 february 2016]. 10 http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/ business-finance/central-banks/index _en.htm [last accessed 12 february 2016]. http://www.theportugalnews.com/news/only-one-in-10-psp-officers-is-a-woman/6061 http://www.theportugalnews.com/news/only-one-in-10-psp-officers-is-a-woman/6061 http://www.elnortedecastilla.es/salamanca/201510/17/mujeres-ganan-poder-representan-20151017123638.html http://www.elnortedecastilla.es/salamanca/201510/17/mujeres-ganan-poder-representan-20151017123638.html http://www.criminaljusticeschoolinfo.com/women-law-enforcement.html http://sputniknews.com/europe/20151202/1031099667/uk-women-police.html http://sputniknews.com/europe/20151202/1031099667/uk-women-police.html http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.fairvote.org/election http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/judiciary/supreme-courts/index_en.htm http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/judiciary/supreme-courts/index_en.htm http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/business-finance/central-banks/index_en.htm http://ec.europa.eu/justice/gender-equality/gender-decision-making/database/business-finance/central-banks/index_en.htm 132 valeria ottonelli leap 3 (2015) are men.11 although in europe women are the majority of physicians under 35, men still dominate the higher ranks of the medical profession12 (they occupy 86% of top posit ions in ita ly;13 89% of leadership posit ions in germany;14 and they represent 72% of consultants in the u.k.)15. 83,7% of the u.s. active army,16 almost 90% of the u.k. army,17 85% of the french army,18 and 93% of the italian army19 are still composed by men. such an over whelming presence of men in dangerous, difficult, and ha zardous jobs presumably causes countless episodes of killings, torture, physical aggression, humiliation, maltreatment, medical malpractice,20 physical injuries, and deaths by negligence each year.21 moreover, we should also be aware that the breach of the safety proviso in the case of men would produce even more victims if the non-hormonallyhandicapped half of humanity, i.e. women, did not put in practice a whole array of everyday techniques in order to avoid or untrigger men’s violence and aggression. these span from coping strategies in abusive relationships (waldrop and resick 2004), to self-imposed curfews at night (bondi and metha 1999), to the simple act of switching to the opposite sidewalk when a group of men approaches. the non-hormona lly-handicapped ha lf of humanity constantly works at reducing the toll that the over-accommodation of men’s disability would otherwise exact. but this of course has enormous socia l costs in terms of oppor tunit ies for resources or welfa re, which disproportionately affect women. 11 http://w w w.unwomen.org/en/what-we-do/leadership-and-politicalparticipation/facts-and-figures [last accessed 12 february 2016]. 12 http://w w w.healthcare-in-europe.com/en/article/11487-male-female-doktors. html [last accessed 12 february 2016]. 13 http://w w w.quotidianosanita.it/lavoro-e-professioni/articolo.php?articolo_ id=12545 [last accessed 12 february 2016]. 14 http://w w w.healthcare-in-europe.com/en/article/11487-male-female-doktors. html [last accessed 12 february 2016]. 15 http://w w w.theguardian.com/society/2010/aug/22/women-doctors-top-nhsjobs [last accessed 12 february 2016]. 16 http://w w w.army.mil/women/today.html [last accessed 12 february 2016]. 17 http://w w w.huffingtonpost.co.uk/2015/03/27/women-britsh-armed-forcessexism_n_6940538.html [last accessed 12 february 2016]. 18 http://w w w.lemonde.fr/societe/article/2014/04/15/l-armee-sous-pression-pourconforter-la-place-des-femmes_4401356_3224.html [last accessed 12 february 2016]. 19 http://w w w.esercitoitalianoblog.it/donne-nellesercito-italiano-nemici-dentroe-fuori/ [last accessed 12 february 2016]. 20 throughout the world men in the medical profession are consistently much more likely than women to be sued for malpractice and this can be traced to differences in their personality traits (firth-cozens 2008). 21 compare for example the striking data on deadly road accidents caused by men’s reckless behaviour (al-balbissi 2003). http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.quotidianosanita.it/lavoro-e-professioni/articolo.php?articolo_id=12545 http://www.quotidianosanita.it/lavoro-e-professioni/articolo.php?articolo_id=12545 http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.healthcare-in-europe.com/en/article/11487-male-female-doktors.html http://www.theguardian.com/society/2010/aug/22/women http://www.army.mil/women/today.html http://www.huffingtonpost.co.uk/2015/03/27/women-britsh-armed-forces-sexism_n_6940538.html http://www.huffingtonpost.co.uk/2015/03/27/women-britsh-armed-forces-sexism_n_6940538.html http://www.lemonde.fr/societe/article/2014/04/15/l-armee-sous-pression-pour-conforter-la-place-des-femmes_4401356_3224.html http://www.lemonde.fr/societe/article/2014/04/15/l-armee-sous-pression-pour-conforter-la-place-des-femmes_4401356_3224.html http://www.esercitoitalianoblog.it/donne a blatant case of over-accommodation 133 leap 3 (2015) in our society, the only measure that is taken to prevent the disastrous effects of men’s high testosterone levels are criminal laws against violent offences. these are a very poor way to address the risks posed by men’s handicap. they only offer an ex post response when the damage has already been done, are highly ineffective even as a deterrent to prevent future damages, a nd dispropor t ionately a f fect people f rom poor socia l backg rounds or members of stigmatized ethnic groups. the real target of these measures is not men’s per vasive and highly damaging aggressive, careless, and risktaking behavior, but the kind of violent personal aggressions that are likely to occur and be persecuted in deprived social contexts. these considerations should also help us see why – as van parijs remarks (2015: 87) – we pity members of racial minorities and other disadvantaged groups for the high rates of incarceration they suffer, while we do not tend to do the same with men. a short answer is that it is mainly male members of t hose d isadva ntaged g roups, rat her t ha n men i n genera l, who a re incarcerated and therefore should complain about the unfairness of our social arrangements.22 this is a case of intersectionality in which race and cla ss play a f u nda menta l role. moreover, i f we t r y to d isenta ng le t he various determinants of high incarceration rates, we see that race and class on one hand, and gender on the other, play a completely different role. to the extent that incarceration can be traced to poverty, racism, lack of education, a dysfunctional family env ironment, or inadequate legal defense, it strikes us as an odious side effect of more fundamental forms of d i sadv a nt age c reated by ou r soc ia l i n st it ut ion s. to t he ex tent t hat incarceration can be traced to men’s proneness to aggressive, careless, and risky behavior, it strikes us as a poor and ineffective attempt to mitigate the most atrocious effects of the over-accommodation of such a dysfunctional behavioral trait. conclusion i have mainly focused here on the over-accommodation of men’s proneness to risky, aggressive, and careless behavior. however, it should be clear that parallel considerations could easily be extended to men’s exasperated libido. our society provides for all sorts of accommodations and over-accommodations of men’s sexual appetites, and prostitution is just one of the most evident expressions of such a bias towards men’s constitution and the fundamental friendliness to men’s sexuality that is a constant of most human societies. 22 western and pettit (2010), for example, report that 68% of african american men born after 1970 who have dropped out of high school have prison records, vs. only1.2% of white males with college education. 134 valeria ottonelli leap 3 (2015) it should also be clear that our response to van parijs’ puzzle on hormonal inequality would be the same even if we assumed that men’s behavior has social, rather than hormonal causes. stressing the importance of socialization in the formation of men’s character would only make the central point of our response more evident: men’s aggressive, risk-taking, and careless behavior, far from being a disadvantage, is indeed cherished and accommodated in our society, and those traits of character are actively encouraged and rewarded since early infancy. what would be different, if we dismiss the hypothesis that men’s behavior is determined by hormones, is our picture of what it would take for our society to achieve justice, by redressing and preventing all the wrongs, dangers, and harms coming from the over-accommodation of men’s behavior. if we took the hormonal hypothesis seriously, then ideally, a just society would consider the dismal (and very costly) prospect of massively medicating males or excluding them from those jobs and roles in which their high testosterone levels create unbearable risks for other people. if we instead see men’s dysfunctional behav ior as ma in ly determined by env ironmenta l causes, just ice w i l l be achieved through a different and much more appealing path: by pursuing more en lightened met hods of ma le socia li zat ion, a nd a col lect ive reevaluation of which character traits should count as good and valuable among human beings. bibliography al-balbissi, a.h., 2003: “role of gender in road accidents,” traffic injuries prevention, 4: 64–73. alimo-metcalfe, b., 2010: “an investigation of female and male constructs of leadership and empowerment,” gender in management: an international journal, 25: 640-48. bell, e. and king, d., 2010: “the elephant in the room: critical management studies conferences as a site of body pedagogics,” management learning 41: 429–442. bondi, l. and mehta, a., 1999: “embodied discourse: on gender and fear of violence,” gender, place and culture, 6: 67-84. casal, p., 2011: “love not war. on the chemistry of good and evil,” in arguing about justice. essays for philippe van parijs, ed. a. gosseries and y. vanderborght, 145157, louvain: louvain university press. firth-cozens, j., 2008: “doctors with difficulties: why so few women?,” postgraduate medical journal, 84: 318–20. heuni, 2014: european sourcebook of crime and criminal justice statistics 2014, helsinki, european institute for crime prevention and control. irigaray, l., 1985: speculum of the other woman, ithaca: cornell university press. lim, s. and envick b.r., 2013: “gender and entrepreneurial orientation: a multi-country study,” international entrepreneurship and management journal 9: 465-482. legato, m.j., 2006: why men die first, new york: palgrave. a blatant case of over-accommodation 135 leap 3 (2015) montoya, e.r. et al., 2012: “testosterone, cortisol, and serotonin as key regulators of socia l aggression: a rev iew and theoretica l perspective,” motivation and emotion, 36: 65-73. pateman, c., 1988: the sexual contract, stanford: stanford university press. phillips, a., 2003: “defending equality of outcome,” journal of political philosophy, 12: 1-19. rauch, a. et al., 2009: “entrepreneurial orientation and business performance: an assessment of past research and suggestions for the future,” entrepreneurship theory and practice, 33: 1042-2587. sapienza, p., zingales, l., maestripieri d., 2009: “gender differences in financial risk aversion and career choices are affected by testosterone,” pnas 106: 15268– 15273. sherman, g.d. et al., forthcoming: “the interaction of testosterone and cortisol is associated with attained status in male executives,” journal of personality and social psychology. squires, j., 2000: gender in political theory, cambridge: polity press. stanton, j.s., liening, s.h. and schultheiss, o.c., 2011: “testosterone is positively associated with risk taking in the iowa gambling task,” hormones and behavior, 59: 252–256. unodc, 2013: global study on homicide 2013, new york, united nations publications. van den brink, m. and benschop, y., 2012: “gender practices in the construction of academic excellence: sheep with five legs,” organization 19: 507-24. verloo, m. and lombardo, e., 2007: “contested gender equality and policy variety in europe,” in multiple meanings of gender equality, ed. m. verloo, 21-50, budapest: ceu press. walby, s., 2004: “the european union and gender equality: emergent varieties of gender regime,” social politics, 11: 4-29. waldrop, a.e. and resick, p.a., 2004: “coping among adult female victims of domestic violence,” journal of family violence, 19: 291–302. western, b. and pettit, b., 2010: “incarceration and social inequality”, daedalus, 139: 8-19. yildirim, b.o. and derksen, j.j.l., 2011: “a rev iew on t he relationship bet ween testosterone and life-course persistent antisocial behavior,” psychiatry research 200: 984–1010. young, i.m., 2001: “equality of whom?,” journal of political philosophy, 9:1-18. zilioli, s. et al., 2015: “testosterone, cortisol and empathy: evidence for the dualhormone hypothesis,” adaptive human behavior and physiology, 1: 421-433. leap 3 (2015) are unequal incarceration rates unjust to men?1 gi n a schou t e n harvard university abstract the genetic endowment of males makes them likelier than females to be perpetrators of violent crime and thus to end up in prison. philippe van parijs notes this and raises a startling question: is it not an injustice to males that their unchosen genetic endow ment renders them likelier to suffer the harms of incarceration? in this brief response, i canvass some tempting avenues by which we might think we can dispel the puzzle, and argue that each is unsuccessful. this will disappoint those hoping for a refutation of the claim lurking behind van parijs’ question: that even as their criminal behavior is so profoundly harmful to so many innocent victims, male violent offenders are themselves somehow victims of injustice. i hope to show that this indignation-provoking claim is far more difficult to refute than we would have hoped, but also to suggest that it is far less threatening— and less bizarre—than we might have feared. keywords: crime, gender, incarceration, justice, sex, testosterone introduction in his fourth puzzle on gender equality, philippe van parijs notes that the genet ic endow ment of ma les ma kes t hem l i kel ier t ha n fema les to be perpetrators of v iolent crime and thus to end up in prison.2 he raises a startling question: if the unchosen genetic endow ment of males renders them likelier than females to suffer the harms of incarceration, could this be an injustice ( van parijs 2015: 88) plausibly, it adds to the injustice of poverty that those who grow up in poor families are likelier to be incarcerated 1 i am grateful to paula casal, jeff behrends, harry brighouse, and three anonymous reviewers at law, ethics, and philosophy for asking challenging questions and making valuable suggestions on previous drafts of this response. 2 for more on biological contributions to male crime, see thornhill and palmer 2000, casal 2011, and rainer 2013. for data on men’s greater criminality, see greenfeld and snell 2000. 137 gina schouten leap 3 (2015) than their more privileged counterparts.3 why, asks van parijs, do we have the intuition that the elevated risk to those born with these disadvantages is different than the elevated risk to those born with male genetic endowments? those who are concerned about ongoing injustices against women are likely, at first, to find these puzzles irritating. we might lament the opportunity costs of theorizing alleged injustices against men when women continue to be victimized by pervasive structural injustices, and worry that such t heor i z i ng w i l l slow prog ress towa rd women’s equa l it y. i sha re t hese worries. still, hormonal inequalities may generate injustices against men even if this fact is troubling for those concerned to strengthen coalitions for social reform on behalf of women. of course, it is right that men be overrepresented among the prison population given that they commit more violent offenses. we must protect victims and potential victims, and incarceration presently offers the best means of doing so. but is the higher likelihood of incarceration among ma les unjust? the ha rms of inca rcerat ion ca n be severe. they include foregone opportunities for flourishing, alienation from spouses and children, enhanced risk of being oneself a victim of violence, and difficulty finding and keeping employment subsequent to release.4 if men are, through no fault of their ow n, likelier to suffer these harms, then we must at least entertain van parijs’ question—a puzzling question to be sure, since the putative injustice to men would result, most proximally, from their doing violence to their victims: often, women. in this brief response, i canvass some tempting avenues by which we might think we can dispel the puzzle, and argue that each is unsuccessful. no doubt other avenues for response exist, but i consider what i take to be the most plausible. having explored these possible responses and found them unsatisf ying, i tentatively conclude that men’s higher likelihood of 3 no doubt rates of inca rceration wou ld be higher in t hese communities even if crime rates were not, but i assume that part of this correlation is due to elevated crime rates. as van parijs says, elevated crime rates among the poor are “in part no doubt but not only because they tend to be sentenced more severely for the same crimes” (87). 4 see na acp cr i m i na l just ice fact sheet. some of t hese ha r ms a re i nt r i nsic to incarceration, but some are contingent—incarceration need not be as harmful as we make it. i suspect that an elevated likelihood of criminal behavior is bad for offenders even if they are never caught: whether or not they feel remorse for their crime, violent offenders are likely to experience greater difficulty maintaining or developing intimate relationships. even those with a propensity to violence who never offend are likely to struggle to achieve and maintain the kinds of interpersonal relationships that, for so many, are crucial contributors to wellbeing, and they may be worse off for this whether or not they themselves judge it to be a loss. but nothing i say in the rest of this paper relies on the mere propensity to violence being harmful. all i will assume is that, on average, incarceration itself is harmful; i take it that any plausible metric of justice will have the resources to register it as such. are unequal incarceration rates unjust to men? 138 leap 3 (2015) incarceration is a distinct injustice to men. this tentative conclusion is highly counterintuitive, but i suspect that a great deal of our resistance to it owes to worries about the strategies we might pursue to remedy the injustice. so i conclude by briefly sketching what seem to me some promising social policies to address inequalities in incarceration prospects—including unequal prospects based on sex, if it turns out that such inequalities are unjust to men. how might we try to dispel the puzzle concerning men’s incarceration? i first consider some reasons for thinking there is no injustice at all. i then consider a response that grants that there is some injustice but maintains that it is overridden by the many injustices of which men are beneficiaries; this response acknowledges that there is an injustice to men, but maintains that it is of no practical consequence, for men are owed no recompense. 1. natural or social? we might start by questioning van parijs’ causal claims. are the differences between men and women that lead to men’s higher rates of violent crime really genetic, as he suggests? isn’t it plausible that some of these behavioral differences are due in part to social or environmental influences? plausibly, even if genet ic dif ferences a re present, cer ta in socia li zat ion pract ices exacerbate their effects: if young boys are encouraged or indulged more when they display aggression, or if they are indulged more in losses of temper because gender norms make us more tolerant of male anger than female anger, these trends might help explain men’s greater criminality. even if they do, this does not dispel van parijs’ puzzle. if rawls was right that social and natural contingencies are “equally arbitrary” from a moral point of view (1971/1999, p. 64), then social contingencies justify inequalities no more than natural contingencies. if we have reason of justice to mitigate unearned disadvantage, those reasons apply no less to the disadvantage that results from socialization than the disadvantage due to genes. even if social and natural contingencies are equally morally arbitrary in t he sense t hat t he person whom t hey disadva ntage is equa l ly nonresponsible for t hem, however, socia l cont ingencies at least seem to be within society’s control. because society appears responsible for creating it, socially-caused disadvantage might be thought more urgently to call for remediation. i find this implausible. suppose there really is a fact of the matter about the extent to which the causes of any particular disadvantage a re socia l or natura l. st i l l, socia l ly-caused disadva ntage need not, in principle, be more a menable to cha nge by col lect ive act ion, eit her by mitigating the disadvantage or by mitigating the social differences that 139 gina schouten leap 3 (2015) cause it. neither genes nor their justice-relevant effects are immutable. in a paper on educational justice, christopher jencks asks us to consider two deaf children: one child’s deafness is due to an environmentally-caused early childhood disease; the other child’s deafness is due to a genetic defect. according to jencks, “the fact that one child’s deafness was a product of heredity while the other child’s deafness was environmental in origin tells us nothing about the physical character of the problem or the likelihood that it has a medical remedy” (1988: 523).this point about immutabilit y increasingly applies to the source of disadvantage as well, as social sources of disadvantage become increasingly complex and gene therapy becomes increasingly sophisticated. whatever the source of men’s greater aggression, it could be addressed through collective social action—either by efforts to change socialization patterns, by existing gene selection and therapy, or by developing new technologies for genetic modification (casal 2013, 2015, 2016; rainier 2013). but t his is a l l la rgely beside t he point. if men’s g reater li keli hood of criminality is due to social inf luences contrary to what van parijs claims, and if social inequalities do more urgently call for remediation contrary to what i have cla imed, t hen we have on ly st reng t hened t he g rounds for t hin k ing t here is injust ice here. but if va n pa rijs is right to rega rd t he difference as genetic, then we’re back to the puzzle we began with: is it not unjust that genetic make-up renders men likelier than women to engage in violent behavior, thereby rendering them more susceptible to the harms of incarceration? whatever configuration of social and natural causes are at work, they presumably make males likelier to be incarcerated because they make it more difficult for males than for females to avoid the kinds of behaviors that lead to incarceration. if so, then the inf luence of unchosen genetic or social endowment on males’ prospects for incarceration seems to be the sort of starting gate disadvantage that justice condemns. 2. harm to others? violent crime is deeply harmful. it harms v ictims, and its harms extend beyond its immediate victims; for example, it inf licts opportunity costs in the form of public resources spent on prosecution and incarceration rather than other socially valuable projects. can we dispel the puzzle van parijs’ question raises by arguing that the serious and pervasive harms that crime inf licts tel l aga inst men’s g reater li keli hood of inca rcerat ion being a n injustice to them? is it a plausible condition for an ex ante inequality in life prospects to constitute an injustice that those on the losing end not harm others in accruing the deficit they were ex ante likelier to accrue? no. just are unequal incarceration rates unjust to men? 140 leap 3 (2015) as men are disproportionally likely to be incarcerated relative to women, the least advantaged are disproportionally likely to be incarcerated relative to the more advantaged. this elevated likelihood of incarceration is plausibly one dimension of the injustice suffered by those who grow up poor through no fault of their own, and this would be true even if the effects of poverty on incarceration were mediated entirely by actual criminality—that is, even if poverty did not elevate one’s likelihood of incarceration beyond the extent to which it elevates one’s likelihood of committing a crime. similarly, the effects of hormones on men’s high likelihood of incarceration are mediated by their criminality—by their harming others. but to be consistent, we must regard their unequal propensity to criminality as no less unjust on that count. this is true even if, plausibly, men’s criminality and the criminality of those born into disadvantaged circumstances disproportionally victimize those who are already unjustly badly off themselves. 3. free choice? genetic and hormonal differences may render men likelier than women to engage in certain behaviors, but whether or not any of us in fact engages in t hose behav iors is, at t he end of t he day, up to us. va n pa r ijs read i ly acknowledges that “the role played by free will in the causal process is by no means irrelevant” (86), and clarifies that his drawing attention to the role of genetics is meant in no way to exonerate men for their violent crimes. how, then, is men’s greater propensity to violence an injustice, if we acknowledge that choice plays a role in determining whether any particular man acts on this propensit y? if we are right to hold indiv iduals accountable for the choices t hey ma ke, even when factors beyond t heir cont rol a f fect t heir likelihood of making those choices, why should we think that men suffer injustice due to the genetic endowments that make them, on average, likelier to be violent? consider the income inequality between women and men. some of the inequality is due to outright sexism, and some to implicit biases or statistical discrimination that render women less likely to be hired and promoted whether or not they are or will become caregiving specialists, simply because they are statistically more likely to be caregiving specialists. another cause of income inequality is unequal uptake of unpaid caregiving labor between men a nd women. women ta ke more t ime of f for ca reg iv ing a nd more frequently work part-time so that they can perform caregiving. full time working women have more caregiving constraints on their availability for overtime work or travel and are likelier to be on call for caregiving emergencies. they are also likelier to develop career aspirations in light of anticipating 141 gina schouten leap 3 (2015) that they will be the caregiving specialist within their families; they are thus likelier to choose the relatively flexible (and less socially valued) careers that will enable them to prioritize caregiving. some might think that if men’s higher incomes are due to sexist bosses, that’s unjust; but if the inequality is due to women’s occupational or worklife balance choices, it is not unjust. this is a mistake. women do indeed choose how to divide their time and energy, but they do not choose against a background of equality. due to genes or socialization or both, women are likelier than men to subordinate the demands of paid labor to the demands of caregiving. relative to men, women’s options about how to allocate time a nd energ y come w it h dif ferent const ra ints a nd payof fs. to ma ke t he counter-gender-typical choice of prioritizing paid labor, the average woman will have to overcome either ingrained social norms or a natural predisposition to prioritize others’ needs for care, or both; and she will have to pay the costs of violating social norms that cast women as “cold” or “hard” for prioritizing paid labor and as “bitchy” or “domineering” for success in paid labor, which success itself will have to be won in a competition the terms of which largely favor men. so while women do indeed choose which careers to pursue and how to prioritize those careers against other life projects, we nonetheless rightly object to the terms of that choice: women who choose less esteemed and less well–remunerated positions face higher costs than men for choosing more esteemed and better remunerated alternatives. women who choose to shoulder more than their share of the caregiving load do so against a context that makes it costlier for them than for their male partners to resist doing so.5,6 clearly, there are important differences between women’s choices to prioritize the needs of dependents over paid labor and men’s engagement in violent crime. my point is not to claim that they are analogous, but to make one very specific comparison: both involve choice. considerations of justice must be responsibilit y-sensitive, and so the role of choice is not 5 one might think that diagnosing this social context of choice as unjust requires a welfarist metric of justice. i deny this, and in fact think it would be a mistake to invoke such a metric. i offer an account of the injustice of the gendered division of labor—an account that does not rely on a welfarist metric—in schouten (forthcoming). nor does the case for regarding the gendered division of labor as unjust rely on assuming that men and women have different preferences; rather, the arrangement of institutions that makes transgressing gender norms so costly is unjust. 6 one might point out that the unfair terms of choice are due to men’s intransigence. i do not t hin k t his is releva nt for t he point i a m ma k ing here, which is about whet her t he consequences of choice can be unjust to the chooser if the terms of the choice are unfair through no fault of the chooser. i do not think that others’ culpability bears on that question, though it is certainly relevant to others. moreover, i do not think that the unfairness of terms is due primarily to men’s intransigence, as will become clear below. are unequal incarceration rates unjust to men? 142 leap 3 (2015) insignificant. but in both cases, the inequalities in the background against which the relevant choice is made are not chosen; and in both cases, the relevant choice is harmful to the chooser. women are worse off in many doma ins by v ir tue of ma k ing gender-norm-complia nt labor a l locat ion choices (as well as by the norms themselves, whether or not the women comply with them), and these harms have long been a concern of theorists of justice. men are made worse off by virtue of committing violent crimes that result in their disproportionate incarceration. through no fault of t heir ow n, women a re ex ante li kelier to be worse of f in v ir tue of t heir greater likelihood to prioritize the needs of dependents over their careers. through no fault of their ow n, men are ex ante likelier to be worse off in virtue of their greater like lihood to engage in violent behavior. perhaps the unequal propensities in the two cases are due to different configurations of social and natural causes. but if we are committed to neutralizing the inf luence on our life prospects of circumstances beyond our control, then this difference is irrelevant to our deeming it unjust that unchosen contingencies impact on life prospects in these ways. men should not be exculpated merely on the basis of their ex ante elevated likelihood of criminality any more than women’s gender-compliant choices should be disparaged as not genuine choices. for the purpose of theorizing justice, we want to be able to hold agents responsible for the choices they make even when alternative courses are very costly; thus, we must attribute to individuals the capacity to make costly choices. this capacity is the basis on which we hold perpetrators responsible for their crimes and respect women’s gender-compliant choices. but in neither case does the role of choice exempt the backdrop against which choices are made from criticism on the grounds of justice. just as the norms and institutions that make gender egalitarianism so costly may be unjust, so too it might be unjust that social structures permit men’s unchosen genetic endowment so heavily to impact their likelihood of incarceration. we have seen that the effects of natural contingencies are not categorically immutable. if the incarceration effects of male hormones are not immutable—and i shall tentatively suggest in concluding that they are not—then the element of choice in criminal behavior does not exempt society from an obligation to intervene to lessen the likelihood of the harm: in the case of incarceration, by expending social resources to make violent crime less common.7 7 i have not argued positively that society does have such an obligation; rather, i have argued more modestly that the role of choice would not lessen or undermine it if we did. moreover, social resources are scarce, and the question of how to prioritize remediation of the various injustices we confront is complicated. even if we do have the obligation i consider here, it may be that in our non-ideal circumstances other obligations of justice must take priority. 143 gina schouten leap 3 (2015) 4. an injustice overridden? suppose there is some injustice in men’s higher likelihood of incarceration. still, we might think that, given the very many ways in which women are disadvantaged relative to men, that injustice is simply overridden by the many gendered harms to women of which men are beneficiaries. indeed, some of the ver y features that plausibly help explain men’s greater likelihood of incarceration also have disadvantageous consequences for women: men are, on average, physically larger and stronger than women and so likelier to be successful when they undertake to commit a violent crime; this physical strength and stature might be a disservice to the men who are incarcerated for the crimes they successfully carry out, but those traits are much more pervasively a threat to women. of course, even if men are all-things-considered advantaged such that t hey a re owed no recompense i n v i r t ue of t hei r h ig her l i kel i hood of incarceration, that disadvantage might still matter. if the various constituents of good lives are commensurable such that gains in one domain can make up for losses in others, any justice-relevant disadvantage men suffer might simply diminish the compensation owed to women on account of gender injustice favoring men. but it is not obvious that the putative disadvantage to men would be relevant merely for lessening the compensation owed to women. many ca ndidate goods of just ice —work, income, a nd leisure —appea r to be commensurable in this way. but it is not always true that being advantaged in one way can compensate for being disadvantaged in another—that if the quantities and severities match up correctly, there is no injustice all things considered. some goods are not commensurable. certain health def icits t hat involve chronic pa in plausibly ca nnot be out weighed by surpluses of other goods like income and wealth, or even by surpluses of goods that we regard, like health, as intrinsic constituents of wellbeing— intellectual stimulation, for example. similarly, it may be that men’s greater likelihood of committing v iolent crime is a disadvantage that cannot be compensated for by other goods, even goods in such important domains as those in which men appear to be favored, including social status and occupied positions of political power. none of this is meant to deny that the goods of which men enjoy unfairly large shares are ver y good goods; nor is it to deny that their large shares constitute an injustice. it is simply to point out that the impact on one’s life of certain kinds of bads cannot fully be remediated by a larger share of goods. presumably, the harm of suffering physical assault is such a bad. we may regard the harms of incarceration as similarly un-compensable without thereby committing to men’s susceptibility are unequal incarceration rates unjust to men? 144 leap 3 (2015) to suffering them being a disadvantage comparable in severity to women’s vulnerability to assault. here we might be tempted to think that the badness of men’s greater incarceration is not best characterized as unjust. maybe the world is somehow worse in virtue of this inequality, but justice is about the distribution of commensurables. if men’s higher li keli hood of crimina lit y ca nnot be outweighed by the very many advantages they have in virtue of being men, then it is not unjust. justice cannot plausibly be restricted in this way, because such a restriction would also exclude paradigmatic cases of gender injustice. consider t he incommensurable harms of the gendered division of labor which account—at least in part—for our regarding it as unjust. imagine, counterfactually, that traditionally male and traditionally female work were esteemed and remunerated at comparable levels. still, the persistence of social norms and institutions arranged in compliance with those norms could make gender-counter-typical choices very costly for both men and women. the costs of transgressing gender norms within institutions that affirm those norms can constitute justicerelevant harms, even if gender-norm-compliant alternatives resulted in equal distributions of commensurables between women and men. on this basis, i argue elsewhere that the gendered division of labor could remain unjust even if caregiving work were compensated and its status elevated such that esteem and remuneration accrued equally to traditionally male and traditionally female work (2016). but at the very least, it is coherent to cla i m t hat t he gendered d iv ision of labor cou ld be u njust despite a l l commensurable goods being fairly distributed. if so, then the concept of justice must extend beyond commensurables. the injustice of the gendered division of labor also shows that a justicerelevant, incommensurable disadvantage can remain justice-relevant when the disadvantaged group enjoys a surplus of different incommensurable goods. if we are to take seriously the insight that we presently fail to value caregiv ing in proportion to its true worth—both in terms of the public good that caregivers generate and in terms of the personal value of intimacy that caregiving enables—then we must accept that women are not the only parties harmed by the gendered div ision of labor. just as many women would have been better off with more opportunities for stimulation and esteem in the world of paid work, many men would have been better off with more opportunities for the intimacy and fulfillment that caregiving 145 gina schouten leap 3 (2015) enables.8 women are harmed by their sub-optimal share of paid work, and men are harmed by a sub-optimal share of caregiving work. of course, these harms are not of equal magnitude for women and men. but suppose, again, that traditionally female work were remunerated and esteemed equally with traditionally male work. under these circumstances, the harms of a gendered division of labor could be equal in their extent and severity. still, it would remain unjust that men and women are so thoroughly socialized in ways that make it very costly for them to attain what for so many of them is an important good, where the basis of this socialization is nothing more than (faulty) (institutionalized) assumptions about who is best suited to or equipped for different kinds of work. for those who would find fulfillment through non-caregiving work, a deficit in that domain cannot fully be compensated by larger allocations of commensurable goods or even by larger a l locat ions of other non-commensurable goods. for those who would find f u lf i l lment through caregiving, a deficit in that domain is similarly incommensurable. st i l l, none of this makes it incoherent to think of the gendered division of labor as a problem of justice. the gendered division of labor could remain unjust even if (counterfactually) it imposed only incommensurable harms, and even if (counterfactually) the harms accrued in equal magnitudes to men and women. similarly, men’s greater likelihood of incarceration could be unjust despite the harms it inflicts being incommensurable, and it could remain unjust even though women suffer incommensurable harms of even greater magnitude. because these (putative) injustices cannot fully be compensated by surpluses of other goods, to fully restore justice we must remove the ex ante inequality—by changing the gendered socialization patterns and institutional arrangements that sustain the gendered division of labor on the one hand; by removing or overcoming men’s genetic or social propensity for violence on the other. in other words, fully remediating these injustices requires reform of social institutions rather than straightforward redistribution of goods. in one sense, this is nothing new. even straightforward income and wealth inequalities might be best addressed not by giving more to those whose share is unfairly small, but rather by making careful and empirically-informed 8 it is tempting to think that if a dearth of caregiving really made men worse off, they would simply do more of it. but, first, even if their small share of caregiving work is simply due to t heir ow n intra nsigence, t hey might nonet heless be better of f doing more. just as women’s socia lization (or genetic endow ment) a f fects t heir preferences a nd t he choices t hey ma ke, so too might men’s. second, t here is ev idence t hat men increasingly do prefer gender ega l ita r ia n pa r t nersh ips a nd a la rger sha re of ca reg iv i ng work, but wor r y t hat “mounting job demands and a lack of caretaking supports” make egalitarianism not a viable option (gerson 2010: 11). in other words, many of the same factors that make egalitarianism so costly for women—not intransigent partners but intransigent workplaces, for example— also make it costly for men. are unequal incarceration rates unjust to men? 146 leap 3 (2015) institutional changes to schools, zoning policies, or campaign finance regimes.9 the difference is that, when we are dealing with commensurables, redistributing goods can still, in principle, fully restore justice, albeit perhaps less efficiently. when the injustice involves incommensurables, redistributing goods is not only less efficient; it falls short of fully restoring justice. if incarceration inflicts incommensurable harms, then men’s greater likelihood of incarceration might call for redress despite the very many inequalities from which they benefit. 5. unjust but not urgent? men’s many advantages do not render hormonal inequality irrelevant from t he perspect ive of just ice, but perhaps t heir adva ntages render it a less urgent injustice. plausibly, hormonal differences that disadvantage men are less urgent than many of the inequalities that disadvantage women. still, i question how far this can take us in resolving the cognitive dissonance van parijs’ puzzle generates. the fact that men enjoy so many advantages in virtue of their gender may well depress the urgency of remedying the d i sadv a nt ageou s con sequences of hor mona l i nequa l it ies, but ot her considerations should figure into our calculations of urgency as well: how severe is the harm? how per vasive? how difficult is it to avoid? a re the advantages which its v ictims enjoy commensurable advantages? judging from these questions, we can see that many injustices against women are exceedingly urgent problems of justice. we routinely fail to make women safe in public spaces from threat of v iolence and assault. the resulting harms are severe, pervasive, and exceedingly difficult for women to avoid. we should try to ease these harms, but their seeming incommensurability would make them impossible fully to remediate, which makes it urgent indeed to do what we can to avoid them in the first place. w here do the harms of men’s greater likelihood of incarceration fall along these metrics of urgency? they are presumably less urgent than the harm women disproportionally suffer in virtue of living under threat of violence, but neither can the inf luence of unchosen genetic endowment on men’s likelihood of imprisonment be dismissed as unimportant. i do not know how difficult it is for those with the genetic endowment in question to avoid criminality. but surely the harms of incarceration are severe and per vasive: the bureau of justice reports that, as of the year 2000, male violent offenders made up “about one violent offender for every nine males age ten or older” (greenfeld and snell 2000). if the harms of incarceration 9 this is not a claim that these issues no longer fall within the purview of distributive justice. the injustices might be distributive even if the ideal remedies are not redistribution. 147 gina schouten leap 3 (2015) are incommensurable, that would heighten the urgency of finding ways to avoid them. even if i am wrong about this assessment of urgency, moreover, relative non-urgency does not exempt us from responsibility to theorize and address injustices. the harms of the present day gendered division of labor are, on any plausible measurement, less urgent than the harms of institutionalized practices of female genital mutilation. but concern over the persistence of the latter has not prevented a great deal of attention to the former, and this is as it should be, assuming we can maintain perspective and allocate scarce resources and attention appropriately. on reflection, the unjust consequences of hormonal inequality seem relatively urgent; but even less urgent injustices merit attention. 6. what to do? men’s genetic or socialized propensity to aggression is a circumstance beyond t h e i r c ont r ol . we s h ou ld b e c om m it t e d , a s a m a t t e r of j u s t ic e , t o minimizing the effects of such circumstances on life prospects. this comes to us as puzzling, because we are accustomed to thinking of women as being victims of gender injustice. no doubt readers will have other ideas for how to d ispel t he pu z z le, or idea s for how more ef fect ively to execute t he resolutions i have considered. i welcome such ideas. diagnosing sex-based unequal prospects for incarceration as unjust is counterintuitive, and i am open to the possibility that creative maneuvers to avoid this diagnosis can be made to work. but it seems to me that we must also ref lect on the status of the intuition being contradicted. at one extreme, we might treat it as a desideratum of a theory of justice that it not diagnose the unequal likelihood of incarceration between the sexes as unjust, or that it not do so when males comprise the disadvantaged group. this would too strongly privilege the intuition that men are not victims of injustice in van parijs’ puzzle. a weaker way to privilege the intuition would be to treat it as a sufficiently reliable piece of data to justif y creative refinement of our theories of justice to accommodate it. at some point, though, the creativity of our maneuvers will come at the cost of the plausibility of the theories. if the intuition is so reliable, that cost might be worth bearing. but at some point, ingenious maneuvers become at best ad hoc and at worst implausible on their own terms. there are certainly options i have not considered, and some of them may impose no plausibility cost to the best theory of justice. but suppose not. what amount of “plausibility points” should we be willing to sacrifice in our theories of justice to preserve the intuition that unequal likelihood of incarceration is not unjust to men? i don’t know. but for two reasons, i think that it would are unequal incarceration rates unjust to men? 148 leap 3 (2015) not be the disaster we might at first have thought it to be if we had to admit that our intuition in this case is misguided. first, we have long known that certain gender inequalities harm men as well as women. men have historically been discouraged from developing the kind of intimacy with their children that makes parenting so rewarding for some. t hey have been encou raged to rega rd pa id employ ment a s fundamentally important to their self-worth and role in society. there is no denying that men have been mal-formed under patriarchy in ways that constitute real harms to them, and acknowledging these harms as dimensions of gender injustice takes nothing away from the urgency of addressing harms suffered by women, who remain the prime victims of gender injustice. nor should acknowledging an injustice in incarceration prospects detract from our commitment to the diverse array of feminist goals that we’ve long recognized as morally urgent. second, if our intuition that there is no injustice here turns out to be misguided, the practical upshots are not the unpalatable measures we may have feared but rather social policy measures that we already have independent reason to undertake. certainly we should work to ameliorate the harms of incarceration by making prisons safer, but this does not mean that we should decriminalize violence, exonerate its perpetrators, or lessen any of our efforts to better protect victims of violence. from the fact that a man’s propensity to violence is beyond his control, it does not follow that he should be exonerated for acting on that propensity. if they can be shown to be safe and effective, we might incorporate technological solutions to lower recidivism, for example offering male offenders drug or gene therapies to lessen aggressiveness.10and while it is a far less exotic proposal, i think we have reasons to be optimistic that education reform could lower men’s likelihood of incarceration.11 high quality early childhood education might better enable boys to manage and process anger. arts and enrichment programming throughout primary and secondary school might help them find healthy outlets for it. lengthening school days and school years could diminish students’ availability for gang activity, drug use, and other behaviors that raise the likelihood of subsequent criminality. this strategy could be especially effective among students, like boys from 10 for more on these possibilities, see persson and savulescu 2012, casal 2011, 2013, and 2015. 11 there are good reasons to worry about educational programs aimed at changing people’s propensities to engage in certa in behav iors. indeed, ma ny such ef forts ca n be inef fective a nd even oppressive (casa l 2016). but ev idence suggests t hat non-oppressive education initiatives can be effective in reducing criminality. for example, studies of early childhood educationa l inter ventions, like perr y pre-school a nd t he abeceda ria n project, show that test scores improved in the short term, but faded out quickly, while other benefits associated w it h t he inter ventions (including lack of involvement in t he crimina l justice system) persisted. see, e.g., heckman et al. (2010). see also machin et al. 2010 and deming 2011. 149 gina schouten leap 3 (2016) poor communities with high levels of unemployment, whose intersectional group membership further elevates their risk. perhaps most importantly, education reform could mitigate the severe deprivation and hopelessness that often lead to criminality. well-educated students have more options for meaningful life pursuits, more developed capital to make those pursuits successful, and higher opportunity costs to criminality. for these reasons and others, we should work to diminish the extreme inequality in our society through education reform and other forms of social support. it might seem as though education reform could only make a difference if the problem had its root in social causes, but this impression is mistaken. just as corrective lenses can improve poor vision whether it has environmental or natural causes, education could offset whatever environmental inf luences raise men’s likelihood of incarceration and lessen the likelihood that they will act on—or raise the likelihood that they w ill resist acting on—any natural predisposition toward criminality they happen to have. in short: whether men’s greater propensity to violent crime is due to genes or socialization or both, social solutions like education reform could help reduce their likelihood of acting on that propensity. perhaps, if all this fails, we will have to accept that the problem, at present, cannot be ameliorated, or that it cannot be ameliorated without making the world more unjust overall than it is if we tolerate this disadvantage to men. if so, some might think that the disadvantage is therefore not unjust. i doubt that injustice is limited in this way, if only because restricting the concept based on what we are presently able to redress risks removing reasons to develop new mechanisms for redress. but even if the concept is rightly limited in that way, we should not accept the conclusion suggested without having made a good faith effort to deploy the kinds of social solutions conjectured here. i have suggested that they hold promise for reducing the inf luence of hormones on men’s criminality, and there is little reason to doubt that, if they can be made to do so, they could do so without imposing decisive costs to other pursuits of justice. it is indeed counterintuitive to think that men are victims of injustice because their genetic or social endowment makes them likelier to end up in prison. it might nonetheless be true. if so, then many of the social policies that could mitigate the injustice are policies about which we should have little reservation. indeed, many of them are long overdue. are unequal incarceration rates unjust to men? 150 leap 3 (2015) bibliography casal, p., 2011: “love not war. on the chemistry of good and evil”, in arguing about justice: essays for philippe van parijs, ed. a. gosseries and y. vanderborght,145157,louvain la neuve: louvain university press. — 2013: “sexual dimorphism and human enhancement,” journal of medical ethics 39: 772-8. — 2015: “on not taking men as they are: reflections on moral bioenhancement,” journal of medical ethics 41: 340-42. — 2015: “distributive justice and female longevity,” law, ethics and philosophy 3: 90-106 — 2016: “distributive justice and human nature,” in oxford handbook of distributive justice, ed. s. olsaretti, oxford: oxford university press. deming, d., 2011: “better schools, less crime?”the quarterly journal of economics 126: 2063–2115. gerson, k., 2010: the unfinished revolution, oxford: oxford university press. greenfeld, l. and snell, t., 2000: u.s. department of justice, bureau of justice statistics special report on women offenders. http://www.bjs.gov/content/pub/pdf/wo.pdf heckman, j., moon, s., pinto, r., savelyev, p.a.,yavitz, a.,2010: “the rate of return to the high/scope perr y preschool program,” journal of public economics 94: 114–128. jencks, c., 1988: “whom must we treat equally for educational opportunity to be equal?” ethics 98: 518–33. machin, s., marie, o., and vuji, s., 2010: “the crime reducing effect of education,” the institute for the study of labor discussion paper series, iza dp no. 5000. na acp cr i m i na l just ice fact sheet, ht t p ://w w w.naacp.org/pages/cr i m i na ljustice-fact-sheet persson, i., and savulescu, j., 2012:unfit for the future: the need for moral enhancement, oxford: oxford university press. rainer, a., 2013: the anatomy of violence: the biological roots of crime, new york: pantheon books. rawls, j., 1971/1999 : a theor y of justice, rev ised ed it ion, ca mbr idge : ha r va rd university press. schouten, g., forthcoming: “citizenship, reciprocity, and the gendered division of labor: a stability argument for gender egalitarian political interventions,” politics, philosophy, and economics. pre-published september 4, 2015, doi: 10.1177/1470594x15600830. — 2016: “is the gendered division of labor a problem of distribution?” in oxford studies in political philosophy, vol. 2., ed. d. sobel, p. vallentyne, and s. wall, oxford: oxford university press. van parijs, p., 2015: “four puzzles on gender equality,” law, ethics and philosophy 3: 79-89. thornhill, r., and palmer, c. t., 2000: a natural history of rape: biological bases of sexual coercion, cambridge, ma and london: mit press). http://www.bjs.gov/content/pub/pdf/wo.pdf http://www.naacp.org/pages/criminal leap 3 (2015) the rich also cry1 ana de miguel universidad rey juan carlos abstract philippe van parijs (2015) reports a hostile reaction to some remarks he made suggesting that men’s stronger sexual drive disadvantages them compa red to women, in pa r t because it causes t hem to v isit brot hels, thereby incurring financial and reputational losses. this paper describes how satisfying sexual desire can be very cheap, or even free, and explains why the way a man’s reputation is affected by a greedier libido is not always significant or negative. more importantly, the paper tries to explain why van parijs’ remarks were received with so much disapproval by feminists. keywords: sexual exploitation, prostitution, human trafficking, harassment, feminism introduction i have been asked to comment on a text by a philosopher i have never met called philippe van parijs. he tries to describe some possible advantages women have compared to men and comes up with these: women outlive the men they look after; women earn less but study more; women have less political representation but vote more; women are the victims of crime rather than the perpetrators; and women tend to be those whose body is sold, rather than the client or pimp (van parijs 2015). wow, men must be really envious! he warns that he is speaking “tongue-in-cheek.” you don’t say! it would be really worrying if this was seriously all one could come up with. i hope he can appreciate other people’s sense of humor, for i work on prostitution and the alleged handicap i have been asked to discuss is men’s 1 i thank paula casal for her help with the translation, the structure, and countless ex a mples (t h i rst, sea food, subord i nat ion fa nta sies, coet zee, su nscreen…). in fact, her contribution was so great, that i thought we should both sign the paper, but she declined. i am also grateful to jesús mora for his references and revisions, and to antonio garcía valdecasas for the title and other suggestions. finally, i am very grateful to three anonymous referees for their criticisms and encouragement and to laura sánchez de la sierra and hannah weber for their thorough proofreading. 152 ana de miguel leap 3 (2015) greedier libido. van parijs explains it thus: “men’s greedier libido turns them into handicapped individuals, sometimes even super-handicapped à la dominique strauss-kahn.” it causes them financial losses because they find themselves paying for prostitutes and, if caught, can also cause them reputational damage (86). i was myself really puzzled when i read, and then had to re-read, that he is now telling the world that this is what he actually prepared for a feminist, predominantly female audience at a major gender equality event (!). predictably, the talk did not go down well. and he could have left it there. philippa would have gone home wanting the earth to swallow her and quietly researched into where she went so horribly wrong until she understood. but not philippe. two and a half years later he remains conv inced that the problem lay w ith the female audience. they misunderstood him. all of them. they must have. there can be no other explanation. so, he is repeating it all again, trying to reach an even larger audience, without changing even a comma. he seems to believe that the problem lay with these women’s poor mastery of english, the insufficient time they gave him, and their unfamiliarity with a philosopher’s job ( 79-80), for it could not have been what he said. absolutely not. having carefully read his piece, i think i know what happened. he was spea k ing to wel l-educated women, united to promote equa lit y in t he workplace, concerned with depressing gender facts, and they were outraged by their guest’s speech. they were outraged because they understood him and – what’s more unusual – they dared to say so. i will try to spell out why, despite the additional complication posed by va n pa rijs’ a mbiva lence about whet her t he behav iors he describes as hormonal inequality are actually about socialization (16). if i understood correctly – in spite of my being a woman and a feminist with imperfect english – the problem he was drawing attention to is this: men’s libido has t he u n for t u nate ef fec t of c au si ng t hem to go w hor i ng , w h ich i s bad because of the expense and potential damage to their reputation. women are more fortunate in this respect, as they do not need to v isit brothels, and therefore do not waste money or risk reputational losses. he calls the whoring propensit y “a ha ndicap,” perhaps of fending t he disabled a nd women at once. his paradigmatic super-handicapped male is strausskahn, a thrice-married millionaire who, swept away by the force of his libido, damaged his public reputation with various affairs – well past the age of sixty, i would add. the rich also cry 153 leap 3 (2015) 1. the alleged handicap l et us a ssu me t hat, because of t hei r hor mones, men wa ke up w it h a burning desire that prevents them from functioning in life. let us also g ra nt t hat such sensat ion rea l ly is li ke being ver y t hirst y, sta r v ing, or extremely cold, so that they truly cannot focus on other matters until they are relieved. ‘it must be a handicap!’ says philippe the philosopher. and he quickly closes his computer satisfied to have found yet another disadvantage he bets feminists have never before considered. however, let us suppose men have a plentiful and permanent supply of water, but love being thirsty. they like it so much that the moment their thirst subsides, they try to increase it with pills, pictures, videos, toys, or whatever works best for each of them. they do this in order to enjoy the thirst, and then the drink which they can always find – even if they could not, the pleasure derived from simple thirst would have made it worthwhile. after all, the market is full of stuff to increase this thirst and delay its satisfaction. it seems to me, then, that if men themselves are delighted w ith this ‘thirst-thing’ they possess and can easily relieve, there is no justification for telling women that they are not as far from equality as they would have thought otherwise. and the desire for sex is like this ‘thirst-thing’ for most men. they love having it, and so long as they are not handicapped in other ways, and so still have hands, relief is simple, instant, and gratis. this is the cartesian “clear and distinct” idea carol pateman explains in the sexual contract (1988), a w idely cited book van parijs’ audience may well have read and discussed. men prefer, of course, women pouring the drinks for them, but none dies for having to help himself (and nowadays we know it does not cause blindness either). you can, by contrast, die working as a prostitute. even if nobody attacks you, it is a largely nocturnal life of risks, drinking, drugs, driving, disease, and weirdos. this is my field of research: a heart-breaking world of rows of naked or half-naked women freezing in parks at night, or roasting in plastic chairs on the side of busy roads, with just a bottle of water to wash themselves between clients. it is a sinister world of women in glass windows in red light districts and industrial parks: “24 hours, all services,” “asian, very young, submissive,” “sluts, totally shaved, do what you want with us.” w hat was philippe the philosopher thinking, when he persuaded himself that conjuring these images in the minds of the concerned feminists was going to make them appreciate the disadvantages suffered by...men, and in particular one man, strauss-kahn? what were the chances of that audience ever thinking of this horrendous, ever-growing meat market as a massive charity operation to assist the poor men with their handicap? 154 ana de miguel leap 3 (2015) it is strange to describe as a handicap a disposition that is catered to and celebrated both by those who possess it and their broader culture. consider, for instance, the protagonist of coetzee’s disgrace (2000) or freud’s discussion of the greater male libido as a sign of male superiorit y and the primar y cause of greater creativity and inventiveness in men (1923). it is also very strange to say that somebody is to some degree disabled in an injusticeinvolv ing sense merely because they have, or are more likely to have, a preference. the same is true if the preference is a passion, for instance, for the sea or the snow, that might kill you in some circumstances. the word ‘handicap’ suggests something stronger than the frustration of a mere preference, t he ex istence of a n u n met need. but what k i nd of need, preference, or handicap are we really talking about? does it involve the need for quick relief that can easily be obtained manually? no, it cannot be so simple or the whole sex industry would be redundant. is it a desire to see a woman dow n there, on her knees, naked and obey ing? or the w ish to humiliate her, to call her a ‘slut’, and to make her say that she wants you, when you know it is not true? is it a desire to see women as nymphomaniac school girls, raunchy nurses, or interviewees who would otherwise not get the jobs (three of men’s classic favorites)? or is it the need to show who is boss and prove that ‘women are whores’ who will do anything you say for money? research shows that most men know that many of the girls they use are not self-employed but parts of net works of exploitation and trafficking (raymond 2003). many of them, we hear in the news, have been sold by their families, while others are captured by experts in supply and demand and in identifying girls from broken homes, prone to substance abuse or low selfesteem, who are more easily captured.2 in any case, the majority of them come from the most sex ist and unstructured countries, from poor and dysfunctional backgrounds, and cultures where a girl is worth nothing. we all know about this. but when entering a brothel and seeing the “asian, very young” or “sexy caribbean, barely 18,” do ‘the handicapped’ step back in shock? do they make any inquiries? “hey, i am handicapped, i hope you are not handicapped too and can help me. are you here of your own free will? could you leave anytime? are you really this desperate for money? are you really 18? where is your family? ” the handicap must be an extreme form of selfishness and indifference, for the handicapped customer asks nothing. in fact, he wants not to know: he is interested only in his handicap and in whether you have the body to relieve it. and so, an audience of women already concerned by the suffering 2 the daily mail, 2014. http://www.dailymail.co.uk/news/article-3300016/humantraffickers-preying-refugees-europe-forcing-slave-labour-child-prostitution-warn-europol.html http://www.dailymail.co.uk/news/article-3300016/human-traffickers-preying-refugees-europe-forcing-slave-labour-child-prostitution-warn-europol.html http://www.dailymail.co.uk/news/article-3300016/human-traffickers-preying-refugees-europe-forcing-slave-labour-child-prostitution-warn-europol.html the rich also cry 155 leap 3 (2015) caused by men’s selfish focus on their itch had to listen to the philosopher blanketing out all else, claiming ignorance and telling them to focus on this matter of such great importance. as if they themselves had not had many occasions to hear men going on about it, demanding pity and relief. feminists know full well how manipulative, rhetorical, and persistent men can be about the importance of relieving their itch. “oh, i suffer so much! if you love me, you w ill make me happy (w ithout thinking about pregnancy or venereal disease).” even if they had not read it in feminist texts, they would have heard the male ‘pity me’ countless times directed at them. one wonders if the philosopher knew this when he told the women they were to pity men. 2. the alleged costliness the philosopher observes that the man must pay (van parijs 2015: 16), as an added disadvantage, just in case this escapes us or seems unimportant in view of men’s higher average income. it is true, you are supposed to pay. in madrid or barcelona you can pay 5€ for a blowjob performed by black girls with really good prices, plus those very special mouths, so perfect for the task.3 for 10€ more, you can then penetrate one of those skinny asians in the park, a car, or some back street. for 30€ you can have a half an hour with a breast-enhanced latina in a room in central gran vía. and now there are also ‘low-cost’ brothels, brothels with “refund if unsatisfied” policies, and even brothels with loyalty cards where you can “enjoy and forget,” as they say in the ads.4 driving along the spanish east coast, you can find anything at really good prices: alleged sado-masochists, exotic girls with unusual bending or swallowing abilities, group acts, the lot. i am just reading the current menu to van parijs, since he seems unaware of the fact that whoring is rather inexpensive. it is cheaper than seafood, for example, or watching the local fallas, and presumably the philosopher does not count seafood or firework lovers as handicapped too. but perhaps he has in mind the exclusive services that arrange for you to have sex with top models, news readers, and top university students struggling with their fees,5 assuring the ‘handicapped’ that there is no woman they cannot buy. after all, the paradigmatic super-handicapped is the economics professor, minister, and imf managing director, strauss-kahn, and these high-f liers sometimes spend exorbitant sums on their handicap (or get 3 que, 2013: http://www.que.es/ultimas-noticias/sociedad/201310250800prostitucion-nigerianas-recien-llegadas-cinco-cont.html 4 see apr amp: http://apramp.org 5 the gua rdia n, 2015: http://w w w.t heg ua rdia n.com/education/2015/ma r/27/ universit y-students-sex-work-liv ing-costs-tuition-fee-debts http://www.que.es/ultimas-noticias/sociedad/201310250800-prostitucion-nigerianas-recien-llegadas-cinco-cont.html http://www.que.es/ultimas-noticias/sociedad/201310250800-prostitucion-nigerianas-recien-llegadas-cinco-cont.html http://apramp.org http://www.theguardian.com/education/2015/mar/27/university http://www.theguardian.com/education/2015/mar/27/university 156 ana de miguel leap 3 (2015) funding from tax payers). but how could the philosopher pick this man as the paradigmatic victim of any specific form of injustice? strauss-kahn did not lose his reputation in a brothel or a party with prostitutes. he made it to the front pages as somebody accustomed to “getting away with murder” who decided to grab his chambermaid and try to rape her.6 at the time, he was with his third beautiful wife, heir of a millionaire, but hey, the male itch is so important, how could a maid refuse to cooperate in its relief? he was later accused of further rapes and involvement with a pimp network.7 the super-handicapped and self-proclaimed libertine – super-handicapped and proud8 – soon acquired a new girlfriend, and his business continued to boom until his customers accused him of fraud in october 2015.9 and yet, as i write, strauss-khan is not in jail, or alone, or abandoned. surely, while having a girlfriend, he finds time to frolic with the “very young asian,” “submissive black beauty,” “operated brazilian,” and “all-waxed russian” that are routinely trapped in prostitution rings organized to relieve the all-important itch at all prices for men of all classes. 3. the alleged reputational loss the philosopher, i am reliably informed, is a nice guy who honestly just wants to understand things, and so might reply: “i didn’t realize buying the services of prostitutes is so cheap, and perhaps i was mistaken about strausskahn too. but what about the others?” perhaps there are some men who buy sex only from self-employed, mature prostitutes, and take the trouble to ensure they are not prostitutes in part because they have been abused, are mentally ill, addicted, or need to support a sick child. but who are these people who unfairly suffer a reputational loss in such circumstances? the greater understanding for the specifically male handicap that the philosopher tries to promote gives the berlusconis of this world a great sense of impunity. their endearing “weakness for the girls” is said to make them “more human” ( walston 2010). they know they w ill not lose their reputation for doing what they want. it is after all a “handicap,” and a sort of need-based claim. bill clinton did not think that being the most powerful man on earth as president of the united states came with the responsibility to behave himself 6 the guardian, 2012: http://w w w.theguardian.com/world/2012/dec/10/ dominique-strauss-kahn-case-settled 7 sott, 2015: https://www.sott.net/article/292198-dominique-strauss-kahns-pimping-trial-starts 8 fra nce 24, 2015: http://w w w.f ra nce24.com/ en/20150210-liber t ine-st rauss-ka hn-adm its-org ies-denies-prost it utes 9 bbc, 2015: http://w w w.bbc.com/news/world-europe-34549950 http://www.theguardian.com/world/2012/dec/10/dominique http://www.theguardian.com/world/2012/dec/10/dominique https://www.sott.net/article/292198 http://www.france24.com/en/20150210 http://www.france24.com/en/20150210 http://www.bbc.com/news/world the rich also cry 157 leap 3 (2015) at least until the end of his term in office. no, with so many centuries of the ideological compassion for the male weakness, he felt untouchable or at least less liable to indignation and sanction. maybe he even felt entitled, and claimed that sex with the young intern was “consensual.” i am just a teacher, and a woman, but would not think that sex in my office with one of my students could count as consensual. monica lew inski’s reputation (and much of her life) was ruined, of course.10 but what happened to bill? he remained married and president, and the world remembers him as one of the best contemporary presidents, and a rather nice guy. 4. the alleged lack of understanding perhaps the philosopher would judge franco’s spain superior to zapatero’s in one respect. there was such understanding for the male handicap that it was normal for the señor of the house to have access to the maid’s young body with neither the maid, nor the wife, having any say about it. “men have to throw a grey hair in the wind” was the catch phrase (meaning: “copulate w ith somebody besides the w ife”). until 1963, a womanizing man could even kill his wife for adultery and be acquitted. why? because men have a weakness women lack.11 given the philosopher’s insistence on the need to abstract from all else, he may also want to focus on the unique way in which society accommodates for the male itch at war: at home, the soldiers’ prerogative is to leave a trail of pregnant girls behind, and while away, occupying armies are more readily permitted to ‘whore around’ than to read in the local library. occupying armies are so understanding of the male need that soldiers can rape with impunity just about anyone.12 the poor soldier forced into so much discipline has to let off steam somehow, right? van parijs condemns such actions, of course, but he seems to believe he is the first one to suggest the men are to be pitied for their weakness when in fact there is no novelty in this: this is the rancid ideology that has been oppressing humanity for centuries. he may say he does not mean his words to excuse such behaviors, but the fact is that his message has been used in this way for far too long. he cannot reasonably be surprised that feminists did not appreciate that his contribution to their empowering meeting was a disempowering message: “the handicap we ought to pit y” is just too similar to the discourse fed to us ad nauseam which has done so much damage and we have to fight. 10 ted, 2015: http://w w w.ted.com/talks/monica_lewinsky_the_price_of_shame 11 abc, 2010: http://www.abc.es/20100915/internacional/adulteras-espana-201009151646.html 12 independent, 2014: http://www.independent.co.uk/news/world/middle-east/nojustice-in-sight-for-iraqi-victims-of-alleged-murder-rape-and-torture-9849305.html http://www.ted.com/talks/monica_lewinsky_the_price_of_shame http://www.abc.es/20100915/internacional/adulteras-espana-201009151646.html http://www.independent.co.uk/news/world/middle-east/no-justice-in-sight-for-iraqi-victims-of-alleged-murder-rape-and-torture-9849305.html http://www.independent.co.uk/news/world/middle-east/no-justice-in-sight-for-iraqi-victims-of-alleged-murder-rape-and-torture-9849305.html 158 ana de miguel leap 3 (2015) for what made strauss-kahn assault the maid is not a handicap or a need, but a product of overindulgence in the male itch. the ideolog y of calling it “a handicap” misdirects attention and empathy away from the maid, and towards strauss-kahn’s desires. by reproducing it, the philosopher is maintaining a discourse according to which, although men are already richer and more powerful, women must have some understanding and pity for the distinctively male “weakness.” although they would have applauded loudly, strauss-kahn, berlusconi, and franco do not need this message, so van parijs instead delivers it to a feminist audience. but these are people devoted to ending precisely that ideology, people who encourage poor women to stand firm and tell their husbands to stop talking about his needs when they cannot even feed their existing children. feminists tell women to stand up a nd show no mercy in denouncing men who rape or ha rass t hem.13 feminists tell women not to listen to his veiled threats of leaving her for somebody more accommodating to his whims. feminists tell women not to risk hiv because a man tells them that he suffers. feminists are people like pateman, who tell women not to be afraid to say “why do i have to use my mouth when you have two able hands” (pateman 1988: 172)? feminists, then, are not people reluctant to voice, or hear, challenging views. but they are people who would not have invited a speaker, philosopher or not, to repeat an old myth that women have worked long and hard to combat. 5. the alleged class and gender similarity philippa would have thought that having accepted such an invitation, she ought to engage in some research. but not philippe. with the confidence society imbues so many men, philippe thought he could quickly improvise something, thinking of four possible advantages for women and perhaps some comparisons bet ween class and gender should suffice. and off he goes. and like so many men before him, but perhaps never to such a large audience of gender-aware listeners, repeatedly displays the androcentric understanding of class that feminists have so often criticized. for he writes, “people who grew up in poor families (...) are disproportionately in prison (van parijs 2015: 87).” no, philippe, it is “prisons and brothels,” for not everybody responds to povert y in the same way. depending on sex, race, and age, people face different risks: for some the risk is gang warfare or crime, for others it is, or also includes, teenage pregnancy, single motherhood, the sex industry, stis, and encounters with strauss-kahn. the main cause of death for women aged 18 to 40 is gender violence (un women 2015). and 13 even barak obama had to speak against the view of rape as an inevitable part of life on us campuses (w hite house, 2014). the rich also cry 159 leap 3 (2015) even if a poor, black man’s chance of imprisonment was higher, anybody prefers a higher chance of committing a crime and a lower chance of being the victim, because the victim does not have a choice. only for the rapist, not for the raped, is it enough to say “no.” the philosopher then makes us search into our conscience w ith the phrase: “especially if we happen to enjoy a more privileged background” (van parijs 2015: 87), assuming, once again, before so many gender-conscious women an androcentric view. perhaps his female listeners were middle-class, but that would not have saved them from a violent or oversexed father, an important portion would have been raped,14 and tending to be pioneers in the workplace, most would have been harassed or threatened at some point (fine 2010: 87). knowing this, is it appropriate for a man to go to this femaleempowerment meeting to attempt a sympathetic look at the men who can pick a poor, naked, maybe terrified girl, and use her for their pleasure? and why stop there and not include testosterone-filled tyrants, sadistic torturers, hangmen, and nazi officials, who were all also overwhelmingly male? los ricos también lloran nobody, and certainly not philippa, would go to a meeting in a southafrican shantytown and attempt to move people with stories about privileged white lives, perhaps expressing frustration about servants’ unreliability and showing how the rich can also cry. one could imagine the reaction on hearing about the puzzle arising from their need for more expensive sunscreen to avoid skin cancer. and why not go to a disability conference to talk about the four downsides of being able-bodied? maybe van parijs would think that doing so is fine, because philosophers are licensed to focus on whatever they find interesting, blanketing out all else. but such things do not normally happen. it is usually women that have to put up with good philosophers coming to talk to them about gender and telling them the first thing that comes to mind. philippa would have not dared to do such a thing. but philippe may tell himself that the cold reception for his speech was not due to its being inappropriate or ill-researched, but due to some uncomfortable truth he alone unearthed. it is more likely, however, that there was little in it the feminists did not already know, and much the speaker should have known. at t he meet i ng, t he women were concer ned w it h d iscr i m i nat ion, exploitation, and power and sex abuse in the workplace. in this context, van parijs’ idea of comparing the scores of men and women must have 14 in the uk, for instance, one in five women report having been victims of sexual offences since the age of sixteen (ministry of justice 2013: 6). 160 ana de miguel leap 3 (2015) seemed rat her juveni le to t hem. they were t here to incite men to help create a cooperat ive a nd fema le-f riend ly work env ironment. in such a context, creating some petty competition (men: 4, women: 0) is unlikely to be of a ny help. simone de beauvoir (1966 : 28) la mented t he way men attempted to turn the female struggle for justice into a trivial diatribe, and perhaps this is just how these feminists felt. and, no, men do not have to be eliminated, but the world would be a better place without patriarchal men. bibliography archive of prostitution advertisement of apr amp, http://www.apramp.org de beauvoir, s., 1966: le deuxième sexe, les faits et les mythes, paris: gallimard. coetzee, j.m., 2000: disgrace, new york: penguin books. fine, c., 2010: delusions of gender, new york: icon books. freud, s., 192 3 : d a s ich und d a s e s, v ien na-l eipz ig-zu r ich : i nter nat iona ler psychoanalytischer verlag. ministr y of justice, uk home off ice & t he off ice for nationa l statistics https://w w w.gov.uk/government/uploads/system/uploads/attachment _ data/f ile/214970/sexua l-offending-over v iew-jan-2013.pdf pateman, c., 1988: the sexual contract, oxford: polity. ray mond, j., 2003: “ten reasons for not lega li zing prost it ut ion a nd a lega l response to the demand for prostitution,” journal of trauma practice 2: 315-332. un women, http://w w w.unwomen.org/en/what-we-do/ending-violence-againstwomen/facts-and-figures van parijs, p., 2015: “four puzzles on gender inequality”, leap 3. wa lston, j., 2010, “w hy silv io berlusconi is still standing,” the daily telegraph, http://w w w.telegraph.co.uk/news/worldnews/europe/ita ly/8114902/w hysilv io-berlusconi-is-still-standing.html www.apramp.org https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts http://www.telegraph.co.uk/news/worldnews/europe/italy/8114902/why-silvio-berlusconi-is-still-standing.html http://www.telegraph.co.uk/news/worldnews/europe/italy/8114902/why-silvio-berlusconi-is-still-standing.html leap 3 (2015) real freedom for all women (and men): a reply philippe van parijs université catholique de louvain abstract the disadvantages men suffer relative to women in certain dimensions are not always as significant as they seem. and even when they are real, they are not necessarily unjust. this reply to a set of six reactions to “four puzzles on gender inequality” offers a critical discussion of these claims. above all, it questions the very idea of discussing issues of gender and justice in terms of “gender justice,” i.e., of justice between two categories of human beings. keywords: gender equality, longevity, education, political representation, social justice introduction yes, my short speech on gender inequalities is what i think most of my commentators understood it to be: a modest invitation to help us better understand the demands of so-called gender justice and of justice more generally, by reflecting on some puzzles, none of them new but some of them sticky.1 ana de miguel’s superbly formulated and entertaining commentary was most useful in helping me see better why my initial speech could be misunderstood, even with the explanatory notes i subsequently added.2 i never read any masculinist pamphlet and do not intend to do so. but i can now imagine that some of what i said could have been reminiscent of some of what can be found in such w ritings and thereby suggest that i may be supporting their cause. ana de miguel can rest reassured. i do not believe, 1 in addition to the authors of the six comments included in this volume, i am most grateful to sophie heine, meira levinson, anja topolski, and the participants in the lovanium seminar in ethics and public policy (leuven, 21 november 2014) and the nuffield political philosophy seminar (oxford, 1 june 2015) for the sort of comments i was hoping to trigger – and be enlightened by. 2 perhaps contrary to her expectation, i particularly enjoyed de miguel’s contribution. i hope she enjoyed writing it at least as much as i enjoyed reading it – and more than i did trying to reply to it. 162 philippe van parijs leap 3 (2015) and never claimed, that it is high time we should start pitying the male gender, let alone that justice demands that it should be compensated for its many “weaknesses.” as a male member of a well-off segment of a wealthy society, i am only too aware of the privileges i enjoy, not only nor mainly by virtue of being a man, but definitely partly by virtue of being a man.3 thus, the aim was not pro-male advocacy but philosophical clarification, and the point of departure, as so often for us philosophers, was a set of genuine puzzles, the nature of which is well captured by paula casal (2015: 90-106) in the case of longevity. she is sure, she writes, “that if a random mutation resulted in women starting to die far ahead of men many of those who currently find van parijs’s suggestion [that men’s shorter life expectancy may be unjust] absurd would start listing lesser longev it y as one of the disadvantages women suffer” (90-106). if this is the case, and holds more genera l ly for at least some of t he ot her inequa lit ies i listed, does it not follow that they should count, albeit prima facie and pro tanto, as injustices against men? this is, at any rate, the upshot of gina schouten’s careful discussion of differential incarceration: “i tentatively conclude that men’s higher likelihood of incarceration is a distinct injustice to men” (3). schouten usef u l ly d ist i ng u ishes t wo ways of accom modat i ng t h is ack nowledgment. if one is w illing to adopt a genera l metric of justice, gender inequa lities in favor of women would reduce t he overa ll level of injustice t hey suf fer: good news for overa ll gender justice. if instead no inequality in life expectancy, homicide, or incarceration can do anything to offset inequalities in, say, labor income, social status, or sexual violence, a l l t hese i nequa l it ies si mply con st it ute i ncom men su r able for m s of injust ice, a nd if a n unjust inequa lit y develops in favor of women, t his would not reduce but further worsen gender injustice. but we are not there yet, a nd may never get t here : most of my commentators deny t hat t he inequalities i listed are injustices against men. in this response, i shall discuss several of their insightful, sometimes ingenious arguments. but i shall not bore the reader with a point by point response, in particular w ith a defensive inventor y of the many cases in which i feel that a (genuinely or falsely naïve) question i was asking was misunderstood as a suggestion, or even as an assertion. the literary genre 3 in particular, had i been a woman, it is most unlikely that i could have enjoyed as much as i did the immense privilege of combining a large family and a demanding job (see the section “femmes francqui” in my “allocution à l’occasion de la remise du prix francqui 2001,” www.uclouvain.be/8611). possibly in a slightly weakened form, jesús mora’s apt remark can most probably be generalized: “men with very successful careers in the hard sciences often have several children, successful female scientists often have no families at all, as they have to compete with men who have housewives that do everything for them whilst lacking one. so a group of well qualified women are childless or even entirely alone” (mora 2015:). www.uclouvain.be real freedom for all women (and men) 163 leap 3 (2015) of my initial piece is certainly largely to blame for such over-interpretations. precisely because it (uncharacteristically) abstained from making specific proposals, it did not need firm assertions by way of premises.4 it stopped at listing and motivating some questions. asking a question leaves open the possibility of an answer my critics would find objectionable but does not amount to proposing it. 1. no disadvantage the general format of the question i asked was: are the apparent disadvantages of men that i listed unjust and, if not, why not? a first type of response to this sort of question consists in arguing that, once looked at closely, the appearance of advantage vanishes, or at least much of it does. this is the case for life expectancy. paula casal (90) usefully invites us to have a look at the age pyramid. if it turns out that there is little difference between the two sides except at the very top, it reinforces the idea that the advantage, if any, cannot be that great. at the limit, women simply “enjoy” some extra miserable years in their nineties which they may prefer not to have to endure (and would not if euthanasia and assisted suicide were legally and socially easier). unequal numbers of years in good health would arguably be a better indicator of a genuine inequalit y of advantage, despite the unavoidable arbitrariness of the cut-off point between good and bad health. but this would still not do. as brief ly pointed out in my piece and insightfully developed in casal’s, this would overlook the asy mmetric care-giv ing to the ageing partner. even if preaching and material incentives (favorably discussed by casal) could drive down the average age gap between partners to zero, even if the disposition (and competence) for caring for one’s ageing partner had been equalized across genders, even if as much as possible was outsourced (as also recommended by casal), there would remain, on average, a greater burden for the female members of heterosexual couples, simply owing to t hei r longer l i fe ex pecta nc y. t h is g reater bu rden f u r t her reduces t he associated advantage. in order to assess what advantage is left (if any), this suggests designing a notion of qaly (quality-adjusted life years) that does not only take health into account, but also such burdens. inequality, using this amended metric, might still be in favor of women, but it will definitely be far smaller than when measured by the raw gap in life expectancy. 4 w hen in other contexts i asked such incongruous questions as whether surfers should be fed( van parijs 1991), or the elderly disfranchised( van parijs 1998) – which some hard workers and some pensioners might have found offensive – i did not leave the questions open but argued for an answer (yes to food for surfers, no to taking away the old folk’s vote!). 164 philippe van parijs leap 3 (2015) a second interesting example of an advantage that arguably melts once scr ut ini zed is prov ided by jesús mora in his st imu lat ing discussion of education. while claiming that education should be regarded as a dimension of advantage not entirely reducible to the earning power it generates, i had also stressed the relevance of a paradox: “having to work so much harder to be rewarded so much less is, as van parijs at one point suspects, one of the forms of compound injustice that women face” (mora 2015: 114). mora does not challenge the independent importance of education: “it is true t hat educat ion could potent ia l ly, in some possible world, of fset men’s economic advantage” (108). but his explanation for the paradox i stress makes the educational advantage enjoyed by women a necessary by-product of the inequality they suffer in other respects. here is the core of the argument. females invest more than males in their own education because they anticipate that they w ill need it more than men for their ow n material security: “with every pregnancy and every year into the marriage, women become less desirable both in the love and the labor markets”(109). this is ref lected, he conject u res, i n a mater ia l ret u r n to educat ion t hat is systematically higher for women than for men. women’s greater educational achievements“are thus sy mptoms of gender inequalit y, not signs of its disappearance” (114). to the extent that the higher average level of education is inextricably linked to disadvantages in other dimensions and hence, by hypothesis, would disappear in its absence, it is therefore no longer clear that it could be considered a separate, possibly compensating, dimension of advantage, or at least it is less clear than i had made it sound. this is an interesting conjecture, and certainly part of the story.5 even if it is not the full story, it can legitimately be used to argue that the alleged advantage is less than it seems. 2. disadvantage justified let us now accept, as several of my commentators do, that along some dimensions women enjoy some advantage, though possibly smaller than what it looks at first sight.6 a second response then consists in arguing that t here is not hing unjust about it. a f irst version of it is t he “rawlsia n” 5 can the comparatively high rates of absenteeism, unruliness, and dropping out among male teenagers and their long-term consequences on the education gap be entirely accommodated by this conjecture? i doubt it. 6 one candidate i did not mention is strikingly documented by casal (2015: 93): the probability of being killed is 2.5 times less if you are a white woman than if you are a white man, 9 times less if you are a black woman than if you are a black man. does the fact that the overwhelming majority of the perpetrators are men prevent us from regarding men’s much larger probability of being murdered as a genuine and potentially unjust disadvantage? real freedom for all women (and men) 165 leap 3 (2015) argument developed by casal (2015:98) against the background of fascinating evolutionary conjectures: “the inequality in longevity is not unjust because its removal would make humans worse off.” in the human and some other species, the females having longer lives than males is apparently beneficial to the care, survival, and education of all their offspring, male and female. this arguably turns women’s greater longevity into an adaptive feature, which natural selection has preserved throughout the millennia and is still with us. let us suppose that this explanation is correct. by no means does it follow that the inequality it explains is thereby justified. for the surplus of strength or resilience that enabled more mothers to steer their offspring into adulthood, despite the ha zards of deliver y and other perils, is now what accounts for a life expectancy of 85 rather than 80 or so. we are therefore talking here about one of those features which, however crucial they might have been in a more or less remote past, have lost their function in a deeply altered env ironment. similarly, male aggressiveness must have been a handsome asset, in both individual and group selection, throughout the millennia in which some of our ancestors lived in rival tribes of hunters, but this is no justification for it in our societies. the other challenges to the injustice of a recognized disadvantage suffered by men rely on the assumption that this disadvantage –in terms of longevity, incarceration, education, etc. –is mediated by a lifestyle or behavior pattern that is male-specific or at least displayed by men more often than by women. the phrasing of my puzzles occasionally suggested that it was essential to them that this propensity to behave in a certain way should be linked to man’s hormonal constitution. but i fully agree with convergent remarks by casal (2015: 91, 98), ottonelli (2015: 134), and schouten (2015: 139) to the effect that, however big a difference this may make as regards possible remedies, there is no crucial difference as regards justice or responsibility between causal accounts in terms of genetic equipment, early socialization, or socially sanctioned expectations about what it is to behave as a “real woman” or as a “real man.” early socialization and social sanctions are no more chosen by the individual men and women shaped by them than is their genetic equipment. this being clarified, let us consider the suggestion that women’s greater longevity is (prima facie and pro tanto) unjust, against the background of the factual assumption that men are predisposed, either by their genetic equipment or by their social environment, to a behavior pattern that will inf lict on them a genuine disadvantage relative to women, by costing them on average several years of valuable life. casal formulates t wo “liberalegalitarian” challenges to this disadvantage constituting an injustice, one inspired by tim scanlon, the other by ronald dworkin. 166 philippe van parijs leap 3 (2015) according to the “scanlonian” challenge, once society has done enough, i.e., once men, under appropriate circumstances, have been sufficiently warned that some behavior pattern can have detrimental consequences for them, there is no injustice involved if they persist in behaving in a damaging way. one serious problem with this challenge is that making people aware of the consequences of their choices does not get rid of the underly ing unchosen disadvantage, as well characterized by schouten in the case of incarceration: “whatever configuration of social and natural causes are at work, they presumably make males likelier to be incarcerated because they make it more difficult for males than for females to avoid the kinds of behav iors that lead to incarceration” (schouten 2015: 139). much of t he material injustice suffered by women is of fundamentally the same nature: “to make the counter-gender-typical choice of prioritizing paid labor, the average woman will have to overcome either ingrained social norms or a natural predisposition to prioritize others’ needs for care, or both; and she will have to pay the costs of violating social norms.” (141) whether or not men or women a re being properly wa rned about t he consequences of following their natural or social inclinations, “in both cases, the inequalities in the background against which the relevant choice is made are not chosen; and in both cases, the relevant choice is harmful to the chooser” (142). if appropriate warnings are deemed sufficient to nullify the alleged injustice suffered by men as a result of their choices, the door is wide open for this sort of excessively easy justification of inequalities suffered by women. the “dworkinian” challenge presented by casal deactivates the imputation of injustice by focusing on what the alleged victims of injustice identify with, rather than the warning given to them. there is no injustice involved (let alone compensation due), so the challenge goes, if men identify with the behavioral pattern that triggers the disadvantage. to the extent that they identify with it, such a behavioral pattern is not a handicap, like an addiction, which they would prefer to be w ithout. it is part of their identit y, like a religion which they may never have chosen – if they grew up within it – but which they embrace. the test proposed by dworkin in order to determine what counts as an injustice calling for redress or compensation consists in a counterfactual insurance dev ice, where people are supposed to know their ambitions but not their endowments. when performing this exercise, men “would have insured against illness or disability but not against being male” (casal 2015: 100). the trouble with this challenge is that nothing prevents, in dworkin’s dev ice, taking male, or female, or atheist, or muslim, as part of what one identifies with, and hence of one’s ambitions (like wanting to be a pianist or a gardener), while insuring against how costly it w ill prove to be. this them.there embrace.the real freedom for all women (and men) 167 leap 3 (2015) presupposes that one can dissociate being male from the cost it involves (here in years of life), and there is no reason why such dissociation should be ruled out, unless the cost is what one identifies with (as some may do w it h fa st i ng ).if one d id r u le it out, a s i mpl ied by ca sa l’s d work i n ia n argument, it is true that one could no longer make sense of the injustice of a number of disadvantages suffered by men, but equally of many putatively unjust disadvantages suffered by women. “some may worry,” casal (100) notes, “that this dworkinian use of selfidentification as a criterion for justif ying compensations may not always favor feminist demands.” indeed they should worr y. spending plent y of time with their children is part of an identity some women embrace, and if the implied cost in foregone (current and future) income could not be dissociated from what they identify with, they would have no “dworkinian” complaint of justice against the income inequalit y stemming from this source, just as men, for analogous reasons, would not have a “dworkinian” claim of justice against inequalit y in life expectancy stemming from a lifest yle w ith which they identif y. if we are not to miss a big part of the injust ice inf licted to women, it wou ld t herefore seem w ise to a l low a dissociation between gender-specific behavioral patterns and their cost, at the price of acknowledging the failure of the “dworkinian” challenge. are we then forced to admit that any disadvantage – whether higher chance of being killed or more expensive consumption – stemming from men’s specific lifestyle or pattern of behavior is, albeit prima facie and pro tanto, unjust, given that it is causally linked to the unchosen fact that they a re men? we a re not. clea rly, a ny plausible concept ion of just ice must manage to make a distinction between a handicap that justifies redress or compensation and preferences the cost of which need to be borne by those who have them. this point is forcefully made by de miguel (2015: 154) in the case of prostitution: “it is also very strange to say that somebody is to some degree disabled in an injustice-involving sense merely because they have, or a re more li kely to have, a preference. the sa me is t r ue if t he preference is a passion, for instance for the sea or the snow, that might kill you in some circumsta nces. the word ‘ha ndicap’ suggests somet hing stronger than the frustration of a mere preference, the ex istence of an unmet need.” thirst, she argues, can qualify as a need, but not the preference for having it satisfied in a fancy way. “and the desire for sex is like this ‘thirstt h i ng’ for most men. t hey love hav i ng it, a nd so long a s t hey a re not handicapped in other ways, and so still have hands, relief is simple, instant, and gratis” (de miguel 2015: 153). any sensible conception of justice must make room for a distinction of this sort. in the following section, i shall drop the ad hominem (or ad feminam) posture i have adopted so far (as well as in 168 philippe van parijs leap 3 (2015) my initial piece) and sketch how the conception of justice to which i subscribe myself tries to accommodate this important distinction and to address other key issues raised in the comments. 3. social justice as real freedom for all ottonelli (2015: 126) finds it puzzling that i assumed as unproblematic “some version of equality of opportunity for welfare or resources,” which fails to capture key aspects of the injustice suffered by women: “for example, women’s higher unemployment rates, lower income, and greater hardship resulting from divorce,” which should be “taken as signs of the domination, oppression, and exploitation that women suffer in our society.” she is right to complain. these aspects need to be taken on board, and the conception of justice i subscribe to can accommodate them, i believe, far better than the vague notion of equality of advantage which i have been relying on so far for the sake of the argument(s). this conception can be captured in the slogan “real freedom for all.” it essentially requires empowering as much as is sustainable those with least power to shape their lives. and it is leading me to advocate, along with carole pateman, for example, repeatedly cited by de miguel (2015: 153, 158), and along with many others, an unconditional basic income.7 for the sake of justice as real freedom for all, this unconditional income should be pitched at the highest sustainable level, part of it being given in the form of qua lit y education, health care, and a sane environment, in addition to an unflinching protection of physical integrity. however they are funded, the introduction of an unconditional basic income and the rise of its relative level are bound to involve a net redistribution from men to women and, more importantly, a greater expansion of life options for women than for men. it should not take too much effort to imagine, in particular, what difference the highest sustainable unconditional basic income would make to the prostitutes described by de miguel (153-6). its prospective effect is not mainly to increase their purchasing power. it is above all to increase their bargaining power on all fronts by multiplying exit options. nor should it take much effort to show that such a conception of justice is more than compat ible w it h ot tonel l i’s (130) v iew t hat “ou r t reat ment of ma le’s unfortunate hormonal constitution represents indeed a rare case of overaccommodation of an impairing disability”or with de miguel’s (158) call for putting an end to “overindulgence in the male itch.” moreover, if it is 7 see pateman (2006), murray &pateman eds. (2012), and, for recent discussion of the connection between gender inequalities and basic income, mclean (2015) and elgarte (in progress). real freedom for all women (and men) 169 leap 3 (2015) the case that “an overwhelming presence of men in dangerous, difficult, and hazardous jobs […] causes countless episodes of killings, torture, physical aggression, humiliation, maltreatment, medical malpractice, physical injuries, and deaths by negligence” (ottonelli 132), then there is no doubt that justice as real freedom for all would command that an end should immediately be put to this over whelming presence of men. there may well ex ist sound evolutionar y explanations for male-specific dispositions that generate despicable behavior, but this can never amount to justifying giving the latter free rein. this being said, it is of course intrinsic to a conception of justice that adopts freedom as its distribuendum that it should not erect into an ideal the achievement of equal average scores – or of an equal grand total score – by all categories of human beings for variables expected to be affected by the latter’s free choices. the monitoring of gender gaps, in particular, can play a useful role in locating forms of discrimination or intimidation that hinder the pursuit of justice as real freedom for all. but the existence of significant gender gaps in terms of expected lifetime earnings or qualityadjusted life years, for example, is not, as such, decisive ev idence that injustice is being perpetrated. the choices made by men and women that lead to such gender gaps are not made in an angelic vacuum. they are made by people enabled and inclined by their genes to do, on average, different t hings or do t hem dif ferent ly, depending on whet her t hey a re men or women. these human beings also grew up and currently live in immediate surroundings and wider societies that tend to expect different things from them depending on their gender. men and women may or may not identify with these expectations. a just society is not one in which all gender-specific capabilities and expectations have been eradicated. it is one whose institutions allocate resources in such a way that those women and men with least real freedom are made as really free as possible to live as they might wish to live, including of course by refusing to fulfill the existing gender-specific social expectations. so far (perhaps) so good. but how can such a conception of justice make room for a distinction between, on the one hand, handicaps for which it is fair that one should be compensated and, on the other hand, preferences the consequences of which one should bear? quite simple – in principle. as ment ioned above, pa r t of t he highest susta inable uncondit iona l basic income is to be given in kind, in particular, in the form of a health care package. how big this component should be, and what it should cover and how,is to be determined, in dworkinian fashion, through a thought experiment that requires us to hide behind a veil of ignorance those of our features – including our gender –that affect the probability of our suffering disabilities 170 philippe van parijs leap 3 (2015) and other health impairments in a very broad sense.8 the resulting just health care system can safely be expected to cover,for example, pregnancy, abortion, contraception, perhaps female and male infertility. it may well accommodate a dependency insurance that reduces the chance of elderly people needing to rely heavily on their close relatives. but i would not count on its including prostitution vouchers. 4. against categorical justice this is not the place to further spell out the content and implications of social justice as real freedom for all, except to further clarif y, using illustrations provided in the comments, in what sense it is incompatible with the very idea of gender justice(and, more generally, of category-based justice), and why this matters. to illustrate the incompatibility, let us first return to longevity. in her insightful discussion, casal (2015: 94) notes: “it would not make sense to compensate men who avoid all life-shortening behavior and are thus likely to live long. for then there will be nothing they have to be compensated for[…]. but it would make even less sense to compensate individuals who, despite engaging in all the life-shortening gendered behavior, still escape the fate for which they are supposed to be compensated.” quite right. let us radica li ze t he exa mple by considering t wo f ict it ious situat ions. in situation a, all females die at 85 and all males at 80. in situation b, everyone dies at 85 except for one baby boy out of seventeen, who dies shortly after birth, thereby giving males a life expectancy at birth of 80. surely, it would be absurd to count this lower life expectancy at birth as a disadvantage for the surviving males. if anything, it should count as an advantage, since the form taken by this shorter life expectancy has made them scarcer relative to females in the mating segment of their lives. but this is not only about just-born babies. suppose that the whole of the gender gap in life expectancy was the result of a higher probability of males dying before forty. there would be no longevity disadvantage in being a male over forty. this should suffice to convey the intuition of why the very idea of talking about justice between stat ist ica l categories, gender or ot her w ise, is problemat ic. wit hin t he framework of justice as real freedom for all, in particular, categorical justice makes no sense. 8 as explained in van parijs (2009: section 4), i now believe that this is a better way of accommodating what is usually captured by the preference/needs distinction than the criterion of “undominated diversity” proposed for this purpose in van parijs (1995: chapter 3) and mentioned by casal (2015: 9). real freedom for all women (and men) 171 leap 3 (2015) to illustrate the real-life relevance of this rejection of categorical justice, let us return to mora’s stimulating discussion of women’s educational advantage. i liked the compact summary of his analysis:“female educational efforts, far from signaling the arrival of equality, are the knotted rope women use to escape the f lames of discrimination, domestic and workplace exploitation, and poverty” (mora 2015: 110). in the same vein, mora points out that female higher educational efforts are worth pursuing because it is women’s “protection, and perhaps the only one, against being short-changed at work and at home,” and that higher education is the “irreplaceable tool for them to achieve levels of employability similar to men’s” (110). one conclusion one may be tempted to draw from this is that promoting the education of women, and in particular their access to higher education, is the only serious hope for addressing the injustice suffered by women. but i am sure that mora will want to resist this conclusion. for what about the countless women who, even in the best circumstances, will never go into higher education? surely, the injustice they suffer is in no way diminished as a result of other women escaping the f lames of discrimination and exploitation. justice as real freedom for all does not care about justice between genders, or any other categories, taken globally. it demands that prior attention be given to the real freedom, to the bargaining power of the worse-off, most likely women a nd men who never at tended a nd w i l l never at tend h ig her educat ion. therefore, the privileges, big and small, enjoyed by those who do get access to higher levels of education can be justified only by the extent to which they contribute to the real freedom of those who do not. the pursuit of social justice as real freedom for all may require policy tools that are categorical, in particular gender-specific. but social justice and injustice themselves must be understood as obtaining or failing to obtain between individuals. one of the great contributions of feminism to the thinking about justice is to have made it more indiv idua list ic by blow ing up t he black box of t he household and exposing intra-household injustice. thinking about justice as applying between categories is no better than thinking about justice as applying between households. 5. political inequality i have said nothing so far about one inequality i mentioned as a potential injustice suffered by men, the fact that they systematically form a political minority. as well explained by pierre-étienne vandamme (2015), this case is quite different from the other ones. the inequality, here, is not as such an advantage, but only a potential source of advantages. and it is, moreover, a source that is most unlikely to ever be activated. 172 philippe van parijs leap 3 (2015) vandamme does not question the existence of a solid majority of female voters in mature democracies. he even mentions the stunning figure of seven million more women than men voting at recent us presidential elections. however, he does challenge the expectation that this gap will widen as a consequence of the widening gap between the educational level of women and men. apparently, with some exceptions such as the us and switzerland, the positive correlation between education level and turnout is vanishing in mature democracies. by contrast, the positive correlation between age and turnout remains firm, even though one cannot expect the ageing of the population to deepen the gap in life expectancy, nor therefore the male-female imbalance in either the electorate or the turnout. the key issue, however, is whether belonging to a numerical majority – whether racial, religious, linguistic, professional, whatever – is a feature that matters as regards justice. clearly, no procedural injustice is involved: one person, one potential vote. hence, vandamme (2015: 120) rightly argues that injustice can only arise from a numerical imbalance if the more numerous g roup uses its electora l power to “turn t his numerica l adva ntage into a substantial injust ice.” one ca n imag ine t wo situat ions in which t his is unlikely to happen. one is a perfect deliberative democracy, in which all voters are guided by an impartial conception of justice or of the common good, not by their personal interests. the other situation is that of a democracy that is less than perfect in this sense, but in which the interests of majority and minority are so closely intertwined that the majority could not pursue its own interests without also pursuing those of the minority. if we diverge significantly from either of these situations, a serious risk of injustice arises, unless special constitutional or customary constraints are introduced in order to protect the minority, such as veto powers, guaranteed representation, quotas, and parity rules in executives and in legislative assemblies. w hy do such protections seem to make obv ious sense in the case of flemings versus walloons, shiites versus sunnites, etc. and not in the case of women versus men? the reason is not that the categories of women and men a re each ver y heterogeneous. so a re t he ot her major it y/m i nor it y pairs. the difference, i submit, lies elsewhere. if ever y fleming needed a walloon, or each shiite a sunnite, in order to procreate, if each of them was born from a mixed couple and if most of them cohabited in mixed households and ended up with offspring from either group, their interests on most issues would converge sufficiently for the risk of a tyranny of the majority to be very limited, far more limited at any rate than if none of this were the case. but this is exactly the situation that obtains between men and women. there is a (quasi) unavoidable territorial and personal closeness between genders that makes for a far more systematic convergence of interests real freedom for all women (and men) 173 leap 3 (2015) than in the case of ethnic categories. not a total convergence, needless to say, but one sufficient for no protective veto power to make sense, however large the gap between female and male voting power ever becomes, especially if, next to the convergence of interest, public deliberation plays some of its civilizing, justice-seeking role. for the time being, any way, the danger of misuse of political power is rather coming from the other side. vandamme rightly stresses that political power does not reduce to electoral power. whether because of the misplaced celebration of “leadership” qualities denounced by ottonelli (2015: 130) or because of the unequal distribution of relevant resources, more men than women tend to be involved in forms of political participation more demanding and more consequential than casting a vote at distant intervals. hence, if political power is being misused in those areas in which the interests of men and women systematically diverge, it is more likely to be at the expense of women rather than in their favor, for example, because platforms and policies are surreptitiously concocted and packaged in gender-biased fashion. this is why the presence of women at all levels of public (and private) power is so important. not for the sake of equalizing the chance of access to top positions for the select few, but in order to prevent the specific interests of women of all social classes being systematically under appreciated or completely overlooked. this is about political power, though not the power to impose one’s will through majoritarian voting, rather the power to make problems visible and intelligible in time, and to create the conditions for the adoption and implementation of solutions that can be regarded as fair by all women no less than by all men. epilogue “why not go to a disability conference to talk about the four downsides of being able-bodied?” de miguel (2015: 159) asks. good question. no, i would not do it. w hy t hen did i ag ree to do somet hing a na logous on gender i nequa l it y ? no doubt bec au se i bel ieve t hat t here a re some c r uc ia l differences bet ween the case of gender and that of disabilit y. a nd also because in this case i was specifically asked to raise some philosophical quest ions on gender by someone i li ke a nd whose act ion i wa nted to support. given the short time at my disposal, my first puzzles were the way i thought i could satisfy the request most effectively. this turned out to be a mistake in the short run, but perhaps not in the longer run, judging by the discussion in this volume, very instructive and clarifying certainly for me and probably for others too. 174 philippe van parijs leap 3 (2015) never t heless, as schouten (2016 : 137) puts it, “we might la ment t he opportunity costs of theorizing alleged injustices against men when women continue to be victimized by pervasive structural injustices, and worry that such theorizing will slow progress toward women’s equality.” i entirely share the underlying conviction that concern with real-life injustices should be at the core of much of our work as political philosophers. it has certainly been at the core of mine. asking, as i did, some seemingly incongruous questions was certainly not intended to “slow progress toward women’s equality” (137). as should be clear by now, it was meant to invite more careful thinking about the relation between gender and justice in a way that should have some relevance to the public debate on these issues, and hence also to real-life gender-related public policy. in particular, i wanted to highlight the possibility that gender justice, understood as justice between two categories, may be the wrong way to think about justice and gender –a point that, in different ways, both casal (2015: 91) and de miguel (2015: 159-60), also touch upon. to illustrate the relevance of this challenge to real life, consider the gender equality index developed by the vilnius-based european institute for gender equality.9 such a composite index aggregates a number of variables each of which ref lects some aspect of gender inequalit y, for example, the male-female gaps in earnings, in rates of participation in the labor market, in proportions of ter t ia r y educat ion g raduates, in life ex pecta ncy or in pa rlia menta r y representation. when collected in a reliable and comparable way, the data sets used as inputs are extremely useful for the sake of assessing a country’s performance and guiding its policies. but the categorical-justice approach such a composite index encourages and the arbitrary weights on which it relies are, in my view, obstacles rather than tools in the effort to guide and design public policies in the service of social justice. in order to engage w it h rea l issues, we phi losophers of ten have to venture outside our tiny field of professional expertise. no problem as such: this is both our right and our duty. but it inevitably involves taking the risk of saying or suggesting things that turn out to be wrong, and hence of being corrected by colleagues who know more about the subject or have thought more about it. this is part of the never-ending attempt to give a coherent picture of what we can and must be heading for, to address the objections this picture may give rise to, and to correct it whenever needed. i am most grateful to my commentators and especially to paula casal, who master-minded t his sy mposium, for hav ing helped me a long on t his – sometimes bumpy – road. 9 gender equality index 2012, european institute for gender equality, https://w w w. eige.europa.eu/gender-statistics/genderequality-index, consulted march 2016. https://www.eige.europa.eu/gender-statistics/genderequality https://www.eige.europa.eu/gender-statistics/genderequality real freedom for all women (and men) 175 leap 3 (2015) bibliography elgarte, j., in progress: gender justice and the future of the welfare state, doctoral dissertation in philosophy, université catholique de louvain. mcl e a n, c ., 2015 : “be yond c a re : e x pa nd i ng t he fem i n i st debate on ba sic income,”wise working paper 1, glasgow ca ledonian universit y, september 2015. murray, m.c. and c. pateman, eds. 2012: basic income worldwide. basingstoke: palgrave macmillan. patema n, c., 2006 : “democrat i zing cit i zensh ip. some adva ntages of a basic income,” in redesigning distribution, ed. e.o. wright, london: verso, 101-119. va n p a r ij s , p., 19 91: “ w hy su r fer s shou ld b e fe d : t he l i b er a l c a s e f or a n unconditional basic income,” philosophy and public affairs 20, 101-31. — 1995: real freedom for all. oxford: oxford university press. — 1998 : “the disf ra nch isement of t he elderly, a nd ot her attempts to secu re intergenerational justice,” philosophy and public affairs, 27, 292-333. — 2009: basic income and social justice: why philosophers disagree, joint joseph rowntree foundation/university of york annual lecture 2009, https://w w w. jr f.org.u k/repor t/joseph-row nt ree-fou ndat ion-lect u re-basic-i ncome-a ndsocial-justice-why-philosophers-disagree https://www.jrf.org.uk/report/joseph https://www.jrf.org.uk/report/joseph leap 3 (2015) symposium family justice: the ethics of parent-child relationships leap 3 (2016) family values: an introduction andrew williams icrea & universitat pompeu fabra the social, legal, and political institutions that constitute the family play a profound and unavoidable role in shaping individuals’ lives and distributing opportunities amongst them. they strongly inf luence our psychological development, including the acquisition of a sense of justice, as well as various cognitive skills, and our prospects of success in the competition for positions conferring authority and inf luence in the economy and the state. those institutions also have non-instrumental importance insofar as we have weighty reasons to care about our capacity to enjoy love and intimacy both as adults and children, and the degree to which we are protected from various objectionable forms of control by other agents. since the design of the family is malleable any reasonably complete political philosophy needs to ref lect on these and related issues. fortunately, contemporary angloamerican political theorists have attempted to respond to this challenge. in recent years, some of the most notable contributions to the emerging debate have arisen v ia joint work by harr y brighouse and adam sw ift, leading eventually to the publication of their book, family values: the ethics of parent-child relationships (brighouse and swift, 2014). brighouse and swift provide a sophisticated liberal egalitarian account of the essential role of the family in a just society. the account is distinctive in part because of the role it affords to the interests of parents in enjoying valuable relationships with their offspring as well as the interests of children and adults in being raised in families. at the same time as showing how their favored dual interest case for the family justifies parental partiality, the authors are keen to establish their account offers no support for the types of substantial inequality in opportunity characteristic of most societies. these claims and others made by brighouse and swift raise a host of questions within ethics and political philosophy, several of which are pursued by the authors of the follow ing three thought-provoking papers. sarah st roud ca l ls i nto quest ion some of t he ega l ita r ia n a ssu mpt ion about in herita nce that animate many recent discussions of justice and the family. anca gheaus focusses on the extent to an adult’s interest in parental authority over a child can plausibly ground its possession. luara ferracioli asks whet her brighouse a nd sw if t a re over-relia nt on a n idea l of persona l autonomy, and extends our attention to the interests of offspring in family membership over the course of their lives and not merely during childhood. leap 3 (2015) the discussion concludes with a substantial response by brighouse and swift that elaborates their position, and defends it where necessary. the editors hope the four papers advance debate on issues of pressing personal as well as public concern. they are grateful to all the participants for their commitment to the sy mposium, and to marcos picchio for his invaluable administrative and philosophical assistance with the project. leap 3 (2015) egalitarian family values? sar ah stroud mcgill university abstract family values seeks to offer a compelling defence of the family in the face of concerns that the institution of the family disrupts fair equality of opportunity. brighouse and swift endorse the concern but think that the great value of family relationship goods is nonetheless sufficient to vindicate the existence of the family. this response applauds brighouse and swift’s insistence on the interests of parents in raising children and on the lov ing and intimate character of the parent-child relationship. however, it suggests that brighouse and swift’s egalitarian framework prevents them from taking the full measure of the above salutary commitments. keywords: family, parent-child relationship, love, egalitarianism, relationship goods, parents’ interests, equality of opportunity, intrinsic goods, positional goods harry brighouse and adam swift are our leading theorists of the family.1 their previous joint papers have greatly advanced our understanding of the ethics and politics of relations between parents and children. their work exemplifies a rare combination of qualities: it is bold, path-breaking, and yet rigorous and attentive to nuance. for this reason, we already owe a number of game-changing insights and argumentative strategies to brighouse and swift. i would number among the most significant of these a) their insistence on adults’ interests in parenting as an indispensable factor in the moral and political equation; b) their emphasis on the value of the parent-child relationship in particular; and c) their use of the latter to work out in a systematic and principled way the rights and priv ileges which attend, or ought to attend, parenthood. the above insights and strategy also drive the new book, family values. readers already familiar with brighouse and swift’s joint articles will not 1 following brighouse and swift, i will always mean by “the family” a “nuclear” family consisting of at least one parent and at least one child. 181 sarah stroud leap 3 (2015) find the authors taking a radically new approach here. instead, the elaboration at book length of their basic line of thought has given brighouse and swift the space to embed their core argument within a larger and more explicit overall argumentative architectonic. my remarks here will focus on the shape of that structure and the route it offers to the conclusions brighouse a nd sw if t a re a lready wel l k now n for endorsing. but i wa nt to beg in by lingering over a nd underlining t he sig nif ica nt insights t heir work has already brought to the table, and which continue to play a prominent role in this new book. to start with a), we owe brighouse and swift a great debt of gratitude for expanding the discourse around the family by highlighting the interests of (would-be) parents as well as those of children. i find much of the prebrighouse and swift literature on the family excessively, or too exclusively, child-centred; in much of this literature families and parents are treated essent ia l ly as dev ices to ser ve chi ldren’s interests. surely, however, as brighouse and swift emphasize, this is only part of the story. taking care of and raising children is a hugely rewarding and meaningful activ it y for many adults, one to which they freely choose to devote a substantial portion of their time and energy, and one which they may view as a central contributor to their own personal flourishing. parenting is, quite simply, what they want to do (or among the things they want to do) with their life (brighouse and swift 2014: 22). brighouse and swift insist (their word) on the importance of this fact, maintaining that “adults’ interest in parenting (and not only children’s interest in being parented) helps us to understand the moral basis of the family” (2014: 176). thus, to neglect these parent-centred factors in discussing the ethics of the family would be to omit a significant piece of the equation. i wholeheartedly agree; i w ill question only whether this insight and the shift in perspective which it induces receive their full due in family values. we also owe to brighouse and swift a more precise specification of the content of the adult interest in parenting just mooted. as per insight b), brighouse and swift propose that parents (and those who desire to be parents) have a strong interest, specifically, in establishing and participating in a parentchild relationship. this is shorthand for an intimate, loving relationship with a child in which the parent has both considerable responsibilities toward the child and considerable decisional authority over the child. brighouse and swift argue that relationships of this distinctive kind are of great value to both parents and children, and (as we shall see under c)) they use this value as the linchpin for deriving further ethical and political conclusions about the family. to place a valuable relationship so explicitly at the core of family egalitarian family values? 182 leap 3 (2015) ethics was a major conceptual advance,2 and one which fits in especially well with an inf luential strand in recent moral philosophy.3 again i think brighouse and swift are right to put the emphasis on the relationship between parent and child as the, or at least a, central ethical element when considering the family.4 i will again question, however, whether they have taken the full measure of the implications of this commitment. this last point brings us to c), brighouse and swift’s distinctive argumentative strategy for resolving questions about the rights and privileges that ought to at tend pa rent hood. t hei r si mple but i n novat ive idea is to deploy t he aforementioned value of the parent-child relationship as the sine qua non in assessing t he merits of putat ive pa renta l rights. if failing to accord parents a certain right or priv ilege would prevent the development of a valuable parent-child relationship, then that creates a strong moral and political case for granting parents that right or privilege, even in the face of possible mora l counter-a rg uments.5 on t he ot her ha nd, if disallowing parents a certain right or privilege would not impede the development of a f lourishing parent-child relationship, then that putative right or privilege sta nds ex posed a nd undefended aga inst a ny a rg uments t hat cou ld be ra ised aga i nst it. t h is double-edged cr iter ion a l lows us to adjud icate questions about legitimate parental rights or parental partiality in a principled way, taking us beyond mere reliance on intuition to discern their scope or limits. as mentioned earlier, in family values brighouse and swift embed these key insights within a larger argumentative superstructure, to which i will now turn. i w i l l t r y to bring out some points where resista nce to t heir conclusions can plausibly be traced back to unease with something more basic, namely their vision of the dialectical situation: their conception, for instance, of what kind of claim requires what kind of argument, or of where the burden of proof lies. job one, as brighouse and swift see it, is to offer a “defense” (2014: xi, xii) or “justification” (2014: 5, 20, 51) of the family. and it soon becomes clear 2 they credit schoeman (1980) with originally introducing this idea; but his account seems not to have had much inf luence on the subsequent literature in family ethics. 3 see for i n st a nce t he work of schef f ler (20 01), espec ia l ly “relat ion sh ips a nd responsibilities” and “families, nations, strangers”, and kolodny (2003). 4 i am pleased to see that word seems to be getting around that a parent’s relationship with his child is more important to both than any financial advantages the parent might be able to procure for his child by working more (brighouse and swift 2014: 136). from a recent entr y in the guardian’s “my family values” series: “the people w ith the biggest stereos at boarding school were the ones who saw their parents the least… you cannot cover up for a loss of time with money” (hassell, 2015). 5 “parents have the right to engage in those activ ities and interactions w ith their children that facilitate the realization of the extremely valuable goods that justif y the family in the first place” (brighouse and swift 2014:118). 183 sarah stroud leap 3 (2015) that what they have in mind is a distinctively consequentialist defense or justification. their aim, they tell us, is to demonstrate that and why it is “a good thing” (2014: i, 114) that the family exists: “to explain why it is good that children be raised by parents” (2014: 48). while brighouse and swift do not further explain the locutions “it is a good thing” or “it is good that”, such expressions are typically used to evoke a consequentialist conception of (impersonally or objectively) good states of affairs; and brighouse and swift’s approach to justifying the family confirms this interpretation. the task they set themselves is to show that and how the existence of the family realizes, or at least facilitates or makes possible, a distinctive set of desirable states of affairs: to prove, in short, that the world would be objectively poorer without families in it. the “familial relationship goods” alluded to earlier are the star players in this demonstration. some readers, however, may already be feeling uneasy with brighouse and swift’s felt need to provide a justification of this kind for the family. for one thing, it may well strike readers as rather an idle question whether it is “a good thing” that families exist. it is, i take it, practically idle to ask whether families should exist: as far as i know, no one anywhere is seriously advocating, let alone threatening to effect, the abolition of the family. there is thus no actual interlocutor demanding to be convinced that the existence of the family is preferable to its nonexistence, and in that sense no actual threat against which the family needs to be defended. there are two further, more theoretical reasons why a reader might doubt that there is really a question here which needs dialectically to be answered. brighouse and swift’s self-appointed task is to adumbrate the distinctive values and goods which the existence of the family makes possible. but one m ig ht doubt whet her pa rents ra isi ng ch i ld ren requ i res a sui generis justification in terms of the distinctive values it realizes, as opposed to simply falling under a more general and less demanding moral schema. as we noted earlier, being a parent is something that a great many adults very much want to do with their life. if someone very much wants to do x with her life, one might think that alone creates a significant moral presumption in favour of allowing her to do x—regardless, it would seem, of x’s specific content, or of whether her (or anyone’s) doing x would realize important objective values.6 as a significant (but not all-consuming) life activ it y, parenting cou ld perhaps be compa red w it h t he choice of a pa r t icu la r ca reer. if someone ver y much wa nts to be a ta x law yer (for insta nce), wou ld we 6 this presumptive permission could be defeated, e.g. if xing caused severe harm to the participants or to others. but this is a weaker standard of v indication than needing to establish that “it is a good thing” that the world contains people who x, or that people’s xing realizes a distinctive set of objective values. egalitarian family values? 184 leap 3 (2015) require proof that the universe would be objectively worse off without tax law yers in order to think it would be presumptively wrong to prohibit her from pursuing that career?7 in asking for a justification in terms of adding distinctive value to the universe, brighouse and swift set a high standard; but that is to place a burden of proof on the family which some will feel the family need not bear. to emphasize in this way the desires and choices of individual adults poi nts towa rd a f u r t her rea son one m ig ht be i l l at ea se w it h t he way brighouse and swift frame the issue. they write (2014: xi-xii) as if we as a society faced a question whose answer is to be decided collectively, namely, how we ought to arrange the bringing up of children. “in families” is of course one possible answer; but there are also other possible answers (such as “in state-run institutions”). as brighouse and swift see it, if we are to select the former option we should be sure it is the right choice, i.e. that it is better than the alternatives; whence the need to demonstrate the superiority of the family to other possible arrangements. but i find this way of describing the issue puzzling. at the risk of sounding thatcherite, i would have ventured that there is no issue facing us as a society, to be settled collectively, about how to bring up children: there are only indiv idual adults who want to parent children.8 i have expressed skepticism about whether the family really requires a “defense” or a “justification” of the consequentialist kind that brighouse and swift have in mind. but one might think it is at worst harmless to subject the family to such a test, since brighouse and swift make such a convincing case that it passes. as per insight b) noted earlier, brighouse and swift argue that the existence of the family does make possible certain distinctive goods, namely valuable parent-child relationships. a world which lacked families would be a world without those relationships, and thereby very much the poorer in at least one important respect. as it happens, brighouse and swift believe that the family is also the arrangement which best meets children’s needs and interests. for that reason alone, “if the family did not exist, it would be necessary to invent it; its invention would be morally required” (brighouse and sw ift 2014: x ii), and the world is indeed in a better state 7 one might argue that this case is not analogous, because being a parent essentially requires the existence (and the participation in the parent’s project) of nonconsenting partners with separate interests of their own, something not true of being a tax lawyer. however, the above general schema about x would seem also to hold of being, say, a dairy farmer. if what someone really wants to do with her life is to look after and interact with cows—nonconsenting partners in her project who have separate interests of their own—then surely that fact alone creates a presumptive moral case for allowing her to do just that. see the previous footnote for a gesture toward when that presumption could be overridden. 8 compare: there is no issue facing us as a society, to be settled collectively, about how to look after cows: there are only individuals who want to be dairy farmers. 185 sarah stroud leap 3 (2015) with families than it would be without. by contrast, could one say that it would have been necessary to invent tax law, or dairy farming, had no one spontaneously come forward wishing to engage in those activities? we do not normally demand this of activities in order to conclude that it would be prima facie wrong to prevent someone from engaging in them. even if the family can easily be shown to meet brighouse and swift’s high standard for justification, however, it is not harmless to ask for, and then to provide, such a justification. for there is a sting in the tail of brighouse and swift’s positive argument for the family: that argument is later used to limit the rights and privileges which parents can be said to enjoy. as we shall see, brighouse and swift accept only parental rights and privileges which must be granted if the distinctive values cited in the justification of the family are to be realized. a ny putative right or priv ilege which is not essential to the realization of those values is stricken from the list. this is the basis for many of brighouse and swift’s controversial conclusions, of which i will focus here on just one: that parents do not have the right to bequeath substantial wealth to their children.9 before examining how exactly they reach this conclusion, i must first, in the spirit of full disclosure, confess significant antipathy to it. i simply cannot bring myself to believe it! i am writing the first draft of this piece at my country house: an old vermont farmhouse surrounded by pasture and fields which my family was able to purchase this past spring only thanks to an inheritance my husband received from his late mother. (we would never have been able to buy a country house on my philosopher’s salary.) we are very sorry she is not getting to see her son plant fruit trees, her grandson learn the names of wildf lowers, or her granddaughter pick blackberries and make preserves. but she loved her son, and the rest of us, and we know she would be deeply gratified by all the new horizons her bequest has opened up for us. faced with this vivid awareness of what her bequest has made possible for her son and my family, i find it simply impossible to accept that my mother-in-law ought not to have been able to leave my husband that money, or that it would violate nobody’s rights to prevent or prohibit people from doing any such thing. let us look at the argument supporting this (to me) unwelcome conclusion. i reconstruct it as follows: (1) “the family is justified because it produces certain goods that would other w ise not be available or ... would be much more difficult to produce” (brighouse and swift 2014: 56), viz., familial relationship goods, which are “hugely valuable for many adults and 9 by “substantial” i mean wealth that exceeds what would be required in order to meet the child’s basic needs or to satisf y the parent’s duty of care toward the child. egalitarian family values? 186 leap 3 (2015) a l l ch i ld ren” (br ig house a nd sw i f t 2014 : 20). (just i f icat ion of the family) (2) the scope and limits of parental rights and privileges should— indeed must (brighouse and swift 2014: ix, x, 5, 54, 115)—be derived from the justification of the family. (methodological premise) (3) more specifically, genuine parental rights and priv ileges are limited to the smallest set necessary for the realization of the goods cited in the justification of the family. (4) therefore (from (1) and (3)), any supposed parenta l rights or pr iv i leges t he withholding of w h ich wou ld not jeopa rd i z e t he rea l i z at ion of fa m i l ia l relat ion sh ip good s — ot her w i se put, t he g ra nt i ng of wh ich is not cr it ica l to establ ish i ng or pa r t icipat i ng i n a va luable pa rent-ch i ld relat ionsh ip — a re not genuine parental rights. (5) the freedom to bequeath significant wealth to your child is not essential to establishing or participating in a valuable parent ch i ld relationship. such a freedom is largely exogenous rather than endogenous, to the parent-child relationship and to its value; withholding this pr iv i lege f rom pa rents wou ld t herefore not jeopardize the realization of familial relationship goods (brighouse and swift2014: chapter 5; see 119 for the internal-external contrast). (6) therefore (from (4) and (5)), parents do not have a right to bequeath significant wealth to their children. before delving more deeply into this “master” argument, i should note that brighouse and sw ift also offer what i consider to be an ill-adv ised narrower specification of their methodological premise: (2') the scope and limits of parental rights and privileges should— i nd e e d mu s t— b e d e r i v e d s ol e l y f rom th a t p or t i on of th e justification of the family which appeals to children’s interests (2'), however, seems clearly inconsistent with the conjunction of (1) and (2), and for that reason i propose to set it aside in the remainder of the discussion. if we are assuming that the correct account of parental rights is to be derived from the justification we offered for the family, and parents’ interests were an important element in that justification, then surely parents’ interests should not drop out of the picture as irrelevant when it is time to limn 187 sarah stroud leap 3 (2015) parental rights.10 if “it would be wrong to think that the well-being of ch i ld ren shou ld be t he sole cr iter ion by wh ich to a ssess ch i ldrearing arrangements”, why should “the rights and duties of parenthood” be “ident i f ied ent i rely by considerat ion of children’s i nterests” ? (brighouse a nd sw if t 2014: 121, w it h added emphasis a nd some words rearranged). what then of the original “master” argument? we should start by noting that (2) is questionable. it is not obvious that the same considerations used to justify the very existence of the family ought to be expected to settle the parameters of parental rights—let alone that that is the only way properly to settle those parameters (as their “must” implies). perhaps, having offered a consequentialist justification for the family—having established that it is “a good thing” for there to be families—we would go on to resolve questions about t he scope of pa renta l rights w it hin such fa mi lies in a completely dif ferent way. we might for example offer a non-consequentialist account of parental rights and privileges founded in the liberties it is proper to extend to autonomous agents as a function of their status and moral powers.11 second, (3) seems ad hoc even if we accept (2). why should parental rights be limited to the smallest set necessary for, rather than the largest set consistent with, the values cited in the justification of the family? let us grant that it’s very important that any rights or privileges accorded to parents be consistent with the realization of those goods. this would mean that any putative parental rights inconsistent with valuable parent-child relationships would need to be stricken from the list. but why strike putative parental rights that are perfectly consistent with the realization of such values? here i would expect brighouse and swift to cite the possibility that other considerations might militate against the granting of such rights.12 if there is an independent objection to parents’ having a certain right or privilege, then we should accept the latter as a genuine right only if we need to: only if we must accord parents such a right in order for families to realize the values that justify their existence. brighouse and swift press just this possibility against the putative right to bequeath wealth to your children. there is a powerful objection to parents’ having such a right, in their view: such bequests 10 brighouse and swift may be assuming that any parental right that went beyond what is required by children’s interests wou ld be against children’s interests. but t his is unwarranted. 11 frances kamm has been a pioneer in seeing rights as expressive of the moral status of rightsholders. see kamm (2013) for an accessible treatment. 12 in that case, (4) should strictly speaking be reworded so as to refer only to supposed parental rights or privileges to which objections could be raised, and (5) should make explicit that objections could indeed be raised to the putative freedom to bequeath significant wealth to your child. egalitarian family values? 188 leap 3 (2015) disrupt equality of opportunity. let me set out the argument for that conclusion, as i see it: (a) all people are of equal moral worth, equally valuable (brighouse and swift 2014: 23). (b) “the fact that people’s lives are equally important has distributive implications—implications about the distribution of opportunities to flourish” (brighouse and swift 2014: 27). in particular, it implies that those opportunities should be distributed fairly. (c) it is prima facie unfair for one person to have a greater prospect of gett ing a desirable job or ot her socia l ly produced rewa rd t ha n a second person of equal abilities and equal willingness to use them. (d) therefore, there is a well-founded objection to, and thus a reason to prevent or prohibit, any action which results in the state of affairs described in (c). (e) bequeathing significant wealth to your children is such an action. therefore there is a well-founded objection to, and thus a reason to prohibit or prevent, such bequests. if this argument is sound, then there is a morally considerable objection to granting parents a general permission to make such bequests. and if (5) in the “master” argument is also true, we cannot rebut that objection—as we might in certain other cases—by claiming that parents’ having such a permission is essential to the realization of familial relationship goods.13 the alleged right to bequeath significant wealth to your children would sta nd si lent in t he dock, unable to ma ke a ny (suf f icient ly compel ling) answer to the prosecution’s case. an indictment would appear forthcoming. without seeking to directly assess the soundness of the argument in (a)-(e) above, i do want to comment that it seems to prove an awful lot. if there is a st rong case for prohibit ing or prevent ing pa rents f rom bequeathing sig n i f ica nt wea lt h to t hei r ch i ld ren, t hen t here oug ht to be a si m i la r prohibition on parents’ gifting significant wealth to their children while they (the parents) are still alive. (otherwise i guarantee rich people will switch to the latter method.) and if parents are prohibited from bequeathing or gifting significant wealth to their children, then surely they ought to be prevented from bequeathing or gifting significant wealth to anyone else either. after all, the wealth they bequeath or gift would presumably have 13 an appeal to familial relationship goods, were it permitted, would not undercut the leg itimacy of t he objection but wou ld suggest t hat it out weighed is by somet hing more important, and thus does not prevail all things considered. “simply put, familial relationship goods are more important than fair equality of opportunity” (brighouse and swift 2014: 143). 189 sarah stroud leap 3 (2015) the same disruptive effect on fair equality of opportunity whether it went to their child or to someone else;14 and it would be very peculiar if parents were prohibited from giv ing to their children but perfectly at libert y to confer significant wealth on anyone other than their children. finally, even the restriction to significant wealth appears ad hoc if we are concerned with disruptions to fair equality of opportunity as such. even giving someone $100 for a nice shirt and tie, or a good haircut, will give him a better prospect of obtaining a desirable job than he had before. according to brighouse and swift’s reasoning, such a gift unfairly harms all those of similar abilities (and willingness to use them) whose chances of getting that desirable job just went down. in sum, if we are prepared to object to any action which produces a more unequal distribution of opportunities and prospects (across those of similar abilities, etc.) than the distribution which held prior to that action, there seems to be no limit to what we would have to stamp out. i suspect brighouse and swift would reply by underlining that they, too, are on record as being against “pursu[ing] fair equality of opportunity wholeheartedly” (2014: 36) or “all the way” (2014: 44). perhaps they agree that it would be ridiculous, if not intolerable, to forbid people ever to give anyone $100. but the moral i take from this is, i suspect, different from theirs. they see an admirable ideal whose moral force is sometimes outweighed by even more powerful considerations, such as the great value of familial relationship goods (see for instance 2014:33). i, on the other hand, see a plausible-sounding principle ((c) plus (d)) whose implications on closer inspection suggest that it is not an attractive ideal after all.15 i would also like to take issue with (5) in the “master” argument. there is of course some sense in which bequeathing significant wealth to your child is “external” to the parent-child relationship, simply in that such bequests necessarily take place after one party to the relationship has died. insofar as they literally postdate the person-to-person interactions which constitute a parent-child relationship, bequests take place outside rather than within the course of that relationship in a temporal sense. however, this very literal sense of “external” is not the one which is appropriate to the argument, and i think bequests cannot be so easily set aside from what is valuable in a parent-child relationship. let me explain why. 14 you might think disadvantaged recipients would be an exception to this rule; but in fact a large gift to a disadvantaged recipient advantages him relative to what used to be his disadvantaged confrères, and thus “contravene[s] … fair equality of opportunity” (brighouse and swift 2014: 132). 15 see stroud (2013) for more on principles which sound appealing as slogans but whose implications (ought to) cause us ultimately to reject them. egalitarian family values? 190 leap 3 (2015) a central component of the valuable parent-child relationship is that it is a loving relationship. in particular, the parent in such a relationship loves her child. it is a near-truism, and one that brighouse and swift endorse, that when you love someone you very much want him to flourish (2014: 123, 124, 132). (indeed, it is typical of love that you want to play some positive causal role in his f lourishing.) suppose, then, that you are in a position to expose someone you love to something that you take to be an intrinsic good—that is, to a potential intrinsic contributor to his well-being or f lourishing. it would seem to be part of love—and thereby part of the valuable parentchild relationship—that you will want (all else being equal) to do so. as a lov ing parent, you w ill naturally seek to expose your children to music, animals, nature, and whatever else you think is non-fungibly valuable. such behaviour is internal or endogenous to love, not external to and cleanly separable from the latter. note that i am not speaking of wanting to confer advantage on your loved one, where adva ntage is a n essent ia l ly compa rat ive not ion. (i a m not claiming that it is part of love to want your loved one to be in the top decile.) i actually think—and i take this to be broadly in the spirit of brighouse and sw if t’s ega lita ria n et hos—t hat t here is somet hing disreputable about w ishing for, and pursuing, purely positional goods for your loved ones, although it is an interesting question (which i will not take up here) whether and how this could be defended within moral theory.16 by contrast, it is hard to see anything objectionable in someone’s wanting to expose her children to intrinsic goods: what mistake could such a person be accused of making, and what grounds could there possibly be for seeking to restrict such conduct?17 unfortunately brighouse and swift think there are grounds for restricting it. for even exposing your children to what you take to be intrinsic goods may have instrumental effects which push your children ahead of others in the competition for socially produced rewards. this will inevitably occur if interacting with intrinsic, non-fungible goods tends to enhance skills, abilities, and character traits whose benefits are transferable to other, competitive contexts. (i would rather hope such interaction does tend in this way to improve your character.) when this happens, however, that will suffice to put your action under the disapproving purview of principle (d), which frowns on any action which results (even adventitiously) in a more unequal distribution of opportunities across those of similar ability, etc. than was the case prior to that action’s being performed. (d) will disapprove even if 16 brighouse and swift (2006) have themselves written eloquently on purely positional goods. for an argument that comparative judgements distract us from what is truly significant, see frankfurt (1987). 17 brighouse a nd sw if t seem to concede t he force of t his worr y when t hey discuss t he idea of equa l opportunity for well-being (2014: 42). 191 sarah stroud leap 3 (2015) the action was aimed only at bringing your children into contact with intrinsic goods, and not at all at procuring competitive advantage for them. it must be said that it is not at all obv ious how my son’s hav ing the opportunity to gaze at the night sky far from urban light pollution, or my daughter’s learning to use a scythe, is really likely to give either of them a (further) competitive advantage in the modern economy. however, i am perfectly prepared to believe that it might, through some indirect route.18 if their being exposed to these activities does have that effect, then—back to that country house again!—there is, as brighouse and swift see it, a moral case for keeping me from offering these goods to my children. and as we already underlined, this will be so even if the procuring of a competitive advantage for my children is not at all my aim in exposing them to these new experiences. for me this again casts doubt on the soundness of the essentially consequentialist egalitarian principle on which brighouse and swift rely.19 more broad ly, i wa nt to suggest t hat ega lita ria ns li ke brighouse a nd swift are playing with fire in granting broad licence to loving parent-child relationships. from an egalitarian point of view, love is dangerous; it threatens to break out of the tight constraints on beneficence which brighouse and swift seek to erect in the name of equality of opportunity.20 brighouse and sw if t might say t hey do not disag ree t hat love tends to spi l l outside t he boundaries they try to set, but in their view the balance of values favors putting a protective firewall only around the highly valuable “core” of the parent-child relationship—even though this means placing some actions taken out of love, and in the context of such a relationship, off limits.21 there is however an irony in brighouse and swift’s judgement of relative value on this particular point. for by their own admission, the prohibition not just of bequests, but of all the various ways in which parents might seek to use their superior financial resources to benefit their children (think private schooling), would have only an insignificant effect on the unequal distribution of prospects for desirable jobs, etc. across children. that is, parents’ direct use of money to benefit their children is—it turns out—a relatively minor contributor 18 perhaps (for instance) the patience francesca is forced to develop as she (slowly) learns how to swing a scythe will further advantage her for desirable jobs later on. 19 consequentia list because t he test which t he principle a rticu lates is concerned solely with what results from our actions. 20 a more fruitful, although more radical, approach for brighouse and swift’s purposes might be to challenge standard understandings of love and in particular its supposed tie to wishing to benefit the loved one. see along these lines ebels-duggan (2008). 21 brighouse and swift seem to take this line at times (2014: chapter 5, 132-137). this more nuanced view effectively concedes that such actions are indeed “internal” to love, but it maintains that the value of giving parental love more freedom to operate does not measure up to the disvalue of the resulting disruptions of fair equality of opportunity. egalitarian family values? 192 leap 3 (2015) to inequality of opportunity. (brighouse and swift allude to this at 2014: 31-32 and 125-127.) brighouse and swift thus seem overly optimistic when they say early on that they will “offer an account of ‘family values properly understood’ … that mitigates—massively mitigates—the conf lict with equality” (2014: 4; added emphasis). it would appear rather that the egalitarian value to be gained by decreeing some loving actions to be beyond the pale of interpersonal justification is unequal to its cost. bibliography brighouse, h. and swift, a., 2006: “equality, priority, and positional goods”, ethics 116: 471-497. — 2014: family values. the ethics of parent-child relationships, princeton: princeton university press. ebels-dugga n, k., 2014: “aga inst benef icence : a nor mat ive accou nt of love”, ethics 119: 142-170. frankfurt, h., 1987: “equality as a moral ideal”, ethics 98: 21-43. hassell, k., 2015: “jeremy vine: my family values”, the guardian www.theguardian.com/lifeandstyle/2015/sep/11/jeremy-vine-my-family-values kamm, f., 2013: “nonconsequentialism” in the blackwell guide to ethical theory, ed. h. lafollette and i. persson, 261-286, 2nd ed., chichester: wiley-blackwell. kolodny, n., 2003: “love as valuing a relationship”, philosophical review 112: 135-189. scheffler, s., 2001: boundaries and allegiances, oxford: oxford university press. schoeman, f., 1980: “rights of children, rights of parents, and the moral basis of the family”, ethics 9: 6-19. stroud, s., 2013: “they can’t take that away from me: restricting the reach of morality’s demands”, in oxford studies in normative ethics: volume 3, ed. m. timmons, oxford: oxford university press. http://www.theguardian.com/lifeandstyle/2015/sep/11/jeremy leap 3 (2015) is there a right to parent?1 a nc a gh e aus universitat pompeu fabra abstract this paper examines harry brighouse’s and adam swift’s attempt to justify the family by appeal to the interests of both children and parents. according to their dual-interest account, adults’ interest in parenting plays a role in explaining why less than optimal parents can exercise legitimate authority over children. i analyze this claim and raise doubts about the existence of any fundamental right, which is non-derivative from children’s own interests, to parent understood as a right to control the child. keywords: parents, children, right to parent one of the main questions to which family values offers an answer is how to just if y t he fa mi ly g iven what its aut hors—self-ident if ied libera l ha rr y brighouse and adam swift—call “the liberal challenge”. by “the family”, brighouse and swift mean a childrearing arrangement whereby a small number of particular adults stand in fiduciary, and authoritative, relationships with particular children, but which is not exclusively justified by reference to the child’s interest. this is an anomaly for liberals, who believe that all authoritative relationships between individuals with full moral status ought to be justified by appeal to the interest of the party over whom authority is being exercised. as self-identified liberals, brighouse and swift take this challenge seriously. the family is definitely not like this. consider: first, there exist—or we can imagine—ways to rear children alternative to the family. brighouse and swift list some of them: “[s]tate-regulated quasi-orphanages, in which children are raised by trained and specialised employees; [a]rrangements, such as those associated with kibbutzim, in which child raising is shared between “parents” and designated child-raising specialists’ and [c]ommunes 1 for comments i am grateful to andrew williams and to participants to an open session on academia.edu and in particular to john baker, sally haslanger, r j leland, michele loi and erik magnusson. academia.edu 194 anca gheaus leap 3 (2015) in which a la rge g roup of adu lts col lect ively a nd joint ly ra ises a group of children, with no adult thinking of herself as having any special responsibility for any particular child, and no child thinking of herself as the responsibilit y of any particular adult” (brighouse and swift 2014:70-71). it may be that good families serve children’s interests better than any of the above alternatives – as brighouse and swift go on to argue. they draw on empirica l literature to ex pla in why chi ldren fa re best when ra ised by lov ing a nd suf f icient ly competent adu lts, which a re referred to as ‘adequate parents’. but, as far as i see, this is not in itself enough justification for a child-centred account of the family, that is a defense of the family by exclusive appeal to children’s interests. we do not know how many adequate parents there are around, and have no reason to think that we can identify t hem (especia l ly w it hout serious v iolat ions of persona l autonomy a nd intimacy). it may well be that childrearing arrangements other than the family would, on average, serve children’s interests optimally, even if the best imaginable way to bring up children is to give them adequate parents.2 but if there aren’t enough such parents, and if we cannot help enough people to become adequate parents, rearing children in the family may unjustifiably expose too many children to serious risks. the well-run orphanage, kibbutz, or communal childrearing may be the best feasible arrangements as far as the children’s interests are concerned. if good versions of these arrangements— but not of the good family—are feasible on a sufficiently widespread scale, the family is to be rejected on child-centred grounds. there is a second reason why the institution of the family as is cannot be justified on child-centred grounds. if the family was merely meant to protect children’s interests we ought to give priority of access to parenting to people who would make best parents and who are willing to take over this role. this is clearly not the case, even allowing for the possibility that we cannot—usually—tell in advance who would make the best parent. but some cases are clear-cut: when a new child is born to parents who already have numerous children, and who we have reason to think are particularly bad at parenting, liberal states nevertheless grant custody to biological parents. at the same time people who are likely to make wonderful parents and who 2 veron ique mu noz-da rde a rg ued t hat t he ex istence of t he fa m i ly is especia l ly objectionable if we ought to g ive priorit y to t he worst of f: “whet her or not a g reat ma ny individuals are better off because of the existence of the family is irrelevant in settling whether the family would be one of the institutions of a just societ y. w hat matters is whether the existence of the family ensures that the least advantaged members of society are better off than they would be with its abolition”. her own answer to this question seems to be negative (munoz-darde 1998-9: 42). is there a right to parent? 195 leap 3 (2015) are more than willing to raise children remain childless due to inability to procreate and the difficulties of adoption. more generally, custody rights follow biological connections, absent special circumstances. now, the family defended against the liberal challenge in family values is different, perhaps very different, from the current legal institution of the family. brighouse and swift argue for more limited parental rights than what existing states recognize. nevertheless, they do want to reject, rather than bite the bullet of, the ‘best available parent’ possibility. in their own words: “would there be any thing w rong w ith a system that distributed children to adults in the way that maximized the realization of children’s interests, even if it left out some adults who would be willing, and adequately good, parents?” (brighouse and swift 2014: 86). they think there would be. not because children lack full moral status, which would make it unproblematic to allow parents’ own interest in authoritative relationships with children to determine what is a legitimate way of bringing them up.3 instead, they defend a dual-interest theory of what makes the family legitimate. the reason why— according to brighouse and swift—it is all right to settle for childrearing arrangements that are sub-optimal for children is the way in which childrearing makes a unique and crucial contribution to a fully f lourishing life. in their elaborate account of the value of parenting, brighouse and swift argue that adults have a fundamental moral right to be parents. the reason, in a nutshell, is that intimate and authoritative relationships with children a re uniquely va luable for most adu lts ; such a relat ionship is not “just another intimate relationship, valuable to both sides but substitutable for the adult by an additional relationship with a consenting adult” (brighouse and swift 2014: 88). rather, they have a different moral quality, make a different kind of contribution to the flourishing of adults, and so are not interchangeable with other relationships. because childrearing makes a substantial and unique contribution to adults’ flourishing, adults are said to have an interest-based right to pursue such relationships. the unique value of parenting, according to brighouse and sw ift, resides in the combination of four features which characterize parent-child relationships. first, relationships between parents and children are structurally unequal, given children’s unavoidable, involuntary and asymmetrical dependency on the adults. by contrast, dependency in relationships between adults is less encompassing, often voluntary and more reciprocal. second, parents are in charge of their children’s well-being and development to an extent to which people are not responsible for other individuals, with whom they stand in different types of relationships. to discharge this responsibility 3 “children are individuals distinct from their parents, individuals whose interests it is the state’s job to protect and promote” (brighouse and swift 2014: 5). 196 anca gheaus leap 3 (2015) pa rents need recou rse to coercion a nd ma n ipu lat ion. t h i rd, pa rents u navoidably shape t hei r ch i ld ren’s m i nds —t hat is, t hei r bel iefs a nd i nter e st s. fi n a l l y, c h i ld r en a r e c a pa ble of lov i ng t hei r pa r ent s i n a sponta neous, u ncond it iona l a nd non-ref lect ive way t hat is not to be encountered in other kinds of loving. the first three features of the parentchild relationships generate the distinctive moral burdens of parenthood: responsibi lit y for t he wel l-being a nd development of indiv idua ls who are dependent on you and who cannot exit the relationship with you at will. according to brighouse and sw ift, it is va luable to meet t his cha llenge, as part of a process of self-knowledge and personal development that most people find uniquely fulfilling. the last feature of the parent-child relationship, that of spontaneous and unconditional love, points to the specific value of loving, and being loved by, children and to the source of hedonic value afforded by parenthood. it is thanks to these features that parenting is essential to the f lourishing of (most) adults. this account of parenting allows brighouse and swift to reject the ‘best ava i lable pa rent’ possibi lit y, because adu lts’ f unda menta l interest in parenting limits children’s entitlement to being raised by the best parent who is willing to take over this role: “within certain limits, adults’ interests in being a parent can trump children’s interests in having the best possible parents. no child has a right to be parented by the adult(s) who would do it best, nor do children as a whole have a right to the way of matching up children and parents that would be best for children overall. both scenarios could leave perfectly competent parents missing out on the goods of parenting” (brighouse and swift 2014: 95). if brighouse’s and swift’s defense of a dual-interest account succeeds, then adults have a right to parent that is sui generis—i.e. fundamental, grounded in their ow n interests—rather than derivative from children’s ow n rights to protection and care. this would not change the fact that a right to parent is an anomaly by liberal lights: liberals acknowledge no other entitlement to exercise power over another individual legitimised in part by reference to an interest—no matter how important—of the one exercising power. but how could one go about rejecting this account of a sui generis right to parent? it does not look very promising to question the importance that raising children has for most of us. the evidence is very strong: most people want children, go ahead having them often in spite of serious adversity and in spite of the inevitable difficulties of the job, and many people agonize is there a right to parent? 197 leap 3 (2015) for long periods of time over not being able to become parents. nor does it help to note that not all people believe that parenting makes such a great contribution to their f lourishing. as brighouse and swift themselves note, it is possible that the f lourishing of some, but not of all, people depends on being able to parent well (brighouse and swift 2014: xx). some people may be unable to parent well (even with help) and therefore parenting will not contribute to their flourishing. other people’s lives may be so rich in alternative venues to flourishing, some of which incompatible with childrearing, that they will flourish best without rearing children. but neither of these facts mean that rearing children is not essential to the f lourishing of those of us who can parent well and whose f lourishing is not incompatible with parenting. more promising, one may believe that we do not have a right to pursue fully f lourishing lives—but merely to pursue sufficiently f lourishing lives. this is a plausible thought, in a world of competing claims over limited resources. on this view, would-be adequate and willing parents who miss the opportunity to rear children do not suffer from a rights violation provided they have other, adequate, opportunities to f lourish. an interesting way of answering this challenge would be to argue that, for people who can be adequate parents and who wish to parent, the failure to rear children somehow blocks other avenues to f lourishing. for instance, as in some fairy tales, grief of being childless may cast a thick shadow over every other joy, or take away the drive to engage in other projects, or otherwise undermine the ability to pursue other worthwhile goods. but this is not what family values argues. another way to try to rebut this challenge would be to note that raising children is not merely a permissible—and very valuable—activity, but a morally mandatory one in the sense that each generation has a duty to bring up a minimum number of chi ldren to ensure t he ca re of t hose indiv idua ls in need of assista nce a nd t he cont inuat ion of some sor t or political society.4 in this case, parenting would be a very peculiar activity that not only makes an essential contribution to full f lourishing, but also enables individuals to f lourish by doing what was their duty to do in the first place. perhaps there is a fundamental right to aim at full f lourishing, if thereby you also do your bit to discharge a collective duty. (suppose, by analogy, that there was a duty to defend your country against unjust attack and that fighting wars was essential to most people’s full flourishing. would that be a reason to allow all would-be adequate soldiers to participate in selfdefence, should they find themselves under unjust attack?) i do not know if the last argumentative strategy could succeed, but note that in an overly populated world like ours it is very likely that the number 4 i defend t h is v iew i n gheaus (2015). for ot her a rg u ments why t here may be a (individual) duty to have children see smilansky (1995). 198 anca gheaus leap 3 (2015) of children that we (collectively) have a duty to rear might well be much smaller than the number of would-be adequate parents. if it were not possible for all would-be adequate parents to parent-as-dutiful-behav ior, there cannot be a right to parent partly justified as dutiful behavior. above i have outlined what are, in my experience5, the most usual types of criticism leveled at brighouse and swift’s defense of a right to parent. i do not aim to draw a conclusion yet: on the one hand, in their favor speaks a very powerful widespread intuition that we have a right to rear children if we would parent them adequately. on the other hand, and against their view is the very plausible liberal belief that if you are denied a chance to parent either because alternative childrearing arrangements, or other wouldbe parents, would serve children’s interests even better, you do not suffer from the violation of a fundamental right.6 in the remainder of the paper i explore an intuitive way to adjudicate bet ween these t wo contradictor y beliefs, and in conclusion i suggest a way of reforming childrearing in line w ith the liberal stance, while also v indicating the intuition that adults have a right to involvement in childrearing (a right which nevertheless falls short of a right to parent). much of the argumentative power of brighouse and swift’s defense of a dual-interest account of legitimate childrearing comes from their appeal to the unique value of parenting. in turn, this value derives from the unique combination of features displayed by parenting. since their conclusion— t hat t here is a right to pa rent— coincides w it h a n a lready w idespread belief, it is tempting to think that a right to parent can really be justified by appeal to the combination of the four unique features of the parent-child relationship. and, since there is nothing quite like parenting in the world— that is, no other relationship that displays all of the features identified by brighouse and swift—this connection (between the four features and the right to parent) is difficult to test. but what if other social relationships also displayed the combination of these four features? would we respond with t he sa me intuit ion t hat one’s interest in such a relat ionship ca n pa r t ly justify one’s authority over another? consider the following imaginary situation, meant to show how intuitively extraordinary parents’ rights are over their children (at least in the absence of certain empirical assumptions that do not figure amongst the reasons that brighouse and swift provide in their case for the right to parent). imagine that, as a result of a natural cataclysm, a group of adult refugees reaches your country. they have nowhere else to go. you live under a just and benevolent 5 from numerous conferences and referee reports to work in which i describe (and endorse) their account. 6 for a convincing elaboration of this, see vallentyne (2003). is there a right to parent? 199 leap 3 (2015) government that automatically grants the refugees the right to stay and settle down in the country and, in due course, to become citizens. as it happens, the refugees come from a very remote culture, described by anthropologists as ‘primitive’.7 they speak a language that nobody has heard of before and nobody understands, and they do not seem able to pronounce simple words in your own language. they cannot read or write, and have never been in contact with any technologically advanced civilization. they do not understand how any of the machines work, and understand complicated social rules even less. they appear scared of traffic and large crowds. their bodies are beautiful, fragile, relatively small, and unusually agile. they quickly acquire a wonderful reputation for being uncomplicated, trust y, direct, curious, affectionate and playful.8 for good reason, the belief spreads that having one of these refugees around can bring into your life a kind of joy and fun that nothing else could, and hence that an intimate relationship with one of them would be a special blessing. moreover, these people are in much need of patient introduction into your own ways of living; somebody has to ta ke over t he job of socia li zing t hem. a nd you a re right to t hin k t hat engaging in such an extraordinary task would make a significant and unique contribution to your own personal development. now imagine that, after a few visits to the camp where the refugees get emergency lodging, you become particularly attached to one of them and from all you can tell the affection is reciprocal. your new friend responds to you with spontaneous trust, joy, and unconditional attachment. you would like to spend as much time as possible with this person. would it be a legitimate policy to allow you to lodge your new friend in your home and take upon yourself the entire responsibility, and with it the power, to ensure that her life goes well and that she acquires adequate knowledge of your society’s language, moral sensitivity and expectations, laws and customs such that she can, eventually, become an autonomous citizen? moreover, would it be legitimate for you to have the authority to decide with whom she is allowed to spend time, and under what circumstances—i.e. to have the power to exclude others from having a relationship with her? would it be permissible if the state gave you a right, against all others, that they do not undermine your relationship with this person?9 7 perhaps these anthropologists are objectionably condescending; i apologize on their behalf. 8 so they are, indeed, very close to how 17th and 18th century europeans imagined native inhabitants of america: they are a reincarnation of the bon sauvage. 9 this is a feature of the right to parent as defended by brighouse and swift: “those people given the job of parenting a particular child will have a right to parent that child in the weak sense that others will be under a duty not to undermine the relationship” (brighouse and swift 2014: 87). 200 anca gheaus leap 3 (2015) if you had the right to do these things, your relationship with the refugee wou ld acqu i re t he sa me combi nat ion of feat u res t hat cha r ac ter i z e relationships between parents and children, and which are said to generate a powerful interest in parenting and hence the right to parent. the relationship would be asymmetrical, and very difficult to exit for the refugee; it would involve significant moral responsibility on your part, given the power you would have to protect and shape the person in your care; and it would make possible a kind of spontaneous, unconditional and unref lective love that is not usually possible between adults. if people have a right to enjoy relationships that display the above combination of features, then you should be allowed to take control of the refugee’s life in the way in which parents control their children’s lives. yet, i contend that a policy allowing you to take control of the refugee’s life would be obv iously unjust to the refugee, your powerful interest to pursue intimacy with her notwithstanding, unless—for whatever reason— this kind of policy would best promote the interests of the refugees. the reason that would make it unjust is not its paternalism towards the refugees. indeed, the refugees in this example need paternalistic treatment if they are to survive at all in their new environment and if they are to become autonomous individuals with a chance to lead their own life in your society. the reason that would make it unjust for you to take control of her life is that, if it were possible to promote her current wel l-being a nd f uture autonomy in a different way—for instance by letting her reside in the refugee center, or by letting her move in with someone equally willing and better prepared to serve her interests—it would be unfair towards her to ask her to move in with you. this is a first, liberal response to the imaginary case. a different, related intuitive response is that, if it were possible to promote the refugee’s current well-being and future autonomy without locking her i nto a ny pa r t icu la r relat ionsh ip, t hen g iv i ng you— or a not her pr ivate individual—authority over her would be wrong because it would make her subject to (perhaps benevolent) domination. this is a republican response. you may think that, since you have such a powerful interest in sustaining the relationship with the refugee, you are entitled to the necessary means for protecting the relationship—including the right to prevent others from forming and sustaining a close relationship with her. but a parental-like power to exclude other individuals in this way comes at too high a moral cost to the refugee, especially if is not necessary for optimal protection of her own interests. the fact that you have relational interests at stake here does not seem to make any difference. since the well-being and development into autonomous individuals of the refugees is a matter of public responsibility, social arrangements should is there a right to parent? 201 leap 3 (2015) be sought that can best ensure meeting this responsibility. ‘best’ may be interpreted as either ‘well-being maximization’ or ‘ensuring a certain level of wel l-being in a non-dominat ing ma nner’. possibly, concern for t he refugee’s well-being and respect for their moral status will indicate that they ought to live together with many other people: some fellow refugees and some of your co-citizens whose main occupation will be to provide welfare and integration to the refugees. or, perhaps, it would be best for them to live in the home of private individuals—call them ‘hosts’—but have access to a broad range of intimate and caring relationships with many of your (socially and emotionally competent) co-citizens, without needing their host’s approval. in any case, it seems that it is exclusively the refugee’s interests that determine the ideal way of socializing them: the host’s ow n interest in pursuing a relationship with one of the refugees (even if this relationship was highly, and uniquely, valuable to the host) does not seem to do any work in settling the matter. this story is obviously meant to provide a close analogy to the situation of parents and children. the two cases share the features which, according to brighouse and swift, generate parental rights. if your intuition is that these features cannot justify parental-like authority over the refugees, then probably they are also unable to generate a right to parent as defended in family values. the same hypothetical case triggers a second intuitive reaction—at least, on my side. the fact that your interest in having an intimate and authoritative relationship with the refugee is irrelevant to your having rights over her. this does not mean that you do not have a right to pursue a long-lasting, intimate relationship with the refugee. your interest in this unique relationship is, i assume, powerful enough to generate a right to pursue it. you may spend some time with her every day and provide constant company and guidance to her. you may decide to become one of the people whose main occupation is to work in the refugee home part-time or full-time until she is sufficiently autonomous to take charge of her own life and leave the refugee home. while the state would be wrong to allow would-be competent hosts to assume parental-like authority over one of the refugees, it would also be wrong to set up an institution of socializing refugees that denies citizens a chance to develop close and benefiting relationships with the refugees. if the citizens really have a powerful interest in entering and sustaining close relationships with the refugees, then it would be arbitrary to exclude some from having access to such relationships—assuming the relationships do not set back the refugee’s interests—in order to benefit others. note that the pursuit of an intimate caring relationship with a person does not require a right to exclude other individuals from pursuing such relationships with her—it 202 anca gheaus leap 3 (2015) requires only that nobody else have a right to arbitrarily interrupt your relationship with this person. (this is of course consistent with the possibility that the highest possible degree of intimacy, as well as the most secure kind of intimacy, requires the exclusion of intimacy with others.) perhaps the analog y carries over, again, to the case of childrearing. parental authority—as we have it and as it seems10 to be defended in family values—comprises a right to exclude others from having close relationships with one’s child for reasons other than the protection of the child’s interest. and, as we have seen, a right to parent is justified by brighouse and swift by reference to the unique value of relationships of intimacy and authority with children. yet, it seems to me, intimacy, more than authority, contributes to the value of the adult-child relationship. this is so especially once we acknowledge that being in a sustained intimate relationship with a child involves considerable responsibilit y on the part of an adult even if that adult does not play a full parental role. indeed, the justification of a right to parent starts from the observation that for “most people, intimate relationships with others are essential for their lives to have meaning” (brighouse and swift 2014: 87). and progresses by noting the unique value of parent-child intimacy. similarly, it is appeal to intimacy with a child that most plausibly explains the common intuition that people ought to be free to parent and the possibility that some people’s f lourishing could be irremediably undermined if they had no children in their lives. but the most problematic element of the parental right, in a liberal perspective, is the authoritative, not the intimate, side of the relationship. if it is possible to disentangle intimacy and authority in childrearing—both analytically and practically—the intuitive support for a right to rear children might be salvaged without need of taking exception from liberal beliefs. therefore, i suggest that brighouse and swift’s case for a fundamental right to parent is only partially successful: it fails to show that appeal to adults’ interests does any work in establishing a right to control the child. but it can show how adults’ interest in relationships with children grounds an associative right: adults whose company would not be detrimental to children’s interests have a right to seek and maintain close and caring relationships with children. yet the claim to a right to control a child’s life must be grounded exclusively in the child’s interest, in which case there is 10 “seems” because brighouse and swift defend a child-centred view with respect the content of parental rights. yet, they also say that the right to parent involves that others are “under a dut y not to undermine the relationship” (brighouse and sw ift 2014: 87). but my making close friends with my neighbor’s child can—if the neighbor has no power to interrupt the relationship—undermine the child’s relationship with her parent. is there a right to parent? 203 leap 3 (2015) no sui generis right to parent.11 it is possible that more people will want to reject the pertinence of the analogy between welcoming refugees and engaging in childrearing, than to refute the conclusions i draw about the just treatment of the refugees. to do this, they would likely point to some empirical features that set apart parenting from my imagined example. unless they are adopted, children are never complete strangers to their parents or at least to their gestational mother, in whose body they come into existence and develop for a while. many believe that parents are inevitably more attached to their own offspring t ha n t hey ca n ever be to ot her chi ldren (a lt hough t here is a debate on whether the explanation is to be found in the fact of gestation or in genetic relatedness; if such special attachment exists, i think that it springs from gestation12). this alleged fact contributes to the belief that, in general, (biolog ica l) pa rents ma ke t he best pa rents for pa r t icu la r chi ldren. so, perhaps, you are inclined to think that, should babies come into the world unrelated to a ny pa r t icu la r indiv idua ls—shou ld t hey, for insta nce, be brought by storks—we ought indeed to set up childrearing practices that serve their interests as well as possible, including the possibility of allowing the best available parents to rear them. but, in fact, babies come into the world from the bodies of other people and so you may also think that this fact sett les t he quest ion of what chi ldrea ring pract ices ser ve best t he children’s interests (the family) and who are the best parents (procreators). (for instance, you may be convinced by evolutionary biology.) therefore, the beliefs that the family is legitimate and that procreators have a (non-fundamental) right to rear their own children—that is, support for the status quo—can be compatible with a child-centred account of who has the right to assume authority over children. the compatibility depends on the above-mentioned beliefs that procreators are, on average, able to love their children best and that a child is best off in the custody of the person most able to love her.13 if childrearing within the family really is in the vast majority of children’s best interest, and if the beliefs concerning procreation and love are true, then it may be fine to settle for minor reforms of the family. but, contra brighouse and swift’s account, this would be based entirely on the child’s interest. 11 that is, as far as brighouse and swift’s argument goes. for a different defense of a right to parent as part of a dual interest account of just child-rearing see clayton (2006). 12 i discuss t his in gheaus (2012) where i a na lyze, more genera lly, t he normative import of gestation for a right to rear a particular child. 13 for more on this, see munoz-darde (1998-9: 45-46). for a child-centred account that is compatible with the status quo of raising children in the family, and perhaps with the raising of children in their biological family (as a default) see archard (2003). 204 anca gheaus leap 3 (2015) bibliography archard, d., 2003: children, family and the state, london: ashgate publishing. brighouse, h. and swift, a., 2014: family values. the ethics of parent-child relationships, princeton: princeton university press. clayton, m., 2006: justice and legitimacy in upbringing, oxford: oxford university press. gheaus, a., 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-455 — 2015: “could there ever be a duty to have children?”, in permissible progeny, ed. s. brennan, s. hannan and r. vernon, 87-106, oxford: oxford university press.munoz-darde, v., 1998-9: “is the family to be abolished then?”, proceedings of aristotelian society 99: 37-56. smila nsk y, s., 1995: “is there a mora l obligation to have children? ”, journal of applied philosophy 12: 41–53. vallentyne, p., 2003: “the rights and duties of childrearing”, william and mary bill of rights journal 11: 991-1009. leap 3 (2015) why the family?1 luar a ferr acioli university of amsterdam abstract a mong t he most pressi ng ph i losoph ic a l quest ion s occ upy i ng t hose interested in the ethics of the family is why should parents, as opposed to charit y workers or state officials, raise children? in their recent family values, brighouse and swift have further articulated and strengthen their own justification of the parent-child relationship by appealing to its crucial role in enabling the child’s proper development and in allowing parents to play a valuable fiduciary role in the lives of children. in this paper, i argue that the set of interests brighouse and swift identif y as necessary for the justification of the family fails to account for the different stages and the d i f ferent c u lt u r a l set t i ngs t hat ma rk t he pa rent-ch i ld relat ion sh ip. in particular, i ague that their justification of the family fails to satisf y the following two desiderata: (i) that the justification for the parent-child relat ion sh ip shou ld idea l ly t r ack t he good-ma k i ng feat u re (s) of t he relationship that extend across its entire history, and (ii) such justification should ideally explain what is valuable about the parent-child relationship in both liberal and non-liberal family contexts. in light of my critique, i sketch an alternative account of family values, one that appeals directly to the special mode of caring we see in the parent-child relationship, a form of caring that is certainly present in non-liberal societies and that typically extends across a lifetime. keywords: family, children, parents, paternalism, autonomy, love, brighouse, swift “ser mãe é padecer no paraíso”2 1 a previous version of this paper was presented in the department of law in pompeu fabra university in barcelona, where i received extremely helpful feedback. i am especially grateful to pablo de lora, serena olsaretti, andrew williams and an anonymous referee for this journal. i also would like to thank ryan cox and eric schliesser for helpful discussions on the topic. 2 popular brazilian expression: “being a mother is like suffering in paradise” (my translation from portuguese). 206 luara ferracioli leap 3 (2015) 1. introduction a mong t he most cha l leng ing phi losophica l quest ions concerning t he ethics of the family is why parents, rather than charity workers, or state officials, say, should raise children. w hat justifies the family as the best arrangement for the rearing of citizens who are not yet in a position to secure their own current and future interests? one a nswer to t his quest ion is t hat t he pa rent-chi ld relat ionship is justified by some fundamental interest that adults have with regard to their biological children, such as the interest in the product of their gestational labor or genetic investment.3 another approach to this question starts from the assumption that children are extremely vulnerable and dependent and that their interests should exhaust any theory attempting to justify what is, at its core, a coercive, and t herefore mora lly suspect, t y pe of intimate relationship.4 this child centred view of family relationships is based on the contention that the parent-child relationship can only be justified on the assumption that no other social arrangement could do a better job at securing the core interests of children. were this empirical assumption to become unsustainable, adults would cease to have a prima facie right to parent. an alternative to both these views is the “dual-interest” account of child rearing.5 those articulating this position have appealed to both the interests of children in being raised by parents and the interests of parents in raising children. the fundamental commitment of the dual-interest view is that the interests on both sides have to be balanced out and that good enough parents retain their right to parent even if it turns out that other social arrangements would do a better job at protecting and promoting the interests of children. harr y brighouse and adam sw ift have recently further articulated and strengthened their own version of the dual interest account by defending the position that the parent-child relationship is justified by its crucial role in securing the child’s proper development and in enabling the flourishing of many adults (brighouse and swift 2014).6 in this essay, i argue that the specific set of interests brighouse and swift identify as grounds for the justification of the parent-child relationship fail to account for the different stages and the different cultural settings that mark the family. in particular, i argue that their account of family values 3 for a genetic account, see hall (1999). for a gestational account, see narayan (1999). 4 the coercive aspect of the relationship here is a result of the fact that due to the lack of a sufficient degree of autonomy, children cannot typically consent to partaking in the relationship. for child-centred views, see blustein (1982); vallentyne (2003). 5 see brighouse and swift (2006); clayton (2006); macleod (2010); gheaus (2012). 6 see also rawls (1999: 265). why the family? 207 leap 3 (2015) fails to satisfy the following two desiderata: (i) that the justification for the parent-child relationship should ideally track the good-making feature(s) of t he relat ionsh ip t hat ex tend across its ent i re h istor y, a nd (i i) such justification should ideally explain what is valuable about the parent-child relationship in both liberal and non-liberal family contexts. in light of my critique, i sketch an alternative account of what is special about the family, one that appeals directly to the special mode of caring we see in the parentchild relationship, a form of caring that is certainly present in non-liberal families and that typically extends across a lifetime. the discussion w i l l be st r uctured as fol lows. in sect ion 2, i brief ly rehearse brighouse and swift’s arguments for their dual-interest account of child rearing. in section 3, i motivate two desiderata for a successful theory of what justifies the parent-child relationship and argue that brighouse and swift’s account, as it stands, cannot meet them. in sections 4 and 5, i sketch an alternative justification for the parent-child relationship that overcomes the challenges raised in the previous section, and briefly discuss some of its implications. 2. brighouse and swift on family values let us start our inquiry by briefly rehearsing brighouse and swift’s argument in favor of taking the family to be the best institutional setting for the rearing of children.7 according to the authors, there are a number of interests on the part of children that ground their right to be raised by at least one parent.8 first, children are highly dependent on adults for their most basic emotional and biological needs. second, children are profoundly vulnerable to the quality of other people’s decisions, and the sort of paternalistic treatment they are subjected to in childhood can significantly impact how well their lives go as a whole. third, children are capable of eventually developing a capacity for autonomy a nd so a re sig nif ica nt ly dif ferent f rom ot her v u lnerable indiv idua ls who w i l l never become capable of attending to t heir ow n interests. brighouse and sw ift believe t hat, when ta ken toget her, t hese interests give children an overarching interest to be ‘manipulated’ and ‘coerced’ into doing what is good for them, or what will prepare them for becoming autonomous later on in their lives (brighouse and swift 2014: 62-70). 7 like brighouse and swift (2014: xi), i will employ the concept of “the family” to refer to the parent-child relationship in the context of this discussion. note that i do not take a stand on whether or not other intimate relationships should also be picked out by this concept. 8 for brighouse and swift (2014: 53-54), a has a right to x, when a’s interest in doing x or having x is weighty enough that it gives rise to a duty on the part of others that they allow a to do x or that they provide a with x. moreover, whether an interest in doing x or having x is weighty enough to give rise to a duty on others will depend on the importance of x and the costs that come with the provision of x. 208 luara ferracioli leap 3 (2015) it is certainly true that children’s lack of autonomy and vulnerability makes it appropriate that others act paternalistically towards them, but there is still a further question as to why such paternalism should come primarily from adults acting within the context of a private and intimate family relationship.9 for brighouse and swift, the answer lies in the fact that such relationships are typically marked by love and that love renders the exercise of paternalism more effective (brighouse and swift 2014: 71). the underly ing empirical assumption here is that a lov ing relationship between a child and a competent parent allows the latter to exercise authority with knowledge of the former’s unique dispositions, and with the sort of spontaneity and care that encourages the child to see the parent as her central disciplinary model (brighouse and swift 2014: 73). for the authors, the quality time which parent and child typically spend together, and the intimacy that develops as a result, are so central to the effective exercise of paternalism, that there cannot be many of these relationships in a child’s life (brighouse and swift 2014: 73).10 if brighouse and swift are correct, we now have the beginning of a story that purports to explain what is so special about the parent-child relationship: i. children need paternalistic treatment to enjoy the goods of childhood and to develop the capacities they need later on in adulthood. ii. such paternalistic treatment will be more effective or successful if exercised in a context of an intimate loving relationship. iii. competent parents can typically exercise paternalism in a context of an intimate loving relationship. conclusion: children have a basic interest in being cared for by at least one, but not too many, competent parents. so far, so good, but this does not yet give us a dual-interest account. in order to explain why it is good for adults to parent children even when children could conceivably fare better under alternative arrangements, we need to say something about the interest parents have in playing their own role in the relationship. for brighouse and swift, adults have a strong interest in playing the fiduciary role that secures the child’s present and future wellbeing. that is, the interest that some adults have in parenting is precisely to be in a loving relationship where they can act paternalistically towards a child, guaranteeing her basic needs and seeing to it that she develops the cognitive, emotional, physical, and moral resources she needs to become an autonomous person later on in her life (brighouse and swift 2014: 86-90). 9 brighouse and swift (2014: 67) write that “paternalism involves manipulating or coercing another person with the purpose of serving her good”. 10 note that brighouse and swift (2014: 70) also recognize that the exercise of paternalism should be constrained by the child’s stage of development. why the family? 209 leap 3 (2015) here then is the final justificatory step taken by brighouse and swift in favor of their dual-interest account of child rearing: i v. some competent adu lts a re not on ly capable of exercisi ng paternalism, but have an interest in playing such a fiduciary role within the context of a loving relationship.11 conclusion: all children have a strong interest in being cared for by at least one, but not many competent parents, and some adults have a strong interest in parenting. these interests are sufficiently weighty, and the costs involved in securing them are sufficiently reasonable, so as to ground the right of children to have at least one parent, and the right of competent adults to parent. the ba la ncing of t hese interests a lso just if ies t he fa mi ly as t he best socioinstitutional arrangement for the rearing of children.12 3. two desiderata: continuity and pluralism in the previous section, we learnt that for brighouse and swift, the need for paterna lism w it hin t he contex t of a lov ing relat ionship u lt imately grounds the right of children to have at least one parent and that the same paterna lism g rounds a (condit iona l, limited) right of adu lts to pa rent children. the aim of this section is to take a step back and think about what we want a theory of family values to deliver, as well as evaluate how brighouse and swift’s dual-interest account fares with regards to such theoretical aims. to begin with, brighouse and swift’s fiduciary account certainly points in the right direction by starting with the recognition that children typically fare better if they can count on at least one competent adult to actively attend to their well being. the account also seems to capture something important about how there can be a weighty interest on the part of adults to be in a relationship with children that cannot be replaced by other kinds of intimate relationships, such as relationship with a pet, or a friend. but do brighouse and swift really get to the heart of the matter when they point to the interest of children in being subjected to this sort of loving paternalism and the interests of parents in exercising loving authority as part of the parental role? that is, do they succeed in identifying the most basic property or set of properties that justify the existence of the family even in a context where other actual and conceivable arrangements could do a better job at securing the interests of children? 11 as brighouse and swift (2014: 86) put it, “[i]t cannot be substituted by other forms of relationship, and it contributes to the parent’s well-being so substantially, and in a manner so congruent with the interests of children, that it grounds (a conditional, limited) right to parent”. 12 for the rights theory endorsed by the authors, see supra-note 8. 210 luara ferracioli leap 3 (2015) in the remainder of this section, i argue that although brighouse and swift’s fiduciary account helps us make much progress on the ethics of the family, it does not, as it stands, meet two important desiderata. first, their account fails to explain what is special about the parent-child relationship once the child is capable of attending to her own present and future wellbeing. it therefore fails to explain what is good or valuable about children having parents and parents having children across a lifetime. let us call this the “continuity desideratum”. second, by arguing that part of what justifies the fiduciary role of the parent is its ability to secure the child’s future autonomy, their account fails to justify the parent-child relationship outside a liberal family context, where parents might lack the disposition in seeing to it that their adult child becomes capable of forming and pursuing her own conception of the good. let us call this the “pluralism desideratum”. i will discuss each desideratum in turn. 3.1. continuity let me begin by motivating the continuity desideratum, which is that, all else being equal, a successful justification for the child-parent relationship should also be able to explain why it is good that parents have children and children have parents not only during the former’s childhood but also across a lifetime. to make sense of this idea, let us imagine a world that is very similar to ours but where society has structured procreation and parenting differently, and where only elderly members of societ y become parents and where children are conceived and gestated in high-tech government laboratories. let us also imagine that the rationale for this arrangement is efficiency since citizens are more productive if they spend their adult lives fully engaged in the workforce and then later in life, once they have retired, they will have more time to invest in their parental role. finally, let us assume that quality of life and life expectancy are such that children typically have at least one sufficiently healthy parent during childhood and adolescence, but typically not during their adulthood. as becomes clear, this society is one in which both parent’s and children’s interests, as identified by brighouse and swift, are fully met but where it seems that something deeply valuable is lost. what is lost, i take it, is the value for both parent and child in enjoying an intimate and loving relationship that typically extends across different phases of their lives, and that provides the child with the on-going benefit of being subjected to an intense and robust mode of caring by the parent (i will defend this claim in more detail in the following section). if i am right that the parent-child relationship retains its value even when there is no more need for the exercise of paternalism on the part of the parent, then we should ideally aim for a justification of the family why the family? 211 leap 3 (2015) that does not depend on features that are only present in childhood, but that can explain what is valuable about the parent-child relationship as it extends across time.13 at this stage, a proponent of brighouse and swift’s fiduciary account might endorse the continuity desideratum, but deny that the authors fail to meet it in their own justification of the family. the response here would be to appeal to the fact that brighouse and swift also give a lot of weight to the role of love in their discussion, and that as a result of love’s continuity, their fiduciary account will hold no matter which developmental stage or life phase parties find themselves in. this would indeed be a charitable reading of their discussion, and later i sketch an account that does appeals to the role of love in explaining what is so special about the parent-child relationship. however, as it stands, it is not clear that this interpretation is available to brighouse and swift because their account of why adults have an interest in parenting appeals to the interest that parents have in exercising loving authority over the lives of children. indeed, for brighouse and swift, love comes in by playing an important, yet supportive role, in the effective exercise of paternalism.14 as they explain: “the fiduciary aspect remains central. grandparents, or parent’s friends, or nannies, can have close relationships with children, and when they go well, those relationships will be conducive to the child’s interests and valuable to the adults too. reading bedtime stories, providing meals, and so on, will be contributing to the well-being of both. still, there’s something distinctively valuable about being the person who not only does those things oneself but has the responsibility to make sure they get done, sometimes by others, and the authority to decide quite how they get done” (brighouse and swift 2014: 93). but even if the above passage was somewhat misleading and it was true t hat brighouse a nd sw if t were prima ri ly interested in love itself, t hey would still need a further argument to justify the interest that adults have in parenting given that adults can enjoy relationships of love and intimacy with people other than their children. the challenge here is that love per se cannot get a dual-interest account off the ground because such an account is aimed at explaining what is special about the parent-child relationship in particular, not loving relationships more generally. 13 to be sure, as t he child goes t hrough dif ferent developmenta l stages, t here a re contingent features of each stage that will provide distinct sources of pleasure to the parent. however, it does not follow from this fact that the identit y of the relationship changes so dramatically that what made it valuable when the child was a toddler is no longer present when she is middle-aged. 14 as brighouse a nd sw if t (2014: 92) put it, “[t]he relationship as a whole, w it h its particular intimate character and the responsibility to play the specific fiduciary role for the person with whom one is intimate in that way, is what adults have an interest in”. 212 luara ferracioli leap 3 (2015) before i move on to the second desideratum, let me dispel one potential concern with the discussion so far. the concern might be that the continuity desideratum does not apply to brighouse and swift’s fiduciary account because theirs is an exercise in political philosophy, not value theory. perhaps what these authors are ultimately interested in doing, so the concern goes, is justif ying a relationship where one party lacks exit options and is wholly dependent on the other party for having her basic interests protected and promoted. what motivates the concern here is that the authors might not be answering the question of what is valuable about the parent-child relationship tout ensemble, but rather explaining why it is permissible for adults to enter and maintain intimate relationships with non-consenting children. one reason why this response is unsatisfactory is that the inability of the child to exit a parent-child relationship is not a necessary feature of this sort of relationship and that it is possible for there to be intimate relationships where the child actually enjoys exit options. these are, for instance, relationships where a parent lacks custody rights over the child and decides to give the child a lot of space to choose whether or not, and to what extend, to partake in the relationship. one might think that the enjoyment of exit options on the part of the child dispels the need for justification in such cases, but i take it that the degree of intimacy involved at all stages of the relationship, and the mere possibility that society could be arranged differently, suffice for making the parent-child relationship, at its most general level, proper subject of philosophical justification. it would therefore be unsatisfying if brighouse and sw ift were solely in the business of explaining why it is permissible for there to be relationships between competent parents and children where the latter have no prospect of exiting the relationship. 3.2. pluralism let me now turn to the second desideratum, which is the claim that a successful justification for the parent-child relationship must also be able to justify such relationships in non-liberal family contexts. as mentioned earlier, brighouse and swift believe that one of the reasons children need parents is that within the context of an intimate loving relationship, parents have an interest to ensure that children acquire the skills they need in order to become autonomous later on in their lives. for them, this priv ileged position on the part of parents goes as far as to give parents “a duty to try and ensure that the child w ill become an autonomous agent, someone capable of judging, and acting on her judgement, about her own interests” (brighouse and swift 2014: 90). before i ex pla in why t his focus on autonomy is problemat ic for t he fiduciary account, let me endorse the more general claim that children have why the family? 213 leap 3 (2015) a weighty interest in becoming self-determining in adulthood. let me also note that such capacity for autonomy can be cashed out in different ways a nd elsewhere i have a rg ued t hat chi ldren have a weight y interest in developing some basic agential skills, such as critical thinking, self-esteem and imagination precisely in order to make life choices that sufficiently track their own values and aspirations, as opposed to the values and aspirations of their parents, community leaders and religious authorities (ferracioli 2015).15 i a m t herefore in deep ag reement w it h brighouse a nd sw if t in thinking that something goes wrong when children fail to acquire the skills they need to live adult lives that are genuinely their own. however, as i see it, brighouse and swift are too quick in linking this particular interest on the part of children with the fiduciary role of parents. that is, they are too quick in assuming that parents are typically capable and willing to ensure that their child develop the agential skills needed to ma ke t heir ow n life choices as opposed to choices t hat blind ly fol low religious tradition or cultural expectations (ferracioli and terlazzo 2014; ferracioli 2015). indeed, it is a well-know n sociological fact that many parents in non-liberal cultural contexts do not value autonomy themselves and actually want their child to uncritically endorse what they take to be deep truths about the world. the result here is that brighouse and swift’s inclusion of the capacity for autonomy in the list of interests that ground a dual-interest account makes it the case that only autonomy-promoting parents have a right to parent, because only they have the disposition to protect the interest that the child has in becoming autonomous, and so to protect one of the interests that, according to the fiduciary account, justify the family in the first place. proponents of the fiduciar y account might respond by resisting the pluralism desideratum, and by arguing that in fact only parents who are committed to the development of autonomy have a right to parent because only they are genuinely in a position to secure the very weighty interest of chi ldren in becoming suf f icient ly self-determining. but t his response wou ld deny t he obv ious a nd mora l ly releva nt fact t hat outside libera l family contexts, parents still manage to enjoy a great degree of intimacy, love and affection with their children, and that the lives of all parties go much better as a result of partaking in such loving relationships.16 moreover, this response also fails to see that the right of children in becoming sufficiently 15 see also meyers (1987). 16 note that this position is compatible with the claim (which i do not make here) that, all else being equal, being raised by liberal parents is superior to being raised by authoritarian ones. these are compatible claims because all we need for justifying the parent-child relationship is that the relationship meets some sufficiency requirement. outside the enterprise of justification, we can certainly rank styles of parenting according to some independent moral criteria. 214 luara ferracioli leap 3 (2015) autonomous can instead correlate with a duty on the part of the state to create a neutral system of compulsory public education where children acquire the agential skills required for the exercise of autonomy later on in their lives (i return to this point later).17 4. parental love and the good life in the prev ious section, i argued that the best candidate for a theor y of what justifies the family should not appeal solely to features of childhood but rather to features of the parent-child relationship that extend across the entirety of the relationship. i have also argued that such an account should explicitly include the interest of adults in entering into intimate and loving relationship with children irrespective of a lack of disposition on their part to see to it that their child becomes sufficiently self-determining. in this section, i sketch an account that can successfully meet these two desiderata. so what is this valuable feature that both parents and children have an interest in? the answer is actually quite simple: a robust form of caring, or what is commonly (but mistakenly) known as “unconditional love”. to begin with, let me make the obvious point that strictly unconditional love is neither feasible nor desirable. it is not feasible because there can be psychological limits on the human capacity to love when love is reciprocated with physical violence, abuse or complete disregard to one’s well being. even a small child might stop loving a parent when the love she gives is reciprocated with extreme forms of violence and abuse. but even if it is possible for some people to love unconditionally, it still not something they have an interest in doing simply because unconditional love is not on the whole desirable. indeed, it is important for person’s self-respect and selfesteem that they place certain minimum conditions on the giving of love, such as the condition that they be treated with some degree of respect and generosity, and that their beloved will, for instance, not offend against the most basic demands of morality. the thought here is that even a devoted parent should try hard to stop loving an adult child who turns out to be an unrepentant mass murderer. so if unconditional love is neither feasible nor desirable, what kind of love do children and parents have an interest in? and what makes this love sufficiently distinct from other kinds of love that allows us to get a dualinterest account off the ground? the love both children and parents have an interest in is parental love, which is of such magnitude and robustness that it typically differs from other kinds of love. 17 for t he role of compu lsor y public education in t he fostering of autonomy, see ferracioli and terlazzo (2014); ferracioli (2015). why the family? 215 leap 3 (2015) let me start with a rough definition of parental love: a type of love whereby the agent cares so much about the good of her beloved, that she is robustly disposed to take on a great deal of personal cost in order to advance the good of her beloved. if i am right that parental love can be so defined, then children have an interest in being cared for by parents as opposed to charity workers or state officials because they have an interest in being at the receiving end of a mode of caring that is of significant magnitude and robustness (ferracioli 2015). that is, children have an interest in an intimate relationship with an adult who cares so much that the child’s life goes well, that she is disposed to take on a great deal of costs to advance the child’s interests over the course of that relationship. moreover, children have an interest that such disposition on the part of the parent remains robust across time and counter-factual worlds.18 a child who enjoys parental love, so this view goes, will continue to enjoy it as she becomes older and even if the sacrifices involved become extraordinary. to illustrate the point, we need only think of the hardships we might encounter in our adult lives, and the people most likely to continue advancing our interests should such hardships arise. if, for instance, we acquired a severe illness that made us incapable of attending to our own basic needs, or if we became so depressed that we could hardly respond to the world around us, the people most likely to continuously advance our interests would be our parents, not friends or lovers. the same is true of childhood. charity and orphanage workers might be able to adequately meet the basic needs of children under their care, but they will not move town or country in order to ensure that a sick child will get a special kind of medical treatment.19 they are also unlikely to spend a l l of t heir discret iona r y t ime invent ing ga mes a nd act iv it ies so as to continuously stimulate a child who suffers from autism spectrum disorder, for instance. and in any case, they will certainly not spend their whole lives trying to find a child that has disappeared. charity and orphanage workers will of course typically do what morality or their job description require— the trouble is that, at times, human beings, being the vulnerable creatures they are, need much more than that.20 if i am right that children have an interest in being the recipient of parental love so that across a lifetime, they will enjoy a caring relationship 18 for the notion of a modally demanding value, see pettit (2008). 19 for a defence of the claim that children can have all their interests secured in an orphanage, see cowden (2012). 20 for a more detailed discussion of this claim, see ferracioli (2014). 216 luara ferracioli leap 3 (2015) robustly, then the next question is: why do parents have an interest in providing such robust mode of caring? that is, what do parents have to ga in by being in a relat ionship where t hey a re disposed to ta ke on so much personal cost for the sake of someone else? as i see it, the interest that parents have in the relationship is precisely to enjoy t he mora l va lue of lov ing someone so deeply t hat one becomes sig nif ica nt ly disposed to adva nce her good in ways compa rable to t he advancement of their own good. indeed, the interest in parenting is nothing above and beyond an interest in being in a relationship where one cares so deeply about how well someone else’s life goes that one is disposed to take on the sort of costs that not even morality can demand from moral agents.21 this sort of disposition for a deep mode of caring within the context of an intimate relationship is a great source of meaning—it enriches the lives of adults significantly, despite the fact (or perhaps even partly because) life often feels like “suffering in heaven”. in the previous section, i noted that a general interest in love would not get us a dual-interest account off the ground because adults can partake in a myriad of loving relationships, such as the relationship one has with a f riend or lover. a nd if i a m right t hen, why t hin k t hat f riendships a nd romantic relationships cannot exhibit the sort of robust care we see with the parent-child relationship? at this stage, it is important to clarify exactly what the shape of the claim is. i have not argued that parents necessarily feel parental love. we know all too well that some parents do not experience robust modes of caring. i have also not argued that other relationships necessarily fail to exhibit the features of parental love so far discussed. it is certainly conceivable that some romantic relationships and friendships might give rise to equally robust modes of caring—it is just that they are significantly less likely to do so. indeed, while it is true that some extraordinary individuals might make all sorts of significant sacrifices to advance the good of a friend, friendships are typically marked by more reasonable forms of cost-taking and by less robust modes of caring. the same is true of romantic relationships. while some people would stick with a romantic partner under almost any circumstances, most romantic relationships are contingent on many facts remaining true, such as shared interests, physical attractiveness, financial stability, loyalty, and so and so forth. the modes of love we see in these other loving relationships are therefore not typically as robust as parental love. for those adults who want to maximize their chance of experiencing robust forms of caring, there 21 and of course, such disposition for caring needs to be expressed in the context of an intimate relationship because the relationship itself provides the necessary conditions for effectively acting on the disposition when the need arises. why the family? 217 leap 3 (2015) will be an interest in parenting. a strong interest in caring about someone else robustly within the context of an intimate relationship then gets us a dual-interest off the ground. 5. dispersed authority and the good of children in the previous section i sketched an account that meets the two desiderata motivated earlier: it captures the vulnerability of childhood but it is not exhausted by it. it also makes sense of parent-child relationships in nonl ibera l fa m i ly contex ts, where pa rents m ig ht lack t he w i l l i ng ness i n seeing to it that their child becomes sufficiently autonomous but still have the disposition to take on a great deal of costs to advance many of her other interests. before concluding, i shall briefly discuss some of the implications of justifying the parent-child relationship by appealing to the robust mode of caring constitutive of parental love. one implication is that a parental love account can leave open how much authority parents can legitimately exercise in a context of the parent-child relationship. so while brighouse and swift vindicated the current model of parental authority by arguing that parents had an interest in exercising authority over children, the account sketched above would be compatible with a world where parents exercised much less authorit y over children, and where governments would exercise much more through the provision of a myriad of compulsory public services. for those who worry about growing levels of child obesity and the ill effects on children of the anti-vaccination movement, for instance, the parental love account comes with the benefit of not giving parental authority any justificatory role, and so being much more congenial to state interference in areas such as children’s diet and immunization, for instance.22 a second, and related, implication is that a parental love account does not make the right to parent conditional on a parents’ ability to foster a capacit y for autonomy. it therefore endorses the claim that the right of children to become autonomous correlate instead with an obligation on the part of the state to create a neutral system of compulsory public education where children can develop the agential skills required for autonomy without being steered towards any particular conception of the good (ferracioli and terlazzo 2014; ferracioli 2015). now, of course, it is true that such an account 22 indeed, whilst brighouse and swift discussion leads to the odd result that adults who do not value autonomy lack the right to parent, a parental love account can recognize that their interest in parenting is on a par with the interest of those who do value autonomy, while still limiting the ability of all parents to deny their children the opportunity to acquire the agential skills required for autonomy. 218 luara ferracioli leap 3 (2015) would still make the right to parent conditional on the parent not actively interfering with the fostering of autonomy by the state, and so there would still be a negative duty on the part of the parent not to deny one’s child access to public education. the important point to recognize here, however, is that there is an important difference between expecting a parent to respect state interference in the family via a system of compulsory public education, and expecting her to foster herself a capacity she finds detrimental to the pursuit of the good life. the latter, but not the former, is simply overly demanding. a third and final implication of appealing to the value of parental love when justif ying the family is that such an account is, in principle, more liberal with regard to the number of parents a child can potentially have. recall how brighouse and sw ift emphasize that their account can only support a small number of parents for each child (at some stage in the discussion, they even stipulate that there should be no more than four parents in a child’s life (brighouse and swift 2014: 71)). as they explain, “intimate but authoritative relationships bet ween children and a small nu mber of pa r t icu la r adu lts, relat ionsh ips i n wh ich t he adu lts have considerable discretion over the details of how the children are raised, is t he best a rra ngement for ra ising chi ldren, ta k ing into account a l l t he interests at stake” (brighouse and swift 2014: xii). a parental love account, on the other hand, allows for more dispersed authority among parties who care robustly for a child, and so, in principle, allows for more than four parents (but as brighouse and swift recognize, the question of which adults should parent each child is a separate and independent question (brighouse and swift 2014: 49)). and in fact, this is already taking place with modern fa mi ly a rra ngements where chi ldren a re loved deeply by t heir pa rents, stepparents, and godparents. insofar as it is feasible and desirable for the child to enjoy a loving relationship with each one of them, it seems odd (if not somewhat disrespectful to the child) to artificially limit the size of the family just so that each adult can exercise more authority over her life. 6. conclusion in this essay i have engaged with the question of “why is it good for children to be raised by parents, and good for parents to raise children” (brighouse and swift 2014: ix). and in particular, i have asked whether brighouse and swift answer to this question delivers a successful justification of the parentchild relationship. w hile i have argued that their account fails on t wo desiderata and that an account in the vicinity might be superior, i believe the fiduciary account still stands out for helping us make significant progress on the foundational question of what is so special about the family. why the family? 219 leap 3 (2015) bibliography blustein, j., 1982: parents and children: the ethics of the family, oxford university press. brighouse, h., and swift, a., 2006: “parents’ rights and the value of the family”, ethics 117: 80-108. — 2014: family values, princeton: princeton university press. clayton, m., 2006: justice and legitimacy in upbringing, oxford: oxford university press. cowden, m., 2012: “what’s love got to do with it? why a child does not have a right to be loved”, critical review of international social and political philosophy 15: 325-345. ferracioli, l., and terlazzo, r., 2014: “educating for autonomy: liberalism and autonomy in the capabilities approach”, ethical theory and moral practice 17: 443-455. ferracioli, l. 2014: “the state’s duty to ensure children are loved”, journal of ethics and social philosophy 8: 1-19. — 2015: “the anarchist’s myth: autonomy, children and state legitimacy”, hypatia 30: 370-385. gheaus, a., 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-455. hall, b., 1999: “the origin of parental rights”, public affairs quarterly 13: 73-82 vallentyne, p., 2003: “the rights and duties of childrearing”, in william and mary bill of rights journal 11: 991-1009. macleod, c., 2010: “parental responsibilities in an unjust world”, in procreation and parenthood, eds. d. archard and d. benatar, 128-150, oxford: oxford university press. meyers, d. t., 1987: “personal autonomy and the paradox of feminine socialization”, journal of philosophy 84: 619-628. narayan, u., 1999: “family ties: rethinking parental claims in the light of surrogacy and custody”, in having and raising children: unconventional families, hard choices, and the social good, eds. u. narayan and j. bartkowiak, 65-86, university park, pa: the pennsylvania state university press. pettit, p., 2008: “freedom and probabilit y: a comment on goodin and jackson”, philosophy & public affairs 36: 206-220. rawls, j., 1999: a theory of justice, rev. ed., cambridge, ma: harvard university press. leap 3 (2015) advantage, authority, autonomy and continuity: a response to ferracioli, gheaus and stroud h a r ry br ighouse university of wisconsin-madison a da m s w if t university of warwick abstract we address three critiques of our book family values: the ethics of parent-child relationships (brighouse and swift 2014), published simultaneously with this reply. in response to stroud (2016), we emphasize the specificity of parents’ rights, and the modesty of our claims about them, challenging her laissez faire position on parents' right to confer advantage on their children, and stressing the merely illustrative role that we give to fair equality of opportunity. in response to gheaus (2016), we clarify our “dual-interest” approach and the content of the adult interest in parenting, while defending the claim that that interest is releva nt to t he justif ication of a rra ngements for t he ra ising of children. in response to ferracioli (2016), we explain our views about how many adults may properly parent a child, the significance of ch i ld ren’s autonomy, a nd t he va lue of cont i nu i ng relat ionsh ips between parents and their adult children. keywords: family, children, right to parent, autonomy introduction it is gratifying to have our views subjected to such careful attention. much of our response will consist of clarification—explaining what we are a nd, perhaps more impor ta nt ly, a re not t r y ing to do. our a rg ument is wideranging in that we address a series of issues concerning the ethics of parentchild relationships that are often treated separately, and ambitious in that we offer a novel and unified theoretical approach to those topics. but in other ways it is modest, more modest than it has seemed to some readers. 221 harry brighouse & adam swift leap 3 (2015) bet ween them, our three critics offer a varied and contrasting set of objections. stroud (2016) focuses on the egalitarian or distributive dimension of our argument, challenging our views about the limited scope of parents’ rights to confer advantage on their children. gheaus (2016) addresses rather what we call the liberal challenge to the family: issues concerning the moral basis of the right to parent and of parents’ rights over their children. while stroud is enthusiastic about our “expanding the discourse around the family by high light ing t he interests of (wou ld-be) parents” (2016 : 1, orig ina l emphasis), it is precisely our willingness to give adults’ interests any role in justifying childrearing arrangements that troubles gheaus. ferracioli (2016), for her part, endorses a dual-interest approach like ours but thinks we have misidentified the interests! stroud raises the most general methodological questions. she generously credits us with some ‘game-changing insights and argumentative strategies’ (2016: 180) but it soon emerges that in her view we are playing the wrong game! so we begin by explaining what game we are and are not playing, and why we think it’s the right one. those explanations underlie our approach to parental partiality and parents’ rights to confer advantage on their children, which is the substantive aspect that stroud criticizes. they also provide a framework for discussing key issues raised in the other papers. it is precisely because there is something morally distinctive, sui generis we might say, about cla iming rights to cont rol a not her huma n being t hat gheaus is doubtful about our dual-interest account. our attempt to explain those rights depends on our specific conception of the parental role as fusing love and intimacy, on the one hand, and authority or control, on the other—a fusion that is challenged by both ferracioli and gheaus. 1. being specific stroud wonders both why we want a sui generis justification of parents’ rights and why we limit them to the minimum necessary. the answer is that we regard parents’ rights as distinctive, and distinctively problematic, in two ways that she appears not to. on the distributive side, parents’ rights and duties to act partially towards their children conf lict with ideals such as equality of opportunity; children will have better or worse prospects in life depending on their parents’ ability and willingness to confer advantage on them. this challenge demands an account of why exactly parents should be free to do things to, for, or with their children that benefit them relative to others, and what they should be free to do. the liberal challenge, on the other hand, arises from the fact that parent and child have distinct and sometimes conflicting interests, and children are vulnerable and non-consenting parties to the relationship. we need an explanation of why exactly adults advantage, authority, autonomy and continuity 222 leap 3 (2015) should have rights over children, which adults should have them, and what those rights should be. for us, then, the family raises specific justificatory questions that require specific responses, and explain why, for us, parents’ rights are the minimum compatible w ith the kind of parent-child relationship that w ill realize familial relationship goods for its participants. like many liberal theorists, we see relationships involving some people exercising authority over the lives of non-consenting others as prima facie problematic. that exercise requires justification, and limitation, because those subject to that authority can properly demand an account of why they should be, or should have been, subject to those people within that domain of decision. like many egalitarian theorists, we think that relationships creating inequalities of oppor t u n it y a re prima facie problemat ic. t hose i nequa l it ies requ i re justification, and limitation, because those on the wrong end of them can properly demand an account of why they should be worse off than others just because they were raised by different parents. to be sure, t he libera l cha l lenge is more distinctively problemat ic. controlling other non-consenting human beings requires special justification; that’s why parents’ rights to exercise authorit y over their children pose peculiar problems. indeed, they trouble gheaus enough for her to argue that “the claim to a right to control a child’s life must be grounded exclusively in the child’s interest, in which case there is no sui generis right to parent” (2016: 202). benefitting others, by contrast, is commonplace. people routinely act pa r t ia l ly in favor of pa r t icu la r ot hers—f riends, lovers, co-relig ionists, compatriots—and these other types of relationship might be invoked to justify their doing so. indeed, one might doubt that relationships of any kind are required to justify inequality-creating interactions. plausibly, there is a general prerogative—one that has nothing at all to do with relationships, valuable or other w ise—not only to pursue one’s self-interest but also to confer benefits on others in ways that depart from equality. indeed, conferring benefits on others might be part of what it is in one’s self-interest to do. stroud seems surprisingly unconcerned on both counts. for her (2016: 183), “one might doubt whether parents raising children requires a sui generis justification in terms of the distinctive values it realizes, as opposed to simply falling under a more general and less demanding moral schema… [b]eing a parent is something that a great many adults very much want to do with their life. if someone very much wants to do x with her life, one might think that alone creates a significant moral presumption in favor of allowing her to do x—regardless, it would seem, of x’s specific content, or of whether her (or anyone’s) doing x would realize important objective values”. 223 harry brighouse & adam swift leap 3 (2015) we are not sure quite what counts as a “presumption”, but for us—as for gheaus the specific content of x in the child-raising case puts the burden of justification on those claiming the right to engage in that particular activity. it is problematic to claim the right to control the current life, and inf luence the future life, of another human being by appeal to considerations other than that other’s own interests. according to stroud (2016: 184), “there is no issue facing us as a society, to be settled collectively, about how to bring up children: there are only individual adults who want to parent children”. as a claim about how parents should be allowed to raise their children this is false. our society is constantly making collective decisions on such controversial questions as what kind of discipline parents should be permitted to exercise, what forms of medical treatment they should be permitted to administer or obstruct, what kind of education they should be permitted or required to provide for their children. but it also looks mistaken as a claim about whether there should be parentchild relationships—or, according to our stipulation, “families”—at all. the mere fact that individual adults want to parent children is not sufficient to establish the moral propriety of their doing so. her view on the distributive side is also surprisingly laissez faire. readers may disagree with our view that parents do not have the right to bequeath substantial wealth to their children, but surely few will reject it so quickly. disclosing that an inheritance from her husband’s mother made possible the purchase of the vermont farmhouse in which she wrote the first draft of her paper, she writes (2016: 185): “she loved her son, and the rest of us, and we know she would be deeply gratified by all the new horizons her bequest has opened up for us. faced with this vivid awareness of what her bequest has made possible for her son and my family, i find it simply impossible to accept that my mother-in-law ought not to have been able to leave my husband that money: that it would violate nobody’s rights to prevent or prohibit people from doing any such thing”. let us assume that the sum in question was indeed justly her motherin-law’s in the first place; that she had the moral, and not merely the legal, right to any say over it. even so, it is strange to think that one could assess whether she had the right to bequeath it to her son merely by awareness, however v iv id, of t he va lue of t he bequest to her a nd its benef icia ries. suppose t hat t he state had ta xed t he in herita nce suf f icient ly to ma ke purchasing the farmhouse impossible. would awareness of what could have been enjoyed in the absence of that tax make such a constraint on the bequest similarly “impossible to accept”? advantage, authority, autonomy and continuity 224 leap 3 (2015) we a nd st roud, t hen, approach t hese mat ters f rom ver y d i f ferent perspectives. but we must also emphasize the limits of our ambition. the f lip side of our offering a sui generis treatment of parent-child relationships is that we do not address all the rights that adults may properly claim with respect to the children they parent; we confine ourselves to those that invoke the fact that the adult is the child’s parent. we want to know when “because i am your parent” is a good answer to the question “why do you have the right to do that to, or with, me?” we want to know when “because i am her parent” is a good answer to the question “w hy do you have the right to do that for her?” (see brighouse and swift 2014: 120). other good answers to such questions might be available. perhaps parents have permissions, deriving from sources other than the familial relationship, that permit them to pursue their own projects in ways that will affect what they may legitimately do, all things considered, by way of exercising authority over their children’s lives (see brighouse and swift 2014: 121-2). perhaps they have permissions to confer benefits on anybody they like, including their children, which derive from a more general moral schema of the kind that stroud mentions. it would be a different task to engage with those other justifications. as far as our theory of parents’ rights is concerned, we are interested only in what kinds of partiality, and what exercises of authority, can be justified specifically on the ground that the other person involved is a child one is parenting. so stroud is mistaken in attributing to us (2016: 182) the v iew that “if disallowing pa rents a cer ta in right or priv i lege wou ld not impede t he development of a f lourishing parent-child relationship, then that putative right or privilege stands exposed and undefended against any arguments that could be raised against it” [original emphasis]. the putative right or privilege stands, for us, exposed and undefended only against the kind of argument that appeals to the fact that the alleged right or privilege holder is the child’s parent. indeed, when assessing what, all things considered, they should be free to do with respect to their children, we acknowledge the relevance not only of parents’ other roles or statuses but also of more indirect factors such as incentive considerations (see brighouse and swift 2014: 130-1). our contribution on the distributive side pursues a suggestion from samuel scheff ler, for whom parental partiality raises, in a particular form, the general issue of the “distributive objection” to special responsibilities that arise in the context of valuable relationships: “the problem with such responsibi lit ies is … t hat t hey may confer unfa ir benef it. … [s]pecia l responsibilities give the participants in rewarding groups and relationships increased claims to one another’s assistance, while weakening the claims 225 harry brighouse & adam swift leap 3 (2015) that other people have on them”. scheffler (2003: 102) observes that his account “is compatible with the view that the strength of one’s responsibilities depends on the nature of the relationships that give rise to them, and on the degree of value that one has reason to attach to those relationships. as far as the content of the responsibilities is concerned, we may assume that this too depends on the nature of the relationships in question . . .” [added emphasis]. our aim is to put the parent-child relationship under the microscope while allowing that a host of other considerations will be relevant to questions of leg it imate pa renta l pa r t ia lit y, a l l t hings considered, in a ny pa r t icu la r circumstances. it is compatible with recognition both that other relationships may generate ot her dist ribut ive cla ims a nd t hat indiv idua ls may enjoy prerogatives to favor themselves and others in ways that make no reference to relationships at all.1 whether we are playing the right game, or even a game worth playing, depends, then, on how important it is to identify, and isolate, this particular kind of justification. in our view, parents’ rights to exercise authority over their children are t y pically and substantially defended by appeal to the specific thought that the adults in question are indeed the child’s parents. we acknowledge that rights to benefit children are, by contrast, more often presented in a more general frame: “it’s my money and i can do what i want with it. if i want to leave it to my children or spend it on their education, that’s up to me”. but even here, distinctively familial considerations are often invoked, especially in attempts to justify blocking egalitarian measures. (“my job is to promote my child’s interests; you violate my rights as a parent if you interfere with my capacity to do that by, for example, limiting bequest, or restricting my freedom to spend my resources on her education”.) the task of identifying and isolating “family values properly understood”, and thereby exposing as unwarranted many such normative appeals to “the family”, seems to us a game well worth the candle. 2. conferring advantage that remains true even if, as stroud (2016: 191-192) claims, “the prohibition not just of bequests, but of all the various ways in which parents might seek to use their superior financial resources to benefit their children (think private schooling), would have only an insignificant effect on the unequal distribution of prospects for desirable jobs, etc. across children. that is, parents’ direct use of money to benefit their children is—it turns out—a relatively minor contributor to inequality of opportunity (brighouse and 1 a “relationship goods” approach may be relevant to those also. for an initial schematic move in one particular direction, see brighouse and swift (2011). advantage, authority, autonomy and continuity 226 leap 3 (2015) swift allude to this at 31-32 and 125-127.)” she thinks (2016: 192) that this admission makes “overly optimistic” our claim that our “account of ‘family values properly understood’ … mitigates—massively mitigates—the conflict with equality” [original emphasis]. but any appearance of tension between these two claims is illusory; dispelling that illusion may help to clarify our aim further. the first is an empirical point about existing societies. given current reward schedules, and the mechanisms by which people reach their places in the distribution, the direct use of parents’ money to benefit children may indeed be less significant contributors to inequalities of opportunity, between children raised in different families, than parent-child interactions of the kind endorsed and protected by our theory. the second is an observation about the kind of society that would be compatible with our account: it is perfectly possible to respect, and promote, what is important and valuable about the family without allowing parent-child relationships to produce anything like the inequalities of opportunity that they currently do. one way of doing this would be by reducing the extent to which children who participate in those relationships also benefit, in other ways, from doing so—that extent depends on how other social institutions are designed (see brighouse and swift 2014: 33). at present, “family values” are often invoked to defend not only the interactions w ithin the relationships but also the conferral of external benefits that they currently involve. by rejecting the claim that parents (qua parents) have the right to confer advantage on their children in ways that conf lict w ith fair equalit y of opportunit y, we challenge that defense. the game is still worth the candle, we believe, even when we add a further caveat: although we invoke “familial relationship goods” to identif y the interests that ground parents’ rights, we are explicit that the rights we are talking about are prima facie only. indeed, strictly speaking, the category of “familial relationship goods” is intended only to isolate those parent-child interactions that are “susceptible to justification by appeal to the parent-child relationship” (see brighouse and swift 2014: 146). some of those goods, and hence some of the interactions that produce them, are worthy of protection even when they conflict with fair equality of opportunity. others – such as the loving general promotion of one’s child’s interests – are not, we claim, weighty enough to warrant the cost in terms of that distributive value. just as one might have rights to benefit one’s children that do not derive specifically from the fact that one is their parent, so too one might not have, all things considered, the right to do things for them that one has, prima facie, in virtue of being their parent. perhaps, in a world where some lack what they need for mere survival, much of the time and energ y spent by 227 harry brighouse & adam swift leap 3 (2015) aff luent parents on the provision even of core familial relationship goods, for themselves and their children, exceeds the scope of any plausible right— especially where parents have more than one child. having identified a criterion for evaluating parent-child interactions as important contributors to valuable familial relationships, and so prima facie protected by parents’ rights, we offer a judgment about the considerations at stake in the conf lict between the advantage-conferring aspects of familial relationship goods, on t he one ha nd, a nd fa ir equa lit y of oppor tunit y, on t he ot her. but we explicitly refrain from offering judgments about the rights that parents have, all things considered, in circumstances (which we take to be our own) where the distributive ideal with which those rights might conf lict is more urgent than fair equality of opportunity (see brighouse and swift 2014: 143-5) we similarly refrain from considering what kinds of conferrals of advantage on children might fall under the parental dut y of care – the discharge of which is justified even where it conf licts with fair equality of opportunity – in circumstances where societal arrangements mean that those children face the risk, as adults, of falling into poverty or lacking medical treatment.2 a lot more is needed to get from (i) a criterion for identifying which parent-child interactions are and are not important enough to be worth protecting even where they conf lict with fair equality of opportunity to (ii) all things considered evaluations of particular prescriptions—whether political policies or indiv idual actions—in our current circumstances. indeed, a lot more is needed even, more modestly, to identify the precise content of parents’ rights in those circumstances. stroud doubts that fair equality of opportunity can bear the weight we put on it. we invoke that distributive principle as a criterion for distinguishing between different types of familial relationship goods. the “core” goods, as we term them, are important enough to be worthy of protection even when that undermines fair equality of opportunity. (though, as just noted, parents would have no complaint were institutions to be designed in such a way that that conflict was reduced or even eliminated.) but the good of generally having one’s interests promoted by a loving parent is not, we say, important enough to be worthy of similar protection; it should y ield to children’s interest in competing on fair terms with others. we agree with her that fair equality of opportunity is not a hugely weighty principle—we emphasize its limitations, and the importance of other distributive values, several times (see brighouse and swift, 2014: 33-5, 38-45, 143-8). maybe we are wrong to claim that, were it the only distributive consideration at stake, it could serve as a constraint on interactions in which the parent is lovingly motivated generally to further 2 for remarks on this issue in the specific case of school choice, see swift (2003: 119125). brighouse and swift (2014) attempts no analogous discussion of the more general issue. advantage, authority, autonomy and continuity 228 leap 3 (2015) the child’s interests. if so, that would be an objection to our proposed particular weighting of the conflicting values, not to our methodological approach. but we should also point out that our account of the core familial relationship goods leaves plenty of room for parental spontaneity and discretion in the way that they relate to their children (see brighouse and swift 2014: 140-3). that, combined with the recognition that loving parents will be spontaneously motivated to benefit their children quite generally, seems to us to leave sufficient room for the concern in question. in so far as the things that parents do to benefit their children are done as an inev itable part of a hea lt hy lov i ng relat ionsh ip, t hey a re protected by ou r t heor y. aga i n, though, our view is that the familial relationship itself cannot plausibly be invoked to defend any resulting conferral of advantage that gives children better chances than they would enjoy under fair equality of opportunity. the fact that one is spontaneously motivated to benefit one’s children, and hea lt hy relat ionships require space for sponta neit y, ex pla ins why one should be free to act on those motivations, but prov ides no objection to societal attempts to limit, or even eliminate, the impact of those actions on children’s prospects of the kind with which fair equality of opportunity is concerned. 3. claiming authority according to gheaus (2016: 196), “a right to parent is an anomaly by liberal lights: liberals acknowledge no other entitlement to exercise power over another individual legitimized in part by reference to an interest—no matter how important—of the one exercising power”. our dual-interest theory— and our positing different grounds for the right to parent and the rights of parents—is an attempt to strike the right balance between the interests of the different participants in the relationship. but we need to be clear about what exactly it means to have a dual interest theory, and where exactly adults’ interests come into the picture. to clarif y our approach, and our attempt to strike the right balance between the interests at stake, notice that there are at least three somewhat different issues under discussion: i. how children should be raised. here our argument for the family – for parent-child relationships – defends that practice against alternatives such as their being reared by professionals in state run childrearing institutions. ii. the content of parents’ rights: what rights parents can properly claim with respect to their children in virtue of being those children’s 229 harry brighouse & adam swift leap 3 (2015) parents. one can know that children should be raised by parents without having a full specification of parents’ rights.3 here we challenge conventional views that grant parents extensive rights to confer advantage on their children and to shape their children’s values. iii. how to match up children and adults in families. one can know that children should be raised by parents and what rights their parents should have without knowing who should parent, or by parented by, whom. here, inter alia, we reject both the view that genetic connection establishes an adult’s claim to parent a child and the claim that children have a right to be parented by the best available parent. in our view, different considerations are relevant to addressing these different issues. with regard to (ii), the content of parents’ rights, our account is exclusively child-centered. the rights in question are those needed properly to discharge the role of parent, which role is itself entirely fiduciary. but it’s a separate question, of type (iii), who has the right to be a parent, and our answer to that question invokes the adult interest in fulfilling the role (see brighouse and swift 2014: 121). understanding this position depends on keeping in mind the specific point with which we started: that parents’ rights are specifically the rights one has qua parent. the right to parent, by contrast, is one that one has, if one has it, simply as an adult. clarif ying the structure of our view does not show it is valid, or even coherent, but before moving on to that challenge, we can illustrate it further by attempting to address one of gheaus’ concerns. she is troubled, inter alia, by the right of parents to exclude others from having close relationships with their children, and attributes to us the view that parental authority includes a right to exclude those others “for reasons other than the protection of the child’s interest” (2016: 202). but, for us, the duty on the part of others not to undermine the relationship bet ween parent and child, like the right of parents to exclude others where it is likely to do so, derives entirely from children’s interests in the relationship (see brighouse and swift 2014: 87). it is precisely because—and only in so far as—it would be bad for children to have their familial relationships disrupted that parents have a right to exclude others from forming relationships with their children. that right, like all parents’ rights, is limited by, and justified in terms of, that fiduciary consideration. this is consistent with children having interests in relationships with other adults and indeed with facilitating such relationships being part 3 of course this is not an entirely separate enterprise. to justif y the family just is to justif y a child-raising arrangement in which particular adults have certain rights over the children they parent (see brighouse and sw ift, 2014: 86-7). still, the detailed and careful specification of the rights that one has, qua parent, is sensibly conceived as a further task, to be carried out after one has done enough to answer the first two questions. advantage, authority, autonomy and continuity 230 leap 3 (2015) of parents’ fiduciary role. gheaus may object that the right to exclude is not properly characterized as a right one that one has qua parent. rather, she might suggest, it should be seen as an aspect of the right to parent. after all the right to parent includes the right to exclude others. something of this kind, indeed, is true of all parents’ rights: the relationship involves various rights (and duties), so in claiming the right to parent one is claiming the rights of a parent. if, as we think, adults’ interests are relevant to deciding who has the former, then they are obviously relevant to deciding who gets the latter. so adult interests do indeed come into the story that explains why they have the right to exclude others from relationships with particular children; they come in as considerations taken into account by the procedure that grants to adults the (entirely fiduciary) rights that they have with respect to the children they parent. gheaus may yet be right to reject our view: we have not yet defended the claim that adults’ interests are indeed relevant considerations. but we doubt that those adults who, as a result of the allocation, are excluded from relationships with those particular children, have a valid complaint. their exclusion is the outcome of the right way of deciding who should get to exclude. let’s think about gheaus’ refugees. in her scenario, the refugees seem only to be refugees. there is a question about how they should be socialized into the host community but no suggestion that, having been socialized, they might in turn be involved in the socialization of future waves of refugees. suppose, instead, that migration is expected to continue, and that most of the current refugees, having been socialized, will come to have a strong interest in playing a socializing role for those future refugees. suppose we agree with gheaus (2016: 201) that “it is exclusively the refugees’ interests that determine the ideal way of socializing them”. which way of socializing refugees does in fact serve these refugees’ interests best? the answer will surely take into account not only their interests qua refugees, but also the future or prospective interest they are likely to develop, qua prospective socializers. imagine asking a refugee how she would like to be socialized: “would you rather be socialized in whatever way was best for you, or in a way that meant that your opportunit y to take your turn in socializing future refugees did not depend entirely on whether you were the best available socializer?” wouldn’t she reply: “i’m not sure i understand the question. the way of socializing me that’s best for me is the one that is best for me over my life as a whole. if it’s very valuable for me to have the opportunity to socialize future refugees, then the system of socializing that would be best for me, over my life as a whole, is unlikely to be one that makes that opportunity depend entirely on my being the best available socializer 231 harry brighouse & adam swift leap 3 (2015) of any one of them”. this is one sense in which a theory of childrearing arrangements could be “dual interest”: it takes into account people’s interests both as children and as the adults those children will become. if, as we claim, and gheaus does not deny, many adults do indeed have a weighty interest in parenting a child, then so do the children who are going to become those adults. they are the same people. on this interpretation, a child-centered view might be one that regarded as relevant only people’s interests as children, i.e. during the period of life in which they are children. such a position is deeply implausible. children’s interests in that sense are indeed important, and we agree that there has been a tendency to overemphasize the view of children as “adults in the making”, to see them too much as “becomings” and not enough as “beings”, and to underplay the value of what we might think of as the intrinsic or special goods of childhood. but, in standard cases, nobody would seriously suggest that we could assess childrearing practices by ignoring their formative impact on the adults that children become. indeed, this understanding of what it would mean for a theory to be child-centered would run contrary to standard usage in the literature. when philosophers talk about children’s interests in how they are raised, they include their developmental interests, their interest in developing capacities that will benefit them when they reach adulthood. those, like us, who frame their views in terms of a contrast between the childrearing interests of children and adults actually intend something different: by “children’s interests” we mean simply all those interests in how they are raised, including those that will affect their lives as adults, except the interest they will have, as adults, in how children are raised. we are interested in people’s lifetime interest in childrearing arrangements, but we separate out that particular adult interest for analytical purposes, and to show how giving it its proper weight qualifies the extent to which their other interests should determine those arrangements. a child-centred account, on this interpretation, would treat that adult interest as irrelevant to the question of how children should be raised. that too strikes us as implausible. to be clear, on this construal, a dual interest view does not guarantee that any particular child will be raised by the particular adult(s) who would in fact have been best for her over her lifetime. nor do children collectively have a claim to that particular allocation of adults to children that will be best, overall, for children over their lifetimes. the point is not that, once we have the right account of children’s lifetime interests, they do have a claim to the best available parents after all. rather, they should be parented according to childrearing arrangements—understood as a way of arranging the raising of children and, more specifically, a way of arranging who is parented by whom—that advantage, authority, autonomy and continuity 232 leap 3 (2015) is best for them over their lifetime. the rationale for a dual interest view is that the price, for children themselves, of being parented according to childrearing arrangements in which children are parented by their best available parents will be too high. discussing how much we owe children, matthew clayton (2015: 251) points out that: “what is best for us as children … may not be best for us taking our lives as a whole when we factor in the costs of fulfilling the duty to provide the best childhood for any offspring we might have”. similarly, the way of arranging the raising of children that is best for us “as children” may not be best for us taking our lives as a whole, when we factor in the costs of fulfilling the duty to provide children with the best way of raising them “as children”. an entirely child-centered way of arranging the raising of children, in either of the senses we have identified, will be costly in two different ways. first, it could leave adults who have a weighty interest in parenting unable to do so simply because there would not be any children for whom their pa rent ing wou ld be best. second, less obv iously, a nd empirica l ly less plausibly, it could require adults who have no interest in parenting—indeed whose lives would go much worse—to serve in that role, simply because, as it happened, en l ist i ng t hei r ser v ices wou ld be opt i ma l for ch i ld ren. thinking about people’s interests over the life course, this surely gets the intra-individual balance of interests wrong. what about a child who will never reach adulthood, so has no interest in being able to parent? it might seem that her interests are decisive against the claims of any would-be parents. but what drives our intuition in that case may be not the fact that she is a child but rather that her life’s shortness, and her failure to develop into adulthood, mean that she will be so badly off, on a lifetime view, that her interests during the short time that she has should be regarded as decisive. think instead about children whose lives w ill other w ise go normally, but who, as it happens, have no interest in themselves becoming parents. it is true that we cannot say to them that their lifetime interests are better protected by a way of arranging childrearing that gives some weight to the adult interest in parenting. but it is not clear to us why the interests of adults who do have that interest should be ignored altogether. imagine a parent saying to her child: “i know that someone else would have done a better job of parenting you. i know, further, that you will not personally benefit from the way in which our societ y’s childrearing arrangements protect people’s interests in becoming parents. but i hope you agree that it was so wonderful for me to get to be your parent that you don’t have any complaint against me for parenting you, despite not being the person who would have parented you best, or, more relevantly, not being the parent you would have had under a system that regarded children’s 233 harry brighouse & adam swift leap 3 (2015) interests as the only ones that matter. after all, i was good enough”. of course there is a question about quite how much worse than the relevant alternative a parent could be before the child did indeed have a complaint; that is the quest ion of whet her “good enough” shou ld be const r ued in absolute or comparative terms (see shields 2016). but to resist gheaus’ objection we need only defend the v iew that adults’ interests should play some role in deciding childrearing arrangements. two considerations, both raised by gheaus’ example, might seem to lend support to the view that only children’s interests should count. one is the suggestion, more than hinted at by the analogy with refugees, that children are in a parlous state and in need of rescue. this would correspond to the thought that childhood is a “predicament”, an unfortunate state, certainly inferior to adulthood (schapiro 1999). suppose childhood is a predicament from which people need to be rescued. would it follow that they should be rescued in the way that was best for them, without any regard to the interests of the rescuers? when we think of refugees, of course, we typically imagine them to be not only in desperate need through no fault of their own but also victims of injustice. but unless we regard children as wronged simply by being brought into ex istence, we doubt t he a na log y holds. indeed, in standard rescue cases it’s not obvious that potential rescuers have to rescue in the best possible way, and with no regard to the costs, to them, of different ways of rescuing. in the case of children, we need to keep in mind that, for all we know, children may go on to have much better lives, overall, than those who parent them—even if their interests are not the only ones that determine how they are raised. with that clearly in mind, why should we only think about them when deciding how they should be raised? perhaps, however, the problem is specifically that the child is subject to the authority of the parent. she needs others to exercise control over her and, as we have said, there is something distinctively problematic about one person claiming a right to authority over another on grounds other than that other’s interests. this is what gheaus (2016: 200) calls ‘the republican response’: “if it were possible to promote the refugee’s current well-being and future autonomy without locking her into any particular relationship, then giving you—or another private individual—authority over her would be w rong because it wou ld ma ke her subject to (perhaps benevolent) domination”. this frames the point in relation to issue (i): should children be raised by parents (in families) at all? but it applies also to issue (iii). grant, for the sake of argument, that it is best for children to be raised in families. one might still think it objectionable, on republican grounds, to advantage, authority, autonomy and continuity 234 leap 3 (2015) subject particular children to the authority of particular adults except on the grounds that the matching-up of children to adults is optimal for the children.4 it is misleading to give too much emphasis to the idea that parents have a n interest in exercising aut horit y as such. gheaus is more ca ref u l, but ferracioli (2016: 217) claims that we vindicate “the current model of parental authority” by arguing that parents have an interest in “exercising authority over ch i ld ren”. ou r ex posit ion of t he adu lt i nterest empha si z es t he normative significance of the particular combination of features of the parenting relationship (see brighouse and swift 2014: 88-93). it’s valuable to play the fiduciary role, and to have responsibility for decisions affecting the child’s upbringing, in the context of a relationship with other distinctive features, which might be summarized as loving intimacy. controlling, or exercising authorit y, plays a key role in our analysis because this is the distinctively troubling aspect of the relationship, and the one that has led some theorists to develop entirely child-centered accounts. but that does not mean that it is the interest in controlling, or exercising authority, that does the work on the adult side. someone who wanted to parent in order to control or exercise authority over a child would be badly missing the point. both gheaus and ferracioli press us on the way in which our account of the parent-child relationship fuses intimacy and authority. we emphasize t he va lue to t he ch i ld of ex per ienci ng her pa rent a s bot h lov i ng a nd authoritative, as well as the adult interest in having some responsibility for a nd discret ion over how she conducts her relat ionship w it h her chi ld. (imagine the reading of prescribed bedtime stories as the dutiful execution 4 at the end of her paper, gheaus considers how the way that children come into the world might relate to the question of how they should be raised and, if parented, who should parent them. it is, as she says, surely an important disanalog y between children and her refugees that children already have connections of various kinds to particular adults. although she ta lks about biolog y, a n a na ly tica lly distinct—t hough empirica lly of ten associated— connection should perhaps be particularly salient to those worried by the idea of adults appealing to their own interests to justif y claims to parent children. w hat’s objectionable, for gheaus, is an adult claiming a parenting relationship with a child on the ground that the relationship will benefit the adult. in general terms, we might say, the adult is using the— non-consent i ng— ch i ld a s a mea ns to t he adu lt’s ends. if gheaus t h i n k s t hat wou ld be troublesome in a world where babies were brought by storks, she shou ld surely be much more concerned about a world, like our own, where babies are typically produced in order to serve the interests of those producing them. it seems less problematic to allow hosts’ socializing interests to influence how refugees are socialized than it is to allow adults’ interests to inf luence how children are raised when those adults have deliberately created the children and have done so in order to claim a parental relationship with them. that really does look like using children as a mea ns to one’s ow n ends. rat her t ha n a gestator y relationship helping to establish a right to raise a particular child, as she has elsewhere suggested (gheaus 2012), perhaps an adult’s interests should count less where she has deliberately created the being that now stands in need of rescue-by-authority from his predicament. 235 harry brighouse & adam swift leap 3 (2015) of state directives.) but interesting questions arise about the extent to which, and ways in which, these two features need to go together, and how they might come apart while preserving the essential core of the relationship. in thinking about this, it might be useful to distinguish micro-authority, understood as the day-to-day regulation, disciplining, and control of the chi ld, f rom macro-aut horit y, understood as t he ma k ing of big picture decisions, such as where the child goes to school, whether she eats meat, whether she attends religious services, and so on. we already insist that the weighty familial relationship goods at the heart of our account could be produced in parenting regimes that gave parents much less discretionary authority than they currently enjoy on macro-issues, so we think of ourselves as attempting to limit the authoritative dimension to the minimum necessary. those goods are surely hard to produce when parents are having to deny or conceal too much of themselves, or to raise their children in ways that they regard as deeply misguided. but we are in principle sympathetic to gheaus’ suggestion (2016: 202) that (macro) authority and intimacy might be disentangled in so far as that can be done without undue cost to relationship goods. like gheaus, ferracioli objects to our claim that both adults and children have an interest in the adult simultaneously loving, caring for, and having considerable authority over, the child. the family as we understand it is coercive, t he pa rent exercising power over t he chi ld, a nd we cla im t hat ch i ld ren need at lea st one person who both loves t hem a nd exercises discipline over them. children need one person to love them because being loved is a precondition for their healthy emotional, moral, cognitive, and even physical development. they—especially when they are very young— need someone who disciplines them because they are inexperienced in the world (they do not, for example, know what is dangerous) and lack the kind of self-control necessary f luently to exercise agency. and they need these roles to be played by a single person because that person will then more successfully guide them understand and regulate their emotional reactions to the world and develop the tendency to react appropriately to it. someone who disciplines them w ithout lov ing them or being loved by them may, perhaps, be able to get them to comply with commands through fear, or charisma, but the important developmental aim of disciplining a child is not to secure their compliance in the moment, but to get them, over time, to internalize disciplinary regulation. this is one reason why children can only have a limited number of parents—we don’t know the number, but in the book we suggest that four might be the limit. ferracioli sees this as a drawback, and poses an alternative that would allow for “more dispersed authority among parties who care robustly for a child, and so, in principle, allows for more than four parents”. for her (2016: advantage, authority, autonomy and continuity 236 leap 3 (2015) 218), “this is already taking place with modern family arrangements where children are loved deeply by their parents, stepparents and godparents … it seems odd to artificially limit the size of the family just so that each adult can exercise more authority over her life”. our suggestion that a child cannot have more than four parents is a conjecture, not a stipulation. we just don’t know how many parents (in the sense of lovers who also discipline) a child can have. but too many—and we suspect that five would be too many—carries risks. first the child may not receive sufficiently harmonized information about how to interpret and interact with the world. adults have different parenting styles, conveying different messages; though all five may discipline the child well, for example, her development may be impaired by too many mixed signals. second, she may not be well enough cared for, because the coordination costs escalate as the number of caregivers increases. consider a typical day with a toddler. you look after the toddler for 6 hours, and then a second parent takes over while you go to work for a while. to look after the toddler well the second parent needs a good deal of information—what mood is she in today? how might it affect her behavior? when did she last eat and did she eat well? is a tooth bothering her? did she nap well, or not at all? has anything happened that might produce a delayed reaction? it is easier to convey this information well if the other parent has spent a good deal of time with her recently; pa r t ly because he t hen ha s a good dea l of t he necessa r y backg rou nd information about the child, but also because his skills of caring for her are still in good shape. the more transitions the child makes among adults, the leakier the information bucket, and the rustier the carers’ skills. finally, as the number of parents with authority increases, the potential for disputes about what the interests of the child are and how to meet them escalates, as do the costs of resolving them, while the prospect of resolution diminishes. already, with just two parents, this can be difficult. the reason to limit the number of parents, then, is not so that any individual can exercise more authority over a child’s life, but so that children’s interests can be better realized all that said, our claim that parents rightfully have authority over their children does not imply a vision of a cramped, socially isolated, nuclear family. it is in children’s interests that parents exercise considerable authority over them, and others must be careful not to undermine the parent-child relat ionsh ip. but over t he cou rse of t hei r ch i ld hoods ch i ld ren have a profound interest in having relationships with a variety of suitable adults: it helps them to see alternative ways of being an adult, and alternative ways of dealing with the world, giving them resources to ref lect on who they really are, what they really value, and how to conduct themselves. parents have a duty to facilitate and encourage those relationships (see gheaus 2011). 237 harry brighouse & adam swift leap 3 (2015) 4. accomodating pluralism fer raciol i proposes t wo desiderata for a just i f icat ion of t he fa m i ly : it should account for the value of the family over the life-course (2016: 201212); and it should be pluralistic, in that it should be able to justify the family in “non-liberal cultural contexts” (2016: 212-214). our theor y, she says, satisfies neither. it fails on the first because it focuses on relationship goods produced by the interactions between parent and child during the latter’s childhood; those goods are, for the most part, no longer produced once the child has become an independent adult. it fails on the second because of its emphasis on parents’ obligation to facilitate their child’s autonomy; parents in some non-libera l cu ltura l contex ts a re indif ferent or host i le to t he development of autonomy but st i l l “ma nage to enjoy a g reat deg ree of intimacy, love and af fection w it h t heir children, and … t he lives of a ll parties go much better as a result of partaking in such loving relationships” (2016: 213). let’s start with pluralism. ferracioli (2016: 213) claims that we are “too quick in assuming that parents are typically capable and willing to ensure that their child develop the agential skills needed to make their own life choices…” and “fail to see that the right of children in becoming sufficiently autonomous can instead correlate with a duty on the part of the state to create a neutral system of compulsory public education” (2016: 213-214). but we assume neither that parents will be motivated to facilitate autonomy nor that, even if so motivated, they will be able to do so without a cooperative environment, such as the right kind of schooling and a reasonably f luid and pluralistic culture. w hen the environment is not supportive – when, for example, adequate schooling is unavailable, or, as for some black families in some american cities, access to it puts children in physical danger—parents are raising children in non-ideal circumstances. as we have said, we make no attempt at the complex task of weighing the different considerations that apply to parents in such circumstances. nevertheless, in liberal societies, autonomy is an important achievement, and parents who successfully resist t he development of t heir chi ldren’s autonomy in a libera l societ y a re w ronging those children. more, they are losing something valuable for themselves—the challenge of raising a child to independence, aiming to enable her to separate herself from them, while hoping that, nevertheless, they can remain close. the value of autonomy—and of raising a child to be autonomous—enable us to say something about what is wrong with illiberal societies and societies that, although not illiberal, permit environments in which parents’ concern for their children’s wellbeing rightly inclines them not to facilitate their advantage, authority, autonomy and continuity 238 leap 3 (2015) children’s autonomy. one thing that is wrong is just this: that they make it harder, or dangerous, for children to become autonomous, and make it harder, or wrong, for parents to experience the good of raising a child to become autonomous. it also enables us to say something about what parents do wrong when unduly insistent that their child “uncritically endorse what they take to be deep truths about the world” (ferracioli 2016: 213). does our theor y justif y the family in non-liberal cultural contexts? assume t hat non-libera l contex ts a re cha racteri zed by indif ference or hostility to autonomy: parents do not aim to make their children autonomous and independent, and the social environment does not take up the slack, as it were, so autonomy is neither valued as an aim, nor an achieved as an outcome. in such contexts the family can still be valuable, and can still be justified, and our theory does explain why: parents can still oversee children’s development, and both parties can enjoy intimate, close, loving relationships and enjoy familial relationship goods. but both parties are also missing something of great value—a v ital developmental interest of children is neglected, and parents miss out on the distinctively rewarding challenge of acting as a fiduciary for someone whom one is raising to full independence of thought and word and deed. someone who did not value autonomy, or was even hostile to it, could accept a great deal of our theory, while rejecting the claims we make about t he impor ta nce of autonomy for chi ldren, a nd t he dist inct ive va lue of fostering autonomy as part of the fiduciary obligation toward children. she would offer different content for children’s interests, and hence for the adult interest in acting as a child’s fiduciary, but could nevertheless think we have said enough that is right both to justify the family, and to vindicate, for example, our analysis of legitimate parental partiality. 5. valuing continuity fer r ac iol i’s second desider at u m for a successf u l ju st i f ic at ion of t he parent-child relationship is that it can explain the continuing value of the r el at ion s h ip b et w e en pa r ent a nd c h i ld a f ter t he c h i ld h a s r e ac he d adulthood. while we agree that there is great value to such relationships— and we think our theory explains it—we reject her view if it is understood as proposing an adequacy condition on a justification of the family. we nevertheless found this objection helpful in clarifying what the project of justifying the family is. the task of justifying the family is different from the task of exposing all of the good-making features of the family. ferracioli’s description of the 239 harry brighouse & adam swift leap 3 (2015) value of continuing relationships bet ween parent and child beyond the latter’s childhood does, indeed, seem to us to be a description of something very good in human relationships, that the family (or something very like it) makes possible. in justifying the family, though, we are trying to justify a distinctive arrangement that, given its unusual character and, in particular, its assignment of considerable discretion in the use of coercive power to some human beings over others who are asymmetrically dependent and vulnerable, appears to call for justification. a principle of parsimony seems in order: we should invoke just those good-making features that are needed in order to do the justificatory work, and no more. we do think that the good of continuing relationships in adulthood adds to the value of the family, but invoking it to justify arrangements of this kind is not necessary and, in fact, probably does no work, because the relationship it refers to is among consenting adults. anticipating this response, ferracioli (2016: 212) rejects it as follows: “one reason why this response is unsatisfactory is that the inability of the child to exit a parent-child relationship is not a necessary feature of this sort of relationship and that it is possible for there to be intimate relationships where the child actually enjoys exit options. these are, for instance, relationships where a parent lacks custody rights over the child and decides to give the child a lot of space to choose whether or not, and to what extent, to partake in the relationship. one might think that the enjoyment of exit options on the part of the child dispels the need for justification in such cases, but i take it that the degree of int imacy involved at a l l stages of t he relat ionship, a nd t he mere possibi lit y t hat societ y cou ld be a rra nged dif ferent ly, suf f ice for ma k i ng t he pa rent-ch i ld relat ionsh ip, at its most genera l level, proper subject of philosophical justification. it would therefore be unsatisf y ing if brighouse and sw ift were solely in the business of explaining why it is permissible for there to be relationships between competent parents and children where the latter have no prospect of exiting the relationship”. we are not sure whether we understand the case properly. if the child had exit options from the start of the relationship it seems to us that it just isn’t a parent-child relationship. is the child mature enough that a responsible parent is justified in giving her exit options, as opposed to on the one hand making the choice for her (because he is in the rare situation of having good reasons to believe she will be much better off without him) or, on the other, giving her temporary space to spend less time with him? if so, then it is not clear that he is, any longer, a parent to her because, even before she exits, he is no longer playing the fiduciary role. in any case, we agree with ferracioli advantage, authority, autonomy and continuity 240 leap 3 (2015) that something is going wrong in this relationship, and we agree that our theory does not explain what is going wrong, but we are not unsatisfied with this. that said, we think that our justification of the family does help to explain the value of the continuation of the parent-child relationship into the child’s adulthood. in general, it is good for people to continue intimate relationships with others, and it is easy to see why, for the parent, continued intimacy with an adult whom he has raised from childhood would be especially good. it is similarly easy to see why the loss of that relationship might be devastating. for the child, continuing into adulthood a relationship with someone who has overseen her development, but from whom she is now independent, is distinctively valuable, and in ways that go beyond the disorientation likely to result from the ending of the relationship. concluding comment it is delight f u l to have one’s work read at a l l. to have it read ca ref u l ly, thoughtfully, and engaged with by excellent critics is an honor. we’re grateful to the editors for prompting the critics and to the critics for giving us such rich food for thought. bibliography brighouse, h., and a. swift, 2011: “legitimate partiality: parents and patriots”, in arguing for justice: essays for philippe van parijs, ed. a, gosseries and y. vanderborght, 115-24, louvain-la-neuve: presses universitaires de louvain. — 2014: family values: the ethics of parent-child relationships, princeton nj: princeton university press. clayton, m., 2015: “how much do we owe to children?”, in permissible progeny?, ed. s. hannan et al., 246-64, new york: oxford university press. ferracioli, l., 2016: “why the family?”, law, ethics and philosophy 3: 205-219 gheaus, a., 2011: “arguments for nonparental care for children”, social theory and practice 37:483-509. — 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-55. — 2016: “is there a right to parent?”, law, ethics and philosophy 3:193-204 schapiro, t., 1999: “what is a child?”, ethics 109: 715-38. scheffler, s., 2003: boundaries and allegiances: problems of justice and responsibility in liberal thought, oxford: oxford university press. shields, l., 2016: “how bad can a good enough parent be?”, canadian journal of philosophy: published online, doi 10.1080/00455091.2016.1148306. stroud, s., “egalitarian family values?”, law, ethics and philosophy 3: 180-192 swift, a., 2003: how not to be a hypocrite: school choice for the morally perplexed parent, london: routledge. leap 3 (2015) leap 5 2017 law, ethics and philosophy leap david v. axelsen mathieu doucet robert e. goodin siba harb robert huseby desiree lim chris mills lasse nielsen tom parr julie l. rose liam shields lucas stanczyk rosa terlazzo pierre-étienne vandamme jeppe von platz nielle zwarthoed leap law, ethics and philosophy law, ethics and philosophy (leap) leap is a new peer-reviewed, open access international journal dedicated to work in ethics, legal theory, and social and political philosophy. it welcomes clear, rigorous and original submissions that address concrete issues of public concern as well as more abstract theoretical questions. it also has the distinctive aims of (a) fostering work drawing on a variety of disciplines within the social and natural sciences, including biology, economics, history, and psychology; and (b) promoting dialogue between the anglophone and non-anglophone worlds. we invite submissions of articles up to 10,000 words, discussion notes up to 5,000 words, and replies and exchanges not exceeding 3,000 words. all published submissions will have undergone blind review, and the journal will notify authors of submitted pieces about the progress of their submission within six weeks. although leap accepts exclusively submissions in english, the journal strongly encourages submissions from authors who also write in languages other than english, and will always strive to ensure that their work is assessed on the basis of its content and not primarily its mode of expression. where necessary the editorial process provides authors with guidance regarding matters of english style. the journal is published by pompeu fabra university and hosted by raco, the catalan repository of open access journals (http://raco.cat/index.php/leap) enquiries regarding the journal may be directed to: leap.journal@upf.edu. http://raco.cat/index.php/leap mailto:%20leap.journal%40upf.edu?subject= leap law, ethics and philosophy vol. 5 2017 editorial board editors paula casal, icrea & pompeu fabra university iñigo gonzález-ricoy, university of barcelona josé luis martí, pompeu fabra university serena olsaretti, icrea & pompeu fabra university hugo seleme, national university of córdoba, argentina andrew williams, icrea & pompeu fabra university associate editors ingvild almås, norwegian school of economics samantha besson, fribourg university jordi ferrer, university of girona ernesto garzón valdés, johannes gutenberg university, mainz cristina lafont, northwestern university genoveva martí, icrea & university of barcelona lukas meyer, university of graz josé juan moreso, pompeu fabra university félix ovejero, university of barcelona zofia stemplowska, university of oxford editorial board aulis aarnio, tampere university lucy allais, university of the witwatersrand elizabeth anderson, university of michigan richard arneson, university of california, san diego gustaf arrhenius, stockholm university michael baurmann, university of düsseldorf juan carlos bayón, autonomous university, madrid carmen bevia, autonomous university, barcelona david bilchitz, south african institute for advanced constitutional, public, human rights, and international law geoffrey brennan, university of north carolina at chapel hill ian carter, university of pavia joseph chan, university of hong kong thomas christiano, university of arizona bruno celano, university of palermo antony duff, university of minnesota john ferejohn, new york university víctor ferreres, pompeu fabra university roberto gargarella, university of buenos aires robert goodin, australian national university axel gosseries, university of louvain lori gruen, wesleyan university riccardo guastini, genova university alon harel, hebrew university of jerusalem daniel hausman, university of wisconsinmadison jános kis, central european university matthew kramer, university of cambridge david lefkowitz, university of richmond kasper lippert-rasmussen, aarhus university frank lovett, washington university in st. louis stephen macedo, princeton university jeff mcmahan, rutgers university jane mansbridge, harvard university adèle mercier, queens university, ontario liam murphy, new york university ingmar persson, university of gothenburg philip pettit, princeton university thomas pogge, yale university wlodek rabinowicz, lund university joseph raz, columbia university debra satz, stanford university julian savulescu, university of oxford seana shiffrin, university of california, los angeles anna stilz, princeton university victor tadros, university of warwick larry temkin, rutgers university jeffrey tulis, university of texas at austin philippe van parijs, university of louvain georgia warnke, university of california, riverside ruth zimmerling, johannes gutenberg university mainz pompeu fabra university http://www.raco.cat/index.php/leap http://www.raco.cat/index.php/leap contents law, ethics and philosophy (leap) vol. 5, 2017 page 1. just say no (for now): the ethics of illegal drug use ..................... 9 m at h i eu doucet ............................................................... d oi : 10. 310 0 9/l e a p. 2017.v 5.01 symposium on julie rose’s free time 2. symposium on julie rose’s free time: an introduction .................. 31 tom parr d oi : 10. 310 0 9/l e a p. 2017.v 5.02 3. a précis of free time ......................................................................... 33 julie l. rose d oi : 10. 310 0 9/l e a p. 2017.v 5.03 4. freeing up time ................................................................................ 37 robert e. goodin d oi : 10. 310 0 9/l e a p. 2017.v 5.0 4 5. free time, freedom, and fairness .................................................... 47 jeppe von platz d oi : 10. 310 0 9/l e a p. 2017.v 5.0 5 6. free time and economic class ......................................................... 62 lucas stanczyk d oi : 10. 310 0 9/l e a p. 2017.v 5.0 6 7. domination and the (instrumental) case for free time ................ 74 desiree lim d oi : 10. 310 0 9/l e a p. 2017.v 5.07 page contents 6 8. entitlement and free time ............................................................... 91 rosa terlazzo d oi : 10. 310 0 9/l e a p. 2017.v 5.0 8 9. justice and the resource of time: reply to goodin, terlazzo, von platz, stanczyk, and lim ................ 105 julie l. rose d oi : 10. 310 0 9/l e a p. 2017.v 5.0 9 symposium on liam shields' just enough 10. introduction ..................................................................................... 123 david v. a xelsen, lasse nielsen, & pierre-étienne vandamme d oi : 10. 310 0 9/l e a p. 2017.v 5.10 11. why not more equality? sufficientarianism and inequalities above the threshold .............. 130 pierre-étienne vandamme d oi : 10. 310 0 9/l e a p. 2017.v 5.11 12. shielding sufficientarianism from the shift .................................... 142 lasse nielsen d oi : 10. 310 0 9/l e a p. 2017.v 5.12 13. sufficient autonomy and satiable reasons .................................... 154 robert huseby d oi : 10. 310 0 9/l e a p. 2017.v 5.13 14. on the limits of the principle of sufficient autonomy ................... 164 chris mills d oi : 10. 310 0 9/l e a p. 2017.v 5.14 contents 7 page 15. the principle of sufficient autonomy and mandatory autonomy education .................................................... 175 danielle zwarthoed d oi : 10. 310 0 9/l e a p. 2017.v 5.15 16. sufficientarian parenting must be child-centered ........................ 189 anca gheaus d oi : 10. 310 0 9/l e a p. 2017.v 5.16 17. owing me, owing you: sufficiency, demandingness, and global justice ............................. 198 siba harb & david v. a xelsen d oi : 10. 310 0 9/l e a p. 2017.v 5.17 18. reply to critics ................................................................................. 210 liam shieldss d oi : 10. 310 0 9/l e a p. 2017.v 5.18 acknowledgments this issue of law, ethics and philosophy has been possible thanks to the ministerio de economía y competitividad de españa (mineco), the agencia estatal de investigación (aei) and the fondo europeo de desarrollo regional (feder), sponsors of justicia, legitimidad e instituciones globales, der2016-80471c2-2-r (aei/feder /ue) (pi1: paula casal, pi2: josé luís martí), which has funded the correction, proofreading, copy editing, and typesetting of this volume. it has also been funded by the european research council consolidator grant (648610) on justice and the family: an analysis of the normative significance of procreation and parenthood in a just society (pi: serena olsaretti). leap 5 (2017) just say no (for now): the ethics of illegal drug use1 m at h i eu douce t university of waterloo abstract the war on drugs is widely criticized as unjust. the idea that the laws prohibiting drugs are unjust can easily lead to the conclusion that those laws do not deserve our respect, so that our only moral reason to obey them f lows from a general moral obligation to obey the law, rather than from anything morally troubling about drug use itself. in this paper, i argue that this line of thinking is mistaken. i begin by arguing that the drug laws are indeed unjust. however, so long as they remain prohibited, i argue that we have strong moral reasons to avoid drug use. first, drug users are partly responsible for the violent and exploitative conditions in which many drugs are produced and distributed. second, the unequal ways in which drug laws are enforced make drug use by many an unethical exercise of privilege. these reasons do not depend on the existence of a general moral obligation to obey the law; we ought to refrain from illegal drug use even if prohibition is unjust and even if we have no general obligation to obey the law. in fact, drug laws turn out to represent an interesting exception case within the broader debate about this obligation, and i argue that it is the very injustice of the law that generates the reasons not to violate it. keywords: war on drugs, obligation, drugs, consumer ethics 1. introduction is it unethical to use illegal drugs? according to one way of thinking about this question, the answer depends on our views about the ethics of obedience to the law. we might think drug use is unethical because it is 1 thanks to lisa farlow, the audience at the 2014 canadian philosophical association meetings at brock university, and an anonymous reviewer for this journal for helpful comments on previous versions of this paper. d oi : 10. 310 0 9/l e a p. 2017.v 5.01 10 mathieu doucet leap 5 (2017) illegal, on the grounds that it is (typically) unethical to break the laws of a just state. on the other hand, we might think that drug prohibition is unjust, and therefore does not command our obedience. there is, however, another way of thinking about the question. rather than focusing on the ethics of drug use through the lens of the law, we might think instead of recreational drugs as popular consumer products. considered in this way, we can ask whether the purchase and consumption of illegal drugs is unethical, in much the same way we can ask whether it is ethical to purchase any other consumer product. many consumer goods are produced in harmful, exploitative, or environmentally damaging ways, and this raises important moral worries for consumers. the 2013 rana plaza garment factory collapse in bangladesh, for instance, brought the ethics of low-cost clothing into public consciousness; animal welfare activists have long argued that factory-farmed meat is unethical; and the environmental costs of gas-powered suvs, for example, make them targets of moral critique. this way of asking about the ethics of drug use does not presume that the most important element in the answer is their legal status. nonetheless, i argue that, considered simply as consumer products, we have strong moral reasons to refrain from the use of recreational drugs so long as they remain illegal. this is not because we have strong moral reasons not to break the law, but rather because drug prohibition contributes in an important way to the conditions that do make the purchase and use of recreational drugs unethical. section 2 argues that drug prohibition is unjust. for some, this means that the drug laws do not deserve our respect, and so drug use is not a significant moral issue. however, section 3 goes on to argue that so long as drugs remain illegal, there are strong moral reasons to avoid using them. this is for two distinct reasons. first, drug users are partly responsible for the violent and exploitative conditions in which many drugs are produced and distributed. second, the unequal ways in which drug laws are enforced make use by many into an unethical exercise of privilege. the fact that drugs are legally prohibited plays an important role in this argument, since the harmful conditions of production and distribution and the unequal enforcement are both generated by prohibition. however, the argument does not depend on the existence of a general moral obligation to obey the law: section 4 argues that we ought to refrain from illegal drug use even if prohibition is unjust and even if we have no general moral obligation to obey the laws of a just state. in fact, drug laws turn out to represent an interesting exception case within the broader debate about this obligation. regardless of whether we have such an obligation, we have just say no (for now): the ethics of illegal drug use 11 leap 5 (2017) strong moral reasons not to violate drug laws. finally, section 5 considers a range of potential objections to the argument. paradoxically, the very reasons that make drug laws unjust also give us strong moral reasons not to use illegal drugs. our strong moral reasons to avoid drugs arise not in spite of the injustice of the drug laws, but rather precisely because of those laws; in the absence of prohibition, drug use would be, at the very least, much less immoral (and perhaps not immoral at all). this gives us a reason both to avoid drugs while they are illegal, and to seek to overturn the prohibition of drugs, whether or not we wish to use them. 2. the injustice of prohibition there are many arguments that drug prohibition is unjust. some claim that drug use is a 'victimless crime', and so prohibition interferes with liberty. others point to the hypocrisy of governments banning most drugs out of a professed concern for health while permitting – and profiting from – the sale of alcohol and tobacco. while drugs can be very unhealthy, so too are many things that governments do not control with criminal sanctions (husak 2002, 2005). these arguments are powerful, but they are not my main focus.2 even if we set aside concerns about liberty and hypocrisy, existing drug laws are unjust because of the considerable harms they generate. drug prohibition is often justified on the grounds that drugs are harmful to users’ health. drug use can indeed cause significant harms, including death, and one powerful idea supporting prohibition is that it reduces overall rates of drug use, and so protects potential drug users from serious harm. however, proponents of the ‘harm reduction’ approach to drugs often point out that prohibition can exacerbate the health problems it is intended to address. prohibition does not put an end to drug use; in fact, the evidence from europe suggests that it does not even effectively reduce drug use, since decriminalization does not contribute to an increase in drug use (vuolo 2013). what prohibition does do is marginalize drug users, making them more vulnerable and less able to access health care and other social services. it can therefore increase the negative health impacts of drug use, even when rates of drug use decline (drucker 1999). advocates of harm reduction therefore frequently advocate for decriminalization in order to reduce the health impacts of drug use. if the justification for 2 two potential objections are that: 1) some liberties can be justifiably restricted to achieve important social goods, and drug prohibition may be an example of such a justified restriction; and 2) inconsistencies can be resolved in more than one way. perhaps the real problem is the legal status of alcohol, not the prohibition of other drugs. 12 mathieu doucet leap 5 (2017) prohibition is that it protects health, and if, as the evidence seems to suggest, it actually contributes to worse overall health outcomes, then prohibition, with all of its attendant costs, is unjustified. these costs are significant, and affect many more people than drug users. in fact, these costs are so significant that there are good reasons to think that prohibition would be unjustified even if it did succeed it its aim of protecting the health of potential drug users. first, prohibition creates an illegal black market for the production and distribution of drugs, and this black market is remarkably violent. between 2006 and 2010, for example, the war between drug cartels and the mexican government killed at least 41,648 people and perhaps tens of thousands more.3 much of this violence is a direct result of existing drug laws. the trade is not governed by contracts, disputes cannot be dealt with in the courts, and because it is illegal the drug trade is (for some) incredibly profitable. these facts combine to incentivize violence. repealing drug laws and ending the war on drugs might not completely eliminate drugrelated violence, since even legal markets can attract violence. nonetheless, the evidence strongly suggests that prohibition significantly increases that violence (werb et al. 2010). second, violent crime is not the only social cost of the drug trade. those who work in the drug trade are workers: they are employed in a large and profitable economic sector. because it is illegal, those workers face the risk of violence without protection from contract law, labor law, employment insurance, or workers’ compensation. they are therefore open to serious exploitation, and are generally poorly paid: american drug dealers often earn less than minimum wage in a very dangerous occupation (levitt and venkatesh 2000). if the exploitation of bangladeshi garment workers gives us pause, the exploitation of mexican and north american drug workers made possible by prohibition should as well. third, drug workers and users face significant risks of incarceration, which, even more than drug-related violence, is the direct result of prohibition. in 2015, there were close to 300,000 people incarcerated in american for drug crimes (carson and anderson 2016), and another 947,000 on probation (kaeble and bonczar 2016), for a total of more than 1.2 million americans with their autonomy significantly restricted because of 3 for the lower estimate, see (rios 2013). for a discussion of the criticisms of this estimate, see (cave 2012). just say no (for now): the ethics of illegal drug use 13 leap 5 (2017) drug prohibition.4 since this number excludes most drug-related violent crime, it likely under-reports the number of people incarcerated because of drug prohibition. moreover, incarceration does not just impose a cost on drug offenders: it is costly to the state, since housing so many prisoners is extremely expensive. government money spent on the drug war is money that cannot be spend on other valuable government programs, and such opportunity costs should be counted among the real costs of the drug war. if the drug laws are not justified, then many of these costs are not justified either. fourth, those convicted of drug crimes suffer real harms in addition to incarceration. in many jurisdictions, released felons lose voting rights and the right to sit on juries. they also lose access to public housing, federal student loans, federal health and welfare programs, and food stamps (alexander 2010: ch. 4). if they were employed, they typically lose their jobs, and face reduced economic opportunities upon their release, as employers can deny jobs to those convicted of a crime. finally, drug laws are enforced in an unjust way. despite roughly similar rates of drug use, african-americans are arrested for drug crimes at a much higher rate than whites, a difference that cannot be explained by the differing nature of drug offending between races (mitchell and caudy 2015). for example, african-americans make up 13.3% of the us population, but 38.3% of those in federal prison on drug changes; white (non-hispanic) americans, by contrast, are 62% of the us population but only 21.6% of those in federal prison on drug charges (tax y et al. 2015). this means that african americans are nine times as likely as white americans to be in federal prison on drug convictions. the injustice of the racial disparity in drug law enforcement compounds the social costs of incarceration. it is not merely that drug offenders are imprisoned, lose their political rights, and suffer economic and social dislocation, though these are serious costs. it is also that these costs are born disproportionately by already disadvantaged racial minorities. this has led michelle alexander, among others, to compare drug laws to the jim crow laws, which were used to deny african-americans housing, jobs, and democratic rights (2010). the racial disparity in enforcement makes african-american communities poorer, more vulnerable, and less politically inf luential. drug laws therefore play an important role in 4 the 298,704 people in state and federal prisons on drug charges in 2015 represented a relatively small percentage – under 20% – of those incarcerated in america (carson and anderson 2016), and so as john pfaff points out (2017), drug prohibition cannot explain the phenomenon of mass incarceration. nevertheless, the overall american incarceration rate is so high that the drug crime incarceration rate is higher than the total incarceration rate in many countries, including germany and canada (wagner and walsh 2016). 14 mathieu doucet leap 5 (2017) perpetuating the systematic racism in american society. all told, then, drug laws carry enormous social costs. if these costs are to be justified, they should be outweighed by corresponding social benefits. w hile the exact effect of prohibition on the rate of drug use and the health-related harms of drugs is a complex question, those who aim to reduce the health costs of drug use frequently argue in favor of decriminalization or legalization rather than prohibition. but even if this is a mistake, and it turns out that prohibition does reduce the rate of use and the health-related harms of drugs, these benefits need to be balanced against the other enormous costs associated with prohibition. those costs – including violence, worker exploitation, mass incarceration, community dislocation, and systematic racism – significantly outweigh whatever marginal reduction in drug use or health costs might be gained by prohibition. as a result, the legal prohibition of drugs is unjust. 3. moral reasons to avoid illegal drugs i’ve argued that drug prohibition is unjust. but what are the moral implications, for individuals, of this claim? the most obvious one is that we ought to work to repeal prohibition, including pressuring our political representatives to abandon the war on drugs. some jurisdictions have taken steps in that direction. in 2001, portugal decriminalized simple possession of all drugs: drug users are directed to treatment, and punished with, at most, a small fine. drug dealing, however, dealing remains criminalized. recreational use of marijuana is legal in uruguay, in eight american states and the district of columbia, and the government of canada has committed to the legalization of marijuana by july of 2018. at present, however, the wholesale legalization of drugs is politically unfeasible in almost every country. given the injustice of those laws, it is tempting to suppose that they simply do not have any claim on our respect, and so that drug use is not particularly morally objectionable. there are certainly perfectly good non-moral reasons not to take drugs. first, many illegal drugs carry serious health risks. these risks may not be a good reason to outlaw drugs – in fact, they may be a good reason not to outlaw drugs – but they can be a very good reason not to take drugs. second, given the drugs are illegal, in buying and using drugs one runs the risk of criminal sanction, including prison. as we saw, this is a non-negligible risk for members of underprivileged groups. however, both of these reasons are prudential. it may be in our self-interest to avoid illegal drugs, but do we have a moral reason to refrain from purchasing and consuming them? just say no (for now): the ethics of illegal drug use 15 leap 5 (2017) i argue that illegal drug use is indeed immoral. the prohibition of drugs is certainly unjust. nonetheless, the current prohibition drugs gives us two distinct moral reasons to not violate drug law. first, drugs are produced and distributed in a way that are unethical. second, the use of drugs by many consumers represents an objectionable form of privilege. moreover, we have these moral reasons to avoid drugs, not merely in spite of the law’s injustice, but rather because of it. paradoxically, it seems, it is precisely the injustice of the laws banning drugs that makes violating those laws immoral. 3.1 unethical production the harm reduction approach to drugs endorses treating them much like other dangerous consumer products. this is an argument for repealing prohibition, but thinking of drugs as consumer products has other moral implications. after all, we have strong moral reasons to avoid consumer products that are produced in unnecessarily dangerous and exploitative ways. for example, we ought to avoid purchasing clothing that is made is dangerous sweatshops or by child labor. ethically produced clothing might be more expensive, but cost savings for relatively aff luent consumers do not justify the exploitation and deaths of bangladeshi garment workers. the drug trade, as we saw, is violent and exploitative: drug workers are killed and exploited in significant numbers. we ought therefore to avoid drugs for the same reason that we ought not to buy clothing made in dangerous sweatshops; both are produced in dangerous and exploitative ways, and consumers both enable and benefit from that exploitation. the point it is not merely that we could do something to prevent the harms of the drug trade, though this is certainly true. rather, the point is that drug users are in an important sense directly responsible for those harms. it is their demand for drugs that allows the harms of the drug trade to persist. drug users are not, of course, solely responsible for those harms, since governments who enforce prohibition share in the blame. nonetheless, given the reality of prohibition, drug users are blameworthy for the harms that their consumption choices help to bring about. the many aff luent north americans and europeans who insist on purchasing ethically produced, organic, and fair-trade consumer goods should also avoid illegal drugs, since the reasons we have to avoid such drugs are of a piece with the more general moral reason we have to avoid all unethically produced products. however, these moral reasons to avoid illegal drugs are arguably stronger than they are for most unethical consumer goods. first, compared to other unethically produced goods, the drug trade combines significantly 16 mathieu doucet leap 5 (2017) greater harms with significantly fewer consumers. almost everyone in north america and western europe wears clothing every day. the majority likely own some clothing produced in an unsafe and exploitative sweatshop. by contrast, around half of north americans have never used illegal drugs,5 and under 10% use them regularly.6 nonetheless, despite the much smaller size of the illegal drug market, drug-related violence kills many more people than die in unsafe garment factories. the collapse of the rana plaza in april 2013 killed 1,129 bangladeshis, mostly garment workers, and a factory fire in 2012 killed another 117. these numbers are alarming, but they pale in comparison to the thousands of americans and tens of thousands of mexicans killed in drug violence since 2006. this is not to minimize the harms of the garment industry, but instead to highlight the enormous harms caused by the drug war. to the extent that those who buy drugs or unethically produced clothing are implicated in the harms associated with their production, those who buy drugs are much more implicated, since the far greater harms are spread across a much smaller number of customers. second, there are institutional differences between the harms resulting from the drug trade and from unethical garment factories. the harms of the drug trade are a direct product of the criminal laws: it is because drugs are illegal that there is so much violence and exploitation in their production and distribution. the harms of the garment industry, by contrast, emerge in large part from a global economic system in which multinational corporations seek to maximize profits by manufacturing goods in countries that have low labor costs, and correspondingly low labor standards and protections. this is an important difference, since the criminal law is under democratic control in ways that global economic institutions are not. americans cannot simply end prohibition by voting for a party that promises to do so; there is no such party and in any case american (and other) democratic institutions are structured so that majority public 5 in 2015, 50% of americans over the age of 25 reported using illicit drugs at least once in their lives. by far the most commonly used drug is cannabis, with 46% reporting lifetime use. cocaine and hallucinogens, both at 16%, were next on the list of lifetime prevalence. only 2% have ever tried heroin (nida 2015a). canadian numbers are similar: in 2012, 43% of canadians reported lifetime use of cannabis, though that number drops to 34.7% when one-time users are excluded (rotermann and langlois 2015). numbers from mexico are less reliable, but a 2008 who survey put lifetime cannabis use by mexicans at 7.8%, and lifetime use of cocaine at 4% (degenhardt et al. 2008). 6 in 2015, 13% of canadians reported using illegal drugs in the previous year, a number that falls to 2% when marijuana is excluded. (health canada 2015). in 2013, 9.4% of americans reported illicit drug use within the past month, and fewer than 3% reported pastmonth use of illicit drugs other than marijuana (nida 2015b). just say no (for now): the ethics of illegal drug use 17 leap 5 (2017) support for a policy does not guarantee that the policy will be advanced by a governing party or passed into law.7 still, it is within the power of democratically elected governments to end prohibition, and its persistence results at least in part from its continued support among the electorate. were ending the injustice of prohibition an important enough issue for enough voters, it would have greater political traction. moreover, those jurisdictions that have liberalized their drug laws have largely done so as a result of political pressure from their citizens. seven of the eight american jurisdictions that legalized recreational cannabis did so as the result of a majority vote on a ballot initiative (i.e. via plebiscite);8 the canadian government’s plans to legalize cannabis in the first half of 2018 would fulfil a promise made by the governing liberal party in the course of the 2015 election campaign; and, of course, the 1933 passage of the 21st amendment to the us constitution, which repealed the prohibition of alcohol, was the result of a 2/3rds majority vote of both houses of congress.9 because the criminal law is under democratic control, the citizens of states that prohibit drugs – all of them, and not merely drug users – are in an important sense responsible for the harms that result from the drug trade. those harms are the result of policies enacted by democratic institutions and so in principle expressing the considered views of the public. while the connection between majority policy preferences and the content of the law is far from straightforward, there is nevertheless an important sense in which ending prohibition is within the control of the american public; it simply requires repealing some criminal laws and passing some news ones, something that is entirely within the power of democratically elected governments who are responsive to the publics that elected them. that this is extremely unlikely ref lects in part the fact that a significant proportion of the american public endorses the war on drugs and the harms that it creates, and this tacit endorsement arguably makes that public complicit in the harms that prohibition generates. this institutional responsibility, however, is much less clear in the 7 thanks to an anonymous referee for urging me to discuss the relationship between majority preferences and policy changes in democratic contexts. 8 alaska, california, colorado, maine, massachusetts, nevada, oregon, washington, and the district of columbia all legalized marijuana through majority vote on a proposition appearing on the ballot. the sole exception thus far is veremont, which did so via a bill introduced in the state legislature, rather than via ballot initiative. 9 it’s worth noting, however, noting, that the 21st amendment is the only constitutional amendment to secure the required ratification by three fourths of the states through the use of one-off state conventions rather than by passage in state legislatures. it therefore stands alongside the use of ballot initiatives to legalize marijuana as an example of the ways in which majority policy preferences are not always easily secured through legislative means. 18 mathieu doucet leap 5 (2017) example of sweatshop labor. global economic institutions are not under the direct democratic control of the citizens any particular country: in fact, many such institutions often are not under any centralized control at all, and are certainly not constrained significantly by democratic control. democratically elected governments can choose – at significant cost – to opt out of some of those institutions, but even if they do so those institutions continue to be in force and to wield significant power. so individual consumers in wealthy nations are far less responsible for the workings of those institutions. moreover, the political institutions of garment-producing nations like bangladesh also bear some responsibility for lax labor standards and enforcement. that is not to say that there is nothing we can do, of course, but the enforcement of global labor standards is much less subject to democratic control than the content of domestic criminal law. while we cannot just change the global economic order by voting to do so, we can change the criminal laws of our state through straightforward democratic means, as was done in portugal and several american states. our ability to reduce the harms of the drug war through democratic means makes us more morally responsible for the persistence of those harms. 3.2 privilege we all have a reason not to consume unethically produced consumer goods. but just as we can satisfy this responsibility by purchasing fair trade and organic food and clothing, perhaps we can do the same with drugs: home-grown and ethically sourced marijuana, for example, would avoid many of the concerns raised above. i will return to this objection in section 5.1, below. however, even if we concede the possibility of ethically sourced drugs, there is an additional moral reason to refrain from drug use that applies to many – though not all – drug users. the freedom to use illegal drugs without significant fear of criminal sanction is one expression of white middle-class privilege. given the extreme racial disparity in the enforcement of drug laws, it is arguably among the more powerful forms such privilege can take. white, middle-class, university-educated north americans can typically purchase and consume illicit drugs safe in the knowledge that it is very unlikely that they will be stopped by police, searched, arrested, charged, or convicted. african-americans, however, are more than four times as likely as white americans to be arrested for drugs, despite using just say no (for now): the ethics of illegal drug use 19 leap 5 (2017) drugs at roughly the same rates (mitchell and caudy 2015).10 a drug charge also has the potential to be much more costly for a low-income american than a middle-class one; the loss of public housing, welfare, or food stamps is a non-issue for white professional home-owning drug users, but is a significant risk for low-income drug users. that african-americans are more likely than white americans to be poor compounds the potential for injustice, as they are more likely to be arrested for drug crimes, and more likely to suffer significant hardship as a result of such an arrest. not only are they much more likely to be arrested for drug use that aff luent white drug users, but such arrests can easily make them homeless. the ability to violate the law and use drugs involves much less risk for some citizens than for others. this inequitable treatment is unfair, and is directly generated by prohibition. as with the harms of drug production, the main way of ending the unfair privilege in drugs is by repealing prohibition. nonetheless, while the unfairness exists, the exercise of such privilege is something those who have it have a moral reason to avoid. at the very least, those who use drugs recreationally and who have the privilege to do so without significant fear of sanction ought to both endorse and actively work toward the end of prohibition. drug users who do not take a public stance in favor of ending prohibition show themselves to be willing to accept a privileged de facto immunity that they are unwilling to extend to others. they therefore treat the interests of others as less deserving of concern than their own. this powerful and morally objectionable form of hypocrisy is on display any time someone is willing to blithely break the law and yet not object to – or, worse, actively endorse – the prosecution of others who break the same laws.11 this hypocrisy would be objectionable even in the absence of racial bias in the enforcement of drug laws. given the existence of such bias, those who are privileged enough to be largely free from fear of drug-related arrest or prosecution should refrain from the use of illegal drugs. 4. the paradox of drug laws thus far i’ve made two distinct arguments. first, existing drug laws are unjust. second, illegal drug use is unethical. these two arguments appear to be in tension, since it seems that i am arguing that both drug prohibition 10 more precisely, african-americans of 25 and under are somewhat less likely than whites to use drugs, while those 26 and older are somewhat more likely to use drugs; this is sometimes called the “racial age crossover effect” (mitchell and caudy 2015). 11 r. jay wallace offers an account of the moral blameworthiness of hypocrisy along these lines in (wallace 2010) 20 mathieu doucet leap 5 (2017) and drug use are unjust. but, one might think, if laws banning drugs are unjust, then shouldn’t we conclude that there’s in fact nothing immoral about drug use? one straightforward way of resolving this tension would be to appeal to the existence of a general moral obligation to obey the law in a just state, even in cases where we believe the law to be unjust. john rawls, for example, argues that, provided the injustice does not exceed certain limits, in just states we “normally have a duty to comply with unjust laws in virtue of our duty to support a just constitution.” (1971: 311). there are several arguments for such an obligation, drawing on the tacit consent of those subject to the law (locke 1988), the importance of general obedience in securing the many valuable benefits of a just state (wellman 2001), or principles of fairness and the unfairness of free-riding within generally just social institutions (rawls 1999). as rawls puts this point, provided that “the constitution is just and that we have accepted and plan to continue to accept its benefits, we have both an obligation and a natural duty… to comply with what the majority enacts even though it may be unjust”. justice, he argues, “binds us to a just constitution and to the unjust laws which may be enacted under it” (1999: 180). however, many theorists reject the idea that there is a general obligation to obey the laws of a just state (e.g. wolff 1970, raz 1984, simmons 2001). we may have strong moral reasons to conform with just laws, but this does not mean that the law itself gives us any such reasons. rather, the law, when it is just, tracks what we have independent moral reason to do. when those reasons exist, we should do what the law requires, but not for the reason that the law requires it. and when no such independent reasons exist, the law typically does not create one, particularly when there are independent moral reasons not to comply with the law. as joseph raz puts it, the purported moral obligation to obey the law “is at best redundant” (1984: 140). ‘at best,’ because it would only make a difference when there are no independent reasons to do what the law commands, and so, if taken seriously, could easily lead people to act in ways that are unjust. this suggests two distinct perspectives on obedience to unjust laws. either we have an obligation to obey them in virtue of their being laws, or else their injustice means that, since we have no independent reason to do what they require, we have no obligation to obey them. however, the case of unjust drug laws represents an interesting exception to this general way of carving up the conceptual terrain. because the drug laws are unjust, there are no independent reasons justifying those laws that explain why we ought to obey them. nonetheless, the existence of the drug laws creates a strong moral reason not to use drugs, a reason that is entirely independent just say no (for now): the ethics of illegal drug use 21 leap 5 (2017) of any general moral obligation to obey the law. to say that unjust laws create moral obligations to obey them might seem paradoxical without appeal to a general obligation to obey. however, this paradox is only apparent. existing drug laws are unjust because they impose significant harms on many vulnerable people, and these harms could be greatly reduced by ending prohibition. these same reasons explain why illegal drug use is unethical. that is, the production and distribution of drugs is so harmful precisely because it is illegal, and these very same harms explain why consuming drugs is unethical. drug laws both create the conditions for violence and exploitation, and make possible the kind of systematically racist enforcement that makes recreational drug use by privileged individuals morally troubling. in both cases, then, the reason that drug use is unethical is because of the existence of laws prohibiting drugs. so while prohibition makes it unethical to consume drugs, the mere fact that drug use is against the law does not carry any moral weight at all. rather, it is the unjust conditions created by the existence of the laws, and not the laws themselves, that make recreational drug use unethical, and these very same conditions explain why prohibition is unjust. those, like raz, who reject the existence of a general obligation point out that a law is just if there are independent moral reasons to do what it commands. however, drug prohibition is an example of an unjust law that we have independent moral reasons not to violate. of course, these reasons are independent only in the sense that it is not the existence of the law qua law that gives us a moral reason not to violate the law. in a different sense, the existence of the obligation is highly dependent on the existence of the law, since the law creates the conditions – violence, exploitation, and biased enforcement – that make the activity of drug use deeply ethically troubling. so while the claim that the injustice of the law creates the moral obligation to obey it sounds paradoxical, the paradox dissolves when we recognize that the injustice of the drug law does not explain the existence of the obligation to conform to it. rather, both the injustice and the obligation are explained by the existence of the violence, exploitation, and discrimination that the law brings into being. 5. objections and replies 5.1 ethically sourced drugs the analogy between drugs and low-cost clothing suggests a possible defense of recreational drug use. the existence of unethical low-cost 22 mathieu doucet leap 5 (2017) clothing is clearly not a reason to forego clothing altogether. rather, it is a reason to purchase ethically sourced clothing, even if that clothing is more expensive. by the same token, the existence of unethically sourced drugs may not be a reason to avoid drugs altogether: instead, it simply gives drug users a strong reason to choose ethically sourced drugs. homegrown organic marijuana, for example, seems to avoid concerns about the harmful and exploitative drug trade raised above. there are two points to make in response to this suggestion. first, while it is true that ethically sourced drugs would certainly be better than unethically sourced ones, there simply are no ethical sources for many recreational drugs. cocaine and heroin, for example, are not grown in north america or europe, and as a result need to be smuggled from asia and south and central america. drugs smuggled in this way are part of the violent and exploitative global trade, for which recreational users are in part responsible. moreover, even drugs produced in north american and europe – such as marijuana and synthetic drugs like mdma and crystal methamphetamine – are often produced and distributed by the same violent and exploitative criminal organizations that distribute cocaine and heroin, and the people who produce them are not protected by labor laws. while marijuana and many synthetic drugs might, in principle, be ethically sourced by discreet small-scale producers who treat their employees well and who avoid violence, users who buy such drugs will typically have no way of knowing where their drugs come from, and so no way of knowing whether it is linked to such violent and exploitative drug markets. second, while those who grow their own organic marijuana or produce their own synthetic drugs strictly for personal use can avoid being implicated in many of the harms of the drug trade, they may nonetheless participate in the unethical exercise of privilege. while the exploitative source of most drugs is a reason to avoid them, so too are the unequal and unjust ways in which prohibition affects underprivileged groups. in fact, even the ability to produce one’s own drugs without fear of detection can require access to space and privacy that members of underprivileged groups often lack: a homeowner can more easily produce drugs at home than a renter, for example. one thing this argument suggests is that members of vulnerable and underprivileged groups who consume ethically sourced drugs do not behave immorally, since their drug use is not an example of unethical privilege. that is consistent with the argument advanced above, which does not depend on the claim that there is anything about drug use itself that is immoral. it is the nature of the drug trade and the privilege implicit just say no (for now): the ethics of illegal drug use 23 leap 5 (2017) in much illicit drug use that makes it morally objectionable. illegal drug use that avoids both of these objections might not be open to moral censure. however, the vast majority of recreational drug use does not fall into this category. 5.2 civil disobedience civil disobedience is a powerful way of protesting unjust laws, and one that is endorsed even by those, like rawls, who defend the general obligation to obey the law. since prohibition is unjust, drug use is arguably a form of protest against that injustice, and so counts as an instance of civil disobedience. while civil disobedience is a morally admirable way of seeking to overturn unjust laws, it does not work as a defense of recreational drug use. first, drugs purchased to be used for the purposes of civil disobedience would still be unethically sourced, and so users remain implicated in the harms of the drug trade. second, and more importantly, typical private recreational drug use does not count as an example of civil disobedience, which requires publicly breaking the law, doing so with the aim of communicating a political message or bringing about a change in the law, and willingly accepting the accompanying punishment (rawls 1971, brownlee 2004). perhaps taking drugs in full view of the police at a public anti-prohibition rally counts as an instance of civil disobedience, and so of morally permissible drug use. typical recreational drug use, however, does not. 5.3 medical uses of drugs many people use drugs for a range of health-related reasons, so another objection is that my argument unfairly blames people for using medicines for which they have a legitimate need. this includes drug use by addicts, but also includes other uses: people self-medicate with a variety of drugs to treat chronic pain, nausea, anxiety and depression, to combat the side effects of prescription medication, and for a range of other non-recreational reasons. i accept that the medical use of drugs is different in important ways. it would indeed be unfair to blame those with a legitimate medical need for drugs for using them, including addicts, particularly when such users are not responsible for the ban on drugs and are in fact among those most affected by that ban. my argument addresses the recreational use of drugs for the sake of the pleasure they deliver. in fact, a recognition of the difference between medical and recreational uses is at the heart of one of the main exceptions to prohibition: the legal regulation of medical marijuana in many jurisdictions. such programs generally provide users with both legal protection from prosecution and an ethical source for 24 mathieu doucet leap 5 (2017) marijuana. a similar recognition justifies the common practice of prescribing methadone – otherwise an illegal drug – to opiate addicts. again, this practice provides addicts with both legal protection and an ethically sourced product, while also addressing the health costs of drug use. however, not every person who uses illegal drugs for medical reasons uses marijuana or opiates, or even has access to legal medical marijuana or methadone. those who have a legitimate medical need for drugs but do not have access to a legally sanctioned supply do indeed use drugs that are produced in unethical ways. in their case the blame more properly falls on the law-makers who are responsible for depriving people of medically necessary drugs, rather than on those who have the need for those drugs. recreational users lacking a legitimate medical reason for drug use, however, remain blameworthy for the unethical use of illegal drugs. 5.4 drugs may continue to be unethical even if drugs were legalized while the illegal drug trade is violent and exploitative, this does not mean that the legal trade in drugs would be an ethical one. after all, many perfectly legal consumer products are unethical, from cheap sweat-shop produced clothing and electronics to so-called conf lict diamonds. legalization is no panacea. while it might make it possible to provide ethical sources of marijuana and many synthetic drugs, drugs like cocaine and heroin would continue to be produced in the developing world by lowwage workers, and such workers would likely remain vulnerable targets of exploitation. at best, legalization might make possible a market for (perhaps more expensive) ethical drugs, but it would almost certainly not do away with unethically produced drugs. the realities of production and distribution in even a legal drug trade might mean that many drugs would continue to be unethical. it is certainly true that legalization would not instantly make drug use ethical, and that many drugs might continue to be unethically produced and distributed even if prohibition were repealed. however, this is consistent with the argument advanced above: recall that it is not the mere illegality of drugs that makes them unethical, but the conditions created by that prohibition. to the extent that those conditions remained in place after prohibition was lifted, the argument would remain in force. prohibition would make it possible for recreational drug use to be ethical, but it certainly would not guarantee it. but even if most drugs continued to be produced and distributed by vulnerable exploited workers, legalization would likely secure some degree of improvement in their working conditions, simply by making legal oversight and regulation possible, and by reducing the incentives for violence. such improvements might not be just say no (for now): the ethics of illegal drug use 25 leap 5 (2017) enough to make drug use ethically unproblematic, but they could nonetheless be significant. 5.5 prohibition is justified i have argued that drug prohibition is unjustified, in large part because of the enormous social costs that it imposes. but perhaps this is a mistake. for example, perhaps the costs of prohibition – in lives lost, workers exploited, rights sacrificed, and people incarcerated – are worth it to keep drugs out of the hands of children, to secure an overall reduction in drug use, or to convey society’s profound disapproval of drugs.12 or perhaps the problem with the drug war is in the execution, not in the general approach. the current heavily punitive approach to drug crime may be ill conceived and enforced in a discriminatory manner, but this does not necessarily show that prohibition itself is unjust. rather, it might show that prohibition ought to be pursued in less harmful and discriminatory ways. for example, justice might require reforming policing practices, eliminating mandatory minimum sentences for non-violent drug offences, or diverting those who commit such offences into alternatives to the prison system. while prohibition is enforced in discriminatory ways, the problem may not be prohibition so much as racism; after all, even perfectly just laws can be unjustly enforced. african-american drivers are much more likely to be stopped and searched than white drivers (lafraniere and lehren 2015) – a phenomenon known as ‘driving while black’ – but that does not mean that traffic laws are unjust. rather, it simply means that they are often enforced in a discriminatory way. it may be that, were drugs not currently illegal, it would be unjust to introduce prohibition. but it may be a distinct question whether we ought to repeal prohibition, given that it is place. after all, even if we would have been better off had drugs never been prohibited, repealing prohibition might still make things worse. many of those involved in the illegal drug trade would not transition directly into the legal drug trade, which could draw from a larger labour pool and which would have less need for smugglers and enforcers. so an end to prohibition might well leave many criminals unemployed and without their main source of income, and such criminals might respond by turning to other crimes, thus making crime worse (rios 2012). perhaps this is not relevant to the justification of prohibition, since some would argue that incarcerating people for 12 peter de marneffe argues that the prohibition of heroin is justified in order to secure an overall reduction in harm, and in particular to protect children, though he agrees with husak that most other drugs should be legalized (de marneffe 2005). see also (bean 2008: 262-266). 26 mathieu doucet leap 5 (2017) recreational drug use is necessarily unjust, regardless of whether repealing prohibition would lead to an increase in harms. but lawmakers interested in adopting policies that reduce the harms of drugs might justifiably choose to continue with prohibition even if they recognize that it is an imperfect policy that would not be implemented if it were not already in place (wolff 2011: 78). whether prohibition is ultimately justified, however, does not affect the argument that illegal recreational drug use is unethical. if it turns out that the laws prohibiting the use of drugs are just, then that of course is a reason to follow them, since we have a moral reason to comply with laws that are just. my argument shows that we have moral reasons not to violate the drug laws even if they turn out to be unjust, and this is perfectly consistent with insisting that prohibition is just and that, as a result, drug use is unethical. my argument would, however, lose some of its paradoxical appeal if it were true that drugs prohibition is ultimately justified. i have argued that prohibition makes the drug trade harmful and exploitative, and so makes drug use unethical. if it turned out that ending prohibition would not reduce the misery associated with the drug trade, then arguably prohibition itself would turn out not to create the conditions that makes drug use unethical. but this would be because those harmful conditions would continue to obtain in the absence of prohibition, and my argument is that it is the harmful conditions in which drugs are produced and distributed, and not the mere fact that they are illegal, that makes drug use unethical. regardless of whether prohibition is just, then, the use of prohibited drugs remains unethical. 5.6: drinking alcohol during prohibition there is a clear and oft-noted analogy between the current prohibition of drugs and the prohibition of alcohol in the united states between 1920 and 1933. one potential objection to my argument, then, is that it would strongly suggest that drinking during prohibition was immoral, even though prohibition itself is now widely recognized as a mistake and the moderate consumption of alcohol is morally unobjectionable. it’s worth noting that drinking was not illegal during prohibition, as the 18th amendment and the volstead act outlawed the production, distribution, and sale of alcohol, but not possession and consumption. so to the extent that the argument in this paper addresses the ethics of illegal drug use, it may not apply at all to drinking during prohibition. moreover, the alcohol example could only serve as an objection to the just say no (for now): the ethics of illegal drug use 27 leap 5 (2017) argument that illegal drug use is unethical if it were obviously true that drinking during prohibition was morally licit, and that is far from certain. some of the arguments offered in this paper also apply to drinking during prohibition, and so do show that such drinking may well have been unethical. in particular, both the violent and illegal black market and the exploitation of workers outside the protection of the law were moral problems that faced prohibition-era recreational drinkers who drank bootlegger-sourced alcohol. those objections do not apply to the wealthy americans who were able to rely on private reserves of alcohol stockpiled before the introduction of prohibition, but this legal and ethical access to alcohol was a privilege that was denied to the vast majority of americans. so as with drug prohibition, the risks and harms of alcohol prohibition were far from equally distributed. in such a context continuing to drink while at the same time supporting prohibition arguably constituted an objectionable form of privileged hypocrisy. drinking in the absence of prohibition may well be entirely unobjectionable, but then so too would be many cases of recreational drug use. so our current attitudes toward the ethics of drinking and the error of alcohol prohibition are perhaps best understood as suggestive of what ethical drug laws would look like, rather than as an objection to the argument that drug use under prohibition is unethical. 6. conclusion e x ist i ng d r ug law s a re u njust, a nd cause considerable ha r m ; we shou ld work to over t u r n t hem. one m ig ht t herefore be i ncl i ned to conclude t hat such law s do not deser ve ou r respect, a nd so t hat we a re f ree to v iolate t hem. t h is, however, wou ld be a m ista ke. t he ba n on d r ugs may be u njust, but wh i le t hey a re ba n ned it is i m mora l use t hem. dr ug use is i m mora l because of t he cond it ions created by t he law, rat her t ha n because of t he law it sel f. t he ver y fact s t hat g ive us a st rong mora l rea son to con for m to t he law t herefore a lso g ive us rea son to over t u r n it. bibliography alexander, m., 2010: the new jim crow: mass incarceration in the age of colorblindness, new york: new press. bean, p., 2008: drugs and crime 3rd ed. portland: willan publishing. brownlee, k., 2004: “features of a paradigm case of civil disobedience”, res publica 10: 337-351. carson, e and anderson, e., 2016: “prisons in 2015”, bureau of justice statistics url = < https://w w w.bjs.gov/content/pub/pdf/p15.pdf.> accessed may 6, 2017. https://www.bjs.gov/content/pub/pdf/p15.pdf https://www.bjs.gov/content/pub/pdf/p15.pdf 28 mathieu doucet leap 5 (2017) cave, d., 2012: “mexico updates death toll in drug war to 47,515, but critics dispute the data”, new york times, jan 11, 2012, url =<http://w w w.nytimes.com/2012/01/12/ world/americas/mex ico-updates-drug-war-death-toll-but-critics-dispute-data. html?_r=1&>. accessed may 6, 2017 degenhardt, l. et al., 2008: “toward a global view of alcohol, tobacco, cannabis, and cocaine use: findings from the who world mental health surveys”, plos medicine: 5 (7): 1053-1067. de marneffe, p., 2005: “against drug legalization”, in the legalization of drugs: for and against, ed. d. husak and p. de marneffe, cambridge: cambridge university press. drucker, e., 1999: “drug prohibition and public health: 25 years of evidence”, public health reports 114: 14-29. health canada, 2015: “canadian tobacco alcohol and drugs survey”, url = <https:// w w w.canada.ca/en/hea lt h-canada/ser v ices/canadian-tobacco-a lcohol-drugssurvey/2015-supplementary-tables.html#a11> accessed may 6, 2017. husak, douglas , 2002: legalize this! the case for decriminalizing drugs, london: verso. — 2005: “for drug legalization”, in the legalization of drugs: for and against, ed. in douglas husak and peter de marneffe, cambridge: cambridge university press. kaeble danielle, and bonczar, thomas. 2016: “probation and parole in the united states, 2015”, bureau of justice statistics. url =< https://w w w.bjs.gov/content/ pub/pdf/ppus15.pdf> accessed may 6, 2017. lafraniere, s. and lehren, a., 2015: “the disproportionate risks of driving while black”, new york times oct. 24, 2015. url =< https://w w w.nytimes.com/2015/10/25/us/ racial-disparity-traffic-stops-driving-black.html.> accessed may 6, 2017. levitt, s. and venkatesh, s. a., 2000: “an economic analysis of a drug selling gang's finances”, quarterly journal of economics 115: 755-789. locke, j., 1988 [1689]: two treatises of government, cambridge: cambridge university press. mitchell, o and caudy, m., 2015: “examining racial disparities in drug arrests”, justice quarterly 32: 288-313. nida, 2015a: “national survey of drug use and health”, national institute on drug abuse, national institutes of health. url =< https://w w w.drugabuse.gov/nationalsurvey-drug-use-health >. accessed june 2, 2017. — 2015b: “nationwide trends”, national institute on drug abuse, national institutes of health. url =< https://w w w.drugabuse.gov/publications/drugfacts/nationwidetrends >. accessed may 6, 2017. pfaff, j., 2017: locked in: the true causes of mass incarceration – and how to achieve real reform, new york: basic books. rawls, j., 1971 (2nd ed 1999): a theory of justice, cambridge: harvard university press — 1999: “the justification of civil disobedience”, in john rawls: collected papers, ed. samuel freeman, cambridge: harvard university press. raz, j., 1984: “the obligation to obey: revision and tradition”, notre dame journal of law, ethics, and public policy 1: 139-155. rios, v., 2013: “why did mexico become so violent? a self-reinforcing violent equilibrium caused by competition and enforcement”, trends in organized crime 16: 138-155. http://www.nytimes.com/2012/01/12/world/americas/mexico-updates-drug-war-death-toll-but-critics-dispute-data.html?_r=1& http://www.nytimes.com/2012/01/12/world/americas/mexico-updates-drug-war-death-toll-but-critics-dispute-data.html?_r=1& http://www.nytimes.com/2012/01/12/world/americas/mexico-updates-drug-war-death-toll-but-critics-dispute-data.html?_r=1& https://www.canada.ca/en/health-canada/services/canadian-tobacco-alcohol-drugs-survey/2015-supplementary-tables.html#a11 https://www.canada.ca/en/health-canada/services/canadian-tobacco-alcohol-drugs-survey/2015-supplementary-tables.html#a11 https://www.canada.ca/en/health-canada/services/canadian-tobacco-alcohol-drugs-survey/2015-supplementary-tables.html#a11 https://www.bjs.gov/content/pub/pdf/ppus15.pdf https://www.bjs.gov/content/pub/pdf/ppus15.pdf https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-driving-black.html https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-driving-black.html https://www.drugabuse.gov/national-survey-drug-use-health https://www.drugabuse.gov/national-survey-drug-use-health https://www.drugabuse.gov/publications/drugfacts/nationwide-trends https://www.drugabuse.gov/publications/drugfacts/nationwide-trends just say no (for now): the ethics of illegal drug use 29 leap 5 (2017) — 2012: “drug legalization could create more crime”, new york times, may 30, 2012. url =<http://w w w.nytimes.com/roomfordebate/2012/05/30/should-latinamerica-end-the-war-on-drugs/drug-legalization-could-create-more-crime > accessed may 6, 2017. rotermann, m and langlois, k., 2015: “prevalence and correlates of marijuana use in canada, 2012”, statistics canada health reports, 26: 10-15. simmons, j., 2001: “philosophical anarchism”, in justification and legitimacy: essays on rights and obligations, cambridge: cambridge university press: 102-121. taxy, s., et al., 2015: “drug offenders in federal prison: estimates of characteristics based on linked data”, bureau of justice statistics. url =<https://w w w.bjs.gov/ content/pub/pdf/dofp12.pdf .> accessed may 6, 2017. vuolo, m., 2013: “national-level drug policy and young people's illicit drug use: a multilevel analysis of the european union”, drug & alcohol dependence 131: 149 – 156. wagner, p. and walsh, a., 2016: “states of incarceration: the global context 2016”, prison policy initiative. url =<https://w w w.prisonpolicy.org/global/2016.html >. accessed june 7, 2017. wallace, r.j., 2010: “hypocrisy, moral address, and the equal standing of persons”, philosophy and public affairs 38: 307-341. wellman, c., 2001: “toward a liberal theory of political obligation”, ethics 111: 735759. werb, d. et al. 2011: “effect of drug-law enforcement on drug-related violence: evidence from a systematic review”, international journal of drug policy 22: 87-94. wolff, j., 2011: ethics and public policy, oxford: routledge. wolff, r.p., 1970: in defense of anarchism, berkeley, ca: university of california press. http://www.nytimes.com/roomfordebate/2012/05/30/should-latin-america-end-the-war-on-drugs/drug-legalization-could-create-more-crime http://www.nytimes.com/roomfordebate/2012/05/30/should-latin-america-end-the-war-on-drugs/drug-legalization-could-create-more-crime https://www.bjs.gov/content/pub/pdf/dofp12.pdf https://www.bjs.gov/content/pub/pdf/dofp12.pdf https://www.prisonpolicy.org/global/2016.html leap 5 (2017) symposium on julie rose’s free time guest edited by tom parr 31 tom parr leap 5 (2017) symposium on julie rose’s free time: an introduction tom parr university of essex in the united kingdom, more than thirty percent of those in paid employment express a desire to work fewer hours. some of these individuals are willing to accept a corresponding reduction in pay, but others cannot countenance such a sacrifice: economic security must take priority.1 moreover, these attitudes are by no means unique to the uk, with many people across the world feeling that they spend too much of their time at work. but things do not have to be this way. policymakers have at their disposal a variety of tools that can reduce working hours and, more generally, enhance the amount of free time that citizens enjoy. these include direct measures, such as working time regulations and the provision of free childcare, and indirect measures, such as policies that strengthen the power of trade unions. in free time, julie l. rose persuasively argues that governments should make greater use of these tools. she does this, first, by establishing the case for a right to a fair share of free time; and second, by showing that, in order to protect this right, it is necessary to do more than regulate society’s distribution of income and wealth. rose’s book makes important contributions to our understanding of the concept of “free time”, the nature of citizens’ rights to free time, and the moral status of available instruments for ensuring that free time is distributed fairly. this symposium brings together a series of thought-provoking papers that explore rose’s arguments in further detail in order to advance the debate around the equitable distribution of free time, as well as a range of related issues. rose opens the symposium with a short precis of her book, which acts as a useful introduction to the discussions that follow. the first commenter is robert e. goodin, who addresses the problem of how to conceptualise discretionary time. more specifically, goodin takes issue with what he calls the “empirical inscrutability” of rose’s account, and appeals to this concern to motivate support for his preferred alternative, which makes use of “social benchmarking”. 1 for recent data, see office for national statistics (2018). d oi : 10. 310 0 9/l e a p. 2017.v 5.02 symposium on julie rose’s free time: an introduction 32 leap 5 (2017) the next two articles focus on rose’s claim that citizens have a right to a fair share of free time. jeppe von platz attempts to expose a serious ambiguity in rose’s arguments: either she relies on a “vacuous notion of fairness” or, contrary to what rose claims to have established, what citizens can claim is merely an adequate share of free time. lucas stanczyk then draws attention to the possibility that many aff luent citizens who complain about being overworked – and who complain more than others about being overworked – are not in fact denied their fair share of free time. stanczyk concludes by ref lecting upon the implications of this possibility for the justifiability of the policies that rose defends. the final two commenters are désirée lim and rosa terlazzo. lim’s task is to construct a republican case for granting citizens a fair share of free time, which can supplement rose’s own argument. she builds her case by showing how citizens’ enjoyment of a fair share of free time can be instrumentally important to realising non-domination. terlazzo employs rose’s framework to draw attention to another neglected resource to which citizens might have claims, namely a “sense of moral entitlement to make use of basic liberties”. the symposium concludes with a response from rose that elaborates her view and that replies to the objections that have been raised. i hope that this symposium advances our understanding of issues of considerable political concern, and that it prompts further discussion about the appropriate regulation of the labour market. i am grateful to the authors for their contributions, to the papers’ referees for their constructive feedback, and to clare burgum and serena olsaretti for all of their help. bibliography office for national statistics, 2018: “emp16: underemployment and overemployment” (edition: february 2018). leap 5 (2017) a précis of free time j u l i e l . rose dartmouth college every citizen is entitled, as a matter of justice, to a fair share of free time. this is the core argument of free time. the argument rests on the widely held commitment to ensuring that citizens possess the means to exercise their freedoms, rooted in the recognition that if citizens lack the means to make effective use of their formally guaranteed freedoms, those freedoms are of little worth. a foundational tenet of liberal egalitarian theories of justice is, as such, what i term the effective freedoms principle: citizens have legitimate claims to a fair share of the resources generally required to exercise their formal liberties and opportunities. though the effective freedoms principle is applied most often to citizens’ requirements for material resources, it applies in the same way to the resource of free time: time that is not consumed by meeting the necessities of life, that one can devote to one’s own pursuits and commitments. this argument has been overlooked, yet it is readily apparent on ref lection. consider, for instance, how, in order to exercise one’s right to vote, one must have not only the means to get to the polls, but also the free time to do so. citizens generally require free time to make effective use of the full range of their fundamental liberties, as well as any of their broader legal freedoms and opportunities. as such, i argue, on the basis of the effective freedoms principle, citizens have legitimate claims to the resource of free time. though this argument has been absent from contemporary liberal theories of justice, it can be found in a recognizable form in the arguments of american nineteenth century labor reformers in their fight for time. for citizens to enjoy their rights to “life, liberty, and the pursuit of happiness,” insisted “the working men’s declaration of independence,” they must have the “means” to make use of them.1 “it is true”, they argued, “that churches are erected, school houses are built, mechanics’ institutes are founded and libraries ready to receive us … but alas! we lack the time to use them – time”2 workers required free time not only to make use of their fundamental political, associational, and religious liberties, but more 1 “the working men’s declaration of independence”, december 1829 in foner (1976: 49) original emphasis. 2 w. sylvis (1968: 199) original emphasis; quoted in roediger and foner (1989: 99). d oi : 10. 310 0 9/l e a p. 2017.v 5.03 34 julie l. rose leap 5 (2017) broadly to pursue any of their own ends, as encapsulated in their demand for “eight hours for work, eight hours for rest, and eight hours for what we will”.3 though ensuring that citizens enjoy the means to make use of their freedoms is a central liberal egalitarian commitment, contemporary liberal theories of justice have given little attention to “hours for what we will”. instead, they have implicitly assumed that free time is not an appropriate or worthy concern of a liberal theory of justice. given this incongruity, it is worth considering why. it owes, i argue, to two mistaken views. the standard liberal egalitarian approach to distributive justice, which i label liberal proceduralism, is to ensure a fair distribution of resources, the all-purpose means that are generally required to pursue any conception of the good, in order to ensure that citizens have fair access to various specific goods, or the particular components of one’s particular conception of the good. this approach – with which my argument has no quarrel – aims to secure the just background conditions within which citizens can pursue their own ideas of the good life. importantly, on this standard approach, for the state to directly target the distribution of specific goods is presumptively inappropriate. absent some exceptional justification, the proper aim is instead to ensure a just distribution of all-purpose means. the first mistake explaining the neglect of free time is that political philosophers have generally conceptualized it in terms that render it a specific good.4 leisure has been variously understood as time engaged in intrinsically valuable activities, or as time in play and recreation, or – most common among theorists of distributive justice – as time not engaged in paid work, and on each understanding, as a specific good. (to keep this distinction clear, i use leisure to refer to the specific good and free time the resource). this limited view is, however, an error, for it overlooks the way, captured in the appeal for “hours for what we will”, that free time is itself an all-purpose means. free time – understood specifically as time not committed to meeting one’s own, or one’s dependents’, basic needs, which are the needs one must generally meet to attain a basic level of functioning in one’s society – is, i argue, properly regarded as a resource. it is a necessary input that is 3 rosenzweig (1983); see also gourevitch (2015: 126–32, 144–45); hunnicutt (2013: 1–94). 4 goodin et al.’s discretionary time is an important and notable exception (goodin et al. 2008). my conception of free time, though it departs from their account, is indebted to their view of discretionary time as time not consumed by the necessities of life. for another account that draws on goodin et al.'s conception, see shippen (2014). a précis of free time 35 leap 5 (2017) generally required to pursue any conception of the good, and it meets the conditions to be an object of a public and feasible theory of justice. the second mistake is the implicit assumption, stemming from the economic view of time and money as fungible goods, of what i call the time-money substitutability claim: that realizing a just distribution of income and wealth is sufficient to ensure a just distribution of free time. if this claim were true, it would not be necessary to give any distinct attention to free time as an object of justice. yet, neither of the assumptions on which the claim depends – the perfect divisibility of labor demand and the perfect substitutability of money and basic needs satisfaction – can be sustained. given both ethical and empirical limitations of economic markets, individuals cannot always unobjectionably purchase the satisfaction of their own, or their dependents’, basic needs, nor can they always freely choose to reduce their hours of paid work to the level they prefer (even for a corresponding reduction in pay, a phenomenon economists term overemployment). with these obstacles cleared, it is then possible to construct the core argument for citizens’ claims to free time. first, free time is itself a resource. second, if a theory of justice endorses the effective freedoms principle, as all liberal egalitarian theories do, then citizens have legitimate claims, as a matter of justice, to fair shares of free time. further, to ensure that citizens have their fair shares, free time must be treated as a distinct object of justice. ensuring that citizens have their fair shares of free time requires, if everyone’s fair share is, say, eight hours per day, ensuring that all citizens are able to meet their basic needs in sixteen hours per day (e.g. with income subsidies or in-kind provisions), as well as protecting citizens’ ability to choose to spend no more than this time meeting their basic needs (e.g. with work hours regulations). moreover, citizens must not only have the requisite amount of free time, they must enjoy it on conditions that allow them to effectively use it to exercise their liberties, which include having access to generally usable periods of free time on predictable schedules. with the central argument in place, i turn then to developing some of its implications in the later chapters. chapter 5 argues that, because citizens’ exercise of their freedom of association, whether civic, religious, or social, generally requires sharing time together, citizens require access to free time shared with a significant portion of those with whom one currently associates and might associate. access to shared free time may be realized by providing citizens with vast amounts of free time, greater work schedule flexibility, or a common period of free time. if the first is not an option, i argue that instituting a common period of free time across society – realized, for instance, with sunday closing laws (in a modified form consistent with economic and 36 julie l. rose leap 5 (2017) religious liberty) – may be the best means of ensuring effective freedom of association in a pluralistic democratic society. chapter 6 turns to the question of whether parents and other caregivers are entitled to workplace accommodations that enable them to combine paid work, caregiving, and free time, such as paid leave and short and flexible hours schedules. i argue that they are, if citizens’ claims to free time are developed such that: citizens have pro tanto claims to free time in their chosen occupations; and basic caregiving for children, like other dependents, is treated as a necessary activity that (to a point) deducts from free time. taking on these terms, i argue that they yield a presumptive claim to be able to engage in paid work, basic caregiving, or the combination, while also having free time. one final point to make is that the core argument – that citizens are entitled to a fair share of free time – holds on any theory that endorses the effective freedoms principle, as all liberal egalitarian theories do. across this broad range of theories, the principle is recognized and developed in different ways. so that the core argument applies broadly, it is constructed to not depend on taking particular positions on a set of contested issues across these theories. the later chapters do take positions on some of these issues (most notably related to individual responsibility) in order to draw out some of the argument’s implications, but one might adopt different positions and develop the core argument in other ways, yielding another set of implications. indeed, once the core claim is recognized, citizens’ claim to the resource of free time ought to be incorporated into theories of justice in a diverse and expansive array of ways. bibliography foner, p.s., ed. 1976: we, the other people. urbana: university of illinois press. goodin, r.e, j.m. rice, a. parpo, and l. eriksson, 2008: discretionary time: a new measure of freedom. cambridge: cambridge university press. gourevitch, a., 2015: from slavery to the cooperative commonwealth: labor and republican liberty in the nineteenth century. cambridge: cambridge university press. hunnicutt, b.k., 2013: free time: the forgotten american dream. philadelphia: temple university press. roediger, david r., and p.s. foner, 1989: our own time: a history of american labor and the working day. london: verso. rosenzweig, d.r., 1983: eight hours for what we will: workers and leisure in an industrial city, 1870-1920. cambridge: cambridge university press. shippen, n.m., 2014: decolonizing time: work, leisure, and freedom. new york: palgrave macmillan. sylvis, w., 1968: “address delivered at boston, january 1867.” in the life, speeches, labors and essays of william h. sylvis, edited by j.c. sylvis. 1872. reprint, new york: augustus m. kelley. leap 5 (2017) freeing up time robe rt e . g oodi n australian national university abstract increasing people's control over how they spend their time is a worthy ambition. but there is only so much we will be able to do in that regard. it is important to conceptualize discretionary time in a measurable way in order to appreciate both the potential and the limits of standard policies designed to do that. keywords: discretionary time; free time; temporal autonomy 1. putting things into perspective it is sometimes said that time is the most equally distributed resource in the world. everyone, every where has exactly 24 hours in their day – no more, no less. but that is a cruel joke in all sorts of ways. perhaps the most important is this. some people live longer than others. while everyone has only the same 24 hours in the day for as long as they live, some people have many more cumulative hours in their lifetimes. and given what we now know about the “social determinants of health”, there is clearly something we can do about that, even apart from finding miracle cures for nasty diseases (wilkinson and marmot 2003; who 2008; wilkinson and pickett 2009). equalizing people's other resources would clearly help equalize their hours, from a whole-life perspective. here is another way that the equality of clock-time is a cruel joke. some people own other people’s time (in relations of slavery) or rent it (via the employment relationship). slave owners and employers gain, and slaves and employees lose, control over time. slavery has been every where (officially) abolished. but until we overcome the necessity for the vast majority of people to rent their time to employers simply in order to survive, there will be gross inequality in the amount of time over which different people have control.1 universal basic income, paid at a rate that would 1 in pre-industrial societies (thompson 1967), and in post-productivist ones (goodin 2001), people have more control over their time. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 4 38 robert e. goodin leap 5 (2017) make abstaining from paid employment a viable option, would solve that problem – but while important experiments with that are underway, full implementation of that on a scale anything like adequate to that task is a long way off (widerquist et al. 2013; van parijs and vanderborght 2017).2 a third way the seeming equality of clock-time is a cruel joke has to do with differential access to technology. from a time-use perspective, the greatest boon to women’s lives was arguably the introduction of the electric washing machine (gershuny and robinson 1988; gershuny 2000: 67). technological innovations allow us to accomplish the same tasks in less time. those with access to those technologies are temporally advantaged; those without it are temporally handicapped. that is another source of temporal inequalities, whatever the apparent equality of clock-time might suggest. finally, there are the temporal inequalities that arise from people’s own life choices. those choices are not, in the first instance any way, choices about how to use their time – they are instead choices about other things that have temporal implications (appreciated or not, at the time of making the choice). in discretionary time my coauthors and i (semi)jokingly concluded that, “to maximize temporal autonomy and discretionary time, people should: • marry but never have children; • if they do have children, never divorce; and • maybe consider moving to sweden” (goodin et al. 2008: 263). of those three, the first two are much the most important. caring for children is hugely time-consuming, particularly as a lone parent. no one who wishes the species to persist (or even just their pension to be paid) would wish people not to have children. but gross temporal inequalities arise between people who do and do not (or cannot) procreate, and the capacity of public policy to mitigate those disparities is strictly limited. those are hard facts about temporal autonomy and inequality, against which this discussion must be set. if you really want to be a temporal egalitarian, or if you really want to maximize people's control over the way they use their time, there are many more important things to be talking about than conventionally cluster under the heading of “time use” or “work-life balance” policies. the focus of discussion here will inevitably be on what contributions 2 of course basic income in any amount would reduce, if not eliminate, the time people have to spend in paid labor to meet their basic needs – and more so for those on low wage rates who would otherwise have to work longer hours to earn the same amount. freeing up time 39 leap 5 (2017) of a more limited sort public policy might make to people's discretionary control over the way they use their time, and the benefits they derive from so doing (the “swedish” point, above). but let us go into that discussion with our eyes wide open to the strictly limited scope of that discussion. were we serious about temporal autonomy and its equality, and had we power to change the world in more radical ways, there would be other far more important priorities. 2. what temporal autonomy is not julie rose (2016) is right to focus her book on “free time”. strictly speaking, that is a misnomer in terms of the standard time-use coding conventions.3 but it is nonetheless clear what rose (2016: 4) wants, which is that we be guaranteed “hours for what we will”. that is “discretionary time” in our book of that title (goodin et al. 2008). it is the time over which one has discretionary control, the time that is left over after discharging all of life’s necessities in various dimensions. that is the time over which one enjoys “temporal autonomy”.4 there are two important things to notice about discretionary time, right from the start. the first is that people will often choose to spend some (yea, much) of it doing more-than-is-strictly-necessary in those very same dimensions. if the poverty line defines a minimum necessary income, then the time it takes you to earn a poverty-level income at your wage rate is your “necessary time in paid labor”. but, quite reasonably, most of us are not content with a poverty level income, and we spend much more time in paid labor than strictly required just to earn just a poverty-level income. ditto cooking and cleaning and caring for the kids. it is perfectly reasonable (indeed, wholly laudatory) that people should spend more of their time in each of those activities, too, than is minimally necessary. the point is merely that, when people spend more time in those activities than strictly is necessary, that should be seen as a choice of how to allocate their discretionary time. it would be a huge mistake to think that people are 3 in standard time-use terminolog y, “free time” is time not actually spent in necessary activities of life (paid labor, unpaid household labor, personal care) (un 2005: 193). but however “necessary” the activities (sleeping, etc.) may themselves be, people can – and typically do (more on which below) – spend far more time than strictly necessary engaged in them. hence what time-use researchers conventionally call “free time” might better be dubbed “spare time” (goodin et al. 2008: 51-2; rose 2016: 59). “leisure time” is time spent in specific leisure activities (sport, watching television, or whatever). not all free (spare) time is spent in any of those specific leisure activities. 4 although, as i shall go on to argue, “temporal autonomy” involves other considerations as well considerations, including those of when you do what, and how much control you have over how you discharge those tasks. 40 robert e. goodin leap 5 (2017) enjoying discretionary time only when they are engaging in what would conventionally be called “leisure activities” (playing sports, or going to the cinema, or whatever). the second crucial thing to note is that “free” or “discretionary time” speaks to the value of “temporal autonomy”. that is not conceptually distinct from the “equality of temporal autonomy”.5 whether or not what maximizes temporal autonomy also equalizes it across society as a whole is purely an empirical question. as it happens, it seems that households that practice temporally inegalitarian divisions of labor also have (across the household taken as a whole) less discretionary time as well.6 but that is purely a contingent matter, an empirical truth rather than an analytic one. 3. empirics matter rose eschews empirical measures of discretionary time. indeed, her philosophically preferred conceptualization of “free time” in terms of how much time it takes each individual to meet “basic needs” in his or her own very particular circumstances would almost certainly defy any attempt at systematic empirical operationalization (2016: 55-7). rose (2016: 57) concedes as much when weakening her recommendation as i shall discuss shortly. in discretionary time, we employ a “social benchmark” operationalization modelled on the standard conceptualization of the poverty line (goodin et al. 2008: 34-53). as such, ours is a socially relative measure. rose (2016: 55) complains that that fact renders it “potentially responsive to spurious social factors” – “individuals ... might, due to competitive pressures or other social norms, spend either more time or less time than is objectively necessary” in any given activity. true, but the standard measure of "poverty" (as having less than half the median equivalent income among people in your country [atkinson 1998]) is relative in just the same way and for good reason (townsend 1979). rose (2016: 55) further complains that our measure takes no account of the extra time disabled people may need to perform the same tasks as others. but neither, of 5 w hile rose (2016: 128-34) officially leaves the choice of distributive rule open, when she calls for everyone to have a “fair share of free time” it is clear that that would be a more egalitarian distribution than at present. here and in what follows, you can substitute for “egalitarian” any of those other distributive rules that rose envisages and the same basic point would remain. 6 across the eight countries studied in goodin et al. (2008: 229), an “equal temporal contribution” division of household labor gives a household an hour or two more discretionary time on average than inegalitarian “male breadwinner” or “most-efficient breadwinner” divisions of household labor. freeing up time 41 leap 5 (2017) course, do conventional poverty measures take any account of the extra money that disabled people need to perform the same tasks as others. so we are in good company, and i shall go on to argue for good reason. conceding the empirical inscrutability of her philosophically preferred conceptualization of free time, rose (2016: 57) proposes for the purposes of a public standard of justice a measure of free time that is only “moderately tailored to relevant individual circumstances”7 by that she means it should take into account, not how much time it would take any particular actual individual to perform a necessary task, but rather how long “is objectively necessary for individuals in a set of relevant circumstances”, such as a particular class of disability. given a suitable data set, a “social benchmark” akin to ours in discretionary time could indeed be constructed for people with each specific class of disability. however, notice that that measure itself would elide individual differences among persons within the same broad disability class, in just the same way (merely to a lesser extent) that rose complains about in our original measure of discretionary time. furthermore, that added granularity would come at a cost. public policy inevitably, and from a rule-of-law perspective rightly, operates through a system of rules that are general in form (goodin 1995: ch. 1). for policy purposes, special needs such as those of the disabled are better seen as “exceptional circumstances” to be addressed separately, perhaps sometimes even on a purely case-by-case basis. likewise when compiling social statistics to inform policy, it is better to employ whatever indicators best ref lect the situation of the general population as a whole. that is what should inform general policy. it would be quite wrong to let general social policy, or social statistics either, be unduly driven by the need to accommodate the very special circumstances of some small and very special (however sympathetic) subgroups of the population. the advantage of using the “social benchmark” standard that we developed in discretionary time is that it allows us to calibrate relative effects of different social circumstances and policy interventions on people's temporal autonomy. using that measure, it becomes clear just how great are the temporal inequalities between single parents and others – and just how great those are likely to remain even with swedish-quality support and workplace accommodation. here is the crucial calculation. in the us, people in childless dualearner households have around 94 hours per week of discretionary time, 7 as rose (2016: 46-7; cf. 87) acknowledges, in order for it to play a role in a public theory of justice, we need a concept of free time such "that it is possible to reliably and verifiably know whether an individual possesses" a given amount of it or not. 42 robert e. goodin leap 5 (2017) compared to 51 hours of discretionary time for us single parents. in sweden, the figure is 95 hours per week for childless dual-earners but 70 hours a week for single parents (goodin et al. 2008: 64). clearly, single parents have massively more temporal autonomy in sweden than in the us. equally clearly, they are still massively worse off than childless dualearners, even in sweden. that is simply to say that there is only so much that even the very best social policy interventions can do in this realm. 4. reducing versus redistributing time in necessary tasks as my earlier allusion to the electric washing machine indicates, technological innovations can sometimes reduce the total number of hours that anyone has to spend in necessary tasks of life.8 an electric washing machine yields equally clean clothes with far fewer temporal inputs. telecommuting – working from home via the internet – cuts out time that would otherwise be required to travel to work. and so on. just occasionally, time-use policies designed to improve the work-life balance work in similar fashion. much more commonly, they simply redistribute the necessary tasks. child care is a prime example. social policymakers reduce (in some places much more than in others) the time pressure on parents through a suite of taxes-and-transfers and child care subsidies, in effect “buying them out” of necessary time in child care (goodin et al. 2008: 177-96). but these policies do little to reduce society's total amount of time spent on child care 9 the kids still have to be taken care of by someone. what these policies primarily do is redistribute child care time from one person (the parent) to another (the employed child carer), in the process transforming the one's “necessary time in unpaid household labor” into someone else's "time in paid labor". make no mistake: that may be a very good thing in all sorts of ways. assuming the parents are glad for the extra time and the child carer is glad for the extra money, it can be a mutually beneficial trade much to be welcomed – at least if the child carer gets paid a decent, non-exploitative wage. socially, too, there may be something to be said for sharing around responsibility for the care of society's children. but let us see it clearly for what it principally is: essentially a redistribution 8 rose (2016: 128) alludes, in similar spirit, to variability in “how much time a society [as a whole] must devote” to necessary tasks. 9 except insofar as they increase multi-tasking, with childcare workers minding more children at the same time. freeing up time 43 leap 5 (2017) rather than a genuine reduction of temporal burdens across the society as a whole.10 statisticians quip that if all married men divorced their wives and hired them back as housekeepers the national income would double (clark 1958). let us not fall for a similar sleight of hand, here, mistaking a change in coding categories for a real overall reduction. 5. time shifting and harmonization much the same can be said about rose's (2016: 112-26) proffered “workplace accommodation” policies for easing the temporal burdens on parents. insofar as that merely amounts to letting parents attend to child-related duties during working hours, and making up that lost time to their employers at some other time, parents would experience no net gain in free time as a result. they would gain more discretionary control over when they do what they have to do – and of course that is a genuinely important dimension of temporal autonomy in its own right. but that is not to be confused with giving parents their “fair share of free time”, as rose often puts it. time-shifting leaves the sum-total of one's temporal commitments completely unchanged. discretionary control over when to do what one has to do is important in all sorts of ways. it is the difference between working on a production line and “being one's own boss”. it is the difference between working to a “roster” and being perpetually “on call”. it is crucial for being reliably able to coordinate time to share with partners and friends. flexitime works fine for that, when you are just trying to coordinate with one or a few others. it works less well when there are many others with whom you are trying to coordinate, particularly for different purposes. rose (2016: 99-101) advocates sunday closing legislation on the grounds that they are a means of orchestrating “shared free time” across the entire society. rose describes a common period of free time across the entire society as being necessary to ensure “freedom of association”. associations are affinity groups. rose (2016: 101) mentions, as examples, associations among people united in a political cause, a religious practice, a family or a social network. here, we are talking about people getting together with 10 note that with paid child care of any form, someone has to spend time in paid labor to pay for it as well as someone paid for the purpose having to spend time taking care of the children. (funding child care through progressive taxes minimizes the former factor but hardly eliminates it.) the sum of those two factors will almost certainly exceed the time that would have been necessary if the children were cared for through unpaid household labor. 44 robert e. goodin leap 5 (2017) others with whom they antecedently know they have something in common. even more important might be the way in which a period of common free time might facilitate people unintentionally bumping into others with whom they have no prior acquaintance and nothing knowingly in common. extreme social segmentation, combined with the hyperpolarization that it breeds, is bad for a society. there is surely a strong case to be made for “random sorting”, and for a common period of free time across the entire society to facilitate that – just as in earlier periods there was a case to be made for public parks as places that people otherwise segregated by class and ever so many other dimensions of social difference could brush up against one another and, with luck, come to see one another as fellows (sunstein 2001: 23-50). as that example suggests, however, a period of common free time is not enough to ensure social mixing – common public spaces are required as well. 6. autonomy in (and not just over) time use if we care about people's autonomous control over their time, then we should (as i have said) care about their autonomous control over when they do what they have to do, as well as over how much time they spend doing it. a concern with people's autonomous control over their time should also lead us to care about how much control they have over what they are doing, whether they are engaging in that activity out of choice or necessity. that is true across the range of possible uses of their time. people need to spend a certain amount of time (and typically choose to spend still more) cooking and grooming and raising their kids. autonomy is served by their having a choice whether or not to spend extra time in those ways. but autonomy is also served by their having more than just one choice (or any small number of choices) in what to cook, how to groom and how to raise their kids. that is one of the standard things said in praise of liberal societies in general. something analogous is importantly true as regards time spent in paid labor. across the eight countries we studied, people of prime working age spend on average around 38 hours in paid labor, around half of that out of choice and half out of necessity (goodin et al. 2008: 88). if we care about people's autonomy, we should surely care not merely about their autonomy in choosing whether, when and how long to work – important though those choices obviously are. we should also care about the degree of autonomy that people are able to exercise in doing the work that they do (muirhead 2004). opportunities to exercise autonomous choice within the workplace freeing up time 45 leap 5 (2017) are as important as opportunities to exercise autonomy in how much time to spend at work. 7. welfare is something else yet again finally, recall that autonomy is one thing, welfare another. the two may be contingently connected. indeed, they typically are. having a choice enables you to get what you want, making you (subjectively, any way) better off in consequence. however strongly that contingent connection, however, autonomy and welfare are nowise identical. time and discretionary control over it is a resource. however, how much “good” one derives from that resource depends on how one uses that resource. poverty researchers say the same thing about money: a miser with a lot of money in the bank is resource-rich, even if (because he refuses to spend any of it) he is welfare-poor (ringen 1988). ensuring that people have adequate (or equal) resources – whether of free time or other sorts – can be a socially important goal in and of itself. it enhances their autonomy. it equalizes their opportunities. but we should not fool ourselves into thinking that ensuring adequate or even equal temporal autonomy to everyone will necessarily lead to equality of welfare, to equality the quality of their lives. bibliography atkinson, a.b., 1998: poverty in europe, oxford: blackwell. clark, c., 1958: “the economics of housework”, bulletin of the oxford institute of statistics 20: 205-11. gershuny, j., 2000: changing times, oxford: oxford university press. gershuny, j. and j.p. robinson, 1988: “historical changes in the household division of labor”, demography, 25: 537-52. goodin, r.e., 1995: utilitarianism as a public philosophy, cambridge: cambridge university press. — 2001: “work and welfare: toward a post-productivist welfare state”, british journal of political science 31: 13-40. goodin, r.e., j.m. rice, a. parpo and l. eriksson, 2008: discretionary time: a new measure of freedom, cambridge: cambridge university press. muirhead, r., 2004: just work, cambridge: harvard university press. ringen, s., 1988: “direct and indirect measures of poverty”, journal of social policy 17: 351-65. rose, j.l. 2016: free time, princeton: princeton university press. sunstein, c., 2001: republic.com, princeton: princeton university press. 46 robert e. goodin leap 5 (2017) thompson, e.p., 1967: “time, work discipline and industrial capitalism”, past & present 38: 56-97. townsend, p., 1979: poverty in the united kingdom, harmondsworth: penguin. united nations (un), department of economic and social affairs, statistics division, 2005: guide to producing statistics on time use, new york: united nations. van parijs, p. and y. vanderborght, 2017: basic income, cambridge: harvard university press. widerquist, k., j.a. noguera, y. vanderborght and j. de wispelaere, eds, 2013: basic income, malden: wiley blackwell. wilkinson, r. and m. marmot, eds, 2003: social determinants of health: the solid facts, 2nd edition, copenhagen: who. wilkinson, r.g. and k. pickett, 2009: the spirit level: why more equal societies almost always do better, harmondsworth: penguin. world health organisation (who), 2008: closing the gap in a generation: health equity through action on the social determinants of health, final report of the commission on social determinants of health, geneva: who. leap 5 (2017) free time, freedom, and fairness1 j e ppe von pl at z university of richmond abstract julie rose argues that free time is a proper concern of distributive justice and that all citizens have a legitimate claim to a fair share of free time. her argument relies on the effective freedoms principle, which says that all citizens have a legitimate claim to a fair share of the resources required to exercise their formal liberties and opportunities. rose argues that free time is one such resource, which entails that all citizens have a legitimate claim to a fair share of free time. i argue that rose’s argument does not establish a claim to a fair share of free time, at least not if we understand fairness to mean something more than that all should receive their due. i also suggest an extension of rose’s argument that yields the conclusion that all citizens have a legitimate claim to a cooperatively fair share of free time. keywords: time, justice, freedom, rights, fairness, work “in capitalist society, free time is produced for one class by the conversion of the whole lifetime of the masses into labourtime.” (marx 1976: 667) 1. introduction in free time, julie rose argues that “justice requires that all citizens have a fair share of free time” (2016: 4; see also 1, 5, 17, 63, 68, 73, 85, 92, 128). rose defines free time as “time beyond that which is objectively necessary for one to spend on one’s own basic needs, or the basic needs of one’s dependents” (2016: 58). accordingly, justice requires that all citizens have a fair share of time to spend on pursuits other than these basic needs. this thesis might appear uncontroversial, but, as rose notes (2016: 1, 3, 17-18, 90), most contemporary theories of justice do not include any principles concerning the distribution of free time. moreover, if sound, her argument 1 i am grateful to tom parr, two anonymous reviewers, and lauren mcgillicuddy for helpful written comments on an earlier version of this essay. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 5 48 jeppe von platz leap 5 (2017) warrants a complaint of justice against most societies, for few societies seem to secure a fair share of free time for all. rose’s argument starts with the effective freedoms principle, which rose states as follows (2016: 66-7; see also 4, 73, 74, 101, 111, 128-30): “citizens have legitimate claims to a fair share of the resources generally required to exercise their formal liberties and opportunities”. rose takes this principle as a given, since it is endorsed by “nearly all theories of distributive justice” (2016: 66; also 90). liberals tend to use this principle to defend conclusions about material conditions, but rose argues (2016: chapters 3 and 4) that free time is generally required to exercise formal liberties and opportunities. to illustrate, think of the political rights of democratic citizenship: rights to form, join, and leave political parties, to voice one’s opinion in political matters, to participate in elections, and so on. exercising these rights takes time – time to discern the nature of political questions, the positions of the candidates, what justice and efficiency requires, and to vote on election days (rose 2016: 73-74). in general, it takes time to exercise many of the formal liberties that liberals argue all citizens should enjoy; so, by the effective freedoms principle, justice requires that all have a fair share of free time. here is the argument in overview: 1. all citizens have a legitimate claim to a fair share of the resources generally required to exercise their formal liberties and opportunities. (= the effective freedoms principle.). 2. free time is a resource generally required to exercise one’s formal liberties and opportunities. 3. therefore, all citizens have a legitimate claim to a fair share of free time. rose’s argument offers an important corrective to a theoretical neglect of a real and practical dispute. free time is a subject of justice; it has been neglected by political philosophy, and all citizens have a claim to free time. moreover, since time has played a central role in the struggle between capital and labor, the theoretical neglect of free time, and time more generally, is remarkable. the history of the working class is as much a history of the struggle for time – for shorter and reasonably organized work-weeks, pay for overtime, lunchbreaks, sick-days, holidays, vacation, varieties of paid and unpaid leaves – as for fair wages and workplace safety.2 this struggle for time continues. however, i have some concerns about rose’s argument. rose relies on the 2 for example, the 1891 erfurt program of the german social democratic party demands an eight-hour workday, limitations on night-work, and uninterrupted rest periods of at least 36 hours once per week (e.g. sundays off work). free time, freedom, and fairness 49 leap 5 (2017) effective freedoms principle to establish the conclusion that all citizens have a legitimate claim to a fair share of free time. but i doubt that the effective freedoms principle can get her this conclusion, at least not if we understand “fair share” in terms of cooperative fairness. i also worry that rose’s reliance on the effective freedoms principle leads her to miss an opportunity for thinking about free time as an issue of justice which is theoretically appealing, true to the historical (and continuing) struggles for time, and can support the sort of claims to a cooperatively fair share of free time that the effective freedoms principle does not deliver. my argument begins with a few distinctions. first, i distinguish between two parts of economic justice, which i call enabling and distributive justice. the former requires that all citizens are enabled to participate as free and equal in social cooperation, the latter that the distribution of the benefits and burdens of cooperation is fair. second, there is the already indicated ambiguity in the notion of fairness. fairness can be understood as the somewhat vacuous requirement that the resources useful for pursuing conceptions of the good in general (so-called all-purpose means) should be fairly distributed. but it can also be understood in terms of the more specific notion of cooperative fairness, where it says that cooperators have a claim to receive a fair share of the benefits, and to carry only a fair share of the burdens, of their cooperation. third, there is an ambiguity in the effective freedoms principle which leads to two different arguments that free time is a concern of economic justice. free time is of concern to justice, both because free time is necessary for exercising basic liberties and because free time is an all-purpose means.3 this duality is mirrored in two different readings of the effective freedoms principle and these, in turn, issue different requirement of justice with respect to free time. on one reading, the effective freedoms principle is tied to the basic liberties. on another reading, the effective freedoms principle is tied to the ability to freely pursue one’s interests. rose does not have to choose between these meanings, for she shows that free time is a resource in both senses. however, i argue that the effective freedoms principle is best understood as tied to basic liberties, and that, thus understood, the claims of justice it supports are not claims to fair shares of free time, but rather sufficientarian claims to adequate amounts of free time. the indicated ambiguities are not particular to rose’s argument, nor do they by themselves produce fallacies or nasty dilemmas. but resolving them 3 “[f]ree time is required both to exercise many of one’s fundamental freedoms and to pursue one’s con-ception of the good, whatever it may be” (rose 2016: 71). 50 jeppe von platz leap 5 (2017) will, i hope, bring more clarity to the (in my opinion, limited) purchase of the effective freedoms principle. it will also allow me to suggest a way to extend rose’s argument so that it supports the conclusion that all citizens have a claim to a cooperatively fair share of free time. 2. economic justice: enabling and distributive if we accept the rawlsian idea that we should think about the principles of economic justice as the basic rules of cooperation between free and equal citizens, the principles of justice can then be applied to draw distinctions between different resources (or primary goods) according to how they are related to the social cooperation governed by these principles. in the rawlsian framework, these all-purpose means include basic liberties, opportunities, wealth and income, and the social bases of self-respect. some of these resources (the basic liberties and the resources required to exercise them) are of interest to economic justice because they enable citizens to participate as free and equal in the system of social cooperation. other resources are of interest to ensure the ongoing fairness of the distribution of opportunities to pursue one’s goals, benefits, and burdens of cooperation. the general notion of all-purpose means can thus be disaggregated into three ways in which resources are of interest to economic justice: first, as basic rights and liberties necessary for citizens to develop and exercise the moral powers engaged in social cooperation. second, as the material (and temporal) background conditions for citizens to actually enjoy these rights and liberties to the sufficient degree. third, as the inputs and outputs (burdens and benefits) of the productive and distributive processes of social cooperation. of course, the same resource can appear in multiple categories. thus, wealth will appear both as the second and third sorts of resource, since some wealth is necessary to exercise one’s basic rights and wealth is an output of social cooperation. this way of thinking about how resources are significant for justice also indicates a division of the subject of economic justice – a division that i believe is general to those liberal egalitarian theories of justice that should share rose’s commitments, and which turn out to be helpful for my discussion of her argument. this is the division between the enabling and free time, freedom, and fairness 51 leap 5 (2017) the distributive parts of economic justice.4 enabling justice is concerned with empowering all citizens to be free and equal participants in social cooperation. distributive justice is about how we should distribute the burdens and benefits of social cooperation taking place among citizens thus empowered. enabling justice requires that all members have access to the rights and means sufficient to participate in social cooperation as free and equal. distributive justice requires that citizens carry at most a fair share of the burdens and receive at least a fair share of the benefits of social cooperation. in terms of the three kinds of resources identified above, we can say that enabling justice is concerned with the first two kinds; distributive justice with the third kind. in rawls’s theory of justice, the first principle of justice expresses the requirements of enabling justice, the second principle expresses the requirements of distributive justice. enabling justice is sufficientarian. the aim is to ensure that all citizens are empowered to cooperate, which means they should all enjoy access to the basic liberties and the means sufficient to exercise these. distributive justice could be, but typically is not sufficientarian, for the claims it supports are to fair relative shares of burdens and benefits. 3. two notions of fairness the general requirement of economic justice is that we should seek a just (we might say, fair) distribution of all-purpose means. rose shows that free time is an all-purpose means and so should be fairly distributed. however, notice that little is revealed by saying that these resources should be fairly distributed. this general notion of fairness says little more than that these resources are proper subjects of economic justice, so that all should receive their due of these. it is the role of the principles of economic justice to specif y what a fair distribution of these resources would look like. we find a more interesting notion of fairness when it is defined in terms of cooperation, so that the basic norm is that the rules that govern cooperation must secure each cooperator’s claim to a fair share of the benefits and burdens of their cooperation. to be clear, here are the two notions of fairness:5 4 these two parts do not exhaust the subject of justice, but they are the main parts of what i call economic justice, that is, the principles that should guide the design of institutions that define and regulate social cooperation. 5 there are, of course, many others. 52 jeppe von platz leap 5 (2017) non-cooperative fairness: we can talk about fairness as the general notion governing the distribution of all-purpose means in general. the norm is that all-purpose means should be fairly distributed. cooperative fairness: we can talk about fairness in terms of the claims of cooperators to the benefits and burdens of their cooperation. here the norm is that all cooperators receive at least a fair share of the benefits, and carry no more than a fair share of the burdens, of cooperation. the distinction applies in other contexts as well. if we are served with a pie, then all should receive their fair share of it (non-cooperative fairness). if we bake the pie together, each has a claim to a fair share of it (cooperative fairness). but the distinction has particular relevance for economic justice, for theories of economic justice can be divided into those that theorize economic justice in terms of cooperative fairness and those that do not. the non-cooperative notion of fairness is pre-theoretical and vacuous. to say that justice requires that all receive their fair share in this sense is to say that all should receive their due – a statement that, if not analytical, is so generic that any and all theories of justice could include it. libertarians, classical liberals, socialists, rawlsians, and social democrats could all agree to this principle, while disagreeing about what it means. the cooperative notion of fairness is the general norm of what i called distributive justice above. it presents us with a stronger and more interesting notion of fairness. one indication of its relative strength is that right-liberal and libertarian theories of justice would not accept it as norm of economic justice, since they reject the idea that we should think of society as a system of social cooperation (e.g. hayek 1978; nozick 1974: chapter 7). and it is more interesting, since the notion ties fairness directly to the claims that cooperators can make on each other as cooperators, which invites more demanding norms of reciprocity and the idea that departures from an equal distribution must be reasonably acceptable to those who have less (since all come into the cooperative relationship as free and equal and thus with an initially equal claim to the benefits and burdens of cooperation). to further illustrate the distinction, it might be helpful to think again in terms of rawls’s theory of justice. the general question is what a fair distribution of all-purpose means would look like (using the noncooperative notion of fairness). the two principles of justice answer this question. however, this answer involves the cooperative notion of fairness, namely the claim to a fair share of benefits and burdens that each cooperator has as cooperator. while this cooperative notion of fairness is free time, freedom, and fairness 53 leap 5 (2017) more specific in terms of content than the first, it also needs further specification. in rawls’s theory this further specificity is provided by the second principle of justice. other theories might offer different principles to specify cooperative fairness, but the notion itself restricts the domain of available answers. with this distinction in mind, we can see that rose’s conclusion that all citizens have a claim to a fair share of free time is ambiguous between the weaker conclusion that free time should be fairly distributed where fairness is used in the non-cooperative, untheorized, and less demanding sense; and the stronger conclusion that free time is subject to the norms of cooperative fairness. in the following two sections i argue that rose’s arguments from the effective freedoms principle can support only the weaker of these two conclusions. in section 5 i sketch an argument that leads to the stronger conclusion. 4. two readings of the effective freedoms principle corresponding to the two senses in which free time is a resource, we can distinguish between two read-ings of the effective freedoms principle: general liberty reading: all citizens should receive a fair share of all-purpose means useful for freely pursuing their conception of the good, whatever it may be. basic liberties reading: all citizens have a legitimate claim to the resources adequate to exercise their basic liberties. both of these are at work in rose’s argument; the first, when she treats free time as an all-purpose means; the second, when she treats it as required for the exercise of basic liberties. it seems clear that the first reading of the effective freedoms principle simply restates the general requirement of non-cooperative fairness that all-purpose means should be fairly distributed, which means that nearly all theories of justice can include it. the second reading of the principle has more bite, and it seems that right-liberals and libertarians would reject it. this need not concern rose, for the principle has a secure place in any liberal egalitarian theory of justice of the sort which rose argues should concur with her conclusions. rose shows that free time is necessary for various basic liberties, including freedom of occupation, basic political rights, and freedom of association (2016: 91, 73-4, chapter 5). these arguments successfully establish that all citizens have a claim to the sufficient measure of free time required to exercise these liberties. 54 jeppe von platz leap 5 (2017) though rose uses both readings of the effective freedoms principle, this is a strength of her argument, rather than a problem, for it shows that free time is a subject of justice in two distinct senses: in general, as an allpurpose means, and in particular, as a condition of the exercise of basic liberties. the problem, rather, is that neither of these senses supports the stronger conclusion that free time is a subject of cooperative fairness, which means that her conclusion – that all citizens have a claim to a fair share of free time – is true only if we take fairness in the non-cooperative and vacuous sense. at least, so i argue in the following section. 5. free time as subject of enabling justice to give some substance to my worry, it will be helpful to look at the place of the effective freedoms principle in rawls’s theory of justice.6 looking at rawls also offers further explanation for why enabling justice is sufficientarian. rawls repeatedly says that something like the effective freedoms principle defines membership in the family of liberal theories of justice. rawls defines liberalism as those theories of justice that affirm the basic rights and liberties familiar from liberal democratic regimes, give special priority to these rights and liberties, and secure for all citizens “adequate all-purpose means to make effective use of their liberties and opportunities” (1996: 6; see also lix; rawls 2008: 12; rawls 2001: 141). in this sense he affirms the effective freedoms principle. yet the effective freedoms principle is not a distinct principle alongside the two principles of justice as fairness, and rawls appears to think it is covered by what he says with respect to the enabling conditions of the first principle of justice, the principle of equal basic liberties. the first principle itself does not affirm or contain the effective freedoms principle, but in political liberalism, rawls writes that the first principle should be understood as working within a setting where citizens’ basic needs are met, “at least insofar as their being met is necessary for citizens to be able to understand and to be able to fruitfully exercise those rights and liberties” (1996: 7). thus, rawls employs the effective freedoms principle in the second, basic liberties reading identified above. and as such, the principle issues the sufficientarian requirement that basic needs are met, where needs are understood as the preconditions for exercising the basic rights and liberties. accordingly, it is not the case that citizens have a legitimate claim to a fair share of the resources required for 6 rose (2016: 67, 70) mentions rawls as exemplary endorser of the effective freedoms principle. free time, freedom, and fairness 55 leap 5 (2017) exercising their basic liberties; rather, they have a legitimate claim to the amount of those resources adequate to exercise their basic liberties. by the distinction drawn earlier, the effective freedoms principle thus serves as a principle of enabling rather than of distributive justice. the role of the effective freedoms principle in rawls’s theory illustrates how it serves as a principle of enabling justice, and can be satisfied whether or not citizens receive a cooperatively fair share of resources. as a principle of enabling justice, the principle carries a target and cutoff point for the resources it covers – once all citizens have enough of those resources to exercise their basic liberties, it issues no further requirements. to summarize, once we have the distinction between enabling and distributive justice in hand, and once we have distinguished between noncooperative and cooperative fairness, and once we have clarified the two readings of the effective freedoms principle, we can say that: first, if we use the general liberty reading of the effective freedoms principle, then the principle says little more than that all-purpose means should be fairly distributed, where fairness is used in the non-cooperative, pre-theoretical, vacuous sense. in this employment, the effective freedoms principle does support the conclusion that free time should be fairly distributed, but not in the strong sense of cooperative fairness. second, if we use the basic liberty reading of the effective freedoms principle, then the principle is a principle of enabling justice. as such, it issues strong requirements of justice with respect to free time, namely, that all must enjoy access to free time sufficient to enjoy their basic liberties. however, this requirement does not support claims to fair shares, merely to adequate amounts. so, third, neither of the two readings of the effective freedoms principle can be used to establish the conclusion that the distribution of free time is a subject of the cooperative norms of fairness of distributive justice. so, fourth, rose’s argument has not established that all citizens have a claim to a fair share of free time, if we understand fairness in the stronger sense of cooperative fairness. rose’s main conclusion that free time is a subject of justice stands untouched by my argument. indeed, she has shown that the distribution of free time should be fair, if we understand fairness in the general, pre-theoretical, non-cooperative sense that people should receive their due share of free time. moreover, as rose makes clear (2016: 128-3), she 56 jeppe von platz leap 5 (2017) does not claim that her argument determines which principle should govern the distribution of free time, so she can leave that matter to be settled by the various theories of justice in light of their respective interpretations of fairness. however, by relying on the effective freedoms principle, rose’s argument misses an opportunity for developing free time as a subject of what i have called distributive justice and thus as subject to the stronger norms of cooperative fairness. in the following section i offer a suggestion to extend rose’s argument and make free time a subject of norms of cooperative fairness; thereby offering a way to reach the conclusion that all citizens have a legitimate claim to a fair share of free time, in the stronger, cooperative sense of a fair share. however, first, i want to acknowledge two complications that deserve mention, though they do not change my conclusion. first, even as subjects of enabling justice, some resources are rivalrous goods: the amount of them needed to exercise a basic liberty depends on what others have. this makes it harder to determine what the adequate amount is, but it does not change the nature of the claim, which is to an adequate amount; thus, there is a threshold at which the claim of enabling justice to that resource is fully satisfied (even if this threshold varies with what others have). this point generalizes to other sufficientarian claims of justice; even if the resource covered by the sufficientarian guarantee is a rivalrous good, the nature of the claim still has the sufficientarian characteristics of adequacy, cutoff-points, and non-relativity (even if the absolute amount one has a claim to is a function of what others have, it is still not a claim to a relative share, but to enough to pass the threshold, which may depend on what others have). the second complication is that some (if not most) resources are subjects of both enabling and distributive justice. again, take money as an example. on one hand, money is needed to exercise basic liberties, so all citizens have a legitimate claim of enabling justice to enough income and wealth to exercise their basic liberties. on the other hand, money serves as both an input and an output of the system of cooperation (and translates smoothly into many of the benefits and burdens of cooperation), so the distribution of income and wealth also is a proper subject of distributive justice, meaning that all citizens have a legitimate claim to a cooperatively fair share of income and wealth. below, we shall see that free time also is a subject of justice in both senses. free time, freedom, and fairness 57 leap 5 (2017) 6. free time as a subject of distributive justice it is, i think, hard for an argument that relies on the effective freedoms principle to deliver norms of cooperative fairness. here i suggest a way in which rose’s argument could be extended to distributive justice and issue the more demanding norms of cooperative fairness that rule that domain. for i do think that time and free time are proper subjects also of distributive (rather than only enabling) justice, and that norms of cooperative fairness apply to the distribution of free time. but to see this, we have to think outside the scope of the effective freedoms principle. let us return to time and free time as resources. as rose identifies it (2016: 46), a resource that could plausibly be the subject of a claim of justice must be “generally required to pursue any conception of the good,” and it must be practically possible to know and verify whether individuals possess the resource. i suggested earlier that this general notion can be disaggregated into three sorts of resources: basic liberties, the means needed to exercise these to the sufficient degree, and the inputs and outputs of social cooperation. the basic liberties reading of the effective freedoms principle deals with the second of these; norms of cooperative fairness deal with the third. rose shows that free time is an all-purpose means required for the exercise of basic liberties. i argue that free time is also a resource in the third sense, which makes it subject to the norms of cooperative fairness. why do we have social cooperation in the first place? one straight forward answer is that through social cooperation we get better access to all the good things of life: security, transportation, comfortable shelter, food, potable f luids, peace, freedom, stability, the pursuit and dissemination of knowledge, cultural enrichments, innovation and the development of technologies, health-care, comforts in old age; the list goes on and on. a host of things that human beings care about are available only in society and through social cooperation. there are, of course, inputs and outputs to the processes by which these many goods and advantages are produced and distributed: resources are both consumed and created by these processes. one way to think about distributive justice (the right way, i think) is that we need principles to guide the distribution of both inputs and outputs – the sharing of the burdens and benefits of social cooperation. time is one of the inputs to this process of social cooperation, and free time is one of the outputs. even with every advance of modern technology, what we produce requires the investment of time alongside other inputs such as natural resources and knowledge. the time thus spent is work (in a 58 jeppe von platz leap 5 (2017) broad sense); burdensome, but productive.7 (this expands the concept of work to include currently uncompensated care-work and uncompensated artistic endeavors that truly enrich society). for in exchange for the collective time spent working, we get not only all the good products of our work, but our collective work also frees up time itself – the division of labor and the productive nature of social cooperation and the progress that we make when we cooperate all make it so that we do not have to work every waking hour to satisfy our basic needs or the basic needs of our dependents. (some still do, and if they must, maybe that is unjust for the reasons rose lists, and because they do not receive a cooperatively fair share of free time). if we didn’t live in society and cooperate, we would spend nearly all our time trying to survive; living in society, we sometimes are released from the imperatives of basic needs and have time to do what we want. free time is, of course, intangible and usually not traded as a separate commodity, but the same could be said for the other main social goods: freedom, security, and access to knowledge and cultural enrichments. the norms of cooperative fairness say that the distribution of the benefits and burdens of social cooperation should be distributed in a manner that is fair to all cooperating parties. since time is a factor of production and free time one of the products, it follows that all cooperating citizens have a claim to contribute no more than their fair share of time, that is, to work no more than their fair part, and to receive no less than their fair share of free time. they can, of course, choose to keep working in their free time, insofar as they want to exchange their free-time resource for other resources. it is hard to say much more in the abstract about what cooperatively fair shares of benefits and burdens are. but we can say that time and free time are proper subjects of distributive justice and the norms of cooperative fairness appropriate to it. and that, in turn, allows us to say that the requirements of justice with respect to time are open-ended rather than sufficientarian (there is no target and cutoff point), that inequalities of free time need justification, that relative shares of free time matter, that the struggle for a fair distribution of work time and free time continues beyond the point where all citizens have enough time to exercise their basic liberties, and that it looks like a problem of justice when some must work a lot and others work little; when some have just enough free time, while others can choose a life of leisure. if marx was right (cf. opening quote), the problem is not merely that the working class has insufficient free time, but 7 of course, not all work is equally burdensome and perhaps some work is not burdensome at all. but for the purposes of distributive justice, it makes sense to assume, so that sentence reads "it makes sense to assume that work is normally burdensome." free time, freedom, and fairness 59 leap 5 (2017) that a capitalist society tends to suffer from an unfair distribution of work time and free time. thus, time is a subject of justice in two ways and citizens have at least two distinct claims of justice when it comes to free time. first, as rose persuasively argues, free time is a subject of enabling justice. as such, free time is covered by the effective freedoms principle and all citizens have a claim to an amount of free time sufficient to exercise their basic rights. second, as sketched in this section, work time and free time are subjects of the norms of cooperative fairness that govern distributive justice. as such, all citizens have a claim to use no more than a fair share of time at work, and to receive no less than their fair share of free time in return for their work. the history of the working class struggle for time is based on both of these claims of justice. but i believe that in capitalist economies, the tendency is for the capitalists to receive more than their fair share of free time, and to provide less than their fair share of time as a factor of production. the leisure class have their good times at the expense of the hard times of the working class. and that is unfair, not because the working classes do not have enough time to exercise their basic liberties – if that is the case, it is unjust in another sense – but because this exhibits an unfair distribution of the burdens and benefits of cooperation. when the working classes keep fighting for shorter and more reasonably structured work weeks, paid vacation, and so on, they have not and need not couch their demands in terms of basic needs, for they can make their claims in terms of cooperative fairness; of carrying only their fair share of the burden and receiving their fair share of the benefits of the productive processes of society. by contrast with claims based on the effective freedoms principle (or similar principles of enabling justice), cooperative fairness justifies claims to fair shares on an ongoing basis even after all basic needs have been met. the struggle between capital and labor does not end once basic needs are met (or the effective freedoms principle is satisfied); the struggle for fairness remains. 7. conclusion rose argues that the effective freedoms principle supports a claim for all citizens to a fair share of free time. i have argued that the effective freedoms principle is ambiguous between two readings, each of which supports a distinct argument with respect to free time. on the first reading, the effective freedoms principle restates the general idea that all-purpose means should be fairly distributed. since free time is such an all-purpose means, it should be fairly distributed. on the second reading the principle 60 jeppe von platz leap 5 (2017) requires that all citizens have access to the resources required to exercise their basic liberties. since some measure of free time is required to exercise basic liberties, all citizens should enjoy access to this measure of free time. both arguments are sound; rose has successfully established that free time is a proper subject of justice. however, neither of the arguments establishes that all citizens have a legitimate claim to a fair share of free time – at least not if we understand fairness in the stronger sense of cooperative fairness. for the first argument establishes that all citizens should receive a fair share, but employs the general, non-cooperative, and vacuous notion of fairness. the second argument does not establish a claim to a fair share, but a claim to the amount adequate to exercise the basic liberties. i also suggested a way in which rose’s argument can be extended to establish the stronger conclusion that free time is a subject of cooperative fairness, though to do so we have move beyond the effective freedoms principle. for, i argued, time and free time are real concerns of distributive (as opposed to enabling) justice, and as such are subjects of norms of cooperative fairness. time spent working is one of the inputs and burdens of the cooperative processes by which we create the social goods, and free time is one of the outputs and benefits made available through social cooperation. thus, all citizens have a claim to contribute no more than a fair share of their time in the form of work, and to receive no less than a fair share of free time. these requirements of distributive justice are not sufficientarian, have no target or cut-off point of adequacy, and thus support claims to a just distribution of work time and free time beyond the point where all have sufficient free time to exercise their basic liberties. when it comes to time as a concern of justice, i believe this concern with time as a subject of cooperative fairness is as important as the concerns rose establishes. moreover, i’m inclined to think that this concern for time as a subject of cooperative fairness is needed to make sense of the ongoing struggles over time between labor and capital. that struggle will not and should not end once citizens have enough free time to exercise their basic rights, for an adequate amount for all is consistent with distributive injustice bibliography hayek, f.a.v., 1978: law, legislation, and liberty, volume 2: the mirage of social justice, chica-go: chicago university press. marx, k., 1976 [1867]: capital: critique of political economy, volume 1, london, uk: penguin classics. free time, freedom, and fairness 61 leap 5 (2017) nozick, r., 1974: anarchy, state, and utopia, new york, ny: basic books. rawls, j., 1999: a theory of justice, revised edition, cambridge, ma: harvard university press. — 2005: political liberalism – expanded edition, new york: columbia university press. — 2001: the law of peoples: with “the idea of public reason revisited”, cambridge, ma: harvard university press. — 2008: lectures on the history of political philosophy, ed. s. freeman, cambridge, ma: harvard university press. rose, j., 2016: free time, princeton: princeton university press. leap 5 (2017) free time and economic class luc a s sta nc z y k harvard university abstract in her book, free time, julie rose argues that all citizens must be understood to have a claim to a fair share of free time. in the first part of this essay, i outline rose’s theory of free time and explain why her discussion should be regarded as an important advance on existing thinking about the requirements of liberal egalitarian justice. in the second part of the essay, i argue that ref lection on rose’s conception of free time will force liberal egalitarians to confront some potentially troubling philosophical questions. these questions can be brought out by asking, first, how much free time people from different economic classes in fact have according to rose’s conception, and, second, how much free time people belonging to different economic classes should have according to this conception. ref lecting on these questions, i argue that the idea that all citizens have a claim to a fair share of free time does not support giving seemingly harried yet already wealthy professionals the benefit of more f lexible work schedules, generous caregiver leave, or more humane overtime rules. the reason is that such people must be judged to already have their fair shares of free time. this fact is an indication of a significant economic class divide, which liberal egalitarians must now somehow take into account. keywords: free time; leisure; work; distributive justice; freedom; aff luence; class 1. introduction many people today complain about being overworked. according to julie rose, the harried professionals, working parents, and others who make this complaint may well have a point. in her new book, free time, rose argues that, in a liberal society, citizens have a claim to more than merely the standard package of formal opportunities and liberal rights. in addition, every adult citizen should be understood to have a claim to a fair share of free time. moreover, to ensure that everyone gets his or her fair share, it is not enough to attend to the distribution of income and wealth. after all, even a generous d oi : 10. 310 0 9/l e a p. 2017.v 5.0 6 free time and economic class 63 leap 5 (2017) wage subsidy will do a “time poor” single parent little good if she will be fired summarily for refusing overtime work. similarly, a disabled person might be able to earn plenty of money working thirty-five hour weeks, yet his special needs may take up the rest of his waking hours unless he is able to find reliable in-home help. accordingly, to ensure that each and every person gets a fair share of discretionary “hours for what we will,” the state must attend to the distribution of free time as well. more precisely, if everyone’s fair share of free time is, say, eight hours per day, then, according to rose, public policy must ensure the following four things (rose 2016: 135). first, it must ensure that each person can actually meet his basic needs in sixteen hours per day. second, it must make it so that each person can choose to spend no more than sixteen hours per day doing the things objectively required to meet his basic needs. third, it must ensure that each person is normally able to meet his basic needs in no more than sixteen hours per day while working in the occupation of his choice. finally, public policy must ensure that some of the free time that each person has each week is not merely uninterrupted but also shared with a substantial number of others. otherwise, argues rose, the freedom of association and cognate basic liberties of citizenship will threaten to become substantially less valuable to citizens or, at the limit, will be rendered worthless. in defense of these claims, rose puts forward a new conception of free time as a distinct object of distributive justice. in the first part of this essay, i will outline rose’s theory of free time and explain why her discussion constitutes a major advance on existing thinking. in the second part of the essay, i will argue that reflection on rose’s conception will force liberal egalitarians to confront some potentially explosive philosophical questions. these questions can be brought out by asking, first, how much free time people from different economic classes in fact have according to rose’s conception, and, second, how much free time people belonging to different economic classes should have according to this conception. i will argue that asking these two questions will swiftly open up a pandora’s box in the liberal theory of social justice. what is at stake, at bottom, is how liberal philosophers, and other people committed to freedom and equality, should think about the persistence of class in modern society. it is a credit to rose’s book that its pioneering discussion of free time will help to return this important matter to the foreground. 2. rose’s theory of free time the central claim of rose’s book is that people have a claim to a fair share of free time. the reason, at bottom, is that people need free time in order to make meaningful use of their formal liberties and opportunities. for 64 lucas stanczyk leap 5 (2017) example, if you have to work five days a week from morning till night as well as on weekends just to pay the rent and avoid eviction, then many of the most important liberties of citizenship will for this reason be rendered worthless to you. forced to be at work at all hours on pain of losing your job, falling behind on the rent, and getting kicked out by your landlord, you will have little use for the freedom to engage in protest and peaceful assembly, to join a political or social organization, or to make other uses of the freedoms of speech, conscience, and association. more generally, in order to make effective use of the numerous legal freedoms you have as a citizen to pursue your personal projects whether alone or with others, you need not just the money but also the time away from work that is required to make some meaningful headway on your goals. it is no use signing up for a course in spanish, for example, if there is simply no way you will be able to free up the time to attend the nightly classes and do the homework. the same goes for all of your other personal projects, from trivial to all-important, just as long you cannot advance these projects while you find yourself stuck at work. yet surely, argues rose, if it is of central importance to give everyone a range of formal rights and freedoms, then it must be centrally important that everyone be afforded the time to make some meaningful use of these freedoms as well. accordingly, we ought to recognize that, as a matter of liberal justice, people have a claim to a fair share of free time. w hile the basic point may be straightforward, rose argues persuasively that its significance for how we should think about distributive justice has been widely overlooked. the reason is that political theorists and economists alike have tended to conceive of free time as the inverse of the hours that people choose to spend in paid work. owing in part to the grip of this standard view, it has been widely assumed that there is no need for the state to attend to the distribution of free time in order to secure distributive justice. instead, the state’s proper role is said to be to maintain a system of fair wages, using familiar mechanisms such as taxes and transfers. then, if a person wants more free time than he currently has, he can always choose to work fewer hours and earn less. the problem with this reasoning, argues rose, is that the all-purpose resources of free time and income are not perfectly substitutable. this is true for at least three different reasons. the first is that labor markets are generally imperfect. at the prevailing hourly wage rates, many people would prefer to work fewer hours for a proportionately smaller take-home income. however, for various economic and non-economic reasons, most employers refuse to hire people part-time, and they routinely threaten to fire employees who do not show up for the full “nine-to-five.” as a result, free time and economic class 65 leap 5 (2017) a substantial number of people find themselves in a condition that economists call over-employed, that is to say, willing to give up some proportional amount of their income for additional free time yet unable to do so without losing most or all of their labor incomes altogether. second, there are some things that a person must do, such as being hooked up for hours to a dialysis machine, that require her presence and are therefore bound to consume her free time, regardless of whether she is provided with more income. in general, activities that are necessary to satisf y our basic biological needs – such as eating, sleeping, and exercising – are like this, and the minimum amount of time that must be spent on these activities in order to stay alive and healthy varies from person to person. therefore, even when everyone has identical access to the exact same income, it will not normally be true that everyone is in a position to enjoy the same or even an adequate amount of free time, nor that giving people with unusually time-consuming bodily needs more money will always solve the problem. sometimes, in order to have a minute to herself, what a person needs above all is someone’s help – and yet there is no guarantee that the requisite form of assistance will always be for hire. finally, there is an even more basic reason why, from the point of view of most able adult citizens, income and free time are not perfectly substitutable. namely, in societies like ours, the average person will eventually be allowed to go hungry and homeless unless she works for money, and therefore spending some of her waking hours earning a minimum income – at least enough to pay for the essentials – is something that the average person normally has to do, on pain of serious deprivation. therefore, it is not true that for any level of income and any level of free time, a person can always straightforwardly increase her free time by quitting her job and earning less income. on the contrary, if she quits her reasonably well-paid job today, she may have to work even longer at some other, crummier job tomorrow. moreover, because people differ dramatically in their qualifications and hourly earning potential, the time that different people must spend earning a minimally adequate income will likewise dramatically differ. consequently, they will have different amounts of time left over to spend with their children, educate themselves, run for public office, and so on. accordingly, as long as people are not required to enjoy identical earning potentials on other grounds of distributive justice, different people are bound to have access to different amounts of free time, and a question will arise as to whether social institutions have really provided each person with his or her fair share. in her book, rose argues that to appreciate these and other points, we 66 lucas stanczyk leap 5 (2017) need to stop conceiving of free time as the chosen inverse of paid labor time. instead, the free time that a person has on any given day is better understood as twenty-four hours minus the number of hours she must spend doing whatever is necessary to meet her basic needs, on pain of failing to satisfy her basic needs. in other words, the core of the politically relevant notion of free time is opposition to an idea of compulsion or necessity. a person’s free time is whatever time she is not compelled to spend doing things to meet her bodily, financial, and other basic needs, or the basic needs of her dependents – and hence time that is available for other purposes. according to rose, it is free time in this distinct sense, of “time for what we will,” that should be recognized and treated as a distinct object of distributive justice. for without adequate free time in this sense, our formal liberties would end up being largely worthless to us. now, rose suggests that ref lection on her conception of free time provides a justification for extending familiar types of labor market and working-time regulation (rose 2016: 135-45). for example, a generous minimum wage law can help to ensure that no one needs to work multiple jobs for a combined sixty hours a week simply to make the most basic ends meet. to the extent that a generous minimum wage law has this effect, it can be understood as a central means not only of giving the least well-paid workers more income and wealth, but also of giving each such worker (more of ) his fair share of free time. similarly, overtime regulations that prohibit employers from firing employees who refuse to work back-to-back shifts can be understood as a means of ensuring that each person is able to work no more than a set number of hours per day or per week, while still retaining access to an income sufficient to meet his basic needs, and thereby freeing him to take up other pursuits. hence overtime regulations, too, look to be a tool that is normally essential to ensure that everyone will have access to his or her fair share of free time. in addition, rose suggests that laws requiring companies to provide caregiver leave and f lexible work schedules will normally be required to ensure that people with parental and other caregiving duties will be able to enjoy their fair share of free time as well. finally, rose argues that there may even be a case for requiring most businesses to shut down on sundays. otherwise, people whose employers require them to work on weekends are likely to lack a substantial amount of free time that is shared with, and can thus be coordinated and enjoyed with, a substantial number of others, including friends, neighbors, co-religionists and other possible associates. it turns out, however, that none of these general laws and regulations are recommended by ref lection on rose’s conception of free time. instead, humane overtime regulations, mandatory caregiver leave, f lexible work free time and economic class 67 leap 5 (2017) schedules, and sunday closing laws are plausibly necessary to give the least well-paid workers their fair shares of free time. however, such rules are far from necessary to liberate the seemingly harried aff luent professionals who complain more than others about their impossible work hours. on the contrary, just in case some of the least well-paid workers today can be said to lack their fair shares of free time as well as their fair shares of income, this condition will normally imply that many aff luent professionals should be constrained to work longer rather than shorter hours. in short, if we take seriously rose’s idea of free time as a distinct object of distributive justice, then providing seemingly harried aff luent professionals with the benefit of more humane overtime regulations, f lexible work schedules, caregiver leave, and sunday closing laws will turn out to be at cross-purposes with securing a just distribution of free time, and therefore with distributive justice more broadly. 3. wealthy people already have their fair shares of free time according to rose, how much free time a person has depends on how long she must personally work to have the benefit of an income that is sufficient to pay for the essentials. on this conception, then, a person’s free time evidently depends not only on the extent of her income-producing and salable wealth, but also on her maximum earning potential from labor, as well as on which of her ongoing expenses are to be regarded as essential or nonnegotiable. imagine, then, a “house-rich” but “cash-poor” interior designer, who was once and might still be a well-paid corporate law yer, with a large mortgage on an expensive house that is only half-way paid off, working long hours to save for residential college tuition for her three young sons. if it is not essential to have multiple guest bedrooms, work in a particular creative occupation, or spend half a million dollars on three times four years of residential college tuition, then the seemingly harried, single-parent interior designer will count as already having more than her fair share of free time. after all, she can ask her children to go to the local community college, sell the oversized house and multiple non-entry level cars, and perhaps even quit working altogether in her forties and live indefinitely off her savings, albeit on a much more modest consumption schedule than she and her children have enjoyed thus far. alternatively, if she really does prefer to spend more than her accumulated wealth sustainably allows, she can return to earning much more per hour by practicing corporate law. from the point of view of the vast majority of workers today, these fallback options are nothing if not enviable. 68 lucas stanczyk leap 5 (2017) presumably, then, we should not say that the interior designer and her children would be deprived of the essentials just in case she gave up working fifty hour weeks in her existing niche occupation. however, if we admit this much concerning what she does and does not have to do to maintain a basic level of functioning for herself and for her children, then entire classes of seemingly overworked professionals will turn out not to need any new overtime regulations, parental leave policies, or f lexible work schedules in order to enjoy their fair shares of free time.1after all, it will often be possible for college-educated and aff luent professionals to transition to a noticeably less time-consuming role or occupation, sell some of their real and financial assets, reduce their expenses, or commit to some combination of these courses of action, without ever seriously risking the non-satisfaction of their basic needs or the basic needs of their dependents. indeed, to the extent that they already possess substantial housing and financial wealth, by cutting out some of their non-essential expenses and “down-sizing” to a modest rental apartment in a less prime location, they may well never have to work for money again. now, it seems reasonable to say that anyone in this enviable situation already has her fair share of free time. where millions of others must work forty or more hours a week just to pay the rent and buy their clothing and food, a person with a fancy house in good repair and, say, an additional half a million dollars to her name does not have to work any where near the number of hours that she actually works, and, in truth, in order to enjoy a modest but steady income from accumulated property, she may no longer have to work at all. presumably, then, it is not the case that public policy should enable such a person to maintain her existing class position at even less cost in time to herself, or what comes to the same thing, enable her to take even more time off from what would otherwise be tax-revenue generating employment at the public’s expense. certainly, this is not what rose’s theory of free time would seem to recommend. after all, for rose the free time that any given aff luent professional has is not to be understood as the inverse of the time that she actually spends working a paid job. instead, the free time that a person has is the inverse of the time that she strictly has to work in order to meet her basic bodily and financial needs. so, if an already rich person without any 1 there may of course be other reasons (for example, reasons of economic efficiency or political strateg y) to include aff luent professionals in a generally applicable working-time policy. however, if what i have said about the interior designer is correct so far, then a general policy will not be necessary to give aff luent professionals their fair shares of free time. this is one of the main points that i will go on to elaborate in the text. free time and economic class 69 leap 5 (2017) unusual bodily needs could choose to live comfortably off her existing wealth, yet chooses to spend all of her waking hours getting even richer through lucrative paid work, then the enormous amount of time that she spends at the office for this purpose should not be thought to “detract from [her] free time, for it is still available to devote to any other end” (rose 2016: 42). on the contrary, it is precisely because she already has so much more wealth than other people that she must be understood to have far more free time as well: “to see this distinction, consider two individuals who spend all of their time engaged in the same types of activities for the same amounts of time: each spends twelve hours per day working for pay, eight hours sleeping, one hour eating, and so forth. the first is a wealthy heiress who could easily support herself with her investment income, though she actually chooses to spend a significant portion of her time working as a model. she is not contractually bound to work such long hours; every morning she receives a call from her agent asking if she would like to work that day and for how many hours, and she suffers no penalty if she chooses not to work. the second is a day laborer with no personal wealth who can command only low wages and so must work long hours to earn enough money just to get by. she is also not legally committed to working a certain number of hours: each day she is hired by a different person on an hourly basis for her day’s work. though both the heiress and the day laborer engage in the same number of hours of paid work, it is implausible to contend that both thereby have the same amount of free time. they both can choose, strictly speaking, whether or not to work on a given day, but the heiress’s paid work is discretionary in a way that the day laborer’s is not: the day laborer must work in order to attain a basic level of functioning, while the heiress need not... even though the heiress does happen to spend her time engaged in paid work, the time she devotes to paid work is still available to her to pursue other ends if she so chooses. if, one day, she wishes to go to the beach instead of working, she possesses the free time to do so...” (rose 2016: 42-43). the reason that the heiress must be judged to have an unequaled amount of free time – even if she chooses to work sixty hour weeks and is therefore not “leisured” in that sense – is that the heiress but not the average worker is always “free not to devote her time to work,” because she is free to quit working without risking homelessness or the non-satisfaction of any other basic need. in other words, precisely because she owns an extraordinary amount of wealth – enough to live comfortably even without 70 lucas stanczyk leap 5 (2017) having to work – she must for this reason be judged to have an extraordinary amount of free time as well. in rose’s theory, this conclusion is simply a consequence of the way that free time has been defined. however, in this regard, the wealthy heiress who chooses to work long hours as a fashion model is just like any other aff luent professional who has come into the possession of class-altering financial assets. just like the wealthy heiress, the former corporate law yer with a net worth of a million dollars is free to devote far less than fifty hours a week to paid work as an interior designer, without ever seriously risking having to sleep rough or facing material deprivation of any comparable kind. indeed, the truth is that, like the heiress, the former corporate law yer is already free to stop doing paid work altogether. for she already has enough wealth to maintain a comfortable life even if she quits her job and spends all of her weekdays at the beach instead. however, if this is correct, then neither overtime regulations nor any sort of f lexible working-time policy will be required to ensure that professionals who have managed to accumulate a liberating amount of wealth will be able to enjoy their fair shares of free time. for the very fact that they have accumulated enough wealth to live comfortably even without working entails that they already also enjoy an unparalleled amount of free time. why, then, should aff luent professionals be thought to have a claim in fairness to be provided with even more? neither of the answers that a liberal egalitarian might give seem plausible in this context. on the one hand, it will be implausible to say that wealthy professionals currently lack an adequate amount of free time. for, unlike the vast majority of workers, who really do have to work five days a week just to make ends meet, professionals who have a house and, say, half a million dollars in retirement accounts are already free to spend the entirety of their weekdays doing pretty much whatever they like. like the heiress, most of them simply choose to use their free time to continue working and accumulating more wealth. on the other hand, it would be even more implausible to say that aff luent professionals lack their fair shares of free time because, while they each enjoy a fully adequate amount, they systematically have less of it than other workers have. for, as we have already seen above, this description is in fact the opposite of the truth. precisely because they have been allowed to accumulate much more wealth, aff luent professionals must be understood free time and economic class 71 leap 5 (2017) to enjoy a much larger share of free time than almost anyone else.2 accordingly, it is hard to see why any new laws would be required to give aff luent professionals their fair share of free time. 4. a universal flexible work policy would be strongly regressive i take it that for some readers this will not be a welcome result. suppose, then, that in determining how long a given affluent professional must work to satisfy her basic needs, we deliberately disregard the types of facts outlined above. for example, suppose we say, with rose (2016: 90-92), that each person is entitled to a fair share of free time in the occupation of her choice, so that if an interior designer with a middling full-time income could instead run a much more lucrative law practice part-time, this is to be regarded as irrelevant to the question of how many hours per month it is objectively necessary for her to be employed in order to pay her mortgage and cover all of her other bills. similarly, suppose that we disregard the fact that she could sell one of her luxury cars and relocate to a much less expensive house, as well as the fact that she is among the one in seven americans who was fortunate enough to inherit the equivalent of the median lifetime labor earnings of the bottom half of all workers3 – and that she could easily use some of this nest egg to cover the equivalent of the average family’s monthly housing and other expenses, without spending any time at all in paid work. if we disregard these types of facts, then even the most asset-rich and privileged professionals may well turn out not to have access to their fair shares of free time, just as long as the bosses in their chosen professions expect them to be at the office at all hours (because they pay them so handsomely for it). against the background of such deliberate informational restrictions, however, the requirement that public policy must continually guarantee each person a fair share of free time will now turn out to be strongly economically regressive. for consider. if investment banks, elite law firms, and similar employers are ordered to give their highest-paid employees generous paid parental and 2 again, assuming no unusually time-consuming bodily needs, this conclusion follows straightforwardly from rose’s conception of free time. on this conception, a person’s free time on any given day is simply twenty-four hours minus the number of hours that she has to work to be able to buy food, adequate shelter, and to meet all of her other basic bodily and financial needs. so, if someone already has enough wealth to live comfortably even without having to work, then, as long as she does not have unusually time-consuming bodily needs, she must be understood to have much more free time than the average person currently has. 3 72 lucas stanczyk leap 5 (2017) caregiver leave, then, not being able to squeeze their costliest employees as much as before, the corporate profits of these employers are sure to erode, and, therefore, also the tax base for downwardly redistributive transfers, including wage subsidies for much poorer service-sector workers. moreover, even if an exception is made for such elite employers, requiring them to guarantee only unpaid leave to their highest-paid employees, then the tax base is still likely to shrink. for when richly-paid yet harried professionals are guaranteed not to be fired for taking ample unpaid time off, we can expect that many will choose to spend fewer days and months in paid work, thereby generating that much less salary income that can be taxed by the state. and yet, with less tax revenue available for general government spending and redistributive programs, either some of the state’s spending will have to be cut or other – less well-paid – people will have to continue to work at least as much, if not more, than they currently do. in short, we have arrived at a dilemma. on the one hand, there is reason to affirm that each and every person has a claim to some substantial amount of free time. presumably, then, affluent professionals who work for absurdly demanding bosses should be understood to have a claim to more humane overtime regulations, more flexible work schedules, and so on. however, in order to count such people as having to work at all (let alone as being forced to continue working at their current jobs), we must deliberately disregard not merely their spending habits but their existing housing and financial wealth. and yet if we decide to disregard their wealth, and if we then go on to provide (even) affluent professionals with more free time in the occupations of their choice, then the aim of continuously guaranteeing each person some reasonable amount of free time will turn out to be strongly economically regressive. for when harried corporate lawyers and investment bankers are suddenly rendered safe from being fired for refusing to work on weekends, many of these exceptionally well-paid professionals will undoubtedly choose to work less and thereby reduce the redistributive tax base. as a result, less revenue will be available to subsidize the wages – and therefore also the free-time – of workers who have decidedly less of both. on the other hand, if we try to avoid this outcome by acknowledging a person’s wealth in the course of assessing what she does and does not have to do to meet her basic needs, then it will turn out that many highly-paid yet seemingly harried professionals will not need any new type of working-time regulations in order to count as enjoying a truly extraordinary amount of free time. the reason is that many of these people are already wealthy enough not to have to work anywhere near as long as they do. indeed, many educated and affluent professionals could henceforth work strictly parttime at more or less any minimum wage job, and could even drop out of the free time and economic class 73 leap 5 (2017) paid labor force altogether for years at a time, without ever seriously risking the non-satisfaction of their own or their dependents’ basic needs. these are time-use possibilities that the vast majority of service-sector workers today can only dream of. hence it seems that, if only we consider the time-use possibilities afforded by their wealth, many affluent professionals will have to be regarded as already having been blessed with a truly extraordinary amount of free time. however, if that is the case then it is difficult to see why, from the point of fairness, such persons should be entitled to even more free time at what will then be others’ expense. 5. conclusion as i have already hinted, the dilemma described in this essay emanates from a deeper question facing not merely rose but also other egalitarian liberals. namely, in a liberal society, the distribution of wealth and income is also a principal basis for distributing free time. people who are penniless are typically expected to work long hours in order to survive, whereas people who inherit or accumulate substantial wealth are free to spend their days however they like. as a result, the wealthy generally enjoy both more wealth as well as more free time. in a liberal society, are there other ways that freedom itself is tied up with economic class? this is the deeper question that rises to the surface on a close reading of rose’s free time. bibliography piketty, t. 2014: capital in the twenty-first century, cambridge: harvard university press. rose, j. 2016: free time, princeton: princeton university press. leap 5 (2017) domination and the (instrumental) case for free time* de si r e e l i m the mccoy center for ethics, stanford university abstract this paper examines the case for fair shares of free time from a civic, or neo-republican perspective. i claim that, unlike liberal egalitarians like julie rose, who can make a straightforward case for free time, republicans’ theoretical commitments make it more appropriate for them to throw their weight behind a portion of time specially allotted for political activity. however, as i will show, republicans have strong instrumental reasons to endorse fair shares of free time for all citizens. first, focusing on the idea of non-domination, i outline the typical preoccupations of republicanism that i believe have direct implications for how they ought to treat the topic of free time. next, focusing on the case of domination in the workplace, i claim that fending off the threat of domination requires a substantial amount of time. chief ly, workers need time to effectively participate in processes of justification and contestation, in order to uphold sturdy checking mechanisms that can protect them against domination. as a consequence, setting aside a window of time specially devoted to political activities, rather than free time in itself, is more consistent with the republican project. nevertheless, in the final section, i conclude that “free time” would be instrumentally necessary on the republican picture. fair shares of free time are a preferable means to achieving conditions of nondomination than compulsory time for political activity, for practical and principled reasons. keywords: republicanism; domination; freedom; workplace democracy; free time * i am indebted to my colleagues at the mccoy center for ethics in society, tom parr, philip pettit, alex gourevitch, an anonymous reviewer, and the leap editors for their valuable comments on an earlier draft of this paper. i also thank grant macdonald for helpful information on unionization efforts amongst student workers. d oi : 10. 310 0 9/l e a p. 2017.v 5.07 domination and the (instrumental) case for free time 75 leap 5 (2017) 1. introduction julie rose has argued persuasively that liberal egalitarians ought to embrace free time as a distinct object of egalitarian concern. specifically, she contends that free time, defined here as time that can be devoted to one’s chosen ends at one’s discretion, as opposed to time constrained by necessary activities, is a resource that citizens are entitled to a fair share of (rose 2016: 39).1 this is because free time is a resource that is “generally required for the pursuit of one’s chosen ends, whatever those may be”, as well as “generally required to exercise one’s formal liberties and opportunities” (rose 2016: 67). rose’s book is a crucial intervention into the neglect of free time despite its political and philosophical significance. my contribution to the symposium further advances this goal by examining the case for a fair share of free time from a civic, or neo-republican perspective.2 i claim that, unlike liberal egalitarians like rose, who can make a straightforward case for free time, republicans’ theoretical commitments make it more appropriate for them to throw their weight behind a portion of time specially allotted for political activity. however, as i will show, republicans have strong instrumental reasons to endorse fair shares of free time for all citizens. in section 2, focusing on the idea of non-domination, i outline the typical preoccupations of republicanism that i believe have direct implications for how they ought to treat the topic of free time. in section 3, focusing on the case of domination in the workplace, i claim that fending off the threat of domination requires a substantial amount of time. chiefly, workers need time to effectively participate in processes of justification and contestation, in order to uphold sturdy checking mechanisms that can protect them against domination. as a consequence, setting aside a window of time specially devoted to political activities, rather than free time in itself, is more consistent with the republican project. nevertheless, in the final section, i conclude that “free time” would be instrumentally necessary on the republican picture. fair 1 we should leave open the possibility that at least some non-citizens might be entitled to time-related rights, especially those who participate in the host country’s workforce. however, this discussion, as rose’s does, will focus only on citizens. 2 here, i don’t claim that republicanism is the theory of justice we ought to prefer. rather, i am interested in seeing how much of rose’s argument for fair shares of free time can be preserved in a different political framework, as well as calling attention to the temporal dimension within republicanism. neither do i claim that the central argument i make for free time is the only republican path that can be taken to this destination. for example, the labor republicans discussed by alex gourevitch in from slavery to the cooperative commonwealth (cambridge: cambridge university press, 2014) have contended that each person needed adequate time for political engagement and personal development. my intention is simply to highlight one of the core preoccupations of contemporary civic/neo-republicans and show how this might lead to a distinctive instrumental argument for fair shares of free time. 76 desiree lim leap 5 (2017) shares of free time are a preferable means to achieving conditions of nondomination than compulsory time for political activity, for practical and principled reasons. 2. civic/neo-republicanism and non-domination 2.1 the definition of republicanism characteristically, republicans believe that the existence of domination is what makes the exercise of power unjust. i will avoid commenting on disagreements between various strains of civic republicanism, instead only seeking to outline what i take to be the fundamental tenets of a republican theory. in line with philip pettit’s inf luential account (1997), there are three basic aspects to any dominating relationship. someone has dominating power over another to the degree that they have the capacity to interfere, on an arbitrary basis, in particular choices that the other is able to exercise (pettit 1997: 52-4). interference may encompass a wide range of possible behaviors, including coercion of their physical body or will, as well as manipulation, which takes the form of agendafixing, deceptively shaping people’s beliefs or desires, or rigging the consequences of their actions (pettit 1997: 52). it worsens agents’ situations by altering their range of options, the predicted payoffs assigned to those options, or by establishing control over which outcomes will result from which options (pettit 1997: 53). importantly, it is not necessary that the dominating agent actually interferes with the dominated party; in fact, the person who enjoys that power need not even be inclined towards interference (ibid). the emphasis, instead, is on their effective capacity to interfere, which leads the power-victim to live at the mercy of the power-bearer (lovett 2013: 98). in addition, exit costs on the part of the power-victim, which frank lovett terms “dependency”, play a role in determining a dominating relationship’s level of intensity. as he puts it, “the greater the dependency of subject persons or groups, the more severe their domination will be, other things being equal” (lovett 2013: 50). suppose that leaving a dominating social relationship would worsen someone’s prospects, and that undertaking the move itself would impose further costs and risks (ibid). the higher the exit costs for the dominated party, the more leeway dominating agents have in treating her poorly, as they can do so with the knowledge that she is not likely to leave the relationship. for my present purposes, i want to focus more closely on what it means for interference to be arbitrary. i take interference to be arbitrary when it domination and the (instrumental) case for free time 77 leap 5 (2017) is only subject to the discretion or goodwill of the power-holder, and is not forced to track the interests of those who are interfered with (pettit 1997: 55).3 of course, power-holders may freely cater to the interests of those they interfere with, like in the case of a benevolent dictator who cares deeply about the well-being of her subjects. nevertheless, the benevolent dictator still dominates insofar as her interference is unchecked, unconstrained, or unaccountable (ibid). in what ways, then, can power-holders be “forced” to track the interests of their powersubjects? checking mechanisms – institutional arrangements that place limits on how power-holders may use their power – may perform these three functions: a. justification: ensuring that power is justified to its subjects, whether by appeal to norms of public reason, and/or through their participation in democratic processes;4 b. contestation: ensuring that subjects of the power are able to protest if their interests fail to be met; c. retribution: ensuring that power-holders are appropriately punished if they do not track power-subjects’ interests. (benton 2010: 408). as the next section will reveal, the need for robust checking mechanisms, especially those pertaining to justification and contestation, is of special importance to the relationship between republicanism and time. to sum up, for republicans, society must aim for a distribution of rights, goods, and resources that secure each individual’s status as safe from domination. one necessary condition for non-domination, which i continue to focus on in the remainder of this article, is the existence of sturdy checking mechanisms that force power-wielding agents to track the interests of their power-subjects. 3 i leave open how “interests” ought to be determined. 4 for benton, justification refers to governments having to give citizens reasons for their decisions, as well as being forced to respond to citizens’ interests through the democratic process. however, one concern is that she provides an incomplete account of the role of democratic procedures. other than forcing reason-giving and responsiveness from those in power (termed the “output-based view” by bellamy (2008)), democracy also encompasses participation that render decisions non-arbitrary (termed the “input-based view”). on the “input-based view”, it is not the content of the decisions made that renders power non-arbitrary, but my having equal status in public decision-making processes (bellamy 2008: 164). w hile drawing on her categories, i depart from benton by interpreting justification in the broad sense, taking it to include democratic justification through coauthorship. on my view, democracy helps justif y state power through compelling it to enact responsive policies, and the fact i am able to play a co-authoring role through participation. 78 desiree lim leap 5 (2017) 3. time and non-domination i will now establish the conceptual link between time and non-domination. republicans, i believe, can make a distinct argument for free time that is nevertheless complementary to the liberal egalitarian one. to brief ly visit the latter, i take it that liberal egalitarianism’s two central commitments are to individual freedom of choice, as well as some degree of equality in the distribution of society’s benefits. on this account, what will make the exercise of political power unjust is if citizens are unable to meaningfully exercise their individual freedom of choice, or because the distribution of society’s benefits is unequal to the extent that some citizens are significantly less able to utilize those liberties and opportunities. consequently, it is not difficult to see why a fair distribution of free time ought to be championed by the liberal egalitarian. if the distribution of free time is inegalitarian, with some people enjoying a much larger amount of time that can be devoted to their chosen ends at their discretion than others, some citizens would be far less able, or even unable, to meaningfully pursue their projects and commitments. however, looking to non-domination reveals a different path from which we might reach a similar destination. i make the following argument in two stages. in the first stage, i argue that there is an important temporal dimension to republicanism. as emphasized in the previous section, republicans greatly value the presence of checking mechanisms that ensure that power-wielders are forced to track the relevant interests of power-subjects. given that successfully establishing checking mechanisms and keeping them in place is often very time-consuming, it is important that power-subjects have enough time to do so. to bring out the significance of time for republicans, i concentrate on the concrete case of nondomination in the workplace. chief ly, workers need time to establish or participate in crucial processes of justification and contestation that protect them against workplace domination. i expand on these points below. the second stage, which argues that free time – and not just time in itself – may be instrumentally necessary for us to have sufficient time for political activity, will be fully developed in section 4. before i proceed, a note about how we ought to envision the relationship between my argument and the liberal egalitarian one is in order. as i have hinted, i view the republican case for free time as a friendly companion to the liberal egalitarian one. it does not challenge the premises of the liberal egalitarian argument, but simply brings out another important political function of free time. assuming that relations of domination are a quintessential type of social inequality, where the dominated suffer an domination and the (instrumental) case for free time 79 leap 5 (2017) inferior public status, it helps to bridge a key connection between free time and social equality – a connection that rose’s account does not fully investigate. combined, the two arguments help us build a strengthened case for fair shares of free time. 3.1 domination in the workplace the extent of domination that can be found in present-day workplaces should not be underestimated. elizabeth anderson has made an explicit comparison between workplaces and authoritarian governments. for her, the workplace is akin to a private government where everyone must obey an assigned superior who is “unaccountable to those they order around”, as they are “neither elected nor removable by their inferiors”, and who issues orders that “may be arbitrary and can change at any time, without prior notice or opportunity to appeal” (anderson 2015: 94). similarly, as alex gourevitch puts it, “…the typical workplace is a site of domination not self-government, of arbitrary power not democratic control. workers are subject to a panoply of rules, directives, orders, commands, whims, caprices, and impositions over which they have no legal control and that they have limited capacity to resist” (gourevitch 2016: 17-8). while workplace domination may come in diverse guises, i will describe two forms that gourevitch has helpfully identified: personal and structural domination. in line with the definition sketched out in the previous section, these forms of domination do not hinge on employers possessing malicious intentions, or even their actual interference with workers. it is enough for them to possess the capacity to do so, in virtue of current systems of employment that are routinely taken for granted. as a starting point, workers suffer personal domination when they are subject to the arbitrary authority of bosses whom they are conventionally expected to obey (gourevitch 2015: 316). employers have frequently been judged to be within their rights when subjecting workers to unreasonably harsh working conditions, or f lat-out demeaning and humiliating treatment. these include being forced to work in extreme heat or physically hazardous but not illegal conditions, being forced to wear diapers rather than go to the bathroom, being refused lunch breaks, or being forced to take random drug tests (ibid). importantly, these exercises of power often go above and beyond what has been explicitly spelt out in contracts, and thus what has been assented to by the employee at the outset. this is because employers have the authority to specify underdetermined terms in work contracts, which are necessarily vague or incomplete (gourevitch 80 desiree lim leap 5 (2017) 2013: 607). for instance, despite the potential for wide-ranging disputes over conditions of employment, including questions about whether the political views or social media postings of employees are a reasonable basis for being fired, these decisions are largely controlled by employers (ibid). as this example reveals, vagueness or incompleteness paves the way for employers’ control to creep into employees’ off-hour lives. as anderson observes, most believe that they cannot be fired for their off-hours facebook postings, or for backing a political candidate their boss opposes, but only half of american workers enjoy even partial protection of their off-duty speech from employer retaliation (anderson 2015: 95-6). in these ways, personal domination by employers goes beyond poor treatment during work hours: it involves the capacity to exercise insidious power even over intimate aspects of workers’ lives. on top of personal domination, workers also experience structural domination, which rises out of how they are forced to sell their labor-power in the absence of reasonable alternatives to wage labor (gourevitch 2015: 313). many societies are structured such that some group of owners privately controls all of society’s productive assets, and non-owners are forced by the legally protected unequal distribution of productive assets to sell their labor to some employer or other (gourevitch 2013: 602). because labor is forced, under the current structure of property-ownership, employers have the capacity to set arbitrary terms and conditions for job positions, with the knowledge that they will continue to be filled. many end up working “longer hours, at lower pay, under worse conditions than they would otherwise accept” not because they want to, but because they must (gourevitch 2015: 314). echoing lovett’s contention that dependency makes domination more intense, structural domination heightens personal domination because it makes workers dependent on employers for a living wage. in the absence of reasonable alternatives to selling one’s labor, there are onerous exit costs to leaving the job market. this dependency may be exploited by employers who force employees to work under harsh or punishing conditions precisely because they know the workers do not have adequate exit options. furthermore, as gourevitch notes, even if employers do not intentionally seek to take advantage of workers, exploitation is implicit in their economic decisions about firing, hiring, wages, and hours that presume a steady supply of economicallydependent labor. again, employers can fire a worker who challenges their authority, knowing they can most likely be easily replaced. in short, the exiting imposes asymmetrical costs on workers and employers. this has the effect of forcing workers to put up with bad jobs, while permitting employers to get away with exploitation and ill-treatment. domination and the (instrumental) case for free time 81 leap 5 (2017) to be clear, the argument is not that all workers are equally dominated. of course, there is a wide spectrum of domination across different lines of work, with some privileged classes of employees enjoying relatively low levels of personal and structural domination (compare a factory worker to a tenured university professor with multiple job offers). the extent of workplace domination that we experience may also be inf luenced by our individual career choices: if, for example, i chose to be a professional football player whose employers are considerably more dominating than if i had chosen the alternative of being a tenured university professor.5 however, because of the underlying structure of property-ownership, all workers are dominated to some extent, and the privileged class of workers who experience trivial levels of domination is relatively narrow. furthermore, i submit that there is a comparably narrow class of socially privileged people who have voluntarily chosen a more dominating job over a less dominating one, often because of other valuable payoffs (like fame and fortune in the football player case). more often than not, workers do not have access to less dominating alternatives that would not also be accompanied by significant exit costs, and this is the group that i take theorists like anderson and gourevitch to be interested in. finally, it is worth noting that my voluntarily choosing a more dominating job over a less dominating one does not necessarily neutralize the wrong of domination. to see this point, suppose that i voluntarily choose to marry adam over ben with the knowledge that i am more likely to be dominated in my relationship with adam, who has a rather controlling personality. yet it would be misguided to say that my freely choosing adam over ben makes adam’s dominating behavior over me morally acceptable. 3.2 domination and checking mechanisms how ought we respond to these instances of personal and structural domination? here, i want to focus on how checking mechanisms can help to reduce employers’ capacity for arbitrary interference. in 2.1, i introduced three types of checking mechanisms that force power-holders to track the interests of power-subjects: those that enable justification, contestation, and retribution. i now consider how these checking mechanisms bear on workplace domination. specifically, i will explore how processes of contestation and justification that directly involve workers can be 5 i thank tom parr for this example, and for pressing me on these points. 82 desiree lim leap 5 (2017) implemented to keep employers’ arbitrary power in check.6 first, workplace decisions should be made robustly contestable by workers. in order to be emancipated from the relationships of domination they experience in the workplace, workers ought to organize themselves into political organizations and industrial unions, thus transforming the social and economic order (gourevitch 2016: 25).7 this is because the formation of such organizations and unions would allow workers to robustly contest situations where their interests fail to be met through strengthening their collective bargaining power, thus empowering them to challenge arbitrarily-made decisions. if employees found themselves faced with unreasonable or humiliating demands from the employer, they could dispute these with the union’s backing. being a trade union or staff association member has been shown to increase the odds of a problem at work being resolved satisfactorily (compa 2004: 5). in addition, while being part of a union in itself does not give workers a direct say in determining the terms and conditions of employment, unionized workers typically enjoy significantly more favorable working conditions than non-unionized workers.8 workplace decisions should also be justified to workers. notably, it has been suggested that a right to justification regarding the conditions of one’s labor should be understood as the extension of the moral right to selfdetermination; “we have a right to demand and be given good reasons when deliberating over matters that affect us in important ways” (borman 2017: 82). one way the right to justification can be satisfied is for employees to participate in a system of co-determination, where they share control of an economic enterprise with providers of capital, such as through work committees and employee representation on boards of directors (hsieh 2008: 92). in order to ensure that employees are treated as fellow deliberators, instead of silent parties who passively wait to have rules or 6 i do not claim that implementing such mechanisms would be sufficient to protect workers from domination. for example, they may need to be accompanied by measures that improve workers’ exit options, such as more generous welfare payments or a universal basic income. however, i don’t think that improving exit options on their own would be sufficient, as they do not address the domination suffered by workers who choose to remain employed. for this reason, the importance of contestation and justification remains. 7 it is important to note that, while gourevitch believes that transforming the order requires workers to organize themselves in unions, it is also necessary for structural domination to be addressed at a deeper level by cooperatively organizing the means of production. i don’t disagree with the importance of changing the structure of employment, but here i choose to focus on what can be done to lessen domination within existing structures. 8 see http://w w w.epi.org/publication/briefingpapers_bp143/ for some statistics on this issue. http://www.epi.org/publication/briefingpapers_bp143/ domination and the (instrumental) case for free time 83 leap 5 (2017) decisions enacted upon them, they should be guaranteed the right to participate in determining the policies that affect them, as well as play a role in governing the enterprise more generally (ibid). concretely, participation in decision-making would give employees the ability to determine the terms and conditions of their employment and the wider organization of their work, so that these do not lean entirely on the employer’s authority. of course, this is not to place all of the burden of protecting against domination on the workers themselves and detract from states’ responsibilities to their citizens. in fact, workers’ ability to form trade unions is heavily dependent on the existence of state-enforced labor laws that protect their freedom of association. i believe it is consistent, however, with the spirit of republicanism to pay significant attention to political action on the part of private citizens. 3.3 time and checking mechanisms now that i have identified two commonplace forms of workplace domination, as well as suggested two measures that could be used to address them, i will clarify the links between these and the subject of time. chief ly, i contend that the establishment and maintenance of those checking mechanisms would require a substantial amount of time. if workers lack adequate time-resources to participate in these activities, as i believe many currently do, workplace domination would remain seriously unaddressed. broadly speaking, individuals must possess adequate timeresources in order to effectively justify and contest the interference of power-holders, therefore protecting themselves from domination. first of all, the formation of political organizations and industrial unions tends to require many onerous steps. for example, employees wanting to form industrial unions would need to canvass support from other workers, or allies outside of the workplace; they would have to find ways of making decisions about who should lead and motivate the union; they would have to tread through red tape for the union to be approved by government agencies. it is obvious that going through the appropriate motions would be immensely time-consuming. even if employees chose instead to join pre-existing unions, they would still require time to decide which union to join, as well as obtain the union’s approval to represent them, and communicate the issues that they wish to negotiate. in addition, in order for workers to successfully contest retributive decisions by employers or managers, they would need to know their rights and understand how exactly these have been violated. again, in order to clearly understand what we are entitled to, and how it may apply in particular 84 desiree lim leap 5 (2017) situations, we would require time to educate ourselves on these matters. in some cases, it would involve having to seek legal assistance; locating and consulting an appropriate authority on the matter would, no doubt, require even more time. participating in workplace decision-making might be comparably time-consuming for workers. suppose that a team of workers is allowed to decide on their own rate of compensation, or have a say in an important decision that will determine their company’s future path, as opposed to these decisions being made autocratically by higher-ups. it is very unlikely that all the workers would immediately agree with one another about how to act; instead, disagreement would probably have to be teased out, and compromise or consensus eventually reached, through a series of deliberation. (tellingly, the hypothesis that more democracy in the workplace mean slowing down decision-making, hence harming productivity or efficiency, has often been used against advocates.) furthermore, i assume here that the people involved in decision-making are not themselves responding arbitrarily or idiosyncratically, but in a responsible and well-grounded way. making well-informed decisions – for example, when deciding on a fair rate of compensation – would require the employees to perform research on what people in related fields are earning, or perhaps to come up with a justification for why persons performing a particular task merit more compensation than others performing what appears to be a similar one. simply put, research and ref lection for collective decision-making requires time. i have tried to show why the resource of time is crucial to the establishment and maintenance of checking mechanisms in the workplace – mechanisms that are necessary to stave off the threat of domination. before concluding this section, i note three final points on time and its relation to non-domination. importantly, given the history of employers’ hostility to unionization and workplace democracy, it seems that introducing the checking mechanisms described above, in the first place, may require concerted effort and struggle from workers – suggesting that even more time may be necessary for practical implementation. the appropriate time-scale here is years, not months, with no guarantee of success. take, for example, the ongoing attempts of graduate students in the us to obtain the right to unionize and the massive obstacles enacted by universities. efforts have been blocked, despite students voting to join unions certified by the national labor relations board (nlrb), by various universities on the grounds that the students should not be considered employees (semuels 2017). a number of universities even hired a law firm known for their formidable powers against workers to block graduate domination and the (instrumental) case for free time 85 leap 5 (2017) students from organizing, signaling that they were prepared to spend years in court on the endeavor (jordan 2017). the ongoing challenges graduate students face to successful unionization are likely to intensify given donald trump’s presidency, under which they expect the nlrb’s recognition of graduate students as employees to be reversed (rivin-nadler 2017). as this case demonstrates, workers’ striving for sufficient contestation and justification in the workplace can feel like fighting a losing battle – to wit, a very time-consuming one. secondly, while the core argument i have given is very different in essence from rose’s, it dovetails with hers with respect to temporal coordination. rose argues insightfully that exercising one’s freedom of association does not only generally require the resource of free time, but also free time that is “shared with one’s fellow associates” (rose 2016: 93). this is because the central exercises of freedom of association, such as sharing a meal with one’s family, marching in a rally with one’s political co-partisans, or sharing religious services with one’s fellow believers, involve engaging in the pursuit at the same time as others (rose 2016: 94). therefore, citizens must have reasonable access to shared free time in order to exercise their freedom of association. similarly, to a large extent, workers need shared time to perform contestory and justificatory activities together. certainly, an individual can learn about the full extent of their employment rights, or launch a dispute against the employer on their own. but there is an important collective aspect to political organization and deliberation. while i have chosen to focus on a smaller-scale case to bring out the central role of time in addressing specific forms of domination, the above arguments are meant to extend to political activity and the republican duties of citizens writ large. the kind of political engagement that enables political institutions to be effectively justified or contested is inherently time-consuming. citizens need time to vote, run for office, or educate themselves on political institutions and political life more generally. for example, voting – the most basic form of political participation – often requires citizens to head to a particular location and stand in line for their turn to vote, which can be rather-time consuming. u. s. federal law does not require employers to give their staff time off to vote, and while a number of states have instituted their own laws on the matter, with some allowing up to three hours off to vote, not all states require that employees be remunerated for that time off. coupled with other competing factors like caregiving duties, and the negative impact that losing even a few hours’ wages can have, it is no surprise that many people are unable to set aside the time to vote, or find themselves having to leave polling stations because they cannot afford to continue waiting, thus contributing to voter 86 desiree lim leap 5 (2017) suppression. it is in this way that citizens need time to be able to protect themselves against domination. without sufficient time for citizens to participate in political activities designed to justify or contest power, state power cannot be properly kept ‘in check’. to conclude this section, on the republican account, possessing sufficient time-resources to engage in the justification and contestation of power is necessary for persons to protect themselves from domination. this is markedly different in tone from the liberal egalitarian picture, where time is deemed necessary for exercising our basic rights and opportunities, as well as pursuing the ends and projects we find valuable 4. ‘free’ versus ‘sufficient’ time? so far, i have talked a lot about ‘time’, but not free time specifically. i attend to this in the final section by arguing that, unlike liberal egalitarians, republicans cannot make a case for the importance of the fair distribution of free time as a resource in itself. at most, they can make an instrumental argument for the fair distribution of free time, as ensuring fair shares of free time may be the best means of encouraging political engagement and the development of civic virtue, in comparison to the alternative. i explain why below. 4.1 the instrumental necessity of free time previously, i argued that many activities with a quintessentially republican flavor – and more particularly, those necessary for processes of justification and contestation – are inherently time-consuming, and that people need time to participate in them. however, this does not establish an argument for fair shares of free time. it simply shows that citizens need a sufficient portion of time to engage in political activity, and does not say anything about their claims to time for pursuits of their own choosing. in contrast, rose’s account does not specify what people ought to be doing with their free time beyond pursuing their chosen ends or exercising their formal liberties and opportunities. we can use our free time to be activists, surfers, or couch potatoes without judgment, so to speak. in other words, it is the liberal emphasis on the freedom to do whatever one wants with the allotted time that makes it “free”. without this, republicans cannot make a case for the entitlement to fair shares of free time, as opposed to sufficient time for political engagement. keeping this in mind, what kind of time-related policies ought republicans to endorse? one initial suggestion would be for the state to partition off a domination and the (instrumental) case for free time 87 leap 5 (2017) certain amount of time to be used exclusively for republican activities. for example, very crudely, citizens could be allocated five hours a week that would be compulsorily dedicated to some form of civic engagement. yet this looks very unattractive, and unlikely to be endorsed by any present-day republican, as enforcement would be deeply problematic. how, exactly, would the state ensure that citizens would use the allotted time for political purposes alone? to start with, a high level of surveillance and intrusion into citizens’ privacy would be required for states to police citizens’ time-usage. in practice, the policy might end up licensing more domination on the part of the state; it equips the state with an excuse to monitor and control citizens’ activity, enhancing its capacity to interfere with their choices on an arbitrary basis, and hence running counter to the policy’s purported ends. it also seems that unpalatably coercive measures would have to be employed in order to deter citizens from misusing their time-share, such as penalizing them if they are caught using the time for some other activity. here, it might be objected that at least some republicans have endorsed coercive measures to ensure political participation, the case in point being mandatory voting, where citizens pay a financial penalty for failing to vote. why, then, shy away from time for compulsory political activity? yet mandatory voting would not involve the same level of intrusiveness, as citizens are penalized on the basis of records indicating that they failed to vote, rather than having their individual time closely monitored by the state. nor is it as demanding, as citizens are penalized for a one-time failure to act, rather than for the failure to regularly engage in republican activities, which would plausibly lead to repeated fines for many people who are tired, distracted, disillusioned, or simply disinterested in politics. furthermore, it might disproportionately impact less well-off citizens who are already less likely to participate in politics, yet for whom monetary fines would be more detrimental. while intrusiveness and demandingness are, on their own, principled reasons against enforcing time-periods of compulsory political activity, such time-periods would arguably be counterproductive to the cultivation of authentic civic virtue. being forced into regular political engagement would most likely turn it into a tiresome chore, draining the activity of any meaning or significance. worse still, being punished for failing to do would almost certainly create resentment and even more disillusionment with the practice of politics, rather than feelings of empowerment. a second possible policy would be conditional time for political activity. that is, instead of giving all citizens a period of time they must dedicate to political activity, only those who are active members of political groups would be given time to participate in it. for example, the state might legally 88 desiree lim leap 5 (2017) require corporations to give employees who are union members a certain amount of time off from work. this alternative policy avoids some of the worries i have outlined about compulsory time for political activity. it does not force the cultivation of civic virtue, but provides encouragement and support to those who have authentically chosen to be civically engaged. furthermore, while it seems rather unlikely that anyone would go to the lengths of creating a bogus political organization just so they could use the allotted time for non-political pursuits like surfing or video games, imposing penalties on bogus organizations seems far less problematic than penalizing individuals for how they choose to use their time. for one, enforcing those penalties would not require violating the privacy of individuals; political organizations do not have an analogous right to privacy. secondly, members of bogus political organizations are exploiting the system by engaging in deceit. it seems fair for deceitful behavior to be punished, rather than the mere lack of desire for political participation. unfortunately, conditional time also suffers from a fatal flaw. namely, it adopts a very narrow view of what political participation is. political engagement today encompasses a wide variety of activities, including marching in a street protest; writing petitions; creating art; or even posting on social media like twitter and facebook. but none of these forms of engagement involve formal membership that we can submit as proof of our participation. only giving time to members of political organizations would deprive others of time for valuable political activities that do not hinge on membership. worse still, states would be able to make value judgments about what is a valuable or worthwhile political activity that is worth supporting. this could risk disadvantaging those who participate in activities that the state considers ‘fringe’ or disruptive in some sense, like graffiti art or street protests. furthermore, political organizations that the state disapproves of may be barred from qualifying as legitimate organizations. a final option would be for states to ensure that citizens have fair shares of free time that they can use for any activity of their choosing.9 if time is necessary for freedom in the republican sense, as i have suggested, it must be available robustly, as a matter of right. citizens would not be given free time only at the discretion of the powerful, like their employers. rather, their access to free time would be entrenched by the state, in the form of laws and norms, as one of the basic liberties necessary for free undominated status. nevertheless, rather than being a demand of republican justice per se, these allotments of free time would serve an instrumental purpose: a more 9 here, i leave open how a “fair” share of free time ought to be determined. for a detailed discussion of how we can do this, see rose (2016: 127-134). domination and the (instrumental) case for free time 89 leap 5 (2017) permissive approach to parceling out time-resources would be more effective in bringing about robust levels of political participation, which can be encouraged in two ways. on a more conventional state-centric view, rather than being forced to do so, citizens could be encouraged to use that time for political participation through “soft”, non-coercive measures that have already been advocated by republicans (including subsidies for political activities, civic education, or public campaigns promoting political engagement). on a more radical view, the state is corrupt and should not be trusted to guide the appropriate use of our free time, as it would likely seek to align our behavior with the interests of dominating forces through empty civics or other forms of mainstream ideology. instead, we can carve out a major role for counterpublics, or counter-dominating institutions, to educate and guide us in our resistance to domination.10 i deliberately leave open the question of who the main political influencer over our free time ought to be, to show that this policy can be appealing to different varieties of republicanism. either way, the guarantee of free time would be likely to encourage political activity amongst citizens in the long run, while avoiding the shortfalls of compulsory political engagement or conditional timeshares. of course, there is a good chance that most citizens would always prefer to use that time to pursue their own goals or projects, shunning political activity altogether. but i think that the objections to the other policies considered above are sufficiently serious for republicans to bite the bullet. 5. conclusion in this article, i have sought to make a rather bare-bones argument about how republicans can make a case for fair shares of free time, albeit an instrumental one. i pointed out that time is necessary for the creation and maintenance of non-dominating institutions, because we need sufficient time to effectively participate in processes of justification and contestation. i went on to suggest that, while this only entitles individuals to sufficient shares of time dedicated to these forms of political engagement in theory, fair shares of free time may be instrumentally necessary to encourage participation in republican activities. i have not said anything about what, exactly, constitutes a fair share of free time or how to measure the amount of time that would minimally be required for healthy civic engagement. neither have i made any policy suggestions for how fair shares of free time can be achieved, a task which 10 for a parallel case of a dominating agent encouraging political participation by those it dominates in order to further its own agenda, see hertel-fernandez (2016). 90 desiree lim leap 5 (2017) rose helpfully takes up in her book. i also do not claim that this route is the only one available to republicans for justifying fair shares of free time; there may be other, perhaps even more convincing, ways of linking nondomination to free time. these remaining questions provide fertile ground for future discussion. nevertheless, i hope that my contribution takes an important first step in considering a potential republican justification for the entitlement to free time. bibliography anderson, e., 2015: private government, princeton: princeton university press. bellamy, r., 2008: “republicanism, democracy, and constitutionalism”, republicanism and political theory, eds. c. laborde and j. maynor, 159-189, chichester: blackwell publishing ltd. benton, m., 2010: “the tyranny of the enfranchised majority? the accountability of states to their non-citizen population”, res publica 16: 397-413. borman, d., 2017: “contractualism and the right to strike”, res publica 23: 81-98. compa, l., 2004: blood, sweat and fear, human rights watch. gourevitch, a., 2013: “labor republicanism and the transformation of work”, political theory 41: 591-167. — 2015: “quitting work but not the job: liberty and the right to strike”, perspectives on politics 14: 307-323. — 2016: “the limits of a basic income: means and ends of workplace democracy”, basic income studies 11: 17-28. hertel-fernandez, a., 2016: “how employers recruit their workers into politics – and why political scientists should care”, perspectives on politics 14: 410-421. hsieh, n., 2007: “survey article: justice in production”, the journal of political philosophy 16: 72-100. jordan, b., 2017: “graduate students on these 7 campuses are fighting for their labor rights”, the nation. lovett, f., 2013: a general theory of domination and justice, oxford: oxford university press. pettit, p., 1997: republicanism, oxford: oxford university press. rivlin-nadler, m., 2017: “trump the union-buster”, new republic. rose, j., 2017: free time, princeton: princeton university press. semuels, a., 2017: “will grad students lose the right to unionize under trump?”, the atlantic. leap 5 (2017) entitlement and free time1 ros a t e r l a z z o kansas state university abstract in this paper, i use the framework developed by julie rose in free time to offer an initial analysis of another under-theorized resource that liberal egalitarian states might owe their citizens: that is, the sense of moral entitlement to make use of their basic liberties. first, i suggest that this sense of moral entitlement, like free time, might be necessary for the effective use of those basic liberties. next, i suggest that this sense of moral entitlement (again, like free time) might be the kind of all-purpose good that satisfies publicity and feasibility criteria. together, this suggests that a sense of moral entitlement to make use of basic liberties is the kind of resource that is appropriate for distribution by a liberal egalitarian state, and that such states indeed owe their citizens. keywords: effective freedom; free time; moral entitlement; resource in her excellent book free time, julie rose offers an extensive analysis of the under-theorized resource of free time. in it, she argues for two main conclusions: first, that free time has the requisite features to count as a distributable resource within a liberal egalitarian theory of justice; and second, that liberal egalitarian states have an obligation to fairly distribute free time to citizens, on the grounds that free time is necessary to guarantee the effective use of the other basic liberties. while rose’s substantive discussion of free time is clearly her book’s most significant contribution to political philosophy, i focus here on another of its valuable features: the way in which her argument serves as both a model for exploring other under-theorized resources that liberal states owe their citizens, and a reminder of the importance of developing comprehensive accounts of these other resources. in this paper, i use rose’s strategy, along with the structure of her argument and insights from her broader discussion, to run a parallel 1 for helpful comments, i am grateful to timothy fowler, jonathan herington, tom parr, chad van schoelandt, and the editor and an anonymous referee for this journal. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 8 92 rosa terlazzo leap 5 (2017) argument that justice might also require the fair distribution among citizens of a sense of moral entitlement to make use of one’s basic liberties. in a paper of this length, however, i can only offer a rough and initial argument, noting only in passing where points are controversial or require further development. like free time and justice, giving a full account of the relationship between justice and a sense of moral entitlement would require a book-length treatment. 1. free time, a sense of moral entitlement, and effective use of the basic liberties like rose i take it for granted that liberal egalitarians must be committed to ensuring the effective use of the freedoms and opportunities they distribute among citizens (2016: 69-73). w hile different liberal egalitarians may specif y the principle differently, i will use the following general formulation: effective freedoms principle: the liberal egalitarian state has an obligation to ensure citizens the effective rather than merely formal use of some centrally important set of freedoms. use of this principle requires three clarifications. first, the distinction between effective and formal freedom. w hile formal freedom guarantees absence of certain kinds of interference in a given arena, effective freedom guarantees that one can in fact achieve the freedom’s object. that is, effective freedom requires access to whatever resources are needed to exercise it. so while a person has formal freedom of movement insofar as the law prevents others from physically restraining her, she does not have effective freedom of movement unless she has either the internal abilities or external assistive technologies to move herself from place to place. second, note that the principle requires that liberal egalitarian states must guarantee their citizens freedoms only within some centrally important set, the members of which will depend upon the liberal egalitarianism in question. for instance, while a version of comprehensive liberalism might guarantee the effective use of a set of freedoms that it takes to be especially metaphysically valuable, a version of political liberalism might guarantee a set of freedoms centrally important to the roles of citizenship. third and finally, notice that while liberal egalitarian states have this obligation to citizens, it may in some cases be defeasible. cases of defeasibility will once again depend on the species of liberal egalitarianism concerned, but the following cases should be illustrative: effective freedoms may be inappropriate for some entitlement and free time 93 leap 5 (2017) citizens given their capacities (as with children and certain political freedoms); they may be forfeited (as with the criminal who gives up her right to freedom, or the spendthrift who wantonly and repeatedly squanders the resources necessary to exercise another freedom); or their provision may conf lict with some other central commitment of the liberal egalitarian state (as in a case in which one citizen’s effective use of her religious freedom would require state provision of immense resources that would violate the state’s principle of just distribution.) given the effective freedoms principle, rose argues that the state owes citizens a certain quantity of free time. in rose’s words, “an absence of free time constitutes a lack of means in the same way as a lack of income and wealth, and the lack of either renders one less able to take advantage of one’s formal liberties and opportunities” (2016: 73). consider classically guaranteed liberal-egalitarian freedoms: freedom of association, freedom to vote, freedom to hold political office, etc. in order for these rights to be more than formal, one must have both money and time. to run for office, educate oneself about candidates’ platforms, or associate with one’s fellows, one must have time that is not consumed by finding the basic resources to care for one’s own or one’s dependents’ basic needs. so while the person washing dishes 100 hours per week just to make ends meet may have these formal liberties, he will be unable to exercise them in practice. contrast this person with the highly-paid psychologist who could support herself by working 20 hours per week but chooses to work 100 because she values great wealth. w hile her work also leaves little excess time for exercising her liberties, rose argues that she has the effective option to exercise them in a way that her counterpart does not.2 accordingly, while citizens may choose not to use their free time to exercise their basic liberties, rose argues that a government that guarantees the effective use of basic liberties must guarantee that citizens have sufficient free time to exercise them after meeting their basic needs. note that rose’s project is to show that time – like money – is merely necessary for the effective use of one’s freedoms. but the following examples suggest that time and money together are not always sufficient to effectively guarantee persons the freedoms to which they are politically entitled. first, consider irma, an aff luent housewife who believes that a woman’s place is in the family. w hile she could easily afford childcare, a paid cleaning service, or private education, she believes that it would be morally wrong of her to allow her children or home to be cared for by others. accordingly, she rarely associates with those outside of her family 2 see the distinction between free and discretionary time: rose (2016: 40-43). 94 rosa terlazzo leap 5 (2017) even when she might like to, does not engage in politics, etc. second, consider harvey, who is part of a reclusive religious community. w hile harvey lives a comfortable life with much time for leisure, he believes that engaging with politics is sinful. there is an important sense, i argue, in which both irma and harvey lack effective freedom to exercise their basic liberties. w hile each is aware of their politically-guaranteed freedoms and has the time and monetary resources to exercise them, neither feels morally entitled to do so. the point is not merely that irma and harvey refrain from exercising their rights, since most of us refrain at many points from exercising them. the point is rather that both harvey and irma take there to be a categorical, substantive obstacle to their exercising some of their most basic politically-guaranteed rights. to be sure, the obstacle in question is internal – each recognizes that no external party or lack of resources prevents them from exercising those rights. but each, given their central commitments, also recognizes that exercising those rights is not an option that is substantively available to them. and note that we cannot say that the obstacle does not exist, simply because neither irma nor harvey has the aim of exercising those freedoms. an inaccessible building does not stop being effectively inaccessible to a person who uses a wheelchair simply because she does not want to enter it. like the wheelchair user, harvey and irma do not just take themselves to be in a position where they do not choose to exercise their freedom. rather, by their own lights, each cannot. the wheelchair user’s obstacle is the building’s lack of ramps. for irma and harvey, the obstacle is the belief and the concomitant feeling that they are not morally entitled to exercise those freedoms. w hile neither irma nor harvey may be bothered by this obstacle, given the desires they actually have, it remains the case that each one’s lack of a sense of their own moral entitlement to exercise their basic liberties remains a substantive obstacle to that exercise. my claim, then, is that an absence of this sense of moral entitlement, like an absence of free time, compromises the effective use of one’s basic freedoms. given the effective freedoms principle, this claim in turn suggests that liberal egalitarian states have an obligation to remove this obstacle. but here we must be careful. by virtue of their liberalism, liberal egalitarian states also have a commitment to some degree of neutrality between conceptions of the good. different versions of liberalism will again conceive of this commitment to neutrality differently, but all should agree that within at least some range, the state should not favor some lives citizens might choose over others. comprehensive liberals will likely draw this sphere of neutrality fairly narrowly, limiting it to entitlement and free time 95 leap 5 (2017) valuable, autonomously-chosen lives (i.e. raz 1986). political liberals, alternatively, will likely include any of those lives that recognize political values and respect the rights of all citizens (i.e. rawls 1993). but note that as described irma and harvey’s commitments could both fit at least into the political liberal’s sphere of neutrality, and might even fit into the comprehensive liberal’s. so if my claim about a sense of moral entitlement and effective freedom is correct, we are left here with a conf lict between the effective freedoms principle and a liberal commitment to neutrality. given the length and focus of this paper, i cannot attempt to fully adjudicate this conf lict. indeed, there is a history of serious objections to the removal of internal obstacles to freedom that dates back at least to isaiah berlin (1969). but remember, my aim here is modest: i simply aim to use rose’s framework to give an initial account of whether some other good – that is, a sense of moral entitlement – might, like free time, both prove necessary to guarantee effective freedom of basic liberties, and meet the criteria for being a resource distributable by a liberal egalitarian state. w hether or not – and indeed how – this obstacle ought to be removed, i hope to have at least motivated the idea that it constitutes a real obstacle to the effective use of one’s basic liberties. accordingly, i will turn shortly to the criteria for resources appropriate for distribution by a liberal egalitarian state. nevertheless, while i cannot fully adjudicate the conf lict here, let me at least brief ly suggest how a liberal aiming to balance effective freedom and neutrality might move forward. imagine that irma and harvey developed their comprehensive doctrines quite differently: while irma adopted hers as an adult after a period in which she felt morally entitled to exercise her basic liberties, harvey adopted his without having considered or been exposed to alternatives, as a result of growing up in a relatively homogenous community. one plausible method for balancing commitments to effective freedoms and neutrality is to treat these cases very differently. w hile irma experienced a period in which she took there to be no obstacle to the exercise of her basic liberties, harvey never experienced a similar period of effective freedom. furthermore, even if irma currently views her moral commitments as closed to revision, the fact that they have already undergone a significant change means that she has a first-hand understanding of the way in which commitments might change with time and new experience. so even if irma and harvey’s comprehensive doctrines both compromise their effective freedom to exercise basic liberties in the moment, irma’s one-time possession of a sense of moral entitlement to exercise them leaves her better-placed to experience effective freedom again in the future. w hile fostering an early 96 rosa terlazzo leap 5 (2017) sense of moral entitlement does not then guarantee effective freedom to exercise basic liberties throughout the course of a lifetime, it both allows citizens to adopt a wide variety of comprehensive doctrines in adulthood, and makes more provisional the internal obstacles to effective freedom that those doctrines might include. 2. a sense of moral entitlement as a resource as i said, rose’s strategy in free time is to show that free time is both necessary for the effective use of persons’ basic liberties, and meets the criteria for being a resource that a liberal egalitarian government can distribute among its citizens. if a sense of moral entitlement, like time, is necessary for the effective use of one’s basic liberties, then we should now turn to the question of whether it meets the criteria for counting as a resource in a liberal egalitarian state. before we do so, however, we should further specify what we mean by a sense of moral entitlement. while the examples of irma and harvey motivated the idea that a lack of a sense of moral entitlement can compromise the effective use of one’s basic liberties, there are two distinct but related senses of entitlement that could do so. while i won’t take a stand here on which is better suited to serve as a resource distributed by a liberal egalitarian state, distinguishing between the two will clarify the discussion that follows. first, one could believe that they are directly morally entitled to exercise their basic liberties.3 if persons take themselves to be entitled in this way, and also have sufficient time and monetary resources, then they plausibly have effective use of their formallyguaranteed liberties. but second, one could believe that one is morally entitled to change her conception of the good if appropriate reasons present themselves. imagine that harvey never took himself to be directly morally entitled to the exercise of his political liberties – but that, at some relevant point in his development, he did take himself to be morally entitled to adopt other conceptions of the good, including those according to which he would be morally entitled to make use of his political liberties. although harvey never felt morally entitled to use the particular goods to which he was politically entitled, he was open to considering reasons to do otherwise, 3 note that many liberals will hold that the value of basic liberties derives at least in part from the role they play in allowing citizens to live the lives that they themselves take to be valuable. insofar as other goods (like wealth, income, education, healthcare, etc.) that a liberal state is obligated to fairly distribute to citizens derive their value from the same source, we may want to expand our sense of moral entitlement to include moral entitlement to make use of these other goods as well. however, this further point cannot be addressed here. entitlement and free time 97 leap 5 (2017) and to changing his view if those reasons proved compelling. while it can be difficult to determine when a person is genuinely open to considering reasons that conf lict with their conception of the good, when that bar has been met they plausibly have effective use of their formally-guaranteed basic liberties – as least as long as they also maintain the time and the money to make use of them. now let’s turn to rose’s framework for determining whether a good counts as a resource to which the citizens of a liberal egalitarian state have a claim. in order for citizens to have such a claim, it must first be the case that it is appropriate for a liberal egalitarian state to distribute the good in question, given liberal egalitarianism’s distinctive commitments. it must second be the case that the good in question can be effectively and justly allocated, given the nature of the good. 2.1 is a sense of moral entitlement an all-purpose good? i accept rose’s standard formulation of liberal egalitarianism’s two distinctive commitments: the liberal commitment to individual freedom of choice, and the egalitarian commitment to ensuring some degree of equality in the distribution of society’s benefits (2016: 23). but these principles stand in some tension, since individuals freely choosing life paths will likely end up with shares of goods that are different in both size and kind. for instance, if my idea of a good life involves world travel while my neighbor’s involves investment in real estate, we will likely end up with very different shares of exciting stories and vacation properties. accordingly, i also accept along with rose the standard liberal egalitarian position that states should be concerned with the distribution of allpurpose goods that individuals can use to advance their conceptions of the good, rather than the specific goods that their conceptions of the good direct them to attain. in her words, “specific goods are the particular goods that one requires to pursue one’s particular conception of the good, whereas resources are all-purpose means that one generally requires to pursue one’s conception of the good, whatever it may be” (2016: 27, original emphasis). a yacht, then, counts as a specific good that might feature prominently in some good lives but have no place in others, while wealth and income count as all-purpose goods because they can equally be used to acquire yachts, leisure time, the ability to support beloved charities, or the specific goods that have a central place in other lives. if the state distributes resources which anyone can use to advance their own idea of a good life, then each citizen can see how her interests are served by that distribution – while if it distributes specific goods valued by only some individuals, then those who do not value those goods have cause for complaint. 98 rosa terlazzo leap 5 (2017) so the first test for a sense of moral entitlement is to determine whether it is an all-purpose good. on the face of it, it does not seem to be. at least, it is clearly not required to pursue all conceptions of the good, no matter what those conceptions may be. given that both harvey and irma have conceptions of the good that can be pursued without exercising at least some of their basic liberties, they also have conceptions of the good that can be effectively pursued without a sense that one is morally entitled to directly pursue those liberties. and while some persons may take the ability to change one’s conception of the good to be central to any substantively good life, many more will not – and this large remainder can therefore effectively pursue their conceptions of the good without a sense that they are morally entitled to change them. but we should not be too quick to judge from this that a sense of moral entitlement is not an all-purpose good. even wealth and income are not required to pursue literally any conception of the good, whatever that conception may be. consider the person who takes the good life to be a life of prayer in which one has no possessions and eats only what they are freely given by others.4 since wealth, income, and the basic liberties themselves are the canonical all-purpose goods, we therefore need a different account of what it means to be an all-purpose good. while i don’t aim here to defend one account as correct, each of the following three possibilities is both a plausible account of all-purpose goods, and plausibly counts a sense of moral entitlement as an all-purpose good. first, a good might be all-purpose if it is useful for advancing a broad range of conceptions of the good. this is plausibly what is suggested by rose’s specification that all-purpose goods are those means that are “generally” required to pursue conceptions of the good, whatever they may be. while there may be a few exceptions, advancement of almost all conceptions of the good will benefit from these means. and although it may be possible to advance the majority of conceptions of the good without a sense that one is morally entitled to change that conception of the good, it is much harder to identify conceptions of the good that can be effectively advanced without a sense that one is morally entitled to take advantage of one’s basic liberties. and this is because the value of a basic liberty for a conception of the good is generally understood to be instrumental. for many of us, political participation or free speech is not an intrinsically valuable part of a good life. instead, both allow us to express what we take to be good, or to defend our way of life when it is under attack. but liberties cannot benefit our conceptions of the good in this way unless we exercise 4 for further argument that primary goods are not plausibly means that one wants whatever else they want, see nelson (2008). entitlement and free time 99 leap 5 (2017) them – and one is much less likely to actually exercise a liberty that one does not take oneself to be morally entitled to exercise. so since basic liberties will themselves be instrumentally valuable for advancing a broad range of conceptions of the good, the sense of moral entitlement to exercise them will be as well. second, a good might count as all-purpose if it is required for developing or protecting the moral powers and interests associated with citizenship. this suggestion aligns with john rawls’s proposal that what is taken to be valuable for citizens relates to the higher-order interests they are taken to have as citizens – including, famously, the capacity for a sense of justice and the capacity to hold and revise a conception of the good.5 if we take these to be the relevant interests of citizens, then citizens obviously have an interest in a sense of moral entitlement to change their conception of the good. the ability to do so is central to the second moral power, and it once again frustrates both a capacity and its development when a person feels unentitled to exercise and thereby strengthen that capacity. similarly, a sense of moral entitlement to directly exercise one’s basic liberties plausibly supports the second moral power, because the exercise of those liberties themselves supports that power by allowing citizens to try out and investigate new ways of life that might lead them to adopt new conceptions of the good. third, a good might count as all-purpose if it is closely tied to some other value that grounds liberalism’s commitments to equality and neutrality. take, for instance, alan patten’s claim that the value of both equality and neutrality depend on the more fundamental liberal value of self-determination (2012). if self-determination is at bottom what matters for liberal states, then other resources should be distributed to the extent that they further that value. and a sense of moral entitlement to change one’s conception of the good certainly does so. if one feels perpetually bound to one’s conception of the good even when compelling reasons to modify it arise, then one plausibly becomes a prisoner to that conception of the good rather than a self-determining individual. similarly, the basic liberties generally distributed by liberal states very plausibly provide persons with essential freedoms and means to live their lives as they see fit – but they once again do so instrumentally, and their instrumental benefit again generally only accrues if one feels entitled to make use of them when the need for them arises. 5 see also gina schouten’s (2017) argument that protection of the two moral powers often in fact demands substantive progressive interventions on the part of liberal egalitarian states – up to and including preserving a live option for all citizens to engage in genderegalitarian division of household labor. 100 rosa terlazzo leap 5 (2017) while this discussion by no means exhausts the ways in which we could understand all-purpose goods, each is plausible – and each gives us a plausible reason to think that the sense of moral entitlement with which we are concerned is the kind of thing that ought to count as an all-purpose good. 2.2 can entitlement be effectively and justly allocated? in order to count as a resource using rose’s criteria, an all-purpose good must also be the kind of thing that satisfies the following publicity and feasibility criteria (2016: 46): publicity criterion: it must be possible for an outside party to reliably and verifiably know whether and to what extent an individual possesses a given resource. feasibility criterion: it must be possible for the outside party to obtain relevant knowledge and distribute the good non-invasively and efficiently. the publicity criterion applies because in order for justice to be done, citizens must be able to see that it has been done. if a resource is not the kind of thing that can reliably be measured, then citizens cannot know whether a just distribution has been achieved. and the feasibility criterion applies because efficiency and privacy matter alongside publicity. if enormous resources must be expended to monitor or fairly distribute a good, or if that monitoring and distribution comes at the cost of citizens’ reasonable expectation of privacy, then these considerations count heavily against treating that good as a resource that a just state ought to distribute. to illustrate, consider health. while health is required to pursue almost any conception of the good, it is not always possible to adequately judge relative shares of health. this is so both because different definitions of health better capture the health level of different individuals, and because health is not a free-f loating concept that makes sense without reference to the state of a population. further, in order to monitor and inf luence the distribution of health among citizens even according to some stipulated definition, the state would need to engage in frequent and highly intrusive testing and treatment of individuals. health, then, will not count as a resource on rose’s criteria. but note that a nearby good – that is, healthcare – can still count. since healthcare is required to protect health when it fails, and since failing health threatens the ability to pursue almost any conception of the good, healthcare is what samuel arnold calls a entitlement and free time 101 leap 5 (2017) “second-order all-purpose [good]” (2012: 97).6 a second-order all-purpose good is one that is “instrumental to the possession of entities or attributes that are themselves all-purpose [goods]”. and the second-order allpurpose good of healthcare satisfies publicity and feasibility criteria. regarding publicity, it is possible to know both what coverage citizens have for which medical conditions, and whether citizens live within appropriate proximity to medical establishments. and regarding feasibility, that information can be collected and the good can be provided both noninvasively and efficiently. by providing universal healthcare or enforcing an individual mandate, states can both ensure the provision of care and non-invasively and efficiently gather information about what coverage individuals have; and by determining a citizen’s address and whether relevant public transportation is available, states can non-invasively and efficiently gather information about whether citizens can effectively seek treatment.7 we must determine, then, whether a sense of entitlement satisfies the publicity and feasibility criteria. first, consider publicity. it is highly likely that there is no fully verifiable and reliable way for third parties even in theory to accurately determine and compare persons’ comparative shares of a sense of moral entitlement. citizens may understand their degrees of entitlement very differently, and even when they report the same rating, the scales that they use may be incommensurable. and turning to feasibility, even if these obstacles could be overcome, making such comparisons in practice would require extensive and invasive questioning of persons, as well as timeand resource-intensive calculations to determine citizens’ relative scores. two different responses might be made by proponents of treating a sense of moral entitlement as a resource. the first is to identify a secondorder all-purpose good associated with the sense of moral entitlement. this approach follows rawls’ precedent of including “the social bases of self-respect” rather than self-respect itself in his list of primary goods (1999). if a particular set of social conditions roots and reliably fosters the relevant sense of moral entitlement, and that set of social conditions passes the publicity and feasibility conditions, then we could count that set of social conditions as our resource. while it is in large part an empirical matter whether some set of conditions roots and reliably fosters a sense of moral entitlement, it seems prima facie likely that the conjunction of some 6 w hile arnold calls such goods all-purpose “resources” i call them goods and – with rose – reserve the term resource for goods that meet all of our criteria. 7 to be sure, there are many important social determinants of health, of which healthcare is only one. i leave open the question of whether these other determinants satisf y the publicity and feasibility criteria. 102 rosa terlazzo leap 5 (2017) standard of formal education and broad exposure to persons living diverse lives would do so. the more that one enjoys close connections with those living diverse lives, and comes to appreciate their reasons for holding different conceptions of the good, the more likely they will be to see as morally legitimate the choice to hold another conception of the good or to make use of the resources and liberties used by one’s peers. and a third party can certainly verifiably and reliably determine whether citizens are enrolled in these kinds of education and live in diverse communities. gathering this information should also be relatively efficient and noninvasive, since it will primarily require consulting census data and curricular data that are already collected. and states clearly have at their disposal resources for effectively determining curricular standards and encouraging diverse neighborhoods. the other response is to reject the move to second-order all-purpose goods on the grounds of the type of resource that a sense of moral entitlement is. here rose’s treatment of free time is once again illuminating. as rose argues, the appropriate distributive principle may vary from resource to resource, depending on each resource’s nature (2016: 85ff ). take rose’s comparison of inequalities in time and material wealth. inequalities in either domain can be problematic from the point of view of justice, because either can lead to social inequalities between citizens. but there are two reasons to think that inequalities in wealth are more worrisome than inequalities in free time. first, there is a natural limit to inequalities in free time that does not hold in the case of wealth (2016: 87). while the potential difference between the wealthiest and poorest subject is virtually limitless, inequalities between the most time-rich and timepoor citizens can vary by at most a few hours in a given day. after all, some kinds of self-maintenance simply cannot be outsourced.8 so to the extent that equality of resource directly translates into social inequality, inequalities of time simply allow for a lower degree of inequality. second, material wealth can be more efficiently converted into other kinds of basic goods than can time (2016: 88). for instance, a person with a comparatively large share of free time can use that time to undertake additional paid work or petition her lawmakers, thereby gaining additional income or political inf luence. but she must do so in real time, and cannot readily trade her free time with others who will advance these ends for her. however, a person with a comparatively large share of wealth can readily trade that wealth for a great variety of other goods: for the consumer goods that signal social class, for the elite education that cements one’s children’s 8 w hile these differences could compound over a lifetime, the degree of inequality possible for time could never approach the degree of inequality possible for wealth. entitlement and free time 103 leap 5 (2017) high social position, or for the political inf luence that lobbyists and large campaign contributions can buy. both of these differences suggest that a sufficiency principle might effectively protect social equality in the case of time but not wealth. while either can be used to attain a set of additional goods that negatively impact social equality, time is converted into these additional goods much less efficiently, and the limits on the time that one can have to convert are furthermore much stricter. with regards to distributive principles, a sense of moral entitlement to use one’s basic liberties seems to be more like free time than like money. while persons might have stronger and weaker senses of moral entitlement, our focus here is on the effect of a sense of moral entitlement on the effective use of one’s basic liberties. and this effect is plausibly binary: one may exercise one’s basic liberties hesitantly or enthusiastically, but what matters for advancing one’s plan of life is that one does in fact exercise them when the situation calls for it. beyond the threshold that allows one to exercise one’s basic liberties, having a stronger sense of moral entitlement to do so does not seem to make a person substantially better able to exercise them than her fellow citizens. what does this mean for the appropriate distributive principle for our sense of moral entitlement? remember that sufficiency was meant to be a more plausible distributive principle for time than for money on the grounds that unchecked inequalities in money allow greater corresponding inequalities between citizens. if one does not become substantially better able to exercise her basic liberties the more morally entitled she feels to do so, then sufficiency is also a plausible distributive principle for our sense of moral entitlement. determining whether this seemingly plausible claim holds would require space for further defense. but if it held, then a focus on sufficiency should make both the publicity and the feasibility criteria easier to satisfy. first, consider publicity. unlike determining comparative shares, determining sufficiency would no longer imply comparing persons relative levels of the sense of moral entitlement, or the conceptual and practical problems that come with it. instead, it would simply require determining whether each person takes herself to be able to choose to exercise her basic liberties if reasons to do so arise – and this can be determined through simple self-reporting. and if we diffuse the tension between the effective use principle and a commitment to liberal neutrality in the way suggested above, then a concern with sufficiency would also make the feasibility criterion easier to satisfy. if we aimed to ensure only a sufficient sense of moral entitlement during early life, then the relatively undemanding selfreporting required to determine sufficiency could be built into public education at regular intervals without great cost. and if we were concerned 104 rosa terlazzo leap 5 (2017) with a threshold level of a sense of entitlement rather than a comparative level, then public education could aim to bring all students past the line without worrying that some will progress significantly further than others. 3. conclusion a s noted at t he out set, t he a rg u ment of fered here is i n it ia l a nd cu rsor y, a nd ma ny object ions a nd i mpor ta nt subt let ies have by necessit y been pa ssed over. 9 but i hope t hat t he d iscussion so fa r ha s ser ved my modest a i m : to beg i n to show us how we m ig ht ex tend rose’s helpf u l f ra mework to of fer a t reat ment of ot her u nder-ex plored or u nder-t heor i zed resou rces t hat a l ibera l ega l ita r ia n state owes it s cit i zens. i hope t hat it ha s a lso encou raged readers to bel ieve t hat a sense of mora l ent it lement to exercise one’s ba sic l iber t ies is one such resou rce wor t h ex plor i ng – a nd i f so, t hen i hope t hat rose’s f ra mework ca n ser ve to i l lu m i nate a longer (perhaps a lso book-leng t h) t reat ment of t hat resou rce i n t he f ut u re. bibliography arnold, s., 2012: “the difference principle at work”, journal of political philosophy 20: 94-118. berlin, i., 1969: “two concepts of liberty”, in four essays on liberty, oxford: oxford university press. nelson, e., 2008: “from primary goods to capabilities: distributive justice and the problem of neutrality”, political theory 36: 93-122. patten, a., 2012: “liberal neutrality: a reinterpretation and defense”, journal of political philosophy 20: 249-272. rawls, j., 1993: political liberalism, new york: columbia university press. — 1999: a theory of justice: revised edition, cambridge, mass: the belknap press of harvard university press. raz, j., 1986: the morality of freedom, oxford: clarendon press. rose, j.l., 2016: free time, princeton: princeton university press. schouten, g., 2017: “citizenship, reciprocity, and the gendered division of labor: a stability argument for gender egalitarian political interventions”, politics, philosophy & economics 16: 174-209. 9 in particular, i take it that a fuller treatment of the relationship between selfrespect and entitlement is warranted, as the two goods may overlap depending on our account of each. brief ly, insofar as rawls’s discussion of self-respect focuses on the extent to which citizens see themselves as capable of carrying out conceptions of the good that they take to be worthwhile, i believe that we need either a broader account of the importance of self-respect or a separate discussion of entitlement to do justice to entitlement as a resource. either way, more work remains to be done. leap 5 (2017) justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim j u l i e l . rose dartmouth college introduction the contributors offer a rich collection of constructive and careful arguments. i am grateful for their thoughtful comments which, drawing on their own work and the book, broaden and advance the discussion of free time as a matter of justice in new and fruitful directions. w hile my response will in part involve clarif ying and developing my argument on behalf of citizens’ claims to the resource of free time, i have aimed to engage with their arguments in the same productive spirit, tracing potential avenues of future work. i begin with robert goodin’s contribution, and the question of how free time ought to be conceptualized for a public and feasible theory of justice, in particular – as goodin presses – so that it allows for empirical measurement. i turn then to rosa terlazzo’s argument, which draws our attention to considering the array of social conditions that must obtain to enable citizens to make effective use of their free time, and liberties and opportunities more generally. i next take up jeppe von platz’s argument, which asks whether the effective freedoms principle can support citizens’ claims to a fair share of free time as a matter of cooperative fairness. continuing the question of fair shares, lucas stanczyk asks how a theory of social justice should respond to class disparities in access to free time, developing this question by asking whether harried wealthy professionals ought to be regarded as having (more than) their fair shares of free time. finally, désirée lim’s argument considers the temporal dimensions of republicanism, examining the question of how a republican theory of justice might ground an entitlement to free time. d oi : 10. 310 0 9/l e a p. 2017.v 5.0 9 106 julie l. rose leap 5 (2017) 1. the requirements of a public and feasible theory of justice: a response to goodin my account of the resource of free time both draws on and departs from goodin et al.’s conception of discretionary time (2008), and so, in that spirit, my response here will both highlight ways in which our two approaches are and may be more convergent, while also maintaining what i take to be some important points of divergence. goodin’s central challenge to my conception of free time is how well it meets the requirements of empirical measurement. i share goodin’s view that the operative conception of free time must allow for empirical assessment. to be a resource to which citizens have claims in a public and feasible theory of justice, i argue that it must be possible to reliably and verifiably know whether an individual possesses the resource, and to obtain this information efficiently and noninvasively (rose 2016: 46–47). goodin et al.’s conception readily allows for empirical measurement, as their discretionary time (2008), an important advance in the study of time, clearly demonstrates. accordingly, in taking up this challenge, my aim is to show that my conception of free time meets the requirements for assessments that are both feasible and reliable. on both of our accounts, free or discretionary time is to be distinguished from necessary time – the time that one must spend to meet the necessities of life (rose 2016: 4, 42; goodin et al. 2008: 5–6, 34). the differences in our approaches arise in how to conceptualize and assess this time. the approach goodin et al. take – which i term the social benchmark approach – follows, as goodin here notes, the standard conceptualization of a relative poverty line (that is, a poverty threshold set relative to a society’s median income, rather than an absolute measure of deprivation). dividing one’s total necessary time into the categories of paid labor, unpaid household labor, and personal care, they assess one’s necessary time in paid labor as how much time it takes one to earn a poverty-level income at one’s wage rate, and one’s necessary time in unpaid household labor and in personal care, respectively, as fifty and eighty percent of the median amount of time people in one’s society spend in such activities, indexed, in the former, to one’s household structure (goodin et al. 2008: 34–53). the approach i take – the basic needs approach – instead conceptualizes one’s necessary time as how much time it is objectively necessary for one, taking account of relevant circumstances, to spend to meet one’s own, and one’s dependents’, basic needs, which are the demands one standardly must meet in order to attain a basic level of functioning in one’s society (rose 2016: 42 n. 5, 58). leap 5 (2017) 107 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim though the philosophical conception of free time underlying the basic needs approach could be fully tailored to a given individual’s relevant circumstances (i.e. how much time it is necessary for one, given all one’s very particular circumstances, to meet one’s basic needs), such a maximally individually tailored approach fails to meet the feasibility requirements of a public theory of justice, as it would not be possible for a public authority to practically make such an assessment efficiently or noninvasively. as such, i argue, the basic needs approach should be only moderately tailored to individual circumstances, such that it more generally assesses how much time it takes people in a set of relevant circumstances to meet their basic needs (rose 2016: 46–47, 57). the basic needs approach differs from the social benchmark approach in two key respects: first, on the social benchmark approach, as operationalized by goodin et al., the assessment of necessary time is tailored only to wage rate and household structure, while the basic needs approach is tailored to any individual circumstances that a theory of justice or democratic decision renders relevant (rose 2016: 60–65). second, while the social benchmark approach assesses necessary time purely relatively, the basic needs approach has both absolute and relative components (following sen 1983).1 the first distinction is not a deep one, as the social benchmark approach could be operationalized in a more fine-grained way, as goodin notes, if there were a suitable data set (goodin 2017, p.40). indeed, this is a potential point of greater convergence, as my approach indicates that more comprehensive circumstance-tailored time-use data must be collected in order to empirically operationalize the basic needs conception of free time. goodin argues that though the two approaches could converge in this way, the added granularity would come at a cost, because public policy does and should operate through a system of general rules, and ought not to be unduly driven by the need to accommodate the very special circumstances of some small subgroup (goodin 2017, p.40). this point about generality is well taken, but i don’t think it obviates the need for more fine-grained data for sound public policymaking. consider, for instance, the question of where to invest in improving the speed and efficiency of a city’s public transportation systems. it might be the case that the city’s high-income workers, who choose to live in its suburbs, and 1 on whether necessary time should be measured by a relative or absolute standard, see the exchange between goodin (et al. 2011) and bittman (2011); see also williams, masuda, and tallis (2016). for a measure that relies on an absolute standard, see hobbes et al. (2011). 108 julie l. rose leap 5 (2017) its low-income workers, who can afford to live only in its outer rings, spend the same amount of time commuting into work, but the low-income workers spend more necessary time commuting – a distinction that could be made only with more fine-grained data, and that ought to inform a just transportation policy. further, when there are exceptional cases that ought to be treated separately from general social policy, even on a case-by-case basis, the basic needs approach provides the required conceptual grounds for such assessments. the second distinction is more significant. consider the question of how much time it is necessary to spend grocery shopping, cooking, and eating. the social benchmark approach determines how much time it is necessary to spend on these tasks as half the median amount of time people in one’s society in fact spend on these tasks, tailored to some set of circumstances. on the basic needs approach, these relative comparisons are relevant – how much time people around you spend in necessary activities does provide meaningful guidance about what is socially necessary to function in one’s society – but they are not determinative. say that the median amount of time that full-time employed parents spend grocery shopping, cooking, and eating is only five hours per week. the assessment of necessary time might ref lect that, but it could also be adjusted by democratic or expert judgment about how much time it is objectively necessary to spend in these tasks. consistent with its underlying conceptualization, the basic needs approach allows for such adjustments in instances in which people generally might, due to competitive pressures or social norms, spend either more or less time than is objectively necessary to meet a basic need (rose 2016: 55). beyond these questions of conception and measurement, goodin also raises several points which fruitfully indicate areas of future work, and which i want to note here, if only brief ly. first, there is the matter of distinguishing and evaluating the various policy levers a society might engage to realize a just distribution of free time. these include, as goodin notes, beyond more generally equalizing resources, reducing and redistributing necessary time (goodin 2017: 36-37, 41-42). in addition, a society can realize a just distribution of time by ensuring that citizens have access to free time (e.g. counteracting overemployment rose 2016: 60, 78–81, 138–40), and entitling citizens to a greater portion of a society’s aggregate available free time, even if at the cost of lower rates of economic growth (rose 2016: 128–34). taken together, these means provide substantial scope to affect the amount and distribution of a society’s free time. second, there is the question of what conditions enable citizens to make effective use of their free time – which i take up next in engagement leap 5 (2017) 109 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim with terlazzo’s argument. and, finally, there is the question of how arguments for a claim to free time interact with those for a claim to various valuable goods in work. while the former might undermine the latter (if arguments for valuable work depend on how people must spend most of their time working), the arguments might instead apply in tandem, such that people have claims to these goods – as goodin suggests – within and outside of work.2 2. the social conditions for the effective use of free time: a response to terlazzo terlazzo generously proposes that the argumentative framework i use to establish citizens’ legitimate claims to free time may serve as a model to argue for citizens’ claims to other under-explored resources. she takes up this project by instructively arguing that, on the basis of the effective freedoms principle – which ensures that citizens possess the means that are generally required to make effective use of their formal liberties and opportunities – citizens have a claim to a distinctive internal resource: a sense of moral entitlement to make use of their basic liberties. terlazzo's example of irma illustrates how a lack of a sense of moral entitlement may compromise one’s ability to effectively exercise one’s freedoms. irma is an aff luent housewife who has ample money and free time, but she believes that a woman’s place is in the family, and that she is morally obligated to devote all of her time to taking care of her home and children. while irma is aware of her formally-guaranteed freedoms and has the temporal and material resources to exercise them, she does not feel morally entitled to do so. as such, irma does not participate in politics or community life, or engage in any other pursuit beyond caring for her family (terlazzo 2017: 92-93). terlazzo develops several alternative ways to specify this resource, but to take one version, we can understand it, analogous to rawls’s primary good of the social bases of self-respect, as a claim to the social conditions that reliably foster the belief that one is morally entitled to exercise one’s basic liberties. terlazzo argues that the social conditions that would ground this belief would likely be some standard of formal education and broad exposure to people living diverse lives (terlazzo 2017: 100-101). if 2 see, for instance, gheaus and herzog (2016: 80) for the suggestion that if people had far more free time, there would be less, if any, reason to be concerned with the distribution of people’s ability to realize these goods within their paid work. for a discussion of these argumentative possibilities, see hsieh (2008: 76–79), and for arguments that might apply within and outside of work, see, for instance, muirhead (2004) and arnold (2012). 110 julie l. rose leap 5 (2017) irma was not educated to consider or exposed to alternative views about the proper role of women in the family and in society, and therefore she has always held, and is not open to revising, her beliefs about women’s domestic obligations, she would then lack the relevant resource.3 terlazzo takes up the argument for the resource of free time to argue, in parallel, for the resource of moral entitlement. in response, i will, in turn, take up her argument to show how a claim to this type of internal resource interacts with citizens’ claims to free time. the effective freedoms principle grounds citizens’ claims to a set of resources. by extension, on the same grounds, citizens also have claims to the social conditions that are generally required to make effective use of these resources for the exercise their liberties. as such, citizens have claims to fair shares of free time, and to the social conditions that allow them to make effective use of their free time to exercise their liberties (rose 2016: 90, 142). to see how citizens might possess free time under conditions that undermine their effective use of it, and in turn the effective exercise of their liberties and opportunities, consider the following cases. ann has a fair amount of free time, but she is a retail employee who must work evenings and weekends, so she only has free time during weekdays when her family and friends, as well as most other people, are working. beth is a live-in housekeeper and nanny and, though she too has a fair amount of free time, she only has free time in brief windows between meeting the responsibilities of her position. chris works in a distribution center, and though he also has enough free time, it does not occur on a predictable schedule because he is regularly required to work overtime without advance notice; similarly for david, a restaurant server, with an on-call shift schedule (or zero-hours contract). though ann, beth, chris, and david all have a fair amount of free time, due to the constraints imposed by the terms of their employment, they do not have this time under conditions that allow them to effectively use it to exercise their liberties (rose 2016: 142-143). to address these sorts of constraints on the effective use of one’s free time, i argue that, in addition to having a fair amount of free time, citizens must enjoy their shares of free time under a set of fair conditions. in particular, first, one must have access to sufficient periods of shared free time; and second, one must either have discretion over when one’s free time occurs, or, if one has limited discretion, one’s free time must occur in generally usable periods and on a predictable schedule (rose 2016: 143-44). 3 for a related argument, see ferracioli and terlazzo (2014). leap 5 (2017) 111 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim the book focuses on these specifically temporal conditions that must obtain for the effective use of one’s free time, but these are, of course, not the only ways one’s effective use of one’s free time may be constrained, nor are these the only conditions that must obtain for one to be able to effectively use one’s free time to exercise one’s liberties and opportunities. the effective use of one’s free time also requires, for instance, various social conditions related to space. effective freedom of association calls for access to both private and public spaces that meet a set of conditions, including, as goodin notes, public parks that facilitate social mixing (goodin 2017: 43), as does effective exercise of the political liberties. the effective use of one’s free time to more generally pursue a conception of the good also requires access to diverse opportunities in the built and natural environment, which we might think of as free time infrastructure (rose 2016: 8; see also weeks (2011: 167-171) on the creative potential of free time, which in turn can expand these and other opportunities). terlazzo provides the useful example of irma to demonstrate how an absence of a sense of moral entitlement, like an absence of free time, can undermine the effective exercise of one’s freedoms. but her example also constructively highlights how the effective use of one’s free time can itself be hindered in other ways, and more broadly, how ensuring that citizens can make effective use of their formal freedoms requires an interlocking set of resources and social conditions. to illustrate how citizens’ claims are connected, consider education. on the basis of the effective freedoms principle, citizens are entitled to a system of education that fosters their all-purpose internal capacities, including, following terlazzo’s argument, a sense of moral entitlement. in turn, such an education system serves as one of the social conditions that enables citizens to make effective use of their free time to exercise their liberties. bertrand russell, for instance, who argued that “four hours’ work a day should entitle a man to the necessities and elementary comforts of life, and that the rest of his time should be his to use as he might see fit”, was quick to add that education would be “an essential part of any such social system” in order to ensure that people were equipped to make use of their free time (russell 2004: 12).4 it is essential – especially as we consider the prospect of citizens having 4 this aim might inform both schools’ curricula (e.g. civics education) and schedules (e.g. recess, school vacations), so that students have both preparation for and experience with the effective use of free time. i thank tom parr for suggesting this point. children might also have a claim to free time to realize non-instrumental goods; for an argument that children have claims to free time, and to the means to make effective use of that time (e.g. playgrounds, extra-curricular opportunities), to realize distinctive childhood goods, see neufeld (2018); see also gheaus (2015); rose (2016: 63 n. 29). 112 julie l. rose leap 5 (2017) far greater amounts of free time – to remember that the effective freedoms principle grounds citizens’ claims not only to a fair amount of free time, but, as terlazzo’s argument highlights, to the social conditions that allow them to make effective use of it to exercise their liberties and opportunities. citizens must enjoy their free time under social conditions that allow for its value to be realized. 3. the scope of the effective freedoms principle: a response to von platz the argument that the effective freedoms principle grounds a claim of all citizens to free time can be understood, von platz argues, in two ways, corresponding to two readings of the principle. von platz contends that, while both arguments are sound and establish that free time is a proper subject of justice, neither establishes an additional way in which citizens are entitled to free time (von platz 2017: 59). the two ways that von platz argues the effective freedoms principle can be interpreted are: first, the basic liberties reading, on which citizens have a claim to an adequate amount of the resources required to exercise their basic liberties; and second, the general liberty reading, on which citizens have a claim to a fair share of the resources required to pursue their conceptions of the good, with “fair” meaning only that all should receive their due (von platz 2017: 51). von platz argues that, while the first reading yields a claim to only sufficient free time to exercise one’s basic liberties, the fair distribution of free time among cooperating citizens remains an issue of justice beyond the point at which all have enough time to exercise their basic liberties. yet, turning to the second reading, von platz contends that it cannot support this stronger claim to a fair share (von platz 2017: 53-55). in response, von platz suggests a way to extend the book’s argument to establish that citizens have a claim of distributive justice to a cooperatively fair share of free time (von platz, pp.9-11). i take von platz’s argument on behalf of a claim to free time, as a distributive claim to the benefits of cooperation, to be compatible with my own, and would instead characterize his argument as one way of specifying the effective freedoms principle, rather than as an extension that is necessarily “outside the scope” of the principle (von platz 2017: 56). the effective freedoms principle allows for more variation and is incorporated into different theories of distributive justice in a wider range of ways than von platz’s description may indicate. as i argue, there is considerable diversity in the form the principle takes within different leap 5 (2017) 113 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim liberal egalitarian theories, from what grounds citizens’ claims and the conditions under which their claims are fair, to which liberties and opportunities its scope extends, as well as the currency of citizens’ shares and which distributive principles apply to their shares. additionally, some theories recognize the principle directly, while others realize it indirectly through other principles (rose 2016: 69-73, 85-89).5 the principle is, by construction, stated broadly – as a “legitimate claim to a fair share of the resources that are generally required to exercise their formal liberties and opportunities” – to encompass this diversity. across these variations, the principle’s core is the commitment, central to liberal egalitarian theories of social justice, to ensuring that citizens possess the means to exercise their freedoms (rose 2016: 6-7). one version of the effective freedoms principle is von platz’s basic liberties reading, grounding a sufficientarian claim to the resources that are generally required to exercise one’s basic liberties. yet, the principle is also developed in a variety of other ways, and these alternatives can be seen as different ways of specifying von platz’s general liberty reading of the principle. some versions of the effective freedoms principle, while grounding sufficientarian claims, are not limited in scope to resources for the basic liberties. cécile fabre’s (2006: 32–33) theory of social rights, for one, holds that citizens have “rights to the all-purpose resources they need in order to lead” a life in which they can frame, revise, and pursue a conception of the good with which they identify.6 elizabeth anderson’s (1999: 315–21; 2001: 70–71) theory of democratic equality, to take another, holds that citizens are entitled to the social conditions, including the resources, necessary to have effective access to levels of functioning sufficient to stand as equals in a democratic state and civil society, and as equal participants in a system 5 the two principles of john rawls’s theory of justice as fairness provide an example of how a theory may realize the effective freedoms principle indirectly through other principles. in addressing the question of how to ensure that citizens’ liberties are not merely formal, rawls argues that, while the first principle requires guaranteeing the fair value of the political liberties, it does not specifically guarantee the fair value of all the basic liberties, because to do so would be “superf luous, given the difference principle” (rawls 2001: 148–51). the difference principle “underwrites the worth” of the guarantees of the basic liberties and fair equality of opportunity principles, and so the principles of the theory taken together ensure that citizens enjoy the worth of their formal liberties and opportunities (rawls 2005: 5–6). 6 see also fabre (2000: 18–20). in a notable exception to the general neglect of temporal resources in theories of justice, fabre cites as an example of lack of means someone “who needs to work fifteen hours a day in order to subsist”, and so “will not be able to pursue his chosen conception of the good, precisely for lack of time and money; in fact he most probably will not able, for these very same reasons, to pursue any conception of the good which does not involve working fifteen hours a day” (fabre 2006: 31). 114 julie l. rose leap 5 (2017) of cooperative production. other versions of the effective freedoms principle yield, as von platz favors, stronger claims of distributive equality grounded in cooperative fairness. stuart white’s (2003: 26, and 25-76) account of justice as fair reciprocity, for instance, which is founded on a commitment to substantive economic reciprocity, holds that citizens have presumptively equal rights to the satisfaction of their opportunity interests, including their “interests in access to the resources necessary for pursuing the ideals that animate their personal lives”. as such, the effective freedoms principle’s central commitment – to ensuring that citizens possess the means to make effective use of their freedoms – can be specified in a range of ways. citizens’ “legitimate claims to a fair share” can, as von platz advocates, be grounded in the cooperative norms of fairness of distributive justice, and if the principle is specified in this way, it can yield claims to a cooperatively fair share of free time. the book aims to show that any theory that holds that citizens have claims to the resources required to exercise their freedoms – as all liberal egalitarian theories of social justice do – must recognize that citizens have claims to free time. from this recognition, citizens’ claims to free time ought, then, to be incorporated into different theories of justice, in various ways and with varying implications, depending on different theories’ particular principles – with von platz’s proposal being one welcome way of specifying citizens’ claims to free time. 4. confronting the class divide: a response to stanczyk stanczyk takes up the question of how we ought to regard the claims to free time of wealthy professionals. stanczyk makes two arguments: first, though aff luent professionals may loudly lament how little free time they have, they ought to be regarded, by virtue of their wealth and occupational opportunities, as already having (more than) their fair shares of free time. as such, wealthy professionals have no claim of justice to work hours protections (e.g. protections that entitle one to work no more than a maximum number of hours; to have predictable schedules; to have short or f lexible schedules or leave time for caregiving; or to not have to work during a common period of free time) (stanczyk 2017: 66-70). second, to extend such work hours protections universally, including to wealthy professionals, would not only be unjustified, it would conf lict with the aim of securing a just distribution of free time, and distributive justice more broadly (stanczyk 2017: 66, 70-72). leap 5 (2017) 115 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim this is an important and complex question, and one that goes, as stanczyk rightly argues, to the question of how liberal egalitarians ought to confront the class divide. i will take up stanczyk’s two arguments in turn. the first argument – that wealthy professionals ought to be regarded as already having their fair shares of free time – is part of the larger question of how choices for which one might be held responsible ought to affect the assessment of one’s free time (rose 2016: 60–65). say a corporate law yer has inherited, or has accumulated after enough years in her highly-paid position, a substantial amount of wealth, such that, if she were to quit her position, the terms of which require her to work long hours, she could use this wealth to meet her basic needs without ever working another day. or, say that a psychiatrist, who hasn’t inherited or accumulated wealth but earns a generous income working short and f lexible hours, leaves her practice to work as an interior designer, and now must work long and antisocial hours to earn a decent income. though the corporate law yer and the interior designer are required to work these hours by the terms of their current employment, they would not have to if they were to take advantage of the privileges afforded by their wealth and occupational opportunities. the book’s core argument, so that it applies broadly across different theories of justice, is constructed to be open to taking different positions on these questions of responsibility-sensitivity, and so is open to holding that such aff luent professionals, despite their long work hours, are properly regarded as having their fair shares of free time, and thus have no claim of justice to work hours protections. with respect to wealth, i argue that a society may democratically decide that, if one has personal wealth above some amount, any paid work one does ought to be treated as a use of one’s free time, rather than as necessary time. this threshold level might be set higher or lower, or include or exclude different asset types, depending on various circumstances (rose 2016: 64). stanczyk’s argument also rightly presses that this threshold should not be left solely to democratic decision, and is properly constrained by principles of distributive justice, if, for instance, it were necessary to treat the work hours of those above some threshold level of wealth as discretionary in order to meet the claims to free time of the less well off. with respect to occupational choice, the core argument is open to taking the more responsibility-sensitive position, such that if one chooses to work in an occupation that requires longer hours than another occupation one could have chosen, the assessment of how much free time one has would ref lect one’s occupational choice set, not the occupation one has in fact chosen. 116 julie l. rose leap 5 (2017) while the core argument allows for taking this position, in developing the argument and its implications, i instead argue that the importance of the interest in freely choosing one’s occupation provides a weighty reason to allow citizens to exercise this choice without forfeiting their claim to other important interests, including to free time. nonetheless, while citizens do have an all things considered claim to a fair share of free time, because it may sometimes be impossible or prohibitively socially costly to guarantee this claim for particular occupations, citizens have only a pro tanto claim to free time in their chosen occupational position (rose 2016: 90-92). this pro tanto claim can be defeated by several types of reasons, including, as stanczyk’s argument again presses, if guaranteeing free time to privileged professionals in their chosen occupations would unavoidably conf lict with meeting the claims of those who have less advantageous occupational opportunities. as such, even if citizens do have a pro tanto claim to free time in their chosen occupational positions, if extending work hours protections to all, including the most privileged, would necessarily conf lict with realizing the claims to free time of the less privileged, my argument is open, and indeed would favor, regarding the long work hours of those privileged by wealth and occupational opportunities as discretionary uses of their free time. time-pressed wealthy professionals who have access, by virtue of their wealth or occupational opportunities, to free time would – if there is such a conf lict – then have no claim of justice to work hours protections. yet, to turn to stanczyk’s second argument, we should not be too quick to assume that this conf lict would necessarily arise. stanczyk argues that the conf lict arises because providing work hours protections universally would be economically regressive: some of the aff luent professionals would inevitably choose to work less, resulting in lower profits and salary incomes, and thus a smaller tax base, diminishing the government revenue available to meet the claims of the less well off (stanczyk 2017: 70-72). to start, it might be the case that, for empirical reasons, universal work hours protections would in fact better realize the claims of the less well off. stanczyk grants that there may be other reasons to implement work hour protections universally, such as economic efficiency or political strategy (and, we could add, gender equality) (stanczyk 2017: 67). but, we might also raise questions about the assumed economic regressivity. to pose two other possible dynamics, it might be the case that harried professionals, with their long and always-on work hours, would in fact be, in total, more productive, and would be productive in ways that are more creative and socially beneficially, if they had shorter and more f lexible work schedules (rose 2016: 130–31). or, the fact that the those with high social status work leap 5 (2017) 117 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim long hours might promote social norms valorizing this culture – with “busyness as the badge of honor for the new superordinate working class,” as sociologist jonathan gershuny puts it – with the effect that these norms undermine the ability of workers across society to choose not to work long hours (2005; see also 2009; rose 2016: 138–39). further, whether extending work hours protections universally would conf lict with the aim of securing a just distribution of free time, or distributive justice more broadly, depends on the requirements and possibilities of the underlying theory of justice. on a theory with a sufficientarian distributive standard, for instance, there may easily be no conf lict between universal work hours protections and realizing all citizens’ claims to a sufficient amount of free time (and other resources). or, on a theory with a more egalitarian distributive standard, there might similarly be no conf lict between extending work hours protections universally and realizing distributive justice more broadly, given that there would be a far less unequal distribution of wealth and occupational opportunities than in the society, resembling our own today, that stanczyk describes. to draw these points together, first, the core argument is straightforwardly open, if maximally responsibility-sensitive, to holding that the long work hours of wealthy professionals are discretionary uses of their free time. moreover, even if citizens have pro tanto claims to free time in their chosen occupational positions, wealthy professionals have no claim of justice to work hours protections if their universal extension would necessarily conf lict with realizing the claims to free time of the less well off. but, second, whether the presumptive claim to universal work hours protections is defeated depends on whether this conf lict does in fact arise, and unavoidably so – a question that cannot be answered without looking further at both the potential empirical dynamics and the underlying theory’s requirements and possibilities. 5. a republican social justice argument for free time: a response to lim lim persuasively develops a republican case for an entitlement to free time, with a carefully constructed two-stage argument. first, republican non-domination requires robust checking mechanisms to ensure that power-holders are forced to track the interests of their power-subjects. in the domain of the workplace, for instance, employees must have mechanisms to check employers’ power, through both contestation (e.g. 118 julie l. rose leap 5 (2017) political organizations and unions to dispute decisions) and justification (e.g. workplace committees and employee representation on boards to participate in decisions). importantly, establishing, maintaining, and participating in these checking mechanisms – and citizens’ checks on political power more generally – takes time. thus, lim argues, the protection of republican non-domination entitles citizens to sufficient time for political engagement (lim 2017: 80-85). second, lim argues that providing citizens with time specifically for political engagement, either compulsorily or conditionally, would be contrary to republican commitments. for the state to ensure that citizens devote this allotted time to political engagement would require invasions of privacy, extensive surveillance, coercive enforcement, and state judgment about what activities are worthy, and would also likely be contrary to the cultivation of genuine civic virtue. to avoid these pitfalls, citizens’ claims to time for political engagement ought to be provided instead in the form of free time, for citizens to devote to any activities of their choosing (lim 2017: 85-88). lim argues that, unlike liberal egalitarians who can make a “straightforward” case for free time, this republican argument is an “instrumental” one (lim 2017: 74). while lim is right to argue that this republican justification for free time is less straightforward, it is perhaps worth clarifying that, on both accounts, citizens’ claims to free time are grounded in its instrumental value as a resource. to characterize the contrast, we might instead say that this republican argument is both more indirect (citizens’ claims to free time run through their claims to political time) and contingent (citizens’ claims to free time depend on the nonviability of claims to specifically political time). in examining the “temporal dimension within republicanism”, lim aims to see how republicanism might ground an entitlement to free time, and she readily notes that the argument she develops is not necessarily the only republican path available (lim 2017: 74). in the spirit of her argument, in response i will sketch another possible republican route to an entitlement to free time. to do so, i will take up lim’s suggestion to look toward the connection between free time and social equality. to be free citizens, philip pettit argues, republican citizens must enjoy freedom as non-domination not only in their relations to the state, with checks against public domination, but also in their social relations with one another, with blocks against private domination. to protect citizens against private domination, the republican theory of social justice requires “a level of protection and resourcing for people’s basic liberties – a level of entrenchment – that would enable them to count as equals in the enjoyment leap 5 (2017) 119 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim of freedom” (pettit 2014: 82). this ideal of equal status is grounded in the image of the liber, or free citizen, from the republican tradition, and requires that citizens can pass “the eyeball test”: they can “look one another in the eye without reason for fear or deference” (pettit 2014: 82). free citizens can “walk tall and assume the public status…of being equal in this regard with the best,” and “do not depend on anyone’s grace or favour for being able to choose their mode of life” (pettit 2012: 84, 82). the republican theory of social justice, then, requires that, to enable citizens to meet the eyeball test, all citizens must enjoy a threshold level of resources and protections for the exercise of their basic liberties (yielding, as such, a sufficientarian version of the effective freedoms principle) (pettit 2012: 85, and 75-129; 2014: 99, and 77-108; rose 2016: 70n8). from these grounds, it is then possible to argue that republicans ought to be concerned with the distribution of free time, insofar as inadequacies in citizens’ shares of the resource of free time undermine citizens’ ability “to stand on an equal footing” (pettit 2014: 80).7 to see how this might be the case, say that while some people have an abundance of free time, and devote it to social and community life, time-consuming political activities, and a wide array of educational and cultural forms of personal development, others must work very long or unsociable hours, and these time-poor citizens have scant opportunity to participate in such endeavors. it is not difficult to imagine how these deficits of free time might, like material poverty, undermine citizens’ equal standing. or, consider how if one has very little free time, or if the terms of one’s employment render one always on call to work demands or exposed to unpredictable work schedules, one might be dependent on the favors and goodwill of others and thus liable to their interference. one might well have to “bow or scrape, toady or kowtow, fawn or f latter” (pettit 2012: 82) with one’s bosses and coworkers, and perhaps one’s family or friends, in an attempt to manage and reconcile one’s personal commitments and obligations with these onerous and intrusive work demands. again, it is apparent how shortcomings in both in the amount and the conditions of citizens’ shares of free time might undermine their equal status as free citizens. in this way, it is possible to construct another republican path to a claim 7 though the eyeball test primarily requires that citizens possess an adequate level of resources and protections for the exercise of their basic liberties, it also imposes limits on how vast inequalities in resources can be, as citizens’ equal status depends in part in how their resources compare with others’, and if they “compare too unfavourably” that is likely to affect the “standing they can command in one another’s eyes” (pettit 2012: 90–91). it seems that the eyeball test would also impose limits on how vast inequalities in free time could unobjectionably be, but this argument primarily yields a sufficientarian claim to free time. (on the relationship between social equality and distributive claims to free time, see rose 2016: 85-89). 120 julie l. rose leap 5 (2017) to free time, building on the idea that republican freedom is “a freedom that presupposes the resources required to make it effective” (pettit 2014: 103). on these grounds, one might argue, citizens are entitled to the resource of free time for the exercise of their basic liberties, to the extent that it enables them to enjoy equal status as free citizens. such an argument, like lim’s, provides a republican connection between free time and social equality, as all citizens must possess free time on terms that enable them to pass the eyeball test. following lim’s lead in exploring the temporal dimensions of republicanism, there are likely other ways that republican commitments could yield a case for free time—and these further possible arguments, like the one described here, may be taken as complements to the republican argument developed by lim. 6. concluding comment to have one’s work read by such excel lent a nd t houg ht f u l cont r ibutors is a n honor. i a m g ratef u l to t he cont r ibutors for devot i ng t hei r at tent ion a nd t i me to engag i ng w it h t he book, doi ng so i n such a const r uct ive spi r it, a nd for prov id i ng so ma ny t h reads about wh ich to cont i nue t h i n k i ng. i a m a lso g ratef u l to t he ed itors, i n pa r t icu la r to tom pa r r, for h is va luable com ment s a nd for br i ng i ng t h is sy mposiu m to f r u it ion. bibliography anderson, e., 1999: “what is the point of equality?” ethics 109: 287–337. anderson, e., 2001: “optional freedoms.” in what’s wrong with a free lunch?, ed. j. cohen and j. rogers, 70–74. boston: beacon press. arnold, s., 2012: “the difference principle at work.” the journal of political philosophy 20: 94–118. bittman, m., 2011: “goodin et al.’s new measure of freedom: authors meet critic.” social indicators research 101: 185–87. fabre, c., 2000: social rights under the constitution: government and the decent life. oxford: oxford university press. fabre, c., 2006: whose body is it anyway? justice and the integrity of the person. oxford: oxford university press. ferracioli, l. and r. terlazzo, 2014: “educating for autonomy: liberalism and autonomy in the capabilities approach.” ethical theory and moral practice 17: 443–55. gershuny, j., 2005: “busyness as the badge of honor for the new superordinate working class.” social indicators research 72: 287–314. gershuny, j., 2009: “veblen in reverse: evidence from the multinational time-use archive.” social indicators research 93: 37–45. leap 5 (2017) 121 justice and the resource of time: a reply to goodin, terlazzo, von platz, stanczyk, and lim gheaus, a., 2015: “the ‘intrinsic goods of childhood’ and the just society.” in the nature of children’s well-being: theory and practice, edited by colin macleod and alexander bagattini, 35–52. london: springer. gheaus, a. and l. herzog, 2016: “the goods of work (other than money!).” journal of social philosophy 47: 70–89. goodin, r.e., 2017: “freeing up time.” law, ethics and philosophy 5: 36-45. goodin, r.e., j.m. rice, a. parpo, and l. eriksson, 2008: discretionary time: a new measure of freedom. cambridge: cambridge university press. — r.e., j.m. rice, a. parpo, and l. eriksson, 2011: “discretionary time: a rejoinder.” social indicators research 101: 189–92. hobbes, m., w.t. de groot, e. van der voet, and s. sarkhel, 2011: “freely disposable time: a time and money integrated measure of poverty and freedom.” world development 39: 2055–68. hsieh, n., 2008: “survey article: justice in production.” the journal of political philosophy 16: 72–100. lim., 2017: “domination and the (instrumental) case for free time.” law, ethics and philosophy 5: 73-89. muirhead, r, 2004: just work. cambridge: harvard university press. neufeld, b.e., 2018: “‘the kids are alright’: political liberalism, leisure time, and childhood.” philosophical studies 175: 1057–70. pettit, p., 2012: on the people’s terms: a republican theory and model of democracy. new york: cambridge university press. — 2014: just freedom: a moral compass for a complex world. new york: w.w. norton & co. rawls, j., 2001: justice as fairness: a restatement. cambridge, mass: belknap press of harvard university press. — 2005: political liberalism. expanded ed. new york: columbia university press. rose, j.l., 2016: free time. princeton: princeton university press. russell, b., 2004: “in praise of idleness (1932).” in in praise of idleness, and other essays, 1–15. london: george allen & unwin, 1935; repr. new york: routledge. sen, a., 1983: “poor, relatively speaking.” oxford economic papers, new series, 35 (2): 153–69. stanczyk, l., 2017: “free time and economic class.” law, ethics and philosophy 5: 61-72. terlazzo, r., 2017: “entitlement and the resource of free time.” law, ethics and philosophy 5: 90-103. von platz, j., 2017: “free time, freedom, and fairness.” law, ethics and philosophy 5: 46-60. weeks, k., 2011: the problem with work: feminism, marxism, antiwork politics, and postwork imaginaries. durham: duke university press. white, s., 2003: the civic minimum: on the rights and obligations of economic citizenship. oxford: oxford university press. williams, j.r., y.j. masuda, and h. tallis., 2016: “a measure whose time has come: formalizing time poverty.” social indicators research 128: 265–83. symposium on liam shields' just enough: sufficiency as a demand of justice gu e st e di t e d by dav i d v. a x e l se n, l a s se n i e l se n, a n d pi e r r e -é t i e n n e va n da m m e leap 5 (2017) introduction dav i d v. a x e l se n london school of economics l asse nielsen university of southern denmark pierre-étienne vandamme university of louvain most people would agree that a world in which some people are starving and others take champagne showers is unjust. but is this unjust because some people have too little or because they have (much) less than someone else? this question has long played a role in public debates about redistribution, poverty, and the welfare state; is it insufficiency or inequality (or both) that matters? more recently, the notion that social justice is achieved when no-one has too little, and everyone has enough, has come into vogue in political philosophy. a sufficientarian view of justice,1 thus, now proposes a distinct alternative to prioritarian, egalitarian, libertarian, utilitarian and other conceptions of justice. in its original form, sufficientarianism entails that justice, or morality, is concerned with securing “enough” of the relevant distributive currency rather than aiming for an equal distribution of benefits. this notion underpins what frankfurt termed, the “doctrine of sufficiency” (frankfurt 1987). the doctrine is grounded in the belief that what matters is people’s absolute levels of opportunity and well-being and not their standing relative to others. as raz famously noted, it is “the hunger of the hungry, the need of the needy, the suffering of the ill, and so on”, with which morality is concerned (raz 1986: 240). justice, thus argued, is not upset by the mere fact that people are worse off than others. the doctrine of sufficiency, as first developed, however, was met with some powerful objections. in particular, it became apparent that the not giving any weight to inequalities above the threshold seemed untenable (casal 2007; holtug 2007). while most theories of justice would agree that getting people above some critical threshold is of significant importance, 1 see sen 1979; frankfurt 1987; crisp 2003; benbaji 2005; casal 2007; huseby 2010; gosseries 2011; a xelsen and nielsen 2015; fourie and rid 2016; shields 2016. d oi : 10. 310 0 9/l e a p. 2017.v 5.10 124 david v. axelsen, lasse nielsen, pierre-étienne vandamme leap 5 (2017) few seemed willing to accept the claim that inequalities above this threshold are of no concern to justice. but, as paula casal argued, for sufficientarianism to be a distinct view, it must hold both of these claims; both the positive thesis, that it is of special significance to get people above the threshold, but also the negative thesis, that once everybody is above the threshold, no further redistributive demands apply (casal 2007). several philosophers have developed sufficientarianism to better cope with this critique. some suggest multiple thresholds “vertically” at different levels of well-being, thereby making it less implausible that distributive demands do not apply above the “higher” threshold (benbaji 2005; huseby 2010). others suggest multiple threshold “horizontally”, applied to every distinct relevant dimension of value, so that to be above the threshold in a relevant sense is to be above all such thresholds (axelsen and nielsen 2015). yet others develop sufficientarianism into a hybrid-view by combining the positive thesis with other distributive principles above the threshold (fourie and rid 2016). liam shields’ just enough: sufficiency as a demand of justice (2016) is a new contribution to these theoretical debates, with the merit of applying the theoretical framework to concrete questions such as upbringing, education and global justice. its main ambition is to rescue sufficientarianism from “the indifference above the threshold objection”, mentioned above, and what we might call “the threshold fetishism objection”. stated formally, the two objections look like this: o1: it is implausible to be indifferent about the way benefits and burdens are shared once individuals have secured enough. o2: it is implausible to permit benefitting those that are just below the threshold by tiny amounts instead of benefitting those that are worst off by very large but insufficient amounts. the first objection applies to what shields calls “upper-limit sufficientarianism”, or the idea that once everyone has enough, there are no other requirements of distributive justice. the second applies to “headcount sufficientarianism”, stating that we should maximize the amount of people having enough. according to shields, all existing versions of sufficientarianism fall into these two categories and either are vulnerable to these decisive objections or must be revised in a way that does not make them distinct anymore from other conceptions of justice. fortunately for sufficientarians, there seems to be a way out of this, which requires combining the two following theses as shields recommends: the positive thesis: we have weighty non-instrumental reasons to introduction 125 leap 5 (2017) secure at least enough of some good(s). the shift thesis: once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further. this revised sufficientarian view avoids o1 because it is not indifferent towards inequalities above the threshold – it just affirms a discontinuity in the weight of our reasons to benefit people once the threshold is reached. and it avoids o2 because the shift assigns priority to benefiting those who do not have enough. the argumentation for the two theses follows two distinct lines. the first consists in identifying “sufficientarian reasons”. these are “weighty, noninstrumental, non-egalitarian and satiable” reasons. wherever we identify such reasons, there is a shift and hence there is room for a sufficientarian principle. for example, as shields argues in the third chapter, one condition of freedom is a sufficient degree of individual autonomy, understood as “the ideal of living one’s life in accordance with one’s own authentic judgments”. without this capacity, there is no freedom; hence it is required by justice. does this mean that we should not promote autonomy beyond the minimum level required for freedom? no, it just means that once sufficient autonomy is secured, claims to further promote autonomy must be made on different grounds than making freedom possible. the second line of argument consists in identifying debates in which sufficientarian principles can help solve clashes of values. wherever there are two values, interests or claims that clash, the sufficientarian solution will be to state that once one value, interest or claim is sufficiently satisfied, the other value, interest or claim becomes relatively more important. one example is upbringing, where the interests of children often clash with the interests of (prospective) parents. on this issue, shields argues in the fifth chapter that the child’s interests have priority over the parents’ interests until they are met to a sufficient extent. hence, as long as parents provide a good enough upbringing (which is in the child’s interest), they should not lose the child’s custody. only if parents did not perform well enough could a change of custody be envisioned. in other words, the child’s interests have priority. however, once a child receives a good enough upbringing, the parent’s interest (in keeping custody) matters more than the child’s interest (in receiving the best possible upbringing). after having applied a similar reasoning to education and global justice, shields concludes that the distinctive sufficientarian principles of justice are more plausible than their competitors and even indispensable to a sound and complete theory of justice – a claim assessed by several 126 david v. axelsen, lasse nielsen, pierre-étienne vandamme leap 5 (2017) contributions to this special issue. the contributions to this volume cover all the main topics discussed in shields’ book. two of them focus on shields’ core thesis: the shift thesis. lasse nielsen admits that it has some attractions, but is worried about the combination of the principles applying below and above the sufficiency threshold. either the principle of sufficiency is to be weighed against the principle applying above the threshold, with the risk of downplaying the sufficientarian intuition to a minuscule role, or it has absolute priority and shields faces objections applying to upper-limit sufficientarianism. moreover, it seems to nielsen that shields’ view hardly characterizes as distinctively sufficientarian, as it bears important resemblance with larry temkin’s pluralist telic egalitarianism. hence, he finishes his paper with a rehabilitation of upper-limit sufficientarianism – in particular against the “illusion of numbers”. counterfactual examples with numbers, as shields uses to disqualify the upper limit, can give the false impression that upperlimit sufficientarianism has no objections against some people being x times better off than others. yet with a sufficiently high threshold, it will not be possible for some people to fare x times better than others. they will just have more money, not (many) more opportunities, capabilities or even welfare. pierre-étienne vandamme is more positively inclined towards the shift thesis. as shields writes in his conclusion (2016: 199-200), he sees it as an opportunity to reconcile sufficientarian and egalitarian intuitions. for if sufficientarianism is detached from its negative affirmation that inequalities above some threshold do not matter from the point of view of justice, it becomes compatible with (luck) equality (or other principles) above the threshold. hence, shields’ contribution to the debate illustrates the distinction that should be made between moral indifference to inequalities above the threshold and agnosticism about these inequalities. endorsing the agnostic position entails that one defends only a partial theory of justice, which must be completed with another principle (at least). vandamme then enquires into the reasons one might have to leave aside the question of residual inequalities to focus exclusively on insufficiencies, and he highlights several pragmatic reasons to do so. he concludes with a qualified assessment of pragmatism about justice. three contributions then discuss shields’ view on autonomy. robert huseby expresses sympathy for the view but raises several clarificatory questions and invites further developments on the understanding of satiability, the relation to the conditions of freedom, and the location of the threshold. for example, if autonomy is satiable, it is not clear that further increasing autonomy above the sufficiency level will contribute to making introduction 127 leap 5 (2017) people better off. hence, in this respect, the principle of sufficient autonomy looks like an upper-limit sufficiency principle. perhaps there is a level of autonomy that is sufficient without being equivalent to full autonomy, but shields gives little specification of what this level would be and such view is exposed to the traditional “arbitrariness” objection to (low) sufficiency thresholds. as huseby argues, there are several formulations concerning the threshold of sufficient autonomy in shields’ book, and not all of them point in the same direction. christopher mills is more critical and offers two objections against the principle of sufficient autonomy. first, he argues that shields’ principle offers less protection for our capacities for autonomous behavior than it should. the reason is that it protects against coercion and other external threats acting on our beliefs, but not against internal threats such as selfdeception, or non-interpersonal external threats such as bad luck. second, he argues that shields fails to dismiss accounts of how welfare is partly constituted by autonomy (“constitutive welfarism”). these accounts do not tie our capacities for autonomy to our interest in freedom, as shields does, but instead tie both our capacities for autonomy and freedom to our interest in living good lives. as a result, they seem better able to protect our authentic decisions against internal threats and non-interpersonal external threats. danielle zwarthoed also discusses the principle of sufficient autonomy, yet in relation with shields’ views on education. zwarthoed first challenges shields’ contention that instrumental accounts of autonomy fail to support mandatory autonomy education in all cases. the reason instrumental accounts can succeed, she argues, is that an adequate level of autonomy might be necessary to live well. drawing inspiration from joseph raz, she claims that a minimal degree of autonomy might be necessary to secure the dependency of a person’s goals on reasons. otherwise, that person cannot make sure the reasons she has to pursue goals are independently valid and will contribute to her well-being. zwarthoed then compares the principle of sufficient autonomy with the rawlsian principle of fair equality of opportunity. shields argues that, by requiring talents discovery, the principle of sufficient autonomy renders rawls’ principle of fair equality of opportunity more plausible and should thus supplement it. yet zwarthoed points out that the two principles are not necessarily concerned with the same talents, which might bring them in tension in a context of finite educational resources. anca gheaus discusses the issue of upbringing. as mentioned earlier, shields believes that children are entitled to a sufficiently good upbringing, rather than to the best available one, and that their interests in that trump 128 david v. axelsen, lasse nielsen, pierre-étienne vandamme leap 5 (2017) the (prospective) parent(s)’s interests in parenting and keeping custody of their child. by so doing, he suggests an appropriate balance between the potentially conf licting interests of children and parents. gheaus agrees with the conclusion that “adequate parents cannot lose custody merely because a better parent is willing to take over”, but rejects shields’ argumentation in favor of a “child-centred” account of the right to parent. given that parenting entails the possibility to exercise a very significant amount of authority over children, she argues, it seems that the right to parent cannot be grounded on the right-holder. therefore, unless shields admits that justice requires equal opportunities to f lourish and that parenting is necessary to f lourish, which he denies, she claims that he should adopt a child-centred perspective. finally, siba harb and david v. axelsen discuss the application of shields’ sufficientarianism to global justice debates. in addition to applying a sufficiency threshold, shields differentiates between two ways in which our obligations may vary in demandingness: content (how much we owe) and stringency (how urgent fulfilling the duty is). he believes that this makes possible new ways of conceptualizing our duties of global justice compared with the traditional divide between statists and cosmopolitans. harb and axelsen argue that the combination of a sufficiency threshold and a shift in content-demandingness does not produce new viable positions. however, they highlight the conceptual and political benefits of the distinction between content and stringency. the latter means, for example, that someone can be statist qua content, i.e. consider that we owe more to compatriots than to foreigners, but cosmopolitan qua stringency, i.e. consider that our duties towards foreigners are more urgent. many other possibilities unfold, with the merit of shifting the lines of divide in global justice debates and bringing more attention to the question of political priority in our duties. bibliography axelsen, d. and nielsen, l., 2015: “sufficiency as freedom from duress”, the journal of political philosophy 23: 406-426. benbaji, y., 2005: “the doctrine of sufficiency: a defence”, utilitas 17: 310-332. casal, p., 2007: “why sufficiency is not enough”, ethics 117: 296-326. crisp, r., 2003: “equality, priority, and compassion”, ethics 113: 745 763. fourie, c. and rid, a. (eds.), 2016: what is enough? sufficiency, justice, and health, oxford: oxford university press. frankfurt, h., 1987: “equality as a moral ideal”, ethics 98: 21-43. gosseries, a., 2011: “qu’est-ce que le suffisantisme?”, philosophiques 38 : 465-491. introduction 129 leap 5 (2017) holtug, n., 2007: “prioritarianism”, in holtug, n., and lippert-rasmussen, k. (eds.) egalitarianism: new essays on the nature and value of equality. oxford: clarendon press, 2007, pp. 126-156. huseby, r., 2010: “sufficiency: restated and defended”, journal of political philosophy 18: 178-197. raz, j., 1986: the morality of freedom, oxford: oxford university press. sen, a., 1979: “equality of what?”, in the tanner lectures on human values 1, cambridge: cambridge university press. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold1 pi e r r e -é t i e n n e va n da m m e university of louvain abstract for people starting from a presumption in favor of equality, the very idea of a sufficiency threshold where the demands of justice would stop because everyone has enough is puzzling. however, liam shields, offers an account of sufficiency that has the potential to reconcile these egalitarians with the principle of sufficiency. this comes from his endorsement of what he calls “the shift thesis”, stating roughly that there is a discontinuity in the weight of our reasons to benefit people once they have enough. this thesis distinguishes his theory from other accounts of sufficientarianism by not denying the injustice of inequalities above the threshold. it thereby changes the way one can look at the relation between sufficiency and equality. the principle of sufficiency becomes the first principle of a conception of justice that must be completed by another – possibly egalitarian – principle. in the first section, i start with a brief exposition of the shift thesis and the way it relates to other accounts of sufficiency. in the second, i introduce a distinction between agnosticism and indifference towards inequalities above the sufficiency threshold. in the third, i argue that pragmatism might provide positive reasons to focus on insufficiency if one is agnostic about these inequalities. i conclude with a brief discussion of this pragmatic stance and of the choice to defend a partial view of justice as shields does. keywords: equality, sufficiency, justice, pragmatism, ideal theory for people starting from a presumption in favor of equality, or the intuition that unless there is a good reason to do otherwise, any distribution of goods or advantages should be equal, the very idea of a sufficiency threshold where the 1 i thank david a xelsen, a xel gosseries, lasse nielsen, liam shields, julia sichieri moura and the anonymous reviewers for useful comments on previous versions of this paper. d oi : 10. 310 0 9/l e a p. 2017.v 5.11 131 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold demands of justice would stop because everyone has enough is puzzling. what puzzles them in particular is that some inequalities are tolerated by sufficientarians although they do not have a special moral justification (such as being the result of genuine choices, valuable efforts, or ‘sacrifice’ for the community). the main merit of liam shields’ stimulating account of sufficiency as a demand of justice is to potentially reconcile these egalitarians2 with the principle of sufficiency. this comes from shields’ endorsement of what he calls “the shift thesis”, stating roughly that there is a discontinuity in the weight of our reasons to benefit people once they have enough. this thesis distinguishes his theory from other accounts of sufficientarianism by not denying the injustice of inequalities above the threshold. it thereby changes the way one can look at the relation between sufficiency and equality. the principle of sufficiency becomes the first principle of a conception of justice that must be completed by another – possibly egalitarian – principle. in the first section, i will start with a brief exposition of the shift thesis and the way it relates to other accounts of sufficiency. then, in light of this, i will introduce in the second section a distinction between agnosticism and indifference towards inequalities above the sufficiency threshold, shields’ position being associated with agnosticism. in the third section, i will argue that pragmatism might provide reasons to focus on insufficiency and leave aside other inequalities if one is agnostic about them. and i will conclude with a brief discussion of this pragmatic stance and of the choice to defend a partial view of justice as shields does. 1. the shift thesis and the distinctiveness of sufficientarianism as highlighted years ago by paula casal, sufficientarianism is usually conceived as the combination of two different theses: a positive thesis stressing “the importance of people living above a certain threshold” (casal 2007: 297-298), and a negative thesis denying “the relevance of certain additional distributive requirements” (298). many people think that it is the negative thesis that makes of sufficientarianism a complete 2 egalitarians committed to “comparative fairness” (temkin 2017) must be distinguished from other egalitarians, like many relational egalitarians, whose position is compatible with some forms of (relational) sufficientarianism. from the latter perspective, if people have enough to stand in a relation of equality with others, no additional redistribution is required. yet from the viewpoint of comparative fairness, any distributive inequality must be justifiable, whatever its impact on social relations. 132 pierre-étienne vandamme leap 5 (2017) and distinctive conception of justice3. it is complete because there are no distributive requirements other than those expressed by the principle of sufficiency. and it is distinctive because it is the only conception of justice that gives a pivotal role to some threshold of sufficiency and disregards the remaining inequalities. in contrast, the mere affirmation of the positive thesis can be included or absorbed into a more complete and ‘hybrid’ conception of justice such as sufficiency-constrained (luck) egalitarianism4 or sufficiencyconstrained (responsibility-catering) prioritarianism (318-323). however, shields proposes another way of understanding the distinctiveness of sufficientarianism. he endorses the positive thesis, which he formulates as follows: “we have weighty non-instrumental reasons to secure at least enough of some good(s)” (shields 2016: 28). but he rejects the negative one – which he calls “upper limit sufficientarianism” – because of its “inability to condemn some regressive policies, which require greater contributions from the worse off than the better off [when they are both above the threshold], and are unable to condemn huge inequalities between those who have secured enough” (23). yet, recognizing that the positive view is not enough to distinguish sufficientarianism from other views of justice that might also include this concern (among others), shields adds what he calls the “shift thesis”: “once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further” (30). this shift thesis is, according to him, what distinguishes sufficiency from priority, because prioritarians usually believe that “priority to the worse-off diminishes at a continuous rate” (30), whereas the sufficientarian threshold marks a discontinuity. this also explains why he does not endorse luck or outcome equality: because unless these views are coupled with a sufficiency constraint, they do not do justice to this discontinuity in the moral importance of redistributions. however, if prioritarianism or egalitarianism were to include a sufficiency constraint, they would become compatible with the principle of sufficiency. yet shields does not arbitrate between priority, equality and other candidates. he simply recognizes that the shift thesis is “compatible with a wide range of distributive criteria once everyone has secured enough” (34). 3 see for example a xelsen and nielsen 2015: 407-408: “[t]he acceptance of the negative thesis is [….] distinctively sufficientarian”. 4 here we should distinguish between forms of egalitarianism that are themselves sufficientarian (this is the case of several ‘relational’ egalitarian views), others that include a sufficiency constraint, and others yet that reject the moral significance of any sufficiency threshold. 133 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold as shields rejects the negative thesis, we can characterize his sufficientarianism as a distincticve yet partial view of justice. the principle of sufficiency is not enough by itself, as it does not provide guidance regarding the treatment of inequalities above the sufficiency threshold. it requires a complementary principle which can be, for example, outcome or luck egalitarian, utilitarian, prioritarian, leximin or maximin – the second principle applying specifically to what we might call the residual inequalities. w hat is particularly interesting with shields’ view is that it illustrates the distinction that should be made between agnosticism and indifference towards these residual inequalities5. although principles of sufficiency are often defended in opposition to principles of equality (see for example frankfurt 2015; crisp 2003; a xelsen and nielsen 2015), shields’ view makes them potentially compatible. it sheds light on the fact that sufficientarians are not necessarily morally indifferent towards residual inequalities. hence, it makes sufficientarianism attractive for people committed to comparative fairness and yet convinced of the centrality of people having enough. to be sure, this is not new (see casal 2007 or gosseries 2011), but this point has usually been made by egalitarians interested in sufficiency, not by sufficientarians. w hat is more, the shift thesis introduced by shields has the merit of making this compatibility between sufficiency and equality appear more clearly. 2. . indifference and agnosticism towards residual inequalities given that sufficientarians face more egalitarian alternatives6, they must be able to provide convincing reasons not to equalize social positions beyond what is required to achieve their goal. in other words, they must be able to justify their choice for a principle of sufficiency rather than some principle of equality (or another alternative conception of justice). nonetheless, as shields’ case illustrates, some sufficientarians do not 5 a xelsen and nielsen (2015: 423), for example, seem to conf late the two attitudes, using one term and then the other as if they were similar. 6 outcome egalitarianism is certainly more egalitarian than any account of sufficientarianism. yet regarding luck egalitarianism, things are more complex. given its emphasis on choice, luck egalitarianism can be both more and less egalitarian than sufficientarianism. unless they include a form of sensitivity to personal responsibility in their principle, which they usually refuse to do (gosseries 2011: 473), sufficientarians will generally accept more inequalities (related to bad luck) than luck egalitarians, but they will also sometimes reject some inequalities (related to choice) that luck egalitarians might have accepted. 134 pierre-étienne vandamme leap 5 (2017) provide this justification. shields rejects principles of equality that fail to take into account the discontinuity introduced by the sufficiency threshold, but he does not provide a justification for not adopting a form of sufficiencyconstrained egalitarianism. and this might be explained by agnosticism towards residual inequalities. agnostic sufficientarians have a strong feeling or intuition that deprivation (and/or domination) is unjust, but they do not know whether inequalities between well-off people – or billionaires as in the caricatural example often discussed – should be characterized as unjust or not7. another possibility is that they have an opinion about these inequalities, but they do not know how to argue in favor of it, or consider it a waste of time to make this argument. in this case, they are not really agnostic themselves, but they withhold their judgment and thereby endorse an agnostic position. in contrast with the agnostics, other sufficientarians such as harry frankfurt are morally indifferent towards residual inequalities. the two attitudes must be carefully distinguished. agnosticism entails either admitting that one does not know if these inequalities are unjust, or explicitly withholding judgment – which shields does, for example. moral indifference means that one does not consider these inequalities as unjust. what can explain such moral indifference? following roger crisp8, for example, one might believe that it is envy that leads some of us to develop hostility towards some inequalities which are not unjust in themselves (crisp 2003: 749), and that it is compassion, not env y, that should feed our judgments of justice and injustice. although we feel compassion for those who are badly off, we do not feel compassion for well off people having less than other well off people. hence, rather than pursuing “env y-freeness” through equalizations of bundles of resources, as dworkin (1981) would recommend, we should fight against feelings of env y and accept some inequalities as an integral part of social life. crisp’s argument about env y can of course be objected to. it is not because a judgment (of justice) comes from an inappropriate attitude (env y) that it is wrong9. nevertheless, it provides us with one explanation why one might be indifferent to inequalities above the sufficiency 7 as suggested to me by david a xelsen, they might also think that we cannot know because we are so far from that world and therefore lack epistemic access to intuitions about these kinds of cases. 8 crisp himself may not be morally indifferent towards residual inequalities as he expresses sympathy for utilitarianism above the sufficiency threshold (crisp 2003: 758), and utilitarianism can have redistributive implications. 9 i thank the reviewer who pointed this out. 135 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold threshold: a kind of psychological moderation or wisdom characterized by the absence of env y, which is obviously more plausible if the sufficiency threshold is relatively high. yet some people might also be env y-free for the simple reason that most people in the world are poorer than them. this could be characterized as biased sufficientarianism: although this sufficientarian has more than what is sufficient and would probably still have more in a situation where everyone had enough, s/he affirms that sufficiency is enough for the others. in other words, the indifference towards residual inequalities is explained by the fact that the person gains from these inequalities compared with a more egalitarian distribution. to be sure, no sufficientarian is likely to recognize him/herself in this picture. yet this could be an unconscious bias10. and if we want to build impartial moral judgments, we should certainly distrust principles of justice that suit our self-interest, especially when we are quite well off and unlikely to be victims of strong injustices, as most professional philosophers are11. hence, there is a variety of factors that can explain indifference towards residual inequalities: among others, a particular understanding of the notion of justice and the idea that it should be exclusively based on compassion; a rejection of envious comparisons; or, in some cases, a positional bias. in the next section, i would like to explore a more positive reason why one might be attracted by the principle of sufficiency and disregard residual inequalities: pragmatism. and i will suggest that this could explain shields’ focus on the injustice of insufficiency although he does not completely reject prioritarian and egalitarian views (provided that they include a sufficiency constraint). in other words, the aim of the next section is to provide a charitable interpretation of the reasons one might have to disregard some inequalities. it is an attempt to understand the appeal of sufficientarianism from an egalitarian perspective. 3. the pragmatic appeal of sufficientarianism what i will call here pragmatism about justice consists in endorsing a principle of justice in light of practical considerations such as its urgency, its achievability, or its action-guidingness12. let us examine these three 10 similarly, some luck egalitarians or libertarians might be affected by a selfentitlement bias giving them the impression that they deserve more than others. the risk of bias is not specific to sufficientarianism. 11 certainly, you do not need to have more than enough to defend upper-limit sufficientarianism, but you are less likely to hold this view if you are not above the threshold. 12 this kind of pragmatism differs from the one defended by elizabeth anderson and consisting in starting political philosophy from a diagnosis of the injustices in the real world (see anderson 2010: 3). 136 pierre-étienne vandamme leap 5 (2017) possibilities in turn. first, some might see situations of insufficiency or deprivation as an urgency to be solved13. hence, they might consider it preferable to focus on that than on debates about what an implausible equal society would look like. the pragmatism, here, consists in selecting the focus of one’s theory in light of what is the most politically important or urgent. in shields’ case, given that he does not seem to have a strong preference or a firm view in the debate between equality and priority above the threshold, this consideration of urgency might explain the choice to defend a partial conception of justice and leave the remaining question open. in particular, if it is true that there is this discontinuity in our reasons to benefit people once everyone has enough, as he argues, it becomes even more legitimate to focus on the urgency of insufficiency. this duty appears as more stringent14, and as having priority. second, some might think that their fellow citizens are probably more willing to accept the principle of sufficiency – which is in line with the human right to a decent standard of living – than a more demanding15 and more controversial ideal of equality. or they might think that it would already be something to reach sufficiency for all, that it is already utopian enough. they would thus prefer the principle of sufficiency for its relative political achievability. this kind of pragmatism is often called “non-ideal theory”, or “realism”. it rejects the kind of idealist or utopian theorizing that “does not represent an ideal of political life achievable under even the most favorable circumstances” (galston 2010: 387). ian shapiro, whose view of justice as non-domination is sufficientarian, can be taken as an example of such attitude, as he criticizes many theories of justice for being politically irrelevant (shapiro 2016: 11-12). such reasoning might play a conscious or unconscious role in one’s choice to focus on sufficiency. shields himself recognizes, without developing further, the advantages of sufficientarianism in light of non-ideal theory’s willingness to set “interim goals that can be achieved” (2016: 199). third, one might be led away from luck and outcome egalitarianism because they are not action-guiding enough. several luck egalitarians, for example, insist that levelling down might sometimes be required by justice, 13 see for example nathanson 2005: 373, although he argues that decency is even more urgent than sufficiency and should therefore be the criterion of economic justice. 14 shields actually gives an important role to this notion of stringency in his discussion of global justice (shields 2016: 177; harb and a xelsen 2017). 15 note that although most sufficiency principles are less demanding in terms of redistributions than their egalitarian alternatives, a responsibility insensitive principle of sufficiency (especially with a high threshold) might be very demanding as it would require frequent transfers of resources to the imprudent, for example (see gosseries 2011: 486-487). 137 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold but they press to add that other considerations will militate against levelling down in most cases. in so doing, they can appeal to value pluralism and downplay the importance of justice, which they may consider as an important value among other important values such as community and collective well-being for example (see temkin 2000: 155; cohen 2008: 7; 2011: 231; lippert-rasmussen 2015). yet if they do this, one risk is to lose the action-guiding force of the principle of justice (meijers and vandamme, 2018). in order to know how to act so as to make the world better, we would then need to take into account not only what justice requires, but also other values we care about16. hence, those who want to maintain the policy-guiding role of the concept of justice have pragmatic reasons to reject the principles of luck and outcome equality. the principle of sufficiency becomes more attractive, in this respect, because it does guide action. if a person suffers from deprivation, she must be helped, no matter how this happened and what other values we care about. furthermore, the principle of sufficiency avoids most of the counter-intuitive implications plaguing more egalitarian principles when they are (mistakenly) interpreted as action-guiding principles (see frankfurt 2015).17 shields actually seems to endorse the view that principles of justice should directly guide action, which appears in his affirmation that if a principle “had little significance in terms of policy implications […] then it could not have an extensive role in our thought” (shields 2016: 10-11). this might seem uncontroversial, but it is actually not obvious if one considers g. a. cohen’s distinction between fundamental principles of justice and rules of regulation, the latter only including non-moral considerations such as efficiency, achievability and others in order to directly guide action (cohen 2008). in the latter view, principles of justice do not by themselves have policy implications, but only when they are associated with the relevant facts and additional values. what shields seems to be looking for is a clear rule of regulation, and this pragmatic motivation might partly explain his non-selection of luck or outcome equality as the primary or secondary principle of justice. this would not make these alternative 16 unless there are no other values at stake. but if justice is reduced to comparative fairness, this will not often occur. most of the time, policies with distributive effects also have aggregative (or relational) effects. taxation is probably the best example. you cannot just focus on its distributive dimension. 17 one should nevertheless note that if one is concerned with levelling down, as is the case with frankfurt, the principle of sufficiency may not be the most attractive. many people will agree that sufficiency for all cannot be pursued at any cost. if, for example, bringing a single person to the sufficiency threshold has a huge cost, and for the same price you could bring an incredible amount of people further away from the threshold, many people will consider it counter-intuitive to opt for the former option. hence, the principle of priority might appear more attractive – or leximin egalitarianism, not considered by frankfurt (gosseries 2011: 468). 138 pierre-étienne vandamme leap 5 (2017) principles unjust, but merely inappropriate for shields’ purposes, which is a very different conclusion. hence, there is a variety of pragmatic reasons for focusing on the injustice of insufficiency. these reasons do not by themselves justify moral indifference towards residual inequalities, but they help us understand why one might want to take an agnostic position and leave this issue aside, as shields does. 4. discussion let us take stock. shields argues that there is a discontinuity in our reasons to benefit people once they have enough (1). his rejection of upper-limit sufficientarianism seems to indicate that he is not indifferent towards inequalities above the sufficiency threshold, but adopts an agnostic position (2). his choice to focus exclusively on the injustice of insufficiency, while leaving open the question of residual inequalities could be motivated by pragmatic reasons (3). 1) if the shift thesis is correct (which it is not the aim of this paper to assess18), then the principle of sufficiency should become part of any plausible conception of justice. securing sufficiency for all should be the priority. yet the very idea of a discontinuity in the rate of change of the marginal weight of our reasons to benefit people, as opposed to upper-limit sufficientarianism, entails that sufficiency cannot be enough. shields’ view of justice stands in need of a complement. 2) agnosticism is a perfectly legitimate philosophical stance. it has been part of the philosophical wisdom for centuries to recognize our inability to answer some questions. and if it is pragmatism that leads you to sufficientarianism, you might legitimately want to leave aside the trickiest philosophical questions to focus on urgent injustices. you might also (mistakenly) think that we will never have to practically address the question of residual inequalities, because the battle to achieve sufficiency for all will already take centuries. yet if one enters the philosophical debate about justice, the question is necessarily raised: why not more equality? and in addition to this, a lot of services we benefit from in aff luent societies would be above most sufficiency thresholds and yet raise issues of justice19. hence, the question matters both theoretically and practically. this being said, i agree that it matters less, politically, than defending sufficiency for all. 18 see nielsen 2017 for a more critical view. 19 i thank a xel gosseries for this suggestion. 139 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold however, as long as one remains agnostic about these inequalities, one cannot defend a complete theory of justice; only a partial one, which is also legitimate. a partial theory of justice points towards a specific kind of injustice, without the ambition to provide a full picture of a just society. feminism, for example, can be interpreted as a partial theory of justice, laying the emphasis on the diversity of injustices suffered by women. but most feminist views of justice are (or can be) integrated into a broader framework20, not always explicit, which can be egalitarian, sufficientarian, utilitarian or other. in the same vein, sufficientarianism advocating for the positive thesis but not the negative one is a partial view of justice, laying the emphasis on the injustice of deprivation, or insufficiency21 (and possibly its effects on social relations). what is particularly interesting in shields-like accounts of sufficientarianism is that they open the door to reconciliation between (usually) competing views of justice (see also casal 2007 and gosseries 2011). one could endorse two principles – sufficiency and outcome or luck equality – as a matter of justice, and sufficiency-constrained prioritarianism or leximin as a rule of regulation allowing departures from justice for efficiency reasons. redefined as a partial view of justice, the sufficiency principle will be more difficult to attack and might come to be recognized as an essential component of any attractive complete theory of justice, as shields hopes. nevertheless, shields’ argument will probably not convince those who are morally indifferent to residual inequalities. the reason is that it renounces to argue in favor of sufficientarianism as a complete and distinctive theory of justice, superior to its egalitarian, prioritarian and other competitors. in a sense, what shields does amounts to admitting that there are no good reasons to put forward in favor of the negative thesis, or upper-limit sufficientarianism, or the idea that, once everyone has enough, there are no more requirements of justice. 3) many people include pragmatic considerations in their reasoning about justice, without necessarily realizing or acknowledging it. hence, they might be tempted to deny it and affirm that they have principled reasons to defend the view they are attracted to. choosing a principle of justice for pragmatic reasons raises several questions, already much discussed in the debate about ideal vs non-ideal 20 the contemporary emphasis on intersectionality (crenshaw 1991), or the idea that women are at the intersection of diverse group affiliations and identities, and hence diverse claims of justice, is an attempt to relocate feminism into a broader picture of justice. 21 as shields (2016: 27) argues, “deprivation” might point to an excessively low threshold of sufficiency. 140 pierre-étienne vandamme leap 5 (2017) theory (see among others estlund 2014). hence i shall limit myself here to one comment. being pragmatic is as such not only legitimate but desirable. nevertheless, by including pragmatic considerations in one’s conception of justice, one runs the risk of making discussions about justice more confused22, because justice becomes relative to the author or speaker’s appreciation of what is achievable or useful, for example. as there will likely never be a consensus on what is and what is not achievable or useful, there is no common ground to discuss justice, which is highly problematic both from the viewpoint of a community of scientific research and from the perspective of a democratic community searching for common political principles. hence, before aiming at agreeing on common principles of justice, we should first try to reach agreement on the concept of justice: in this concept, do we include pragmatic considerations or not? and it might prove easier to agree on a principle of justice leaving aside pragmatic considerations. most objections to luck egalitarianism, for example, are practical. if it was not expected to have disincentivizing effects, disrespectful implications or difficulties of implementation, few people would still object to it. in contrast, the appreciation of what is feasible depends a great deal on one’s optimism, knowledge of the relevant facts, or appreciation of human nature. of course, these pragmatic considerations would inevitably reenter the debate at a later stage, but separating the tasks might reduce confusion. cohen’s distinction between fundamental principles of justice and rules of regulation helps avoiding some debates and confusions about the practicality of different theories of justice. from this perspective, defending a fundamental principle of justice does not commit you to all its implications. the principle does not in itself imply anything about how one ought to act all things considered. and justice is not the only thing that matters: you might care about justice and efficiency, and political pragmatism, without mixing all these considerations in an allencompassing principle. accepting such distinctions might make many disagreements between egalitarians, prioritarians and sufficientarians disappear. they could then work together towards establishing appropriate rules of regulation in different contexts. yet the logic of academic research, giving a high premium to apparent originality, or the capacity to distinguish one’s view from the others’, does not foster agreement between competing 22 this risk is probably more important when pragmatic considerations are hidden than when they are explicitly endorsed as in anderson (2010)’s pragmatism or sangiovanni (2008)’s practice-dependence. one important criticism of ideal theorizing is that unless it completely abstracts from facts as cohen’s (2008) does, it runs the risk of hiding pragmatic or context-dependent considerations. i thank david a xelsen for bringing this issue to my attention. 141 leap 5 (2017) why not more equality? sufficientarianism and inequalities above the threshold views of justice. casal and shields have made one step in a good direction by suggesting that sufficiency can be compatible with equality or priority. the next step could be to recognize the complementarity between egalitarian principles and efficiency-concerned principles such as priority or leximin, the former being fitter as fundamental principles of justice, the latter as rules of regulation. bibliography anderson, e., 2010: the imperative of integration, princeton: princeton university press. axelsen, d. and nielsen, l., 2015: “sufficiency as freedom from duress”, the journal of political philosophy 23: 406-426. casal, p., 2007: “why sufficiency is not enough”, ethics 117: 296-326. cohen, g. a., 2008: rescuing justice and equality, cambridge (mass.): harvard university press. cohen, g. a., 2011: on the currency of egalitarian justice, and other essays in political philosophy, princeton: princeton university press. crenshaw, k., 1991: “mapping the margins: intersectionality, identity politics, and violence against women of color”, stanford law review 43: 1241-1299. crisp, r., 2003: “equality, priority, and compassion”, ethics 113: 745 763. dworkin, r., 1981: “what is equality? part 2: equality of resources”, philosophy & public affairs 10: 283-345. estlund, d., 2014: “utopophobia”, philosophy & public affairs 42: 113-134. frankfurt, h., 2015: on inequality, princeton: princeton university press. galston, w., 2010: “realism in political theory”, european journal of political theory 9: 385-411. gosseries, a., 2011: “qu’est-ce que le suffisantisme ?”, philosophiques 38 : 465-491. harb, s. and axelsen, d. 2018: “getting to a just enough world”, law, ethics and philosophy 5. lippert-rasmussen, k., 2015: luck egalitarianism, london: bloomsbury. meijers, t. and vandamme, p.-e., 2018: “equality, value pluralism and relevance: is luck egalitarianism in one way good but not all things considered?”, critical review of social and political philosophy. nathanson, s., 2005: “equality, sufficiency, decency: three criteria of economic justice”, journal of philosophical research 30: 367-377. nielsen, l. 2017: “shielding sufficientarianism from shields’ shift”, law, ethics and philosophy 5. sangiovanni, a., 2008: “justice and the priority of politics to morality”, the journal of political philosophy 16: 137-164. shapiro, i., 2016: politics against domination, harvard: harvard university press. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. temkin, l., 2000: “equality, priority, and the levelling down objection”, in the ideal of equality, eds m. clayton and a. williams, macmillan: 126-161. temkin, l., 2017: “equality as comparative fairness”, journal of applied philosophy 34: 43-60. leap 5 (2017) shielding sufficientarianism from the shift1 l a s se n i e l se n university of southern denmark abstract this paper discusses liam shields’ sufficientarianism and especially his very innovative construction of the shift thesis: that above the relevant threshold there is a significant change in our reasons to benefit people further. the paper argues that, despite its clear advantages, shields’ view still faces some general problems. first, that it says too little about how different types of reasons to benefit someone should be weighed against each other. second, and more importantly, that shields does not provide satisfactory reasons for why we need the shift in the first place. the paper argues that given the value assumptions that sufficientarians normally adhere to, the upper limit version remains a more promising alternative. keywords: shields; sufficientarianism; pluralism; the shift thesis liam shields’ development of the sufficiency view – the view that justice is concerned with securing enough for everyone – is among the most promising outlines for a theory of distributive justice in contemporary political philosophy. shields’ rewritings of the sufficiency principle have, since their origin in 2012, gained much attention and many philosophers and political theorists have found them to improve the general outlook of sufficientarianism. although shields speaks into a field of great complexity, the key contribution is utterly simple. in a nutshell, shields’ main point of argument is that sufficientarianism need not imply that we should ignore inequalities once everyone has “enough”. instead, he argues, sufficiency implies merely that there is a significant shift in our reasons to benefit people further. this development has now – true to shields’ own wording – become known as “the shift thesis” (2016; 2012). the shift thesis effectively offers a very appealing sufficientarian reply 1 for useful comments on earlier versions of this paper, i thank a xel gosseries, david a xelsen, anca gheaus, danielle zwarthoed, pierre-etienne vandamme, chris mills, liam shields, and two anonymous reviewers. d oi : 10. 310 0 9/l e a p. 2017.v 5.12 shielding sufficientarianism from the shift 143 leap 5 (2017) to the critics’ concern about how justice applies to situations where inequalities persist but where no one is below the threshold. thus, the advantages of shields’ sufficientarianism are obvious. however, the view is not without its limitations. in this paper, i raise some critical questions for shields’ sufficientarianism and i defend the “upper limit” sufficiency view as a more promising framework. the paper proceeds as follows. section 1 lays out sufficientarianism generically. section 2 presents liam shields’ amendment to this view in the form of his shift thesis. section 3 raises some critical questions for shields’ version of the sufficiency view that i believe he needs to answer. section 4 defends upper limit sufficientarianism as a more plausible version of sufficientarianism than shields’ account. section 5 concludes. 1. sufficientarianism sufficientarians care about individual people’s absolute standing. they do not care about people’s relative standing unless it affects their absolute standing (axelsen and nielsen 2015). here i have no space to unfold this idea, but one plausible way to understand it is to say that sufficientarians use a threshold constraint to discriminate between relevant and irrelevant individual demands of justice (segall 2016; hirose 2016)– e.g. similar to scanlon’s objective criterion for distinguishing between urgent and nonurgent preferences (1975). without distinguishing between different theoretical specifications within the sufficientarian literature, we can assume the following generic principle (adopted from nielsen 2017): the generic sufficiency view justice is concerned with eliminating absolute deficiencies rather than inequalities this generic formulation captures the driving moral statement of any specified sufficiency view , and although critics are sceptical, many find it intuitively plausible.2 however, despite the merits of the generic view, sufficientarians might need to say more about how to set the threshold in order to render the sufficiency view theoretically plausible. this is because all sufficiency 2 see among others frankfurt (1987), crisp (2003), raz (1986: 240); benbaji (2005) huseby (2010). 144 lasse nielsen leap 5 (2017) views – including the generic view – imply that there exists, at least in theory, a threshold point above which inequalities are irrelevant (or significantly less relevant) to justice. thus, for example, sufficiency views, even when very generic, are always vulnerable to objections stressing the intuitive dissatisfaction with the implication that above some threshold t, the inequality between the super-rich and those who barely have enough would not be a concern of justice (casal 2007). but identifying the threshold is a delicate matter, and critics of the sufficiency view believe sufficientarians face a theoretical dilemma on this issue. if defining a relatively high threshold, such as in terms of welfare satisfaction or contentment, the sufficiency view undervalues the urgency found in the substance of absolute deficiency. that is, if our sufficiency view allows not being perfectly content to be an absolute deficiency, we have certainly undervalued the importance of being released of deficiencies such as hunger, deprivation, suffering, etc. any reasonable sufficiency view needs to underline the special importance of addressing the latter deficiencies rather than the former. on the other hand, setting a very low threshold – e.g. set at the level of basic needs fulfilment – makes the sufficiency view vulnerable to being ignorant of even quite significant inequalities above this threshold. the difference between the super-rich and people who barely have their basic needs met is simply not, on any reasonable interpretation of justice, irrelevant. thus, the sufficiency view seems faced with this troublesome dilemma in f leshing out a relevant and plausible threshold level. 2. shieldian sufficientarianism liam shields smoothly solves the above dilemma. he proposes to exchange the strong negative thesis with what he calls “the shift thesis”, stating that “once people have secured enough there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further” (2016: 30). although this interpretation of the view does not f lesh out a much specified threshold definition, it does in an important way render the sufficiency view more plausible. what it does, effectively, is to resolve the dilemma by allowing for a more modest threshold level – set at some non-specified level of resources – than would otherwise have been acceptable, since the shift thesis enables sufficientarianism to object to inequalities above the threshold. this softens the hard inegalitarian implications of sufficientarianism while still remaining loyal to the central driving intuition of the generic sufficiency view. we can get a better grasp of what the shift thesis involves in figure 2.2, shielding sufficientarianism from the shift 145 leap 5 (2017) which shields presents to illustrate what he calls non-uniform prioritarianism (2016: 32). figure 2.2. non-uniform prioritarianism figure 2.2 displays how non-uniform prioritarianism involves a significant change in our moral reasons to benefit people further, once they reach a certain welfare level (here this level is 2). this captures the shift that shields builds his sufficientarianism upon. non-uniform prioritarianism is different from uniform prioritarianism because the former claims that there is a central change in terms of the relationship between how well off people are and the moral importance of benefitting them. this change, shields convincingly argues, can only be explained in reference to the shift thesis. thus, although non-uniform prioritarians can entail a wide range of other distributive principles, they must rely on some sufficiency principle, because they appeal to the shift. this perspective grounds a much wider relevance of sufficiency principles than normally assumed, because it identifies a very intuitively plausible and common idea – that there are changes in the rate of reasons to benefit people depending on their level of welfare – as a specifically sufficientarian idea. and even more importantly, the appeal to the shift thesis does take much of the edge off the most widely shared criticism of sufficientarianism, namely that it is implausible to accept that inequalities above the threshold level are irrelevant to justice. thus, the prospects of grounding the sufficiency view upon the synthesis of the positive thesis and the shift 146 lasse nielsen leap 5 (2017) thesis is promising and fully justifies shields’ status as among the leading contributors to the development of sufficientarian theory. 3. some general problems with the shift although the advantages of the shift thesis are clear enough, there are still some questions that need to be addressed. the shift thesis is generic and ecumenical in its outline, and although this is of course not in itself a problem, it blurs our perception of what happens after the shift. shields seems to imply that the shift thesis could be compatible with sets of moral reasons that refer to the value of fairness above the threshold (2016: 35). but this raises the question of what the relationship is between the sufficiency-reason and other moral reasons. shields’ central idea seems to be that once our sufficiency-reason – that is, our reason to benefit a person that stems from this person being below the absolute threshold-level of welfare – stops being salient, because the person is pushed above the threshold, we will turn to the best alternative reason to benefit further. fairness concerns, such as distributive egalitarianism or responsibility, seem likely candidates. but that gives the impression that the shift is not accurately depicted as a bend on the otherwise nicely linear (prioritarian) graph of the development of our moral reasoning. rather, it seems that we should think of it as two separate lines. one line, the sufficiency-reason, representing our very strong commitment to bring people above the threshold, and then a separate line, representing our other moral concerns, that so to speak “take over” once we reach the absolute threshold. this is shown in figure 2.2* below. in figure 2.2*, the shift is depicted as the intersection between the red line, representing our sufficiency-reason to benefit people which is based on their (below-threshold) level of welfare, and the blue dotted line, which represents whatever weaker moral reasons we are left with once the stronger moral reasons becomes non-salient. if 2.2* is a fair illustration of the shift, and i believe it is actually more precise than shields’ own from figure 2.2, then it raises the question of how these two sets of moral reasons relate to each other. in other words, how should we interpret the relationship between the two lines in figure 2.2*? shielding sufficientarianism from the shift 147 leap 5 (2017) figure 2.2* the shift thesis as plural sets of reasoning it seems then, that to make the shields framework plausible, one would have to decide on a reasonable relationship between the sufficiency-reason and other reasons. first, one possibility is to say that the sufficiency-reason should only take some priority over other moral concerns, but in general be weighed against our alternative set of reasons. that is, if fairness is a relevant moral reason, then this reason ought to be given some weight in our moral deliberation. that is, our decision to help person i rather than person ii to reach the threshold depends not only on their level of welfare but also on the interaction of other moral reasons – say responsibilitysensitive fairness – on the sufficiency-reason. for example, we might say that if person i and ii are faring equally badly (both below threshold at level 1,5), but differ in terms of exercise of responsibility, then responsibility sensitivity tie-breaks our moral deliberation in favour of priority to the prudent. that is, under resource scarcity, we should give priority to helping the prudent over helping the imprudent. but then we might also say that although being worse off than others below the threshold takes more presence in our calculation than responsibility sensitivity, then large differences in responsibility could outweigh the priority given from level of welfare, so that even if persons i and ii are unequally badly off (e.g. i at 1; ii at 1,5), then the difference in their exercise of responsibility could be significant enough as to alter our immediate priority. finally, it could also very likely imply that under given circumstances, where we have very weighty responsibility-sensitive reasons to benefit person i who is above the threshold (e.g. at level 3), these reasons could potentially outweigh our 148 lasse nielsen leap 5 (2017) reason to help person ii (et level 1,5) reach the threshold. this seems like a possible way to embrace value pluralism much in line with standard luck egalitarianism (temkin 2003; lippert-rasmussen 2016), but it seems a very unlikely sufficientarian strategy. this is because it downplays the work of the positive thesis (at least in theory) to a miniscule degree, although this is so centrally carrying the sufficiency intuition. this leaves the shift thesis shifty3 because it makes the sufficiency-reason – stemming from the strong appeal of the positive thesis – merely one among a number of moral considerations. shields might of course decide that the sufficiency-reason should take absolute priority over other moral concerns. this is the standard sufficientarian move. and this, i should stress, is what i believe he ought to say. but there are two problems involved for shields in taking this path. first, if fairness (or another egalitarian concern) is fully outweighed by the sufficiency-reason below the threshold, but takes the lead above the threshold, once our sufficiency-reason becomes non-salient, then shields’ sufficientarianism is not distinctive from pluralist telic egalitarianism such as temkin’s comparative fairness egalitarianism (2003; 2017). shields might of course just say that this is because, on his account, temkin is a sufficientarian, but this seems strange because the dispute between sufficientarians and egalitarians is not about accurate labelling but about the value of distributive equality. hence, if that is the case, it seems more correct to withhold that shields is no sufficientarian. second, if shields gives absolute priority to the sufficiency reason, then his synthesis of the positive thesis with the shift thesis makes his view vulnerable to the same objection he presents against upper limit sufficientarianism, which he contrasts himself to. to see how shields’ view departs from upper limit sufficientarianism let me employ an example, also borrowed from shields (2016: 23). table 2.3 upper limit sufficientarianism i ii iii i v v v i a 1,000 1,000 1,000 1,000 1,000 3 b 5 5 5 5 5 5 c 5 5 280 5 5 4 3 i am indebted to jens thaysen for this catchy, although admittedly slightly tacky, punchline. shielding sufficientarianism from the shift 149 leap 5 (2017) table 2.3 shows three different hypothetical scenarios (a, b, and c) entailing very different distributional shares for different groups or persons (e.g. in a given society). as shields rightly points out, upper limit sufficientarianism would prefer b to both a and c (which headcount sufficientarianism would as well), when the threshold is set at 5. this contrasts it with weighted prioritarianism, which would rank the scenarios a, c, b (from best to worst). shields favours the weighted prioritarian reply on intuitive grounds, and if this was not the case, it would be unclear on what grounds he would dismiss upper limit sufficientarianism in the first place. but if the shift thesis is to be understood to entail absolute priority to our moral reason to benefit people who are below the threshold, then shieldian sufficientarianism – synthesising the positive thesis with the shift thesis – gives the same ranking as upper limit sufficientarianism. that is, it would favour b over both a and c, when the threshold is at 5. this is surely no embarrassment. maximin and leximin prioritarian views would also prefer b over a and c, as would telic egalitarianism. that is, on further ref lection, it is not at all obvious that our intuitions about this case work in favour of weighted prioritarianism or shields’ own account, and against the other theoretical standpoints. in fact, in section 4 defend upper limit sufficientarianism against this intuitive strike. my point here is merely to highlight that if shields wishes to stick with the weighted prioritarian view in this case – and therefore rank a, c, b (from best to worst) – then he is left with giving away the sufficientarian commitment to the strong priority of the positive thesis. 4. defending the upper limit this section defends upper limit sufficientarianism. as suggested in section ii, the sufficiency view could be understood in a negative form, as a generic principle saying that, justice is concerned with eliminating absolute deficiencies rather than inequalities. if this principle is accurate, then justice would be fulfilled once absolute deficiencies are eliminated, regardless of whether inequalities still persist beyond this point. this adheres to the ranking b over a and c in table 2.3 (when the threshold is 5), because only in b are deficiencies eliminated. as mentioned, this is the same guidance as maxmin and leximin prioritarianism as well as egalitarianism, so it need not be counterintuitive, but as shields mentions, upper limit sufficientarianism also gives counterintuitive guidance in cases where everyone has secured enough (2016: 23). to see this, we can take a look at table 2.3* 150 lasse nielsen leap 5 (2017) table 2.3 upper limit sufficientarianism (w ith no one below the threshold) i ii iii i v v v i a 1,000 1,000 1,000 1,000 1,000 5 b 5 5 5 5 5 5 c 5 5 280 5 5 5 table 2.3* is similar to table 2.3 except that the worse off in a and in c are now lifted to the threshold level (at 5). thus, no one is below the threshold level and, moreover, the worst off in a and in c are just as well off as the best off in b. in other words, in economic terms, a dominates b and c; and c dominates b, so that moving from b to c; and from c to a would be pareto-efficient moves. however, upper limit sufficientarianism would be unable to prefer a over b (or c over b), simply because everyone is above the threshold, and because upper limit sufficientarianism accepts the “upper limit claim” that “no distributive principles apply to benefits among those who have secured enough” (2016: 22). it is not that it necessarily needs to prefer b, but the problem is that it cannot in itself capture that we should not be satisfied with b, although dominantly better alternatives a and c exist. this clearly seems to put a stark challenge against upper limit sufficientarianism; but one that shields’ shift thesis can enable us to tackle. on my account, there is nothing wrong with the guidance of upper limit sufficientarianism even in this extreme scenario. in fact, on further ref lection it is not even clear that our intuition works to count against it. the central problem with the illustration of upper limit sufficientarianism above is that it gets lost in what i call the illusion of numbers against sufficientarianism.4 the illusion of numbers against sufficientarianism assumes that the difference between how well different people are doing is meaningfully captured by the numerical distance between larger and smaller numbers. but sufficientarianism properly understood should reject this assumption. the remainder of this section explains why and thereby argues against the illusion of numbers against sufficientarianism. to see how shields’ illustration of upper limit sufficientarianism gets lost in the illusion of numbers against sufficientarianism, let’s consider the content of the example in table 2.3*; which, you will recall, is a hard case against upper limit sufficientarianism. in table 2.3*, the threshold is set at 4 i adopt this from nielsen (unpublished paper). shielding sufficientarianism from the shift 151 leap 5 (2017) welfare level 5. since the figure “5” alone does not in itself tell us a lot about why we choose that level rather than any other as the relevant threshold, we assume that it is the content (of resources, opportunities and welfare) that this figure stands for that constitutes the relevant cut-off point. following shields’ example, let’s say that “those who pay the top rate of income tax have enough after tax” (2016: 22), and therefore let’s assume that these people are at level 5. what that must mean is that they have sufficient resources and opportunities for their welfare level to be considered a “5”. this seems intuitively appealing. these people have a stable monthly income; they lead autonomous lives; they can afford decent or very decent housing; they have access to decent social insurance; they have a stable health together with a health care system that is prepared to assist them if they fall ill; they are also mentally healthy; their offspring face good social opportunities and have access to good quality education etc. all these things are tacitly put them into the figure “5”. the problem arises because if all these welfare goods are contained in the number “5”, then what can possibly be the content of the number “1000”? in instance, it follows that, if the threshold (5) contains all the above mentioned welfare goods, then the best-off (at 1000) have all the same times two-hundred. or, more accurately, they would have the welfare level that you gain from having all these goods times two-hundred. but that is not only hard to grasp, but simply meaningless. you could of course imagine a case in which everyone has all the before mentioned welfare goods and then still some have 200 times as much money as others, but then the inequality in question is solely expressed in material resources, and this is useless because “money” alone is very rarely the currency that critics of sufficiency would employ. for one thing, it is evident that very rich people could be worse off than less rich people in other value-metrics. the illusion of numbers against sufficientarianism stems from the fact that numerical comparisons are simplistically scalar and potentially infinite, whereas real life comparisons are not only more complex than that, but also simply incompatible with that way of making interpersonal comparisons. upper limit sufficientarians reject the simple numerical comparison assumption on which these comparisons are made. they are not concerned with numbers. their only concern is deficiency. they care about eliminating material deficiency such as hunger, deprivation, illness, suffering etc., and they care about social deficiency such as oppression, dominance, discrimination etc. (frankfurt 1987; raz 1986). upper limit sufficientarians reject the simple numerical comparison assumption in favour of another assumption; namely, that there is an absolute level of wellbeing (broadly conceived), above which additional resources will not benefit 152 lasse nielsen leap 5 (2017) people further in any way relevant to justice, regardless of the strength of people’s personal desire to possess more resources. on that assumption, it seems that there is nothing wrong with perceiving b as incomparable with a and c. but from that assumption, we can derive a rather interesting and strong claim about the nature of the value of distributive goods, which is controversial, but which i think we have good reasons to accept. we can say that, no distributive good (or bundle of goods), that is relevant to justice, can have a comparable value if given to people below the threshold than if given to people above that threshold (nielsen 2016). this claim is incompatible with the simple numerical comparison assumption, because it implies that the difference between 996 and 1000 is incomparable to the distance between 1 and 5, although these distances are clearly comparable in a numerical sense captured by the mathematical fact that 4 equals 4. but translated into what these numbers stand for in terms of real goods and their value, it is far from implausible to accept it. four loaves of bread is of course equivalent to four loaves of bread, but the value of that bundle of goods surely hinges on whether one faces an absolute deficiency in food supplies. 5. conclusion l ia m sh ields’ w r it i ngs have su rely had a g reat i mpact on t he t heor i z i ng w it h i n d ist r ibut ive just ice. a nd a lt houg h t h is is on ly for good rea sons, i n t h is paper i have a rg ued t hat h is ma i n cont r ibut ion, consist i ng i n t he of fer i ng of t he sh i f t t hesis a s a n a lter nat ive to t he negat ive t hesis, is a n u n necessa r y detou r for su f f icienta r ia ns. in fact, adopt i ng t he sh i f t t hesis need lessly leaves su f f icienta r ia n ism open to a nu mber of cr it ica l quest ions, because t he a lter nat ive i n sta nd i ng up for upper l i m it su f f icienta r ia n ism seems much less t heoret ica l ly t roublesome. i conclude t hat where t he sh i f t t hesis leaves su f f icienta r ia n ism “sh i f t y ”, t he upper l i m it seems to do good enoug h for su f f icienta r ia n ism to ma i nta i n it s st rong potent ia l for bei ng t he lead i ng idea l of d ist r ibut ive just ice. bibliography axelsen, d. and nielsen, l., 2015. “sufficiency as freedom from duress”, journal of political philosophy 23: 406-426. benbaji, y. 2005, “the doctrine of sufficiency: a defence,” utilitas 17: 310-32. casal, p. 2007, “why sufficiency is not enough,” ethics 117: 296-326. crisp, r. 2003, “equality, priority, and compassion,” ethics 113: 745-63. shielding sufficientarianism from the shift 153 leap 5 (2017) frankfurt, h. 1987, “equality as a moral ideal,” ethics 98: 21-43. hirose, i., 2016, “axiological sufficientarianism”, in what is enough? sufficiency, justice, and health, c. fourie and a. rid (eds.), 51-68, oxford: oxford university press. huseby, r. 2010, “sufficiency: restated and defended,” journal of political philosophy 18: 178-97. lippert-rasmussen, k., 2016. luck egalitarianism, london: bloomsbury. nielsen, l., 2016. “sufficiency grounded as sufficiently free: a reply to shlomi segall”, journal of applied philosophy 33: 202-216. nielsen, l., 2017. “what is our real concern with real inequality?” policy studies journal, early online view (doi: 10.1111/psj.12205). nielsen, l., unpublished paper. ”the illusion of numbers against sufficientarianism”. raz, j., 1986, the morality of freedom, oxford: oxford university press. scanlon, t.m., 1975, “preference and urgency”, the journal of philosophy 72: 655-669. segall, s., 2016, “what is the point of sufficiency?”, journal of applied philosophy 33: 36-52. shields, l., 2012, “the prospects for sufficientarianism”, utilitas 24: 101-117. shields, l., 2016. just enough: sufficiency as a demand of justice, edinburgh: edinburg university press. temkin, l., 2003, ”equality, priority, or what?”, economics and philosophy 19: 61-87 temkin, l., 2017, “equality as comparative fairness”, journal of applied philosophy 34: 43-60. leap 5 (2017) sufficient autonomy and satiable reasons1 robe rt h use by university of oslo abstract in this paper, i examine liam shields’ principle of sufficient autonomy. this principle is in many ways interesting and plausible, but it is also in some important respects inadequately specified. in particular, i argue that a) the role of satiable reasons should be clarified, b) the relation to the conditions of freedom should be made more explicit, and c) the threshold for sufficient autonomy should be specified. keywords: autonomy; conditions of freedom; satiability; shift sufficientarianism; sufficientarianism 1. introduction in his recent book just enough, liam shields presents a novel form of sufficientarianism, which he calls shift-sufficientarianism. most sufficientarian theories accept what paula casal (2007: 317) has termed the positive and the negative theses.2 according to the positive thesis, there is a level of benefits such that it is especially important, from the point of view of distributive justice, that people reach it. according to the negative thesis, further questions of distributive justice do not arise above this level. the negative thesis is controversial,3 and shields sides with critics who hold that it is implausible (arneson 2005; casal 2007; shields 2016). he therefore discards the negative thesis and claims that sufficientarians can make do with a combination of the positive thesis and the shift thesis: 1 an earlier version of this paper was presented at the nordic network in political theory in stockholm in 2017. i am grateful to the participants at that event, as well as to the guest editors, and two anonymous reviewers for this journal, for many helpful comments and suggestions. 2 see for instance a xelsen and nielsen (2015), benbaji (2005, 2006), crisp (2003), frankfurt (1987), huseby (2010, 2012), nielsen (2016). 3 the extent to which it is controversial depends on where the threshold is set. the lower the threshold, the more controversial the thesis. d oi : 10. 310 0 9/l e a p. 2017.v 5.13 sufficient autonomy and satiable reasons 155 leap 5 (2017) “once people have secured enough, there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further” (2016: 30).4 the main advantage of this proposal is that it saves sufficientarians from having to claim that benefits and distribution above the threshold are completely irrelevant. rather, benefits to the sufficiently well off matter somewhat, but benefits to those below the threshold matter disproportionately more. this view is in some respects similar to prioritarianism. however, it differs from prioritarianism in that the moral value of benefits does not decrease continuously the better off the recipient is.5 rather, there is a break, or a shift, at the sufficiency threshold.6 from the formulation of the shift thesis (2016: 30), one gets the impression that when distributing some good g it is especially important that people get a sufficient amount of g and that, beyond this, it might still be valuable, though less so, to provide people with further g. on this understanding, the reasons we have for supplying g do not change, but the weight of these reasons diminishes. however, it appears that shields also thinks that the reasons can change altogether at the threshold (2016: 30). on this understanding, it is still important that people receive sufficient g, but after that, further provisions of g, if valuable, are valuable in light of some reason other than the value of g. for instance, g, above the threshold, might lead to the realization of some other good, w. i assume, however, that there will still be a discontinuity in the rate of change of the marginal weight in the cases where the reasons as such change. otherwise, the shift thesis would not apply to this latter version.7 my aim in this paper is to examine the most specific proposal for a shift sufficientarian principle made by shields, namely the principle of sufficient autonomy. in my view, this principle is in important respects not sufficiently specified. however, since i am in general sympathetic to the suggestion of a principle of sufficient autonomy, my criticisms are largely calls for clarification and further development of the view. 4 the shift thesis was first presented in shields (2012: 108). 5 see for instance holtug (2010: 133). 6 gustaf arrhenius has suggested that prioritarianism really is characterized by many small shifts, and that shields’ theory, with only one shift, is a minimal form of prioritarianism. this seems plausible to me, but i will nevertheless treat it as a version of sufficientarianism here. 7 shields also holds that the shift could come about as a result of conf lict between reasons (2016: 39). i leave this alternative aside here 156 robert huseby leap 5 (2017) 2. satiability and the principle of sufficient autonomy shields cashes out the shift in terms of satiable reasons, based on raz’ concept of satiable principles. “satiable principles are marked by one feature: the demands the principles impose can be perfectly met. when they are completely met then whatever may happen and whatever might have happened the principles cannot be, nor could they have been, satisfied to a higher degree” (raz 1986: 235f, cited in shields 2016: 36). shields further writes: “our reasons to benefit people change when they are no longer deficient in the relevant respect. there may be strong claims for benefits beyond the application of that reason, we need not be upper limit sufficientarians, but such claims must be made using a different profile of reasons. this alters our all things considered reasons to benefit people further” (2016: 37). shields oscillates, as noted, between suggesting that (only) the weight of the reasons change, and that the reasons themselves (also) change. nonetheless, in the elaboration of the principle of sufficient autonomy, shields for the most part writes as if the reasons change altogether. according to this principle, “…we have weight y, non-instrumental, non-egalitarian reasons to secure sufficient autonomy to secure the social conditions of freedom” (2016: 53).8 even though satiability is not incorporated explicitly into this formulation, it is clear that the principle is intended to be satiable (see 2016: 45, 50, 57). 3. is the principle of sufficient autonomy satiable? despite shields’ intentions, it is unclear whether the principle of sufficient autonomy really is satiable. note that there are two ways of understanding satiability in this context. first, we could think of satiability as applied directly to autonomy (or to whatever value a principle is intended to promote). on this view, autonomy is a satiable concept if one can be fully autonomous. this understanding is indicated by shields when he writes that “[o]ur reasons to benefit people change when they are no longer deficient in the relevant respect (2016: 37; see also 2012: 118)”. he further illustrates sufficiency with reference to “enough sleep”, and “enough 8 i return to the social conditions of freedom below sufficient autonomy and satiable reasons 157 leap 5 (2017) petrol” (2106: 29), and satiability with reference to “enough money for a bus ticket” (2016: 36). these examples suggest that satiability refers to the value that we should have a sufficient amount of. alternatively, satiability might refer to the principle of sufficiency itself (2016: 64). sufficiency is straightforwardly a satiable principle, since enough is enough. utilitarianism is not satiable, because there can always be more utility. on this view, sufficient autonomy does not (necessarily) demand full autonomy, but autonomy to some degree that is deemed sufficient for some other reason. since it is not perfectly clear to me which of these views shields holds, i will discuss both. i discuss the former in this section, and the latter (more indirectly) in the two subsequent sections. according to shields, “[a]utonomy is the ideal of living one’s life in accordance with one’s own authentic judgments” (2016: 47). autonomy, moreover, is characterized both by the absence of external pressure or constraints, such as threats, coercion or brainwashing, as well as the presence of options and powers of deliberation. both aspects are needed for people to be autonomous (2016: 47f ). however, shields also writes: “to f lesh this out we can say that sufficient autonomy has three conditions. one has secured sufficient autonomy when (1) one is wellinformed, (2) one can give reasons for one’s views, and (3) one has a disposition to exchange reasons and participate in a public deliberative process with others” (2016: 53). i focus nevertheless on freedom from coercion, options, and deliberative powers in the following, as these seem more central to the concept of autonomy. after all, one can meet the three f leshed-out conditions above without having any options, and without being free from external constraints. i take it, moreover, that being well-informed, and having the ability to give reasons for one’s views can plausibly be subsumed under deliberative powers. consider now the different aspects of autonomy in terms of (the first understanding of ) satiability. the first, freedom from coercion, does admittedly seem satiable. one can presumably be perfectly free from external pressures and constraints. the second aspect is less clearly satiable. one can always have more options to choose from and one can always gain better powers of deliberation. thus, there is a sense in which one can never be fully autonomous, and one’s claim for autonomy cannot be perfectly sated. an obvious rejoinder is that there will still be some level at which even more (trivial) options, and even more finely developed powers of deliberation, makes no difference for any practical purposes. perhaps one 158 robert huseby leap 5 (2017) already has all the options one could possibly want, and perhaps one is able to rank all these options (and their combinations) perfectly on an ordinal scale. adding options one does not want, or gaining the ability to rank the options and their combinations cardinally, makes no difference, let us assume, to how one leads one’s life. in such cases, i agree that autonomy is sated, for practical purposes. however, if autonomy is satiable, even if only in this practical sense, another question arises. now it is not clear that further increasing autonomy above the sufficiency level will contribute to people’s welfare, or anything else for that matter. if satiable in this way, satiability occurs at such a high level that there does not seem to be any further reason, egalitarian or otherwise, to provide people with even more autonomy. the principle of sufficient autonomy now looks like an upper limit sufficiency principle that conforms to the negative thesis. one could imagine, though, that a person who is, for practical purposes, perfectly autonomous, can still benefit from more of the stuff that constitutes autonomy, for reasons not to do with autonomy. for instance, a person might get a thrill from gaining access to even more trivial options, even though none of these additional options will be chosen. or, the person might enjoy even better deliberative powers, for the feeling of being superclever.9 however, if so, i am inclined to think that what is provided is not more autonomy as such, but more options or more deliberative powers. to illustrate, suppose you are perfectly nourished. there are, for all practical purposes, no way for you to be even more nourished. suppose however, that more vitamin d (unrealistically) might provide you with a nice tan. if so, providing you with more vitamin d, does not in that case provide you with more nourishment, it gives you more vitamin d (and a tan). it seems then, that if the principle of sufficient autonomy is satiable (with respect to autonomy), it is likely to be so at such a high level that it is hard to detect a relevant shift. consider now the alternative understanding of satiability. perhaps there is a level of autonomy that is sufficient, regardless of whether or not it is equivalent to full or perfect autonomy. the reasons for promoting someone’s autonomy, then, are sated when they reach this level. this might be perfectly reasonable, but the level would have to be specified. as will become clear below, it is hard to find such a specification in shields’ treatment of sufficient autonomy. let me note, at any rate, that the first kind of satiability has an obvious advantage: it is very useful for defining a threshold. sufficientarianism is sometimes criticized for the alleged 9 i am grateful to david a xelsen for raising this point. sufficient autonomy and satiable reasons 159 leap 5 (2017) arbitrariness of the threshold(s). the first notion of satiability might help meet this objection. 4. the social condiitons of freedom as noted, shields ties the ideal of autonomy to the social conditions for freedom in society. however, the link between these two concepts is not entirely clear: “the principle of sufficient autonomy, supported by the sufficientarian reason we have to live under the social conditions of freedom, can be stated thus: we have weighty, non-instrumental, non-egalitarian reasons to secure sufficient autonomy to secure the social conditions of freedom. the conditions of freedom are those conditions under which one’s beliefs and actions can be considered freely taken” (2016: 54). the last sentence of the quote indicates that the social conditions of freedom are those conditions under which autonomy is possible (or likely, or certain). both the conditions of freedom and the principle of autonomy, moreover, appear to be sufficientarian concepts, but the former supports the latter. shields suggests, moreover, that the social conditions for freedom ought to be such that they are sufficient, as opposed to merely necessary, for the development of sufficient autonomy (see also 2016: 45, 48, 53, 54). however, the first sentence seems to indicate the opposite; that autonomy is a condition for the social conditions of freedom. it could be the case that autonomy and the social conditions of freedom are interdependent in a way that vindicates both views. however, it seems to me more plausible to say that autonomy presupposes certain societal conditions for its realization, than to say that the social conditions for freedom presupposes autonomy for its realization. shields points to a proper education, an ethos marked by toleration, and reliable information as parts of the conditions of freedom (2016: 53). these factors are more plausibly seen as conditions for the development of autonomy, than the other way around. however, even if we accept this, there is a further option. there are formulations that suggest that autonomy is itself (the whole or a part of ) the social conditions of freedom: “…i set out and provide an initial defence of the account of autonomy that constitutes the conditions of freedom” (2016: 46). further: “one reason for promoting individual autonomy is our interest in the conditions of freedom. it is a weighty, non-egalitarian reason that is satiable with respect to autonomy, at least” (2016: 57). the last quote gives the impression that autonomy is one (satiable) part of what constitutes the 160 robert huseby leap 5 (2017) conditions of freedom (see also 2016: 57, 58, 60) i confess to being unable to determine whether the social conditions of freedom are to be understood as those conditions that are (necessary and) sufficient for the realization of sufficient autonomy, or whether sufficient autonomy constitutes (or is a condition for) the social conditions for freedom. however, the question is important for how we interpret the principle of sufficient autonomy as a satiable sufficientarian principle. the reason is that if autonomy is a part of what constitutes the conditions of freedom (or if it is a condition of freedom in itself ), then it could be the case that autonomy can be sated with respect to the conditions of freedom. sufficient autonomy just is autonomy sufficient for the realization of (sufficient) conditions of freedom. however, in my view, this interpretation squares badly with shields’ presentation of the principle, according to which there are supposed to be weighty, non-instrumental, satiable reasons to provide peoples with sufficient autonomy (2016: 45). there might be ways to interpret autonomy as non-instrumentally valuable even if it is a constitutive part of the conditions of freedom. but this is not stated explicitly, and would require further elaboration and specification. 5. the sufficieny threshold in this section, i consider the way shields specifies the threshold for sufficient autonomy (regardless of how satiability is understood, and on the assumption that the threshold is not determined in light of the demands of the conditions of freedom). note first that there are several formulations concerning this threshold in the book, and that not all of them point in the same direction. however, what is perfectly clear is that shields assumes that there is a level at which we can say that a person has sufficient autonomy, and that there might, because of the shift that occurs at this level, be further reasons to promote the autonomy of those who already have sufficient autonomy (2016: 54). shields offers an example of the importance of sufficient autonomy with reference to the information needed to assess the risks associated with buying a house. “if we do not know the risk, but we know how to find out about it, we might think that we choose freely … if we are well informed enough to become well informed about the other relevant decisions we make, then our reasons to become more and more well informed thereafter may be very different” (2106: 53). sufficient autonomy and satiable reasons 161 leap 5 (2017) the latter part of the quote, obviously, indicates a shift. however, it is not clear how this works. suppose i face a risk. i do not know the risk exactly, but i do know how to calculate it (or as shields suggests, i have the contact details of a surveyor that can help me assess the risk). in this situation, i am not as autonomous as i can be. but i am free to become as autonomous as i can be (with regards to this particular decision). it is up to me whether to pick up the phone or start punching numbers into the calculator. something similar can be said about the “well-informed enough to become well-informed” part of the quote. the shift, on the view suggested here, is located at the level at which we are sufficiently autonomous to choose to become fully autonomous. this might be plausible, but it seems that this amounts to a view of sufficiency that is, in a relevant sense, an upper limit view, of the sort shields aims to avoid. one might say, of course, in line with the shift thesis, that the reasons to promote a person’s autonomy above the level at which it is up to the person herself to become fully autonomous, change. but more likely, they disappear. for all practical purposes, one is fully autonomous when one has direct access to becoming fully autonomous. it makes no sense to benefit a person, in terms of autonomy, because she has not decided to punch the numbers, place the call, or perhaps consult the relevant literature. there is no longer a recognizable distributive issue to be addressed. another view is suggested by the following: “only once an agent is autonomous can we fully respect his or her answer to the question ‘do you want to enhance your autonomy?’ we owe them autonomy sufficient for making these kinds of choices freely as part of justice” (2016: 56). while it is certainly true that people should be (at least) sufficiently autonomous to know whether they want to become more autonomous, it is unlikely that people are sufficiently autonomous from the point of view of justice, at this exact level. the reason is that this level might be quite low, at least along some relevant dimensions. for instance, people who are severely oppressed, and have very few options, may well be more than sufficiently autonomous for us to respect their wish to become more autonomous. the alternative is clearly disrespectful. notice that the level of autonomy that shields points to here might (or might not) mark a relevant shift, but not a shift that signifies sufficient autonomy.10 further, shields claims that “sufficient autonomy is the level of deliberative competence that enables us to have assurance from an external point of view that we 10 for a similar suggestion, though in more convoluted terms, see shields (2016: 57). 162 robert huseby leap 5 (2017) choose for ourselves. this kind of autonomy requires us to be capable of deliberating with others about the reasons that support our conception of the good. we may have weighty reasons to secure more autonomy…” (2016: 64). the first part of the quote points to one intuitively important and plausible aspect of autonomy, namely self-rule. however, it is unclear what level exactly it refers to. what does it take to be sure that a person chooses for herself? and what aspects of autonomy is it that can be further promoted, but for different reasons? it is unclear what level of freedom from constraints and access to options, for instance, are also required, since these aspects are not mentioned. the notion of choosing for oneself, then, does not point to a clearly discernible level of sufficient autonomy. in other passages, shields suggests that ambition, and our conceptions of the good may inf luence the level of autonomy that we want, but that the level of sufficient autonomy is independent of such ambitions and conceptions (2016: 65). a similar view is suggested in the case of agnes and bernadette (see 2016: 70f ). bernadette supposedly has sufficient autonomy, because the reasons we might have to promote her autonomy further are instrumental with regards her welfare, and not non-instrumental with regards to her autonomy. on shields’ description, she has “many options”, the “ability to make mediumand long-term plans, can usually spot contradictions in her own judgments and can remedy them”, “makes reasoned assessments of various ways of life, and is not being denied information about the costs and benefits of her choices” (2016: 70). this arguably offers some substance, but it is still not clear enough. i will not detail all the ways in which these different elements are less than perfectly specific. however, i think it is worth pointing out that the subsequent claim that our reasons to boost bernadette’s autonomy further is dependent on whether or not it can contribute to her well-being, suggests a fairly high level of autonomy (2016: 71). the reason is that the level at which more autonomy does not have non-instrumental value sufficient for speaking in favor of further promotion by itself, appears to be high. it would be good, of course, to know how high. 6. concluding remarks the principle of sufficient autonomy might turn out to be a valuable and plausible principle. however, at present, i think that the principle needs further specification when it comes to the understanding of satiability, the relation to the conditions of freedom, and the location of the threshold. in sufficient autonomy and satiable reasons 163 leap 5 (2017) closing, i would like to add a fourth call for clarification: the principle of sufficient autonomy is clearly only one among several principles of justice. shields suggests that there might be many others, and that not all of them need to be sufficientarian. however, in the book, it is hard to get a clear view of the larger picture. it would be interesting to learn more about how these different principles relate to each other and form a coherent general theory of distributive justice. bibliography arneson, r., 2005: “distributive justice and basic capability equality: ‘good enough’ is not good enough,” in capabilities equality: basic issues and problems, ed. a. kaufman, 17-43, london: routledge. axelsen, d. and l. nielsen., 2015: “sufficiency as freedom from duress,” the journal of political philosophy 23: 406-426. benbaji, y., 2005: “the doctrine of sufficiency: a defence,” utilitas 17: 310-332. benbaji, y., 2006: “sufficiency or priority?” european journal of philosophy 14: 327-348. casal, p., 2007: “why sufficiency is not enough,” ethics 117: 296-336. crisp, r., 2003: “equality, priority, and compassion,” ethics 113: 745-763. frankfurt, h., 1987: “equality as a moral ideal,” ethics 98: 21-43. holtug, n., 2010: persons, interests, and justice, oxford: oxford university press. huseby, r, 2010: “sufficiency – restated and defended.” the journal of political philosophy 18: 178-197. huseby, r., 2012: “sufficiency and population ethics,” ethical perspectives 19: 187-206. nielsen, l., 2016: “sufficiency grounded as sufficiently free: a reply to shlomi segall,” journal of applied philosophy 33: 202-216. raz, j., 1986: the morality of freedom, oxford: oxford university press. shields, l., 2012: “the prospects for sufficientarianism,” utilitas 24: 101-117. — 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. leap 5 (2017) on the limits of the principle of sufficient autonomy ch r is m i l l s university of warwick abstract in his recent book, just enough, liam shields offers a novel defense of the principle of sufficient autonomy. according to this principle, each citizen is owed ‘enough’ powers of deliberation and scope for decision-making as a matter of justice in order to satisfy our fundamental interest in acting and believing freely. in this article, i offer two objections against this view. the first objection challenges the plausibility of the principle. i argue that the principle that shields derives from our interest in freedom will struggle to secure the proper protection for our capacities for autonomous behavior that many autonomy-minded liberals would expect the principle to provide. the second objection challenges the distinctiveness of the principle. i argue that shields’ defense cannot successfully dismiss all of its competitors and i offer an account of constitutive welfarism to illustrate this point. keywords: sufficiency, personal autonomy i. ntroduction theories of distributive justice cannot avoid questions concerning the value of choice and our capacities for autonomous decision-making in modern society. for example, we need to know how accessible our opportunities for valuable choice should be, how the opportunities to develop our decision-making capacities should be distributed between us, and how sensitive the distribution of goods and services should be to our individual choices. in his recent book, just enough, liam shields offers us a series of novel arguments that can help us answer these important questions.1 1 all in text references refer to this text. d oi : 10. 310 0 9/l e a p. 2017.v 5.14 165 leap 5 (2017) on the limits of the principle of sufficient autonomy shields argues that we have a fundamental interest in enjoying the conditions of freedom; conditions under which our actions and beliefs can be considered freely taken (52). each citizen requires sufficient autonomy in order to satisfy this interest because we each require some autonomy in order for our choices to be considered freely made by ourselves as agents. our interest in freedom thus establishes the need for a principle of sufficient autonomy. this principle requires citizens to be: (a) well-informed, (b) able to give reasons for one’s views, and (c) disposed to exchange reasons and participate in a public deliberative process with others (53). fulfilling these three satiable conditions secures ‘enough’ autonomy, understood in terms of: (i) the citizen’s powers of deliberation, and (ii) the scope of the decisions over which he or she decides (50). this principle maintains a conception of autonomy that is framed in terms of an ideal of living one’s life in accordance with one’s own authentic judgements (47). it emphasizes the role that critical deliberation plays in establishing our capacity for self-rule (51) and concerns itself with avoiding threats to this capacity (especially threats of alien control that circumvent this capacity, such as coercion and manipulation) (48). this principle is relatively thin in its content and moderate in its demands.2 it primarily focuses on establishing the conditions of authentic belief-formation and an ethos of well-informed and tolerant decision-making (53). shields’ principle of sufficient autonomy is notable for two reasons. first, his defense of a sufficientarian principle of personal autonomy is distinctive. the relationship between personal autonomy and sufficiency has been defended in various ways. this relationship is most commonly cashed out in terms of option sets. for example, joseph raz (1986: 373-7) famously argues that personal autonomy requires agents to enjoy an adequate range of objectively valuable options. gerald dworkin (1988: 62-81) defends an adequacy limit on option sets according to a range of moral and rational considerations. kerah gordon-solmon (2017) has recently offered a satisfaction-based defense of an adequacy limit on option sets grounded in the value of autonomy. however, this relationship has been explained in other ways. for example, ben colburn (2010: 89-92) defends a responsibility-sensitive threshold for autonomous capacities, below which we should not be held responsible for deficits in autonomy. although these arguments differ in their grounding or target, they all 2 for example, shields’ principle has relatively little to say about the structure of autonomous motivation, limits on the validity of motivating factors, substantive constraints on option selection, relational constraints on the standing of autonomous agents, or limits on consent’s role as a normative power. 166 chris mills leap 5 (2017) serve to defend autonomy-sensitive principles of sufficiency as shields understands the notion (i.e. as a shift or discontinuity in the rate of change in our marginal reasons to promote autonomy). shields’ argument is an important addition to this discourse. it distinguishes itself from preceding arguments by appealing to the rawlsian higher-order interest in the social conditions of freedom as conditions capable of securing our freedom and equality as moral persons (52). second, the principle serves a pair of important functions in shields’ general argument for sufficientarianism. shields primarily defends the principle as a central example of the indispensability of sufficientarianism to a sound and complete theory of distributive justice (26). in order to prove this, shields identifies sufficientarian reasons as a distinctive type of non-instrumental, non-egalitarian, weighty, and satiable reason (44). he then sets out to prove that we cannot do without these distinctive reasons in the most plausible account of justice by showing that these reasons support principles that are more plausible than their rivals (17). our reason to secure sufficient autonomy, and the principle that this reason supports, is a central example of this larger thesis. the principle plays a further role as a significant bridging argument between shields’ general defense of sufficientarianism and his subsequent claims concerning the specific role of sufficientarian principles in education. he suggests that the fact that we owe sufficient autonomy to all should inform how we justify education for autonomy to groups who reject autonomy’s value, how we educate in order to facilitate the discovery and development of talents, and how we conceive of the broader requirements of fair equality of opportunity (83). the reasons why shields’ principle is notable are the very same reasons that motivate this study of his explanation and defense of the principle. his argument takes the form of a two-stage defense; first of the principle’s content and then of its standing against competing principles. in this article, i offer a two-stage criticism that mirrors this strategy. first, i will object to the thinness of the principle and the protection of our capacity for autonomous behavior that it provides. i will then object to an important deficiency in his defense of the relative plausibility of his principle against its competitors. 167 leap 5 (2017) on the limits of the principle of sufficient autonomy 2. the first objection – can the principle achieve its aims? shields motivates his principle according to our interest in the conditions of freedom. this locates the principle of autonomy downstream from the interest in the conditions of freedom. this relationship explains why it is no objection to argue that the principle of sufficient autonomy does not provide us with enough autonomy to secure freedom. the proper role of the principle is not to secure all of the freedom that we might need. rather, we can secure freedom through a number of principles, one of which must be the principle of sufficient autonomy. however, we can legitimately object that the principle of sufficient autonomy, as it stands, does not provide us with all of the autonomy that our interest in the conditions of freedom should secure for us. this is the worry that i will press in this section. i argue that shields’ principle offers less protection for our capacities for autonomous behavior than it should, given that it is derived from our interest in freedom. this, in turn, leads us to question whether our interest in freedom is a satisfactory grounding for principles of autonomy. this objection rests on the different ways in which our free and autonomous behavior can be hindered. suppose that i sit down to write a short philosophy article. there are a variety of ways in which my decision to do so can fail to successfully translate into action through no fault of my own. shields’ explanation of these failures explicitly focusses on the social conditions that inf luence our belief formation (53). he distinguishes between coercion (47) and other failures of self-direction that are the result of external forces acting on our beliefs (48). a long-suffering and frustrated neighbor who barges in to snatch up my notes and prevent me from writing is an example of the former. a manipulative neighbor who tricks me into giving up writing for the afternoon and going out for an enjoyable (though ultimately regrettable) walk instead is an example of the latter. shields identifies both phenomena as possible threats to our autonomy because in both cases we are unfree to act or decide otherwise. the principle of sufficient autonomy is intended to respond to these threats to our free and autonomous behavior by securing the social conditions under which our beliefs and actions can be considered freely taken (53). as we have seen, the principle focuses on the conditions of belief-formation (51), and in particular on an agent’s powers of deliberation and the scope of the decisions over which he or she decides (50). this focus 168 chris mills leap 5 (2017) generates the requirement that citizens are: (a) well-informed, (b) able to give reasons for their views, and (c) disposed to exchange reasons and participate in a public deliberative process with others. with this in mind, let us question whether shields’ distinction between coercion and other external threats acting on our beliefs is exhaustive and plausible. i suggest that it is not for the following reasons. first, while it is true that my decision to write can be circumvented by some competing heteronomous motivation, it is not true that this motivation must stem from external forces. for example, i could deceive myself into over-estimating my writing ability and mistakenly lead myself into putting off my work for another day. alternatively, a bout of hysteria or ambivalence may drive me to throw my notes out of the nearest window. in these instances, my initial intention to spend the afternoon writing has been foiled by a pernicious inf luence that leads to an inauthentic change of plan. i will subsequently become alienated from these decisions and come to authentically reject and regret them, just as i would if they were the product of external manipulation. of course, it is well within my ability to change my mind as an autonomous agent and freely decide not to spend the afternoon writing. but there are troubling manifestations of this change of character that subvert my authentic will and are thus incompatible with my free and autonomous choice. crucially, not all of these threats to my autonomy come from external sources, such as my neighbor. second, while it is true that my decision can successfully motivate me to act but that my motivation can still be subsequently frustrated by coercion (thus preventing me from acting), it is not true that coercion is the only phenomena that can frustrate my behavior in this way. for example, i may misplace my pen, fail to wrestle my notes out of the clutches of my pet, or be plunged into darkness thanks to a broken lightbulb. in these instances, no other agent has frustrated my autonomous decision to write. rather, frustration is the result of simply lacking the option to perform the act that i had autonomously chosen to perform. it is frustration, rather than coercion, that prevents me from behaving authentically in these cases. frustration can occur by either natural accident or inter-personal sabotage. while extreme forms of frustration should not concern us (e.g. the irrational desire to perform the impossible), some forms of noncoercive frustration clearly threaten our free and autonomous decision-making. circumvention and frustration come apart in a similar manner to shields’ own distinction between coercion and other external threats to our autonomy. indeed, frustration will similarly occur in the absence of 169 leap 5 (2017) on the limits of the principle of sufficient autonomy circumvention as the latter precedes the former in the chain of action. however, both circumvention and frustration are broader than shields’ categories of coercion and other external threats. as a result, if you agree that my distinction provides a more plausible and comprehensive explanation of the various threats to our autonomy that we face, then you may worry that shields’ principle of sufficient autonomy does a poor job of protecting our authentic decisions against internal threats (such as selfdeception) or non-interpersonal external threats (such as bad luck). as a result, the principle appears to do a poor job at protecting our autonomy from threats that shields ignores. this objection is similar in form to shields’ own objection against john rawls. in his discussion of rawls’ argument from the interest in freedom, shields notes a possible ambiguity. shields interprets rawls’ argument to support the possibility of achieving a sufficient level of autonomy as one important option that should be open to citizens. this is too small a commitment from rawls. our interest in freedom does not merely require the possibility of achieving sufficient autonomy, but rather the actual achievement of sufficient autonomy (55). without the actual achievement of sufficient autonomy, we cannot know that each citizen’s decision whether or not to live an autonomous life is itself free. given that our interest in freedom suggests that we should strive to make sure that our adoption of an autonomous lifestyle is itself freely chosen, we require a larger commitment from rawlsians in their defense of sufficient autonomy. shields’ defense of the principle of sufficient autonomy is guilty of the same failing for which he dismisses rawls’ argument; at best, shields’ argument is necessary but not sufficient for establishing the conclusion that he wishes to draw. while it is true that the threats that he identifies are likely threats to autonomy, there are other threats to autonomy that should plausibly be recognized as contrary to our interest in freedom. shields may respond to this objection in one of two ways: he may concede by f leshing out his argument to encompass further types of threat. alternatively, he may resist by rejecting the notion that non-interpersonal threats (such as internal threats or accidents) threaten our freedom. according to this response, he has not mistakenly ignored a range of likely threats. rather, freedom is a question of interpersonal interactions not opportunities for autonomous action. for this reason, non-interpersonal threats should not be covered by a principle of sufficient autonomy that is grounded in our interests in freedom. those of us who are concerned with protecting further opportunities for autonomous action can look to other compatible reasons to promote autonomy (45), but shields’ focus on securing enough autonomy results from his core sufficientarian reason, 170 chris mills leap 5 (2017) and this reason only concerns interpersonal threats (that is, threats to our interest in freedom from other agents). therefore, shields’ principle is rightly insensitive to non-interpersonal concerns. this response is important because it shifts our gaze to the deeper question concerning the justification of his principle. sceptics may meet him here by denying the downstream relationship and arguing that our autonomy is threatened by more than a mere loss of freedom and therefore shields’ principle is incorrectly justified. both circumvention and frustration undermine our autonomy and, by doing so, prevent us from enjoying the conditions of freedom in line with our authentic conception of the good. we cannot pursue the opportunities afforded to us in line with our authentic wishes if we are constantly self-sabotaging or suffering from a pronounced mismatch between our preferences and our option set.3 therefore, his principle is too thin because its justification is wrong. autonomy tells us which freedoms matter, not the other way around. sceptics may conclude that shields’ principle only offers us an incomplete defense of our autonomy because he derives it from an interest in interpersonal considerations of freedom. this conclusion explains why shields’ principle is likely to be attractive to rawlsians (who may share the same conception and weighting of our interest in freedom) but unattractive to other autonomy-minded liberals who worry about a broader set of threats to our autonomy.4 seen in this light, the feature that makes shields’ argument distinctive is also a limitation. 3. the second objection – is the principle preferable to its competitors? having questioned the content of shields’ principle, i now turn to his defense of its relative plausibility against competing principles. shields’ rebuttal of his competitors first rejects rival distributive schemes of 3 these issues combine in cases of adaptive preferences. as fans of famous fables involving foxes will know, the fox that cannot reach the nearby bunch of grapes may mistakenly conclude that they must be sour, and thus undesirable. of course, adaption cases need not be so far-fetched. but even mundane versions of this phenomena can threaten our autonomy. crucially, the grapes need not be lifted out of reach by a devious neighbour for our out-of-character decision to override our preferences. rather, the mere absence of an option can trouble autonomous decision-making. for discussion, see elster (1983); colburn (2011); christman (2014); stoljar (2014); cudd (2014). 4 as a reviewer helpfully suggests, the rawlsian’s support will hinge on how they view shields’ interpretation of the higher-order interest in the social conditions of freedom. a less-relational reading of this interest will make rawlsians more likely share my concerns over shields’ argument. if this is the case, then shields’ view is even less attractive. 171 leap 5 (2017) on the limits of the principle of sufficient autonomy autonomy (equality, maximization, and priority) and then rejects rival accounts of the relationship between autonomy and other distributive values (instrumentalism). after quickly dismissing egalitarian and maximizing principles, shields focuses much of his argument against two main competitors: 1) uniform prioritarianism that those who have the least autonomy should be prioritized with no ‘shift’ or discontinuity in the rate of change in our marginal reasons to promote autonomy. shields rejects uniform prioritarianism because: (a) it cannot plausibly explain qualitatively different autonomy disadvantages, and (b) it requires a non-arbitrary measure of autonomy that allows us to make fine-grained distinctions at all levels of the distribution scale. if prioritarianism is to distinguish itself from sufficientarianism then it must provide a uniform metric for the distribution of autonomy that avoids appeal to a threshold. without this threshold, our metric must provide a plausible explanation of how we are better or worse off in terms of autonomy at points all along the distribution scale. shields is rightly skeptical that such a measure exists (69).5 2) instrumental welfarism that securing sufficient autonomy is an important demand of justice iff it has great effects on the more fundamental value of welfare. shields rejects instrumental welfarism with a pair of counter-examples (74). these examples aim to show that fully instrumental accounts of the value of autonomy fail to capture all of our intuitions about the noninstrumental role that the value of autonomy plays both in our lives and in a complete and sound theory of distributive justice. these examples suggest that welfarists who believe that autonomy holds purely instrumental value are committed to implausible conclusions, such as the permissibility of bypassing our deliberative capacities or shaping our ambitions to ensure that citizens live good lives. even if citizens are guaranteed a well lived life, we should suspect that something important is missing in such cases. however, crucially, shields fails to dismiss accounts of how welfare is partly constituted by autonomy and so is derivatively but noninstrumentally significant (71). we might call such views constitutive welfarism6 it is true that constitutive welfarism is compatible with shields’ 5 for more detail on this difficulty, see blake (2001: 269). 6 i do not intend constitutive welfarism as the only non-instrumental justification of the principle of sufficient autonomy (consider, for example, a kantian justification of the principle). however, i do intend it as one in a small possible set of justifications that can solve shields’ objections to uniform prioritarianism in a way that doesn’t fall foul of his objections to instrumental welfarism. 172 chris mills leap 5 (2017) claim that autonomy matters non-instrumentally. these views do not deny that there is a non-instrumental principle of autonomy and thus do not challenge shields’ arguments concerning the indispensability of the principle of sufficient autonomy. however, shields must still dismiss these views because, although they are in agreement with his stance against pure instrumentalism, they compromise his arguments against uniform prioritarianism. they do this by explaining autonomy’s non-instrumental value in terms of the constitutive role that autonomssy plays in promoting good lives. this autonomy-sensitive notion of welfare, in turn, can provide a compelling metric to measure our access to autonomy that is otherwise missing from uniform prioritarianism. to see this, assume that you agree that the value of autonomy plays a constitutive role in living a good life. if you believe this to be true, then you believe that some plausible account of well-being can explain the value of autonomy in a non-instrumental manner. for example, you might agree with perfectionists joseph raz (1986: 391) and steven wall (1998: 164-182) that the social forms of a liberal society require those who seek to live a good life in such a society to possess enough personal autonomy to make sense of the valuable options available to them. alternatively, you might agree with anti-perfectionists will kymlicka (1989: 10-13) and ronald dworkin (2000: 267-274) that authentic endorsement has a necessary role to play in explaining the value of a life well lived. these arguments (and others) open up the conceptual space for a principle that ties notions of autonomy and authenticity (similar to those favored by shields) to wellbeing in a non-instrumental fashion. these principles will capture all of our intuitions about the non-instrumental role that the value of autonomy plays both in our lives and in a complete and sound theory of distributive justice. this explains why constitutive welfarism cannot be dismissed by shields’ counter-examples. troublingly, these arguments allow uniform prioritarians to appeal to the value of well-being (suitably conceived) as a non-arbitrary metric of autonomy in order to defend their view against shields’ objections to the position. if you are a uniform prioritarian about welfare, then constitutive welfarism allows you to: (a) distinguish between qualitatively different disadvantages, and (b) appeal to some reasonably fine-grained metric of well-being in order to distribute autonomy without necessarily appealing to sufficientarian reasons. not only does constitutive welfarism evade the theoretical traps that shields lays out for his competitors, it may provide some with a more plausible explanation of the role that autonomy should play in a just society 173 leap 5 (2017) on the limits of the principle of sufficient autonomy than shields’ own narrower rawlsian framework. as we saw in §2, the protection for autonomous behavior provided by shields’ principle of sufficient autonomy is limited by its grounding in our interest in freedom. i suggested that some autonomy-minded liberals might be disappointed by this. this disappointment could be undercut if there are no other plausible alternative justifications for the principle. if this were true, then shields may offer his principle as the only show in town. however, constitutive welfarism offers us an alternative show. this justification does not tie our capacities for autonomy to our interest in freedom, but instead ties both our capacities for autonomy and freedom to our interest in living good lives. while such a view may trouble rawlsians, shields must provide further counter-arguments to reject this competitor.7 4. conclusion i have offered two brief objections to shields’ novel defense of the principle of sufficient autonomy. the first objection calls for shields to broaden his principle in order to more robustly satisfy the interest in freedom that motivates his arguments, and to ultimately reconsider this motivation. the second objection calls for shields to provide further justification for his principle in a manner that is more nuanced and more sensitive to competing positions. only an argument that satisfies these challenges will prove the indispensability of his principle of sufficient autonomy to a sound and complete theory of distributive justice. bibliography blake, m., 2001: “distributive justice, state coercion, and autonomy”, philosophy and public affairs 30: 257-296. christman, j., 2014: “coping or oppression: autonomy and adaption to circumstance”, in autonomy, oppression, and gender, ed. a. veltman and m. piper, 201-226, oxford: oxford university press. colburn, b., 2010: autonomy and liberalism, new york: routledge. — 2011: “autonomy and adaptive preferences”, utilitas 23: 52-71. 7 for example, the door remains open for shields to argue that constitutive welfarism must still secure a shift, either because the most plausible account of well-being requires us to have ‘enough’ autonomy, or at one level removed, because that account allows us to live a ‘good enough’ life. neither of these threshold arguments are out of the question for constitutive welfarism. however, this strateg y requires shields to accept another (nonrawlsian) defence of a competing principle of sufficient autonomy. accepting the existence of a valid competitor will lessen the importance of his distinctive argument to the broader case for sufficientarianism 174 chris mills leap 5 (2017) cudd, a.e., 2014: “adaptions to oppression: preference, autonomy, and resistance”, in personal autonomy and social oppression: philosophical perspectives, ed. m. oshana, 142-160, new york: routledge. dworkin, g., 1988: the theory and practice of autonomy, cambridge: cambridge university press. dworkin, r., 2000: sovereign virtue: the theory and practice of equality, cambridge mass.: harvard university press. elster, j., 1983: sour grapes: studies in the subversion of rationality, cambridge: cambridge university press. gordon-solmon, k., 2017: “why more choice is sometimes worse than less”, law and philosophy 36: 25-44. kymlicka, w., 1989: liberalism, community, and culture, oxford: clarendon press. raz, j., 1986: the morality of freedom, oxford: clarendon press. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh: edinburgh university press. stoljar, n., 2014: “autonomy and adaptive preference formation”, in autonomy, oppression, and gender, ed. a. veltman and m. piper, 227-253, oxford: oxford university press. wall, s., 1998: liberalism, perfectionism, and restraint, cambridge: cambridge university press. leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education da n i e l l e z wa rt hoe d université catholique de louvain abstract this essay discusses two contributions of the principle of sufficient autonomy to educational justice. in just enough, liam shields criticizes instrumental accounts of autonomy. according to these accounts, autonomy is valuable insofar as it contributes to well-being. shields argues that instrumental arguments fail to support mandatory autonomy education in all cases, while his non-instrumental principle of sufficient autonomy does support this. this essay develops a version of the instrumental argument and argues this version can do the work of supporting mandatory autonomy education. another contribution of the principle of sufficient autonomy is the requirement of talents discovery. according to shields, the requirement of talents discovery renders rawls’s principle of fair equality of opportunity more plausible, since one’s chances of accessing a given economic position depend on one’s opportunities to discover one’s innate talents. this essay argues that rawlsian fair equality of opportunity does not have the same implications as the principle of sufficient autonomy as to which types of talents should be discovered and to what extent. keywords: autonomy, education, liberalism, talents, equality of opportunity 1. introduction sufficientarianism is a doctrine that affirms that what matters is whether individuals have enough of the relevant goods. in his book just enough: sufficiency as a demand for justice, liam shields develops an alternative original account of sufficientarianism. according to this account, once the threshold is secured, there could be further moral requirements. however, the nature and weight of the reasons to secure and reallocate the relevant goods changes after individuals have reached the threshold (shields, 2016: 30). d oi : 10. 310 0 9/l e a p. 2017.v 5.15 176 danielle zwarthoed leap 5 (2017) in chapter 3, shields states and defends the principle of sufficient autonomy: “principle of sufficient autonomy: we have weighty, non-instrumental, non-egalitarian, satiable reasons to secure enough autonomy for everyone to enjoy the social conditions of freedom, the conditions under which we freely form and revise our conception of the good life.” (shields, 2016, 53) a person has sufficient autonomy if (1) she is well-informed, meaning that she can establish third-person assurance of the freedom (not the truth) of her beliefs; (2) she is capable of giving reasons for her views; (3) she is disposed to exchange reasons and to participate in public reasoning activities with others (shields, 2016: 53, 84). the fourth chapter of just enough is devoted to showing the contributions of the principle of sufficient autonomy to debates about education. this essay discusses two of these contributions. first, shields argues that instrumental arguments for autonomy-supporting education fail to support mandatory autonomy education in all cases; his non-instrumental argument does support this. this essay develops a version of the instrumental argument and argues this version can do the work of supporting mandatory autonomy education as well as the principle of sufficient autonomy, and perhaps even better (section 2). second, shields argues that the principle of sufficient autonomy implies a requirement of talents discovery. according to shields, the requirement of talents discovery renders rawls’s principle of fair equality of opportunity more plausible, since one’s chances of accessing a given economic position depend on one’s opportunities to discover one’s innate talents. in section 3, i shall argue that rawlsian fair equality of opportunity does not have exactly the same implications as the principle of sufficient autonomy as to which types of talents should be discovered and to what extent. 2. instrumental and non-instrumental arguments for mandatory autonomy education the justification of the principle of sufficient autonomy appeals to noninstrumental reasons to promote autonomy. the chapter entitled “sufficiency and education” argues that the principle of sufficient autonomy provides a more decisive reason to support mandatory autonomy education than instrumental arguments for autonomy. a concrete issue at stake is that parents of conservative religious communities may oppose certain forms of autonomy-promoting education. they fear that mandatory 177 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education autonomy education will turn their children away from the core beliefs, values and behaviors endorsed by their communities. they could (and do) appeal to religious freedom or parental rights to justify their position. from a perspective centered on children’s interests, the main worry is that mandatory autonomy education could jeopardize the long-term well-being of child-members of conservative communities. autonomy education may estrange these children from their family and community. this would make it impossible for them to meaningfully sustain important familial and social relationships. they would also be deprived of the important contribution of cultural affiliation to one’s sense of identity and capacity for wholehearted commitments. according to shields, the principle of sufficient autonomy succeeds in showing that securing a certain level of autonomy outweighs these countervailing considerations, while instrumental accounts of the value of autonomy do not (shields, 2016: 90). the instrumental argument for autonomy education affirms that autonomy is good because it leads to something else, namely well-being or f lourishing. it derives the value of autonomy education from the good of well-being. worries with the instrumental argument arise from the contingent character of the connection between autonomy and well-being (shields, 2016: 72). such worries need not arise if the value of autonomy is not derivative. note this does not necessarily mean concerns with the well-being of children should disappear. valuing autonomy non-instrumentally does not preclude shields from valuing well-being non-instrumentally. if so, the case of child-members of conservative communities will require him to balance autonomy against well-being. this balancing reasoning might lead to practical conclusions similar to those reached by “instrumentalists”. to strengthen the case for the non-instrumental argument, it seems we need to know why the intrinsic value of autonomy is superior to the value of well-being. while the case for the non-instrumental account might not be as strong as expected, the case for the instrumental one could be stronger than shields assumes. a closer examination of the connection between autonomy and well-being shows that the instrumental argument provides little support to those who want to withdraw child-members of conservative communities from autonomy education. how detrimental we think autonomy education is to these children depends on the nature and the importance of the connection between autonomy and well-being, on one hand, and (as shields himself puts it) on the conception of well-being we assume, on the other hand (shields, 2016: 93). 178 danielle zwarthoed leap 5 (2017) the instrumental argument affirms autonomy leads causally to wellbeing. the causal connection between autonomy and well-being can be understood in at least two ways (schinkel, 2010: 100): (a) autonomy may/is likely contribute to individual well-being. (b) autonomy is necessary for individual well-being. shields’s argument must assume version (a) of the instrumental argument since version (b) would also succeed in convincing those who are concerned with children’s well-being that autonomy education should be mandatory. could it be the case that autonomy is necessary for individual well-being? drawing on raz’s ref lections, as well as on the philosophical works they have inf luenced (e.g. brighouse, 2005; raz, 1986; wall, 1998; white, 2006), i would like to examine two ways in which an adequate level of autonomy might be necessary to live well. autonomy is unlikely to be necessary to achieve some conceptions of well-being such as those based on hedonistic and actual preference satisfaction. it is possible to experience pleasure or to satisfy one’s actual preferences without being autonomous. this is emphasized by shields’s discussions of happiness pills and cheap tastes inculcation (shields, 2016: 74-76).1 what is wrong with these examples is that people by-pass the autonomous deliberative process involved in forming and realizing their conception of the good life. raz’s partly subjective conception of well-being (raz, 1986: 288–312) is not vulnerable to counterexamples like the happiness pill. according to raz, a person’s well-being depends, first, on her capacity to meet basic biological needs and, second, on the successful pursuit of her current and future goals. the content of these goals does not matter so long as they are independently valued by the person herself. this means attempts to improve the life of someone else by making her achieve a good she does not and will not see as her goal will fail. suppose mary’s mother tries to secure her daughter’s future well-being by preventing her from studying history, a subject mary is passionate about. mary’s mother believes history is a poor choice of major because she does not see the point of spending one’s life neck-deep in dusty archives to write unreadable books. she pushes mary to study communication instead, a seemingly more fun major. unless mary revises her judgment on the merits of a history major, her mother’s attempt to make her happy will be unsuccessful. however, success in pursuing a goal, regardless of its objective value, does not suffice to secure a person’s well-being. a person’s well-being also 1 note that the cheapness itself is not problematic for autonomy. w hat is problematic is that they have been inculcated in a non-autonomous way. see zwarthoed (2015) 179 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education depends on the value of the goals she pursues. we evaluate goals, we have reasons to pursue them, and some reasons are better than others. a person has a goal, properly speaking, only if her reasons for having it are valid. failing to achieve a goal which is actually supported by no valid reason is a “blessing in disguise” (raz, 1986: 301). suppose mary is genuinely interested in history, but decides to study philosophy instead because she believes a philosophy degree is more likely to improve her job prospects. now, suppose also that mary’s belief turns out to be false. history graduates are actually more popular with employers. if this is the case, mary does not have, in a normatively relevant sense, the goal to become a philosophy graduate. of course, it is a psychological fact that she has the desire to study philosophy (since she ignores her reason for having this goal is not valid). but, properly speaking, she does not have the goal to study philosophy because studying philosophy will not contribute to the success of her life. if she is not admitted to a philosophy program, this failure might contribute to her well-being unbeknownst to her. since there are no reasons to value worthless cheap tastes or a life determined by a happiness pill, raz’s conception of well-being avoids shields’s objections to welfarism. now, having goals does not suffice to live well; one must also succeed in pursuing them. a person’s goals provide her with action reasons, reasons that speak in favor of performing certain actions. others cannot reach a person’s goals for her: actively pursuing the goals that constitute one’s life is constitutive of living well. this does not mean the good life must be athletic or hyperactive. a f lourishing life can certainly consist of modest pursuits. what matters is that the person achieves these goals herself, lives her life herself and from the inside. according to raz, these goals need not be acquired in an autonomous way (raz, 1986: 290–291) and one can live well without being autonomous. yet i submit that a minimal degree of autonomy is, in fact, necessary to secure the dependency of a person’s goals on reasons. it is true that a person may acquire goals she has valid reasons to value through nonautonomous processes such as habituation, early socialization, and so on. in fact, most of our goals are acquired this way. furthermore, the successful pursuit of some possibly attractive goals, such as ballet performance, requires the child to commit to cultivate her talents from an early age, before she is fully autonomous (arneson and shapiro, 1996: 392). however, being equipped with the deliberative capacities that partly constitute autonomy enables people to avoid at least two potential obstacles in the process of assessing the validity of the reasons one has to have certain goals. the first obstacle is: i cannot make sure the reasons i have to pursue goals are independently valid if i do not possess the skills and 180 danielle zwarthoed leap 5 (2017) knowledge needed to critically assess, or reassess, their validity. without a minimal degree of autonomy, i cannot make sure the goals i pursue are based on valid reasons, and therefore i cannot make sure these goals will contribute to my well-being. as arneson and shapiro put it, we do not want to choose life plans we just believe are valuable, but we do want to choose those which truly are valuable. insofar as truly valuable life plans are those which resist critical ref lection, autonomy is a good instrument to verify whether our life plans are truly valuable (arneson and shapiro, 1996: 399). the second obstacle is: even if i am well-equipped with the cognitive abilities needed to assess the independent values of my goals, i might not be able to want my reasons to be true reasons. i might be rationalizing my choices rather than honestly ref lecting on them. i might be deceiving myself about my real reasons. self-deception is seriously damaging to wellbeing because it breaks the connection between goals and reasons. rationality and intelligence do not protect us from self-deception. but the capacity for autonomy does. one of the crucial dimensions of autonomy is authenticity (shields, 2016: 59). authenticity involves being able to ref lect critically upon one’s major goals and to revise them so that they cohere with one’s ref lectively constituted higher-order commitments and conception of oneself. by definition, authenticity requires being honest with oneself and one’s reasons, even when the truth is uncomfortable. the capacity for minimal autonomy is thus necessary to have genuine wholehearted commitments to goals that constitute our well-being. when society has to decide whether to authorize parents to withdraw children from autonomy-promoting subjects or schools, controversial assumptions regarding the superiority of a secular way of life are not necessary (arneson and shapiro, 1996: 401). they might even be detrimental to children’s wellbeing, since they could amount to unsuccessful attempts to make these children live well by pushing them into ways of life they do not endorse. but society can assume that autonomy-promoting education makes it more likely that future adults will choose the goals that are truly better for them without falling into the trap of self-deception. the first way in which a minimal degree of autonomy is necessary to live well is by securing the dependency of our goals on valid reasons, insofar as the capacity for autonomy equips us with the skills, knowledge, and disposition to avoid errors and self-deception. the second way appeals to raz’s well-known contextual argument for the special value of autonomy in modern societies. if this argument is valid, a higher degree of autonomy might be needed to achieve well-being in these societies. our well-being depends on our successful pursuit of goals we have valid reasons to commit to. but we create these goals out of something. our goals are based on 181 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education existing social forms. social forms refer to existing shared beliefs, cultures, imaginations, practices, behaviors, and so on (raz, 1986: 307–312). our pursuits and activities are to a large extent socially defined. this does not mean we should align with existing social conventions. it means the meaning, significance and sometimes the very possibility of some comprehensive goals depend on existing social forms. as shields puts it, autonomy involves certain social conditions (shields, 2016: 48). the social conditions, and more broadly, the social forms of modern democratic societies constitute an autonomy-supporting environment. modern autonomy-supporting environments are characterized by fast-changing technology and economic circumstances, geographical and social mobility, value pluralism, secularization and a commitment to human rights (wall, 1998: 166–167). in such environments, people need the capacity for autonomy in order to f lourish (raz, 1986: 391). this is not just because autonomy enhances our ability to cope with changes. this is because this environment makes it extremely difficult, requiring almost complete isolation, to lead successful lives non-autonomously. at this point, one could argue that this argument does not apply to child-members of isolated conservative communities. their social environment differs from the characteristic circumstances of modern societies. the range of comprehensive goals available to them is not based on autonomy-supportive social forms. furthermore, insofar as well-being depends on the successful pursuit of socially defined goals and activities, autonomy education might render them ill-equipped to succeed in the pursuits available to them. the objection would hold if these communities were entirely isolated from the “external world”. in those specific circumstances, instrumentalists must grant that a relatively high degree of autonomy is unnecessary to live well (a minimal degree of autonomy might remain necessary to secure the dependency of goals on valid reasons). however, most of the communities which currently want to withdraw their children from mandatory autonomy education are not fully isolated. they interact with non-members at various levels. existing political and social institutions structure interactions among members and between members and non-members. members pay taxes and consume public goods. as the sheer existence of the wisconsin v. yoder case makes it clear, member of these communities rely on the same judicial system as non-members to protect their rights. some produce goods they sell to non-members and buy consumer goods produced outside of the community. some read newspapers and watch 182 danielle zwarthoed leap 5 (2017) television programs infused with the background, autonomy-supporting culture. as a result, even when they are able to protect their culture, the presence and inf luence of the broader autonomy-supporting context unavoidably alter the social forms that prevail in these communities. they also alter the very nature of the opportunities these communities provide to their members. the significance of pursuing the project to live in a traditional community differs greatly in a traditional society from one in which one can freely revise her goals. the very nature and value of these choices depend on whether they exist in an autonomy-supporting environment or not. in concrete terms, the option to stay in the amish community or to become a nun does not have the same significance in an autonomy-supporting society and in a traditional society. in modern societies, this option unavoidably involves a choice, if only because background institutions provide exit options.2 and this choice requires exercising deliberative capacities. an autonomy-supporting environment reshapes the very conditions attached to these seemingly non-autonomous pursuits. it transforms them into autonomous choices. since childmembers of conservative communities will be confronted with these sorts of choices, their future well-being requires the capacity for autonomy too. therefore, in our modern circumstances, this version of the instrumental argument for autonomy helps us to reach the conclusion shields wants to reach, that is, that autonomy education should be mandatory. before closing the discussion, a few critical remarks on mandatory autonomy education might be helpful to refine the debate. liam shields does not only argue that autonomy education should be mandatory. he also suggests it should be delivered by the state: “the state cannot refuse to get involved with education and simply allow private individuals to provide for it. to do so would be to allow educational provision to be distributed in a particular way that may fail to recognise citizens’ rightful claims.” (shields, 2016, 85) additional philosophical work might be needed to make the move from the claim that autonomy education should be mandatory to the following claims: first, the state should be responsible for delivering autonomy education; second, the state should be authorized to use its coercive power to make sure all children are enrolled in state-provided autonomy education. i have no space to discuss these issues in detail, but i would like to point out a couple of questions. if shields thinks states should deliver 2 note some communities make efforts to inculcate beliefs and mindsets that prevent their members from seriously giving consideration to the exit option. sociologist donald kraybill suggests amish education is designed in such a way that the “agenda of ideas” is “controlled”, thereby preventing children from envisaging a life outside of the community. (kraybill, 2001: 176–177) 183 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education autonomy education because they are the most able agent for this purpose, something could be said about why other educational agents, and especially parents, are more likely than the state to fail to render children sufficiently autonomous (especially in less than ideal states). if shields thinks states should provide autonomy education because they are the only agent which has the legitimate power to “force” children to get such education, the theory of legitimate authority with which his sufficientarianism needs to coordinate should be developed further. 3. sufficient autonomy, fair equality of opportunity, and the requirement of talents discovery let us now move to the requirement of talents discovery. sufficient autonomy is related to talents discovery in the following way. educating for autonomy requires agents to be well informed about the options available to them. being informed about options involves being informed about one’s interests and talents. therefore, according to shields, “everyone should be given opportunities sufficient to discover their talents and interests insofar as this constitutes our freedom as sufficiently autonomous agents” (shields, 2016, 100). the array of opportunities to discover one’s talents should be sufficiently broad and varied. shields argues that, by requiring talents discovery, the principle of sufficient autonomy renders rawls’s principle of fair equality of opportunity more plausible and should thus supplement it (shields, 2016: 100–105). according to the rawlsian principle, social and economic positions should be opened to all under fair equality of opportunity, meaning that those with equivalent talents and the same degree of willingness to use these talents should have equal chances of access to the same offices and positions, regardless of gender, race or social background. the principle must include undeveloped talents and not just to the subset of talents that have been actually developed. otherwise, the principle would validate background unjust inequalities (shields, 2016: 102). but giving productive jobs to those who couldn’t have developed the appropriate skills due to unjust circumstances wouldn’t benefit society in general, and the least well off in particular. therefore, justice requires the educational system to provide prospective citizens with the opportunity to discover and develop their talents. but it would be excessively costly to attempt to discover all possible talents. hence the requirement of talents discovery usefully supplements the rawlsian principle by providing a criterion to define the 184 danielle zwarthoed leap 5 (2017) extent to which opportunities for talent discovery should be broad and varied. it is true that the principle of fair equality of opportunity would be implausible if it did not require the educational system to help children to identify and develop the relevant talents. however, the requirement of talents discovery fits into the principle of equality of opportunity only if their implications regarding the kinds of talents and the extent to which they must be developed converge. this doesn’t seem to be the case. the two principles are not necessarily concerned with the same talents. the principle of sufficient autonomy pertains to the talents one needs to adequately develop a conception of the good life (shields, 2016: 99) and to participate in collective deliberations (shields, 2016: 98). fair equality of opportunity pertains to the talents which enable people to be economically and socially productive in a way that can be beneficial to the least fortunate (rawls, 1999: 87). of course, some talents, such as good verbal skills, have polyvalent functions. and, to some extent, marketable talents are instrumental to secure the capacity to adequately develop a conception of the good life. but others, such as the capacity for spiritual experiences, are less likely to be valuable in the job market. and talents that are valuable on the job market, such as combativeness, are not particularly well-suited to developing a conception of the good life or participating in collective deliberations. of course, the fact that the implications of sufficient autonomy and equality of opportunities are not co-extensive does not undermine the inherent plausibility of shields’s principle of talents discovery. but it puts into question his claim that the requirement of talents discovery implied by sufficient autonomy fits in well with other demands, such as the demands of fair equality of opportunities. the problem is not just that the range of talents each principle is concerned with is different. the problem is that educational resources are finite. when a society decides which talents the educational system should attempt to reveal in priority, it has to adjudicate between the demands of sufficient autonomy and the demands of equality of opportunity. the implications of sufficient autonomy in terms of talents discovery may conf lict with equality of opportunities at another level. in the sufficientarian educational system shields envisions, the least advantaged children would only enjoy a sufficiently varied array of opportunities for talents discovery, while their more advantaged counterparts could, in addition, benefit from exposure to a much broader set of disciplines, experiences, and activities. their chances to discover a talent that matches job market demands well are therefore higher. or suppose the requirement 185 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education of talents discovery is not only sufficientarian in terms of the variety of talents children should be able to try to develop, but also in terms of the extent to which they could develop these talents. then, the sufficientarian version of the requirement of talents discovery runs the risk of putting some children at a disadvantage in another way. imagine the sufficientarian version of the requirement of talents discovery requires schools to provide those who are naturally good at mathematics with the opportunity to develop the level of mathematical skills corresponding to a secondary school degree. the students who would be granted this opportunity and no more will be unable to compete to become actuaries, accountants or financial analysts (which are well-paid jobs). this is not compatible with fair equality of opportunity. the policy of talents discovery required by fair equality of opportunities must take into account the effects of competitive and comparative contexts on children’s economic and social prospects. the source of the problem is that talents are goods with positional aspects. their value in competitive contexts depends on how much of the same goods other competitors have (brighouse and swift, 2006). despite its inherent plausibility, shields’ sufficientarian view of talents discovery might actually hinder fair equality of opportunity rather than reinforce it. shields addresses the problem of positional disadvantages in his discussion of anderson’s adequacy principle of educational justice (shields, 2016: 110–114). he suggests that the shift-based approach of sufficientarianism he advocates is better equipped than anderson’s own version of upper limit sufficientarianism. to recall, upper limit sufficientarianism states that, once people have enough, there is no further reason to benefit them. shift-based sufficientarianism states that, once people have enough, the nature and weight of reasons to benefit them change. anderson’s view entails that, once educational adequacy is secured, there is no further reason to redistribute educational opportunities. shields’s view entails that, once the principle of sufficient autonomy is secured, there may be further reasons to redistribute educational opportunities. shields could thus respond to the egalitarian critic that, once sufficient opportunities for talents discovery are secured, his theory of justice can recognize there are additional valid moral reasons to limit rich children’s opportunities for talents discovery in competitive contexts. if my understanding of the implications of shift-based sufficientarianism for educational justice is correct, shields’s view of educational justice may plausibly conciliate two conf licting considerations that structure the debate about educational justice, namely, positional disadvantages and leveling down. still, this does not show the principle of sufficient autonomy 186 danielle zwarthoed leap 5 (2017) itself adequately defines the requirements of fair equality of opportunities in terms of talents discovery. it only shows that a shift-based understanding of sufficientarianism can supplement the principle of sufficient autonomy with an egalitarian principle of fair equality of opportunities. in terms of talents discovery, this means once opportunities for the discovery of a sufficiently broad and varied array of talents have been secured, educational justice can seek to achieve an equal distribution of remaining opportunities for talents discovery. then, a worry remains. if the demands of sufficient autonomy require a lot of educational resources, little will be left over to enable schools to equalize the economic and social opportunities of children. recall that, according to shields, the ingredients of sufficient autonomy are: (1) being well-informed, that is, being able to establish third-person assurance of the freedom of one’s beliefs; (2) being able to give reasons for one’s views; (3) being disposed to exchange reasons and to participate in public reasoning activities with others. it seems to me the educational policies needed to secure sufficient autonomy as shields conceives it would especially focus on helping children to reach a high level of cognitive and critical thinking skills, a level most of the people shaped by our educational systems do not have reached. in the just educational system shields envisions, important investments in the cultivation of critical thinking skills would have priority over investments in policies aiming at securing equality of opportunity such as the implementation of a school map (when and where it works) or reforms aiming at helping disadvantaged students to access to and succeed in higher education. the inf luence of parental background on children’s future opportunities would remain decisive. therefore, the extent to which the principle of sufficient autonomy is compatible with fair equality of opportunities seems limited. one might think the conclusion of this discussion is that egalitarian views of educational justice are superior to sufficientarian ones. but this needs not be true, even for those who share the intuition that an educational system that fails to mitigate the effects of social background on children’s social and economic prospects is problematic. the problem does not necessarily originate from sufficiency in itself. it originates from the fact that shields’ account of autonomy is not rich enough. the ideal of autonomy is not limited to critical thinking skills and deliberative capacities. it also concerns social and economic conditions as well as the kind of relationships people have with each other. a richer account of autonomy may account for the problem of positional goods by enabling us to stress how people’s relative position in the distribution of certain goods may affect important dimensions of freedom and autonomy. some capability-based and freedom-based understandings of the sufficiency threshold can address 187 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education the issue of positional goods insofar as absolute value of certain capabilities and freedoms depends upon people’s relative place in the distribution of certain goods (axelsen and nielsen, 2015, 419–420). 4. conclusion this essay has engaged with two of the contributions the principle of sufficient autonomy to educational justice. it has argued that instrumental views of the value of autonomy can provide decisive reasons to support mandatory autonomy education. it has also argued that the implications of rawlsian fair equality of opportunity regarding talents discovery differ from the implications of sufficient autonomy. insofar as educational resources are scarce, sufficient autonomy and equality of opportunity are potentially conf licting educational aims. however, a richer account of autonomy could incorporate the aim of securing equality of opportunity through education by stressing how such equality contributes to economic, social and relational dimensions of autonomy. the general conclusion is that liam shields’s autonomy-based sufficientarian view is promising, but his account of autonomy and of the way it relates to well-being may need further refinements to successfully address the two classical problems of philosophy of education we have brief ly discussed in this essay.3 bibliography arneson, r.j., shapiro, i., 1996: "democratic autonomy and religious freedom: a critique of wisconsin v. yoder", nomos 38: 365–411. axelsen, d.v., nielsen, l., 2015. "sufficiency as freedom from duress", journal of political philosophy. 23: 406–426. brighouse, h., 2005. on education. routledge. brighouse, h., swift, a., 2006: "equality, priority, and positional goods", ethics 116: 471–497. kraybill, d.b., 2001: the riddle of amish culture, revised edition. ed. john hopkins university press. rawls, j., 1999: a theory of justice, 2nd edition. ed. oxford university press. raz, j., 1986: the morality of freedom, oxford university press, oxford : new york. 3 the comments and ideas discussed in this paper have been presented at a book workshop organized by the hoover chair of economic and social ethics (université catholique de louvain). i thank liam shields for the insightful response and comments he gave on this occasion. these ideas owe a lot to several discussions i had with harry brighouse on these topics and i am grateful to him. finally, i wish to thank david v. a xelsen and two anonymous reviewers for their helpful criticisms and comments on an earlier draft. all errors are my own. 188 danielle zwarthoed leap 5 (2017) schinkel, a., 2010: "compulsory autonomy-promoting education", educational theory 60: 97–116. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh university press. wall, s., 1998: liberalism, perfectionism and restraint, cambridge university press. white, j., 2006: "autonomy, human flourishing and the curriculum", journal of philosophy of education 40: 381–390. zwarthoed, d., 2015: "cheap preferences and intergenerational justice", revue de philosophie économique 16: 69–101. leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education da n i e l l e z wa rt hoe d université catholique de louvain abstract this essay discusses two contributions of the principle of sufficient autonomy to educational justice. in just enough, liam shields criticizes instrumental accounts of autonomy. according to these accounts, autonomy is valuable insofar as it contributes to well-being. shields argues that instrumental arguments fail to support mandatory autonomy education in all cases, while his non-instrumental principle of sufficient autonomy does support this. this essay develops a version of the instrumental argument and argues this version can do the work of supporting mandatory autonomy education. another contribution of the principle of sufficient autonomy is the requirement of talents discovery. according to shields, the requirement of talents discovery renders rawls’s principle of fair equality of opportunity more plausible, since one’s chances of accessing a given economic position depend on one’s opportunities to discover one’s innate talents. this essay argues that rawlsian fair equality of opportunity does not have the same implications as the principle of sufficient autonomy as to which types of talents should be discovered and to what extent. keywords: autonomy, education, liberalism, talents, equality of opportunity 1. introduction sufficientarianism is a doctrine that affirms that what matters is whether individuals have enough of the relevant goods. in his book just enough: sufficiency as a demand for justice, liam shields develops an alternative original account of sufficientarianism. according to this account, once the threshold is secured, there could be further moral requirements. however, the nature and weight of the reasons to secure and reallocate the relevant goods changes after individuals have reached the threshold (shields, 2016: 30). d oi : 10. 310 0 9/l e a p. 2017.v 5.15 176 danielle zwarthoed leap 5 (2017) in chapter 3, shields states and defends the principle of sufficient autonomy: “principle of sufficient autonomy: we have weighty, non-instrumental, non-egalitarian, satiable reasons to secure enough autonomy for everyone to enjoy the social conditions of freedom, the conditions under which we freely form and revise our conception of the good life.” (shields, 2016, 53) a person has sufficient autonomy if (1) she is well-informed, meaning that she can establish third-person assurance of the freedom (not the truth) of her beliefs; (2) she is capable of giving reasons for her views; (3) she is disposed to exchange reasons and to participate in public reasoning activities with others (shields, 2016: 53, 84). the fourth chapter of just enough is devoted to showing the contributions of the principle of sufficient autonomy to debates about education. this essay discusses two of these contributions. first, shields argues that instrumental arguments for autonomy-supporting education fail to support mandatory autonomy education in all cases; his non-instrumental argument does support this. this essay develops a version of the instrumental argument and argues this version can do the work of supporting mandatory autonomy education as well as the principle of sufficient autonomy, and perhaps even better (section 2). second, shields argues that the principle of sufficient autonomy implies a requirement of talents discovery. according to shields, the requirement of talents discovery renders rawls’s principle of fair equality of opportunity more plausible, since one’s chances of accessing a given economic position depend on one’s opportunities to discover one’s innate talents. in section 3, i shall argue that rawlsian fair equality of opportunity does not have exactly the same implications as the principle of sufficient autonomy as to which types of talents should be discovered and to what extent. 2. instrumental and non-instrumental arguments for mandatory autonomy education the justification of the principle of sufficient autonomy appeals to noninstrumental reasons to promote autonomy. the chapter entitled “sufficiency and education” argues that the principle of sufficient autonomy provides a more decisive reason to support mandatory autonomy education than instrumental arguments for autonomy. a concrete issue at stake is that parents of conservative religious communities may oppose certain forms of autonomy-promoting education. they fear that mandatory 177 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education autonomy education will turn their children away from the core beliefs, values and behaviors endorsed by their communities. they could (and do) appeal to religious freedom or parental rights to justify their position. from a perspective centered on children’s interests, the main worry is that mandatory autonomy education could jeopardize the long-term well-being of child-members of conservative communities. autonomy education may estrange these children from their family and community. this would make it impossible for them to meaningfully sustain important familial and social relationships. they would also be deprived of the important contribution of cultural affiliation to one’s sense of identity and capacity for wholehearted commitments. according to shields, the principle of sufficient autonomy succeeds in showing that securing a certain level of autonomy outweighs these countervailing considerations, while instrumental accounts of the value of autonomy do not (shields, 2016: 90). the instrumental argument for autonomy education affirms that autonomy is good because it leads to something else, namely well-being or f lourishing. it derives the value of autonomy education from the good of well-being. worries with the instrumental argument arise from the contingent character of the connection between autonomy and well-being (shields, 2016: 72). such worries need not arise if the value of autonomy is not derivative. note this does not necessarily mean concerns with the well-being of children should disappear. valuing autonomy non-instrumentally does not preclude shields from valuing well-being non-instrumentally. if so, the case of child-members of conservative communities will require him to balance autonomy against well-being. this balancing reasoning might lead to practical conclusions similar to those reached by “instrumentalists”. to strengthen the case for the non-instrumental argument, it seems we need to know why the intrinsic value of autonomy is superior to the value of well-being. while the case for the non-instrumental account might not be as strong as expected, the case for the instrumental one could be stronger than shields assumes. a closer examination of the connection between autonomy and well-being shows that the instrumental argument provides little support to those who want to withdraw child-members of conservative communities from autonomy education. how detrimental we think autonomy education is to these children depends on the nature and the importance of the connection between autonomy and well-being, on one hand, and (as shields himself puts it) on the conception of well-being we assume, on the other hand (shields, 2016: 93). 178 danielle zwarthoed leap 5 (2017) the instrumental argument affirms autonomy leads causally to wellbeing. the causal connection between autonomy and well-being can be understood in at least two ways (schinkel, 2010: 100): (a) autonomy may/is likely contribute to individual well-being. (b) autonomy is necessary for individual well-being. shields’s argument must assume version (a) of the instrumental argument since version (b) would also succeed in convincing those who are concerned with children’s well-being that autonomy education should be mandatory. could it be the case that autonomy is necessary for individual well-being? drawing on raz’s ref lections, as well as on the philosophical works they have inf luenced (e.g. brighouse, 2005; raz, 1986; wall, 1998; white, 2006), i would like to examine two ways in which an adequate level of autonomy might be necessary to live well. autonomy is unlikely to be necessary to achieve some conceptions of well-being such as those based on hedonistic and actual preference satisfaction. it is possible to experience pleasure or to satisfy one’s actual preferences without being autonomous. this is emphasized by shields’s discussions of happiness pills and cheap tastes inculcation (shields, 2016: 74-76).1 what is wrong with these examples is that people by-pass the autonomous deliberative process involved in forming and realizing their conception of the good life. raz’s partly subjective conception of well-being (raz, 1986: 288–312) is not vulnerable to counterexamples like the happiness pill. according to raz, a person’s well-being depends, first, on her capacity to meet basic biological needs and, second, on the successful pursuit of her current and future goals. the content of these goals does not matter so long as they are independently valued by the person herself. this means attempts to improve the life of someone else by making her achieve a good she does not and will not see as her goal will fail. suppose mary’s mother tries to secure her daughter’s future well-being by preventing her from studying history, a subject mary is passionate about. mary’s mother believes history is a poor choice of major because she does not see the point of spending one’s life neck-deep in dusty archives to write unreadable books. she pushes mary to study communication instead, a seemingly more fun major. unless mary revises her judgment on the merits of a history major, her mother’s attempt to make her happy will be unsuccessful. however, success in pursuing a goal, regardless of its objective value, does not suffice to secure a person’s well-being. a person’s well-being also 1 note that the cheapness itself is not problematic for autonomy. w hat is problematic is that they have been inculcated in a non-autonomous way. see zwarthoed (2015) 179 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education depends on the value of the goals she pursues. we evaluate goals, we have reasons to pursue them, and some reasons are better than others. a person has a goal, properly speaking, only if her reasons for having it are valid. failing to achieve a goal which is actually supported by no valid reason is a “blessing in disguise” (raz, 1986: 301). suppose mary is genuinely interested in history, but decides to study philosophy instead because she believes a philosophy degree is more likely to improve her job prospects. now, suppose also that mary’s belief turns out to be false. history graduates are actually more popular with employers. if this is the case, mary does not have, in a normatively relevant sense, the goal to become a philosophy graduate. of course, it is a psychological fact that she has the desire to study philosophy (since she ignores her reason for having this goal is not valid). but, properly speaking, she does not have the goal to study philosophy because studying philosophy will not contribute to the success of her life. if she is not admitted to a philosophy program, this failure might contribute to her well-being unbeknownst to her. since there are no reasons to value worthless cheap tastes or a life determined by a happiness pill, raz’s conception of well-being avoids shields’s objections to welfarism. now, having goals does not suffice to live well; one must also succeed in pursuing them. a person’s goals provide her with action reasons, reasons that speak in favor of performing certain actions. others cannot reach a person’s goals for her: actively pursuing the goals that constitute one’s life is constitutive of living well. this does not mean the good life must be athletic or hyperactive. a f lourishing life can certainly consist of modest pursuits. what matters is that the person achieves these goals herself, lives her life herself and from the inside. according to raz, these goals need not be acquired in an autonomous way (raz, 1986: 290–291) and one can live well without being autonomous. yet i submit that a minimal degree of autonomy is, in fact, necessary to secure the dependency of a person’s goals on reasons. it is true that a person may acquire goals she has valid reasons to value through nonautonomous processes such as habituation, early socialization, and so on. in fact, most of our goals are acquired this way. furthermore, the successful pursuit of some possibly attractive goals, such as ballet performance, requires the child to commit to cultivate her talents from an early age, before she is fully autonomous (arneson and shapiro, 1996: 392). however, being equipped with the deliberative capacities that partly constitute autonomy enables people to avoid at least two potential obstacles in the process of assessing the validity of the reasons one has to have certain goals. the first obstacle is: i cannot make sure the reasons i have to pursue goals are independently valid if i do not possess the skills and 180 danielle zwarthoed leap 5 (2017) knowledge needed to critically assess, or reassess, their validity. without a minimal degree of autonomy, i cannot make sure the goals i pursue are based on valid reasons, and therefore i cannot make sure these goals will contribute to my well-being. as arneson and shapiro put it, we do not want to choose life plans we just believe are valuable, but we do want to choose those which truly are valuable. insofar as truly valuable life plans are those which resist critical ref lection, autonomy is a good instrument to verify whether our life plans are truly valuable (arneson and shapiro, 1996: 399). the second obstacle is: even if i am well-equipped with the cognitive abilities needed to assess the independent values of my goals, i might not be able to want my reasons to be true reasons. i might be rationalizing my choices rather than honestly ref lecting on them. i might be deceiving myself about my real reasons. self-deception is seriously damaging to wellbeing because it breaks the connection between goals and reasons. rationality and intelligence do not protect us from self-deception. but the capacity for autonomy does. one of the crucial dimensions of autonomy is authenticity (shields, 2016: 59). authenticity involves being able to ref lect critically upon one’s major goals and to revise them so that they cohere with one’s ref lectively constituted higher-order commitments and conception of oneself. by definition, authenticity requires being honest with oneself and one’s reasons, even when the truth is uncomfortable. the capacity for minimal autonomy is thus necessary to have genuine wholehearted commitments to goals that constitute our well-being. when society has to decide whether to authorize parents to withdraw children from autonomy-promoting subjects or schools, controversial assumptions regarding the superiority of a secular way of life are not necessary (arneson and shapiro, 1996: 401). they might even be detrimental to children’s wellbeing, since they could amount to unsuccessful attempts to make these children live well by pushing them into ways of life they do not endorse. but society can assume that autonomy-promoting education makes it more likely that future adults will choose the goals that are truly better for them without falling into the trap of self-deception. the first way in which a minimal degree of autonomy is necessary to live well is by securing the dependency of our goals on valid reasons, insofar as the capacity for autonomy equips us with the skills, knowledge, and disposition to avoid errors and self-deception. the second way appeals to raz’s well-known contextual argument for the special value of autonomy in modern societies. if this argument is valid, a higher degree of autonomy might be needed to achieve well-being in these societies. our well-being depends on our successful pursuit of goals we have valid reasons to commit to. but we create these goals out of something. our goals are based on 181 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education existing social forms. social forms refer to existing shared beliefs, cultures, imaginations, practices, behaviors, and so on (raz, 1986: 307–312). our pursuits and activities are to a large extent socially defined. this does not mean we should align with existing social conventions. it means the meaning, significance and sometimes the very possibility of some comprehensive goals depend on existing social forms. as shields puts it, autonomy involves certain social conditions (shields, 2016: 48). the social conditions, and more broadly, the social forms of modern democratic societies constitute an autonomy-supporting environment. modern autonomy-supporting environments are characterized by fast-changing technology and economic circumstances, geographical and social mobility, value pluralism, secularization and a commitment to human rights (wall, 1998: 166–167). in such environments, people need the capacity for autonomy in order to f lourish (raz, 1986: 391). this is not just because autonomy enhances our ability to cope with changes. this is because this environment makes it extremely difficult, requiring almost complete isolation, to lead successful lives non-autonomously. at this point, one could argue that this argument does not apply to child-members of isolated conservative communities. their social environment differs from the characteristic circumstances of modern societies. the range of comprehensive goals available to them is not based on autonomy-supportive social forms. furthermore, insofar as well-being depends on the successful pursuit of socially defined goals and activities, autonomy education might render them ill-equipped to succeed in the pursuits available to them. the objection would hold if these communities were entirely isolated from the “external world”. in those specific circumstances, instrumentalists must grant that a relatively high degree of autonomy is unnecessary to live well (a minimal degree of autonomy might remain necessary to secure the dependency of goals on valid reasons). however, most of the communities which currently want to withdraw their children from mandatory autonomy education are not fully isolated. they interact with non-members at various levels. existing political and social institutions structure interactions among members and between members and non-members. members pay taxes and consume public goods. as the sheer existence of the wisconsin v. yoder case makes it clear, member of these communities rely on the same judicial system as non-members to protect their rights. some produce goods they sell to non-members and buy consumer goods produced outside of the community. some read newspapers and watch 182 danielle zwarthoed leap 5 (2017) television programs infused with the background, autonomy-supporting culture. as a result, even when they are able to protect their culture, the presence and inf luence of the broader autonomy-supporting context unavoidably alter the social forms that prevail in these communities. they also alter the very nature of the opportunities these communities provide to their members. the significance of pursuing the project to live in a traditional community differs greatly in a traditional society from one in which one can freely revise her goals. the very nature and value of these choices depend on whether they exist in an autonomy-supporting environment or not. in concrete terms, the option to stay in the amish community or to become a nun does not have the same significance in an autonomy-supporting society and in a traditional society. in modern societies, this option unavoidably involves a choice, if only because background institutions provide exit options.2 and this choice requires exercising deliberative capacities. an autonomy-supporting environment reshapes the very conditions attached to these seemingly non-autonomous pursuits. it transforms them into autonomous choices. since childmembers of conservative communities will be confronted with these sorts of choices, their future well-being requires the capacity for autonomy too. therefore, in our modern circumstances, this version of the instrumental argument for autonomy helps us to reach the conclusion shields wants to reach, that is, that autonomy education should be mandatory. before closing the discussion, a few critical remarks on mandatory autonomy education might be helpful to refine the debate. liam shields does not only argue that autonomy education should be mandatory. he also suggests it should be delivered by the state: “the state cannot refuse to get involved with education and simply allow private individuals to provide for it. to do so would be to allow educational provision to be distributed in a particular way that may fail to recognise citizens’ rightful claims.” (shields, 2016, 85) additional philosophical work might be needed to make the move from the claim that autonomy education should be mandatory to the following claims: first, the state should be responsible for delivering autonomy education; second, the state should be authorized to use its coercive power to make sure all children are enrolled in state-provided autonomy education. i have no space to discuss these issues in detail, but i would like to point out a couple of questions. if shields thinks states should deliver 2 note some communities make efforts to inculcate beliefs and mindsets that prevent their members from seriously giving consideration to the exit option. sociologist donald kraybill suggests amish education is designed in such a way that the “agenda of ideas” is “controlled”, thereby preventing children from envisaging a life outside of the community. (kraybill, 2001: 176–177) 183 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education autonomy education because they are the most able agent for this purpose, something could be said about why other educational agents, and especially parents, are more likely than the state to fail to render children sufficiently autonomous (especially in less than ideal states). if shields thinks states should provide autonomy education because they are the only agent which has the legitimate power to “force” children to get such education, the theory of legitimate authority with which his sufficientarianism needs to coordinate should be developed further. 3. sufficient autonomy, fair equality of opportunity, and the requirement of talents discovery let us now move to the requirement of talents discovery. sufficient autonomy is related to talents discovery in the following way. educating for autonomy requires agents to be well informed about the options available to them. being informed about options involves being informed about one’s interests and talents. therefore, according to shields, “everyone should be given opportunities sufficient to discover their talents and interests insofar as this constitutes our freedom as sufficiently autonomous agents” (shields, 2016, 100). the array of opportunities to discover one’s talents should be sufficiently broad and varied. shields argues that, by requiring talents discovery, the principle of sufficient autonomy renders rawls’s principle of fair equality of opportunity more plausible and should thus supplement it (shields, 2016: 100–105). according to the rawlsian principle, social and economic positions should be opened to all under fair equality of opportunity, meaning that those with equivalent talents and the same degree of willingness to use these talents should have equal chances of access to the same offices and positions, regardless of gender, race or social background. the principle must include undeveloped talents and not just to the subset of talents that have been actually developed. otherwise, the principle would validate background unjust inequalities (shields, 2016: 102). but giving productive jobs to those who couldn’t have developed the appropriate skills due to unjust circumstances wouldn’t benefit society in general, and the least well off in particular. therefore, justice requires the educational system to provide prospective citizens with the opportunity to discover and develop their talents. but it would be excessively costly to attempt to discover all possible talents. hence the requirement of talents discovery usefully supplements the rawlsian principle by providing a criterion to define the 184 danielle zwarthoed leap 5 (2017) extent to which opportunities for talent discovery should be broad and varied. it is true that the principle of fair equality of opportunity would be implausible if it did not require the educational system to help children to identify and develop the relevant talents. however, the requirement of talents discovery fits into the principle of equality of opportunity only if their implications regarding the kinds of talents and the extent to which they must be developed converge. this doesn’t seem to be the case. the two principles are not necessarily concerned with the same talents. the principle of sufficient autonomy pertains to the talents one needs to adequately develop a conception of the good life (shields, 2016: 99) and to participate in collective deliberations (shields, 2016: 98). fair equality of opportunity pertains to the talents which enable people to be economically and socially productive in a way that can be beneficial to the least fortunate (rawls, 1999: 87). of course, some talents, such as good verbal skills, have polyvalent functions. and, to some extent, marketable talents are instrumental to secure the capacity to adequately develop a conception of the good life. but others, such as the capacity for spiritual experiences, are less likely to be valuable in the job market. and talents that are valuable on the job market, such as combativeness, are not particularly well-suited to developing a conception of the good life or participating in collective deliberations. of course, the fact that the implications of sufficient autonomy and equality of opportunities are not co-extensive does not undermine the inherent plausibility of shields’s principle of talents discovery. but it puts into question his claim that the requirement of talents discovery implied by sufficient autonomy fits in well with other demands, such as the demands of fair equality of opportunities. the problem is not just that the range of talents each principle is concerned with is different. the problem is that educational resources are finite. when a society decides which talents the educational system should attempt to reveal in priority, it has to adjudicate between the demands of sufficient autonomy and the demands of equality of opportunity. the implications of sufficient autonomy in terms of talents discovery may conf lict with equality of opportunities at another level. in the sufficientarian educational system shields envisions, the least advantaged children would only enjoy a sufficiently varied array of opportunities for talents discovery, while their more advantaged counterparts could, in addition, benefit from exposure to a much broader set of disciplines, experiences, and activities. their chances to discover a talent that matches job market demands well are therefore higher. or suppose the requirement 185 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education of talents discovery is not only sufficientarian in terms of the variety of talents children should be able to try to develop, but also in terms of the extent to which they could develop these talents. then, the sufficientarian version of the requirement of talents discovery runs the risk of putting some children at a disadvantage in another way. imagine the sufficientarian version of the requirement of talents discovery requires schools to provide those who are naturally good at mathematics with the opportunity to develop the level of mathematical skills corresponding to a secondary school degree. the students who would be granted this opportunity and no more will be unable to compete to become actuaries, accountants or financial analysts (which are well-paid jobs). this is not compatible with fair equality of opportunity. the policy of talents discovery required by fair equality of opportunities must take into account the effects of competitive and comparative contexts on children’s economic and social prospects. the source of the problem is that talents are goods with positional aspects. their value in competitive contexts depends on how much of the same goods other competitors have (brighouse and swift, 2006). despite its inherent plausibility, shields’ sufficientarian view of talents discovery might actually hinder fair equality of opportunity rather than reinforce it. shields addresses the problem of positional disadvantages in his discussion of anderson’s adequacy principle of educational justice (shields, 2016: 110–114). he suggests that the shift-based approach of sufficientarianism he advocates is better equipped than anderson’s own version of upper limit sufficientarianism. to recall, upper limit sufficientarianism states that, once people have enough, there is no further reason to benefit them. shift-based sufficientarianism states that, once people have enough, the nature and weight of reasons to benefit them change. anderson’s view entails that, once educational adequacy is secured, there is no further reason to redistribute educational opportunities. shields’s view entails that, once the principle of sufficient autonomy is secured, there may be further reasons to redistribute educational opportunities. shields could thus respond to the egalitarian critic that, once sufficient opportunities for talents discovery are secured, his theory of justice can recognize there are additional valid moral reasons to limit rich children’s opportunities for talents discovery in competitive contexts. if my understanding of the implications of shift-based sufficientarianism for educational justice is correct, shields’s view of educational justice may plausibly conciliate two conf licting considerations that structure the debate about educational justice, namely, positional disadvantages and leveling down. still, this does not show the principle of sufficient autonomy 186 danielle zwarthoed leap 5 (2017) itself adequately defines the requirements of fair equality of opportunities in terms of talents discovery. it only shows that a shift-based understanding of sufficientarianism can supplement the principle of sufficient autonomy with an egalitarian principle of fair equality of opportunities. in terms of talents discovery, this means once opportunities for the discovery of a sufficiently broad and varied array of talents have been secured, educational justice can seek to achieve an equal distribution of remaining opportunities for talents discovery. then, a worry remains. if the demands of sufficient autonomy require a lot of educational resources, little will be left over to enable schools to equalize the economic and social opportunities of children. recall that, according to shields, the ingredients of sufficient autonomy are: (1) being well-informed, that is, being able to establish third-person assurance of the freedom of one’s beliefs; (2) being able to give reasons for one’s views; (3) being disposed to exchange reasons and to participate in public reasoning activities with others. it seems to me the educational policies needed to secure sufficient autonomy as shields conceives it would especially focus on helping children to reach a high level of cognitive and critical thinking skills, a level most of the people shaped by our educational systems do not have reached. in the just educational system shields envisions, important investments in the cultivation of critical thinking skills would have priority over investments in policies aiming at securing equality of opportunity such as the implementation of a school map (when and where it works) or reforms aiming at helping disadvantaged students to access to and succeed in higher education. the inf luence of parental background on children’s future opportunities would remain decisive. therefore, the extent to which the principle of sufficient autonomy is compatible with fair equality of opportunities seems limited. one might think the conclusion of this discussion is that egalitarian views of educational justice are superior to sufficientarian ones. but this needs not be true, even for those who share the intuition that an educational system that fails to mitigate the effects of social background on children’s social and economic prospects is problematic. the problem does not necessarily originate from sufficiency in itself. it originates from the fact that shields’ account of autonomy is not rich enough. the ideal of autonomy is not limited to critical thinking skills and deliberative capacities. it also concerns social and economic conditions as well as the kind of relationships people have with each other. a richer account of autonomy may account for the problem of positional goods by enabling us to stress how people’s relative position in the distribution of certain goods may affect important dimensions of freedom and autonomy. some capability-based and freedom-based understandings of the sufficiency threshold can address 187 leap 5 (2017) the principle of sufficient autonomy and mandatory autonomy education the issue of positional goods insofar as absolute value of certain capabilities and freedoms depends upon people’s relative place in the distribution of certain goods (axelsen and nielsen, 2015, 419–420). 4. conclusion this essay has engaged with two of the contributions the principle of sufficient autonomy to educational justice. it has argued that instrumental views of the value of autonomy can provide decisive reasons to support mandatory autonomy education. it has also argued that the implications of rawlsian fair equality of opportunity regarding talents discovery differ from the implications of sufficient autonomy. insofar as educational resources are scarce, sufficient autonomy and equality of opportunity are potentially conf licting educational aims. however, a richer account of autonomy could incorporate the aim of securing equality of opportunity through education by stressing how such equality contributes to economic, social and relational dimensions of autonomy. the general conclusion is that liam shields’s autonomy-based sufficientarian view is promising, but his account of autonomy and of the way it relates to well-being may need further refinements to successfully address the two classical problems of philosophy of education we have brief ly discussed in this essay.3 bibliography arneson, r.j., shapiro, i., 1996: "democratic autonomy and religious freedom: a critique of wisconsin v. yoder", nomos 38: 365–411. axelsen, d.v., nielsen, l., 2015. "sufficiency as freedom from duress", journal of political philosophy. 23: 406–426. brighouse, h., 2005. on education. routledge. brighouse, h., swift, a., 2006: "equality, priority, and positional goods", ethics 116: 471–497. kraybill, d.b., 2001: the riddle of amish culture, revised edition. ed. john hopkins university press. rawls, j., 1999: a theory of justice, 2nd edition. ed. oxford university press. raz, j., 1986: the morality of freedom, oxford university press, oxford : new york. 3 the comments and ideas discussed in this paper have been presented at a book workshop organized by the hoover chair of economic and social ethics (université catholique de louvain). i thank liam shields for the insightful response and comments he gave on this occasion. these ideas owe a lot to several discussions i had with harry brighouse on these topics and i am grateful to him. finally, i wish to thank david v. a xelsen and two anonymous reviewers for their helpful criticisms and comments on an earlier draft. all errors are my own. 188 danielle zwarthoed leap 5 (2017) schinkel, a., 2010: "compulsory autonomy-promoting education", educational theory 60: 97–116. shields, l., 2016: just enough: sufficiency as a demand of justice, edinburgh university press. wall, s., 1998: liberalism, perfectionism and restraint, cambridge university press. white, j., 2006: "autonomy, human flourishing and the curriculum", journal of philosophy of education 40: 381–390. zwarthoed, d., 2015: "cheap preferences and intergenerational justice", revue de philosophie économique 16: 69–101. leap 5 (2017) sufficientarian parenting must be child-centered1 a nc a gh e aus universitat pompeu fabra abstract liam shields’ sufficientarian commitments mean that he should subscribe to a child-centered account of the right to parent. this point most likely generalizes: sufficientarians who acknowledge children’s full moral status must embrace a child-centered account of the right to parent. keywords: parents, children, right to parent, sufficiency, child-centered account, dual-interest account 1. introduction one chapter of liam shields’s book just enough concerns justice in childrearing. shields believes that an ability to provide an adequate upbringing usually protects custodians against being stripped of their right to rear a child, even if better custodians are willing to parent that child. to argue for this conclusion, he advances his own version of a dualinterest account of the right to parent; an account that grounds the right by appeal to both children’s interest in parenting and prospective parents’ interest to rear. as a sufficientarian, shields believes that children are entitled to a sufficiently good parent, rather than to the best available one and, given the importance of parenting for many people’s wellbeing, he also believes that adults are entitled to an opportunity to parent. i agree with shields’ conclusion that adequate parents cannot lose custody merely because a better parent is willing to take over. but i disagree with his argument for this conclusion. i explain why other dual-interest accounts of the right to rear – as well as child-centered accounts! – can show that, once an adequate parent has acquired custody, she or he holds 1 i am grateful to tim meijers, two anonymous referees, and the editors of this special issue for comments on earlier drafts of this paper. this project has received funding from the european research council (erc) under the european union’s horizon 2020 research and innovation programme (grant agreement number: 648610). d oi : 10. 310 0 9/l e a p. 2017.v 5.16 190 anca gheaus leap 5 (2017) it securely. most importantly, i argue, shields’ sufficientarian commitments mean that he should subscribe to a child-centered account of the right to parent. the last point most likely generalizes: sufficientarians who acknowledge children’s full moral status must embrace a child-centered account of the right to parent. the general form of the argument is: p1. children have full moral status. c1. therefore there is a strong prima facie presumption that one cannot claim legitimate authority over them by appeal to one’s own interests. p2. parenting is a form of exercising a very significant amount of authority over children. c2. therefore, there is a strong prima facie presumption that the right to parent cannot be grounded in the interests of the right-holder. p3. so far, the most promising attempt to show that the presumption in c2 is overridden relies on the joint belief that justice requires equal opportunity to f lourish/pursue life plans and that parenting is a central and non-substitutable element of full f lourishing for some people. p4. shields denies both elements of the joint belief in p3 and does nothing else to show that the presumption in c2 is overridden. c3. shields must therefore be committed to a child-centered account of the right to parent. more generally, even if children are not entitled to more than enough, it is false that others’ authority over them may be justified by appeal to the interests of those who exercise the authority. 2. the challenge of custody change imagine a child is well-settled with her biological or adoptive parents, with whom she has a loving, close, trustful and nurturing relationship; moreover, the parents provide adequately for this child‘s developmental needs and give her a reasonably happy childhood (i must bracket the enormous issue of how to establish who is an adequate, and who is an even better-than-adequate, parent). now imagine that some people, who could do better on all these counts, express the intention to raise the child themselves. is there a reason or perhaps even a duty of justice on the side of some agent, such as the state, to allow or enable the second set of adults to take over, against the current parents’ will? the resolutely negative answer yielded by common sense is worthy of philosophical attention: children 191 leap 5 (2017) sufficientarian parenting must be child-centered are very vulnerable, they need parents in order to survive and thrive, and lack the authority to choose their own custodians. moreover, custodians command an unusually high level of power over children. some philosophers working on issues of justice in childrearing have considered whether, given these facts about children and childrearing, it can ever be permissible for suboptimal parents to be in charge of children‘s fates when better parents are available (vallentyne 2002; brighouse and swift 2006; hannan and vernon 2008; gheaus 2012; brighouse and swift 2014.) this is the literature about the grounds of the right to parent, and most of it discusses the question of how the right is acquired: (why) do adults who would make suboptimal parents have an entitlement to become parents? shields contributes to this discussion, with a focus on cases of custody change rather than on cases of the acquisition of the right. that is, he aims to explain why it is impermissible, once a person already has the custody of a child and raises her adequately, to allow another person, who would (by assumption) make a better parent for the child in question, to become the legal parent of this child (shields 2016: 22)2. shields is critical of both child-centered accounts of the right to parent – that is, of theories that appeal exclusively to the interests of children – and of existing dual-interest accounts – that appeal both to the interests of the would-be parents and to those of children – such as those defended by matthew clayton (2006) and by harry brighouse and adam swift (2006; 2014). he thinks that child-centered accounts cannot explain the impermissibility of custody change; therefore, he seems to assume that the strongest argument in favor of the dual-interest view is that it alone can address this challenge, albeit only imperfectly in the versions developed so far (shields 2016a, 2016b). shields’ argumentative strategy is to show why his own version of the dual-interest account yields more appealing results that existing versions. unlike shields, i believe that, in fact, the custody change worry can be easily averted not only by dual-interest accounts, but also by child-centered accounts. child-centered theorists can employ several strategies to explain why it is impermissible to allow a change in custody merely because an adult who would make a better parent for the child wants to take over. most obviously, they can appeal to the interest of the child in continuity of care, which is such that the transition costs to a different parent are enormous. indeed, so enormous that maybe child-centered theorists can employ this strategy in all or most cases when parents are adequate, i.e. have the moral 2 as he puts it: “the particular question i wish to answer is ‘on what grounds can custodial parents usually be denied the right to rear? ’” (shields 2016a: 122). 192 anca gheaus leap 5 (2017) right to parent in the first place.3 how bad must one’s parents be for a child to be better off changing custodians? but shields also wants us to consider cases when a change in custody would really be better for a child – that is, when the cost of severing the relationship with the initial, adequate, custodians would be lower than the gains for the child. assume that extraordinarily good alternative parents were available to adopt her.4 in such cases, child-centered accounts seem unable to explain why a change in custody is illegitimate. one answer to this is to bite the bullet and note that in these circumstances it is a lot less counter-intuitive that a change in custody is impermissible (especially if, indeed, only very rarely could the custody change to an extraordinarily good parent compensate for the loss of an established relationship with an adequate parent). this will not satisfy shields, nor any of the dual-interest theorists who want to show that, independent of such empirical matters, adequate parents have a right to continue to parent.5 however, there is a reason why a change in custody away from adequate parents is impermissible even when the child would really be better off with extraordinarily good parents. this reason is advanced by some childcentered theorists (vallentyne 2003). children‘s interests are well served if, once acquired, the right to parent is securely held; that is, there is immunity to custody change, as long as the parent is at least adequate. otherwise, only parents who are not too scared by the prospect of losing custody would volunteer for the role. but the prospect of losing the relationship with a beloved child is scary, and we know that good parents are loving and attached to their children. therefore, those undeterred by the prospect of losing custody are not, in general, less likely to make very good parents6. so, even if a particular child, who now has an adequate parent, would, by assumption, be better off with a new parent, allowing custody changes in such cases would make most would-be adequate parents unwilling to engage in parenting. this would set back most children’s interests. this is 3 indeed, in their dual-interest account, brighouse and swift, too, give a lot of weight to the interest of the child in preserving the relationship with her parents, once established (2014: 96-97). the interest, on their view, is powerful enough that may justif y even less than adequate parents to continue to have the child’s custody. 4 for this, see some of shields’ other work (shields 2016c). 5 brighouse and swift (2014: 97) employ an additional argument: they note that even in cases of abusive and neglectful parents – well below the adequacy threshold – it may be that taking the child in state custody and trying to place her with an adoptive or fostering family has poor prospects of success. but, i assume, shields is interested in cases when a state has better records than existing states do for handling such cases. 6 at least, usually. there may be isolated cases of would-be extraordinarily good parents who would not be deterred from parenting by the prospect of losing custody to an even better parent. 193 leap 5 (2017) sufficientarian parenting must be child-centered a child-centered explanation why a change in custody should not be permitted merely because a would-be optimal parent is willing to parent a child who is already adequately parented. being child-centered, it is also open to dual-interest accounts which, like brighouse and swift’s, give the child’s interests the primary role in the justification of the right to parent. in other work, shields provided a different line of reasoning, meant to explain why the worry concerning changes in custody can also emerge due to a requirement of equal opportunities to parent (shields 2016c): insofar as dual-interest accounts rely on the existence of a weighty, nonsubstitutable, right-generating interest to parent, they must attribute the interest – hence the right – to all would-be adequate parents, whether or not these individuals actually happen to be the custodian of a child. as egalitarians, dual-interest theorists (brighouse and swift 2006, 2014; clayton 2006) must also acknowledge that the distribution of the right to parent has to be regulated by the principle of fair equality of opportunity, meaning that adults who are already the custodian of a child have no more principled entitlement to enjoy the goods of parenting than those who are not yet custodians. in short, if would-be adequate parents have such a powerful interest in parenting, then they ought to have the same opportunity to have their interest satisfied. this means that the right to parent cannot be purely negative, namely a protection against interference with current custodians’ parenting their children. as shields writes: “a negative right to parent would treat some people with the nonsubstitutable interest in parenting, those who can produce biological children, very differently from others with that very same interest, those who cannot. it would not preserve equality of opportunity to fulfill their interest in parenting” (shields 2016c: 9). but this worry, too, can be dispelled, even if the right to parent goes beyond a mere protection, by appeal to a general negative right to continue one’s intimate relationship (gheaus 2018)7. consider an analogous case: we might have a very weighty, non-substitutable interest in finding a life partner. (is there any reason to think that such an interest is less weighty, or more easily substitutable, than the interest in parenting?) at the same time, individuals have negative rights against being separated from their partners even in cases when there is a shortage of partners to marry, and even in cases when different individuals, out of no fault or choice of their own, have much fewer opportunities to find a partner. 7 brighouse and swift frame the early version of their account (2006) as an attempt to explain why only adequate parents have a right to enter the parent-child relationship. they seem to assume that it is not difficult to explain why parents have a right to continue the relationship with the child, once it has been established. 194 anca gheaus leap 5 (2017) 3. sufficientarians should not endorse a dualinterest account i think that the most important accomplishment of dual-interest accounts lies elsewhere than in a unique ability to avert the custody change worry8: their greatest advantage over child-centered accounts is that dualinterest accounts alone are capable of explaining why it is wrong to deny would-be adequate parents a right to engage in, rather than continue, parenting. in brighouse and swift’s words: “no child has a right to be parented by the adult(s) who would do it best, nor do children as a whole have a right to the way of matching up children and parents that would be best for children overall. both scenarios could leave perfectly competent parents missing out on the goods of parenting.” (brighouse and swift 2014: 95) as shields (2016c) himself notes, dual-interest theorists appeal to a weighty and non-substitutable interest in parenting in order to explain why competent prospective parents are entitled to an opportunity to parent; they also presuppose an egalitarian principle of distributive justice, letting them conclude that we are entitled to equally f lourishing lives rather than merely sufficiently f lourishing. but, i argue below, if the interest in parenting is, in fact, substitutable, (shields subscribes to this claim in 2016c), or if one endorses a sufficientarian view of justice (as shields does in the book), it becomes impossible to explain what is wrong with denying prospective non-optimal parents the right to acquire custody. this has direct implications for allocating custody to adoptive parents and to settling custody disputes between individuals, none of whom is already attached to the child whose custody is disputed. it also has implications about any entitlement that individuals may have to become parents via subsidized ivf treatments. to elaborate, most of us now believe that children are our moral equals except from the fact that their lack of full autonomy makes paternalistic behavior towards them permissible (indeed, required). if so, then exercising authority over children must be justified by appeal to their consent or by appeal to their own interests but not, usually, by appeal to the interests of those who exercise the authority. children cannot give valid consent. therefore authority over them cannot be denied to those likely to advance their interests as much as possible for the sake of advancing the interest of other prospective authority-holders. parents have undeniable, and great, 8 other work by shields (2016b) ref lects a similar understanding of the merits of the dual-interest accounts. 195 leap 5 (2017) sufficientarian parenting must be child-centered power over their children. therefore (and assuming that it is impermissible to coerce people into the parenting role), it follows that custody ought to be allocated to the best available parent. this is the core of a child-centered account of the right to parent (vallentyne 2003). one dual-interest theory attempts to resist this conclusion by claiming that many, or most, people, can only have fully f lourishing lives if they have a chance to parent (brighouse and swift 2006; 2014). another version of the dual-interest account explains departures form a child-centered account by noting that “child” and “parent” are periods within the life of the same individuals, and claiming that the loss that we incur as children by having non-optimal parents is more than made up for by the gains we enjoy by having the right to parent (clayton 2006). this can be true only if the interest in parenting is indeed weighty and non-substitutable; otherwise, it seems more efficient to provide would-be sub-optimal parents with opportunities other than to a right to parent. further, dual-interest theorists are egalitarians: brighouse and swift believe that justice entitles all of us to equal opportunities to have fully f lourishing lives, and clayton thinks that we ought to have equal opportunities to pursue our life plans. therefore, all prospective adequate parents have a fundamental right to parent because, without it, individuals whose full f lourishing or life plans require an opportunity to parent would be unjustly disadvantaged. a fundamental right to parent is grounded in the prospective parents’ own interest and therefore the right holders cannot be denied custody in order to better advance children’s interests (assuming an even better parent is available) or third parties’ interests. the above argumentative strategy is not open to shields for two reasons, each of which is enough to show that he cannot endorse a dual-interest account. first, although he believes that the interest in parenting has significant weight, shields denies that parenting is a non-substitutable path to f lourishing (shields 2016b; 2016c). even on the assumption that the interest is non-substitutable, it is far from clear that it can justify a right: there may be several non-substitutable ways to f lourishing, which are such that we cannot pursue all of them within a lifetime. the way in which you f lourish through parenting cannot be substituted by the way in which you f lourish by traveling the world for much of your adult years, or by the way in which you f lourish by dedicating your life to doing the most good you can do, for example. but, unfortunately, you may be unable to do more than one of those things in your life. in that case, achievable full f lourishing need not involve the pursuit of every non-substitutable path to f lourishing. but if, in fact, the goods of parenting can be substituted, then it is quite clear that preventing an individual from parenting will not necessarily prevent her f lourishing: she can always find alternative ways to f lourishing, 196 anca gheaus leap 5 (2017) that do not require exercising authority over another human being. second, and more importantly perhaps, shields is not an egalitarian, but a sufficientarian. even egalitarians like brighouse and swift may have trouble justifying a fundamental right to parent. one can doubt that the interest in parenting they identify (assuming it is indeed very weighty and non-substitutable) can generate a fundamental right to parent. a reason is that there may simply not be enough resources to go around such that we all have opportunities to have fully f lourishing lives (gheaus 2015). in this case we are not entitled to an opportunity to a fully f lourishing life even on an egalitarian account; on a sufficientarian one, we aren’t any way. another reason to be skeptical of the egalitarian version of the dual-interest accounts of the right to parent, and even more so of the sufficientarian version, is that it mandates an otherwise impermissible exercise of authority. we usually do not think that we should allow person a to exercise authority over person b for the sake of person a’s interest even if there is no other way to bring person a to the level of f lourishing or opportunities to which she is entitled by justice. that our intuitions diverge from this standard when it comes to exercising authority over children might be due to empirical facts which explain why adequate birth parents have a right to parent in most cases (gheaus 2012; 2015) or to the long tradition of denying children full moral status (gheaus 2018). even the egalitarian version of the dual-interest account may be in trouble. but if sufficientarians are right and we are only entitled to enough, it is even less credible that we can make a derogation from the general way in which we usually think about legitimizing authority. 4. conclusions to sum up, if children have full moral status, that is, if they have rights/are recipients of duties of justice, then it is difficult to see why we should allow sub-optimal parents to control children’s lives, unless two conditions are jointly met: a. equality, rather than sufficiency, is the correct principle of justice; and b. there is a weighty and non-substitutable interest to parent, the fulfillment of which is necessary for full f lourishing. shields denies both the first and the second conditions above (in 2016a and 2016b, respectively). he also wants to defend the following claim: “in respect of deciding on the custodial arrangements of a child, the child’s interests have some priority over the parent’s interests until they 197 leap 5 (2017) sufficientarian parenting must be child-centered are met to a sufficient extent. thereafter the parent’s interests matter more relative to the child’s interests. this yields the following guidance: so long as a parent will perform well enough with respect to the child’s interests, we cannot usually remove the child from that parent’s custody”. (shields 2016a: 122) i agree with his judgement of when a custody changes are legitimate, but for reasons different from those he advances. if shields is right about sufficientarianism being the correct principle of justice, then it seems that he – like other sufficientarians – should embrace a child-centered account about the acquisition of the right to parent. the alternative would be to adopt a dual-interest account by denying children’s full moral status, and that, i assume, is unappealing. bibliography brighouse, h. and swift, a., 2006: “parents’ rights and the value of the family”, ethics 117: 80–108. brighouse, h. and swift, a., 2014: family values, princeton university press. gheaus, a. 2012: “the right to parent one’s biological baby”, journal of political philosophy 20: 432-455. — 2015: “is there a right to parent?”, law, ethics and philosophy 3: 193-204. — 2018: “biological parenthood: gestational, not genetic”, australasian journal of philosophy. 96(2): 225-240. hannan, s. and vernon, r., 2008: “parental rights: a role-based approach”, theory and research in education 6: 173-189. shields, l. 2016a: just enough, edinburgh university press. — 2016b: “how bad can a good enough parent be?”, canadian journal of philosophy 46: 163-182. — 2016c: “parental rights and the importance of being parents”, critical review of international social and political philosophy, forthcoming. vallentyne, p., 2003: “the rights and duties of childrearing”, william and mary bill of rights journal, 11: 991-1009. leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice si b a h a r b ku leuven/fwo-flanders and leiden university david v. a xelsen london school of economics and political science abstract in the global justice debate, our duties to compatriots and foreigners are often held to differ in terms of demandingness. statists, in particular, think that duties to compatriots are more demanding than duties to foreigners. in this article, we f lesh out and scrutinize the main elements of liam shields’ considerations about global justice in his recent book, just enough. shields notes that the global justice debate largely overlooks that our duties may be more or less demanding in two distinct respects; in terms of content and in terms of stringency. he suggests that the distinction between content and stringency, combined with his sufficientarian thesis, opens up new and (more) plausible positions in the debate. here, we f lesh out the implications of shields’ tentative suggestions and consider the viability and novelty of the potential positions it permits. we conclude that his considerations of content provide little new to the debate, as this is already the focus of most global justice theorists. however, stringency brings a much needed concern with how to prioritize conf licting duties to the debate, and potentially opens up a range of new positions on how to make sense of our duties across and within borders as well as allowing us to reimagine already existing theories. the article outlines some new potential positions and novel readings of existing views. keywords: stringency, global justice, liam shields, sufficiency d oi : 10. 310 0 9/l e a p. 2017.v 5.17 199 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice 1. introduction many of us feel a strong sense of moral outrage and obligation when confronted with news of malnourished children or people f leeing civil war abroad. many have similar responses when confronted by the realities of inequality that affect their own societies, such as vastly unequal access to higher education, inequalities in wealth and property, and the larger obstacles to political inf luence faced by racial and cultural minorities. but which of these issues place greater moral demands on us and how do we even compare our obligations in the global and domestic realms? for the last couple of decades, the debate about global distributive justice has been defined by a stark divide between two overarching sides: statists and cosmopolitans. statists hold that our duties1 to compatriots are significantly more demanding than our duties to foreigners. cosmopolitans, on the other hand, hold that compatriots and foreigners are entitled to (more or less) the same. the two sides often seem irreconcilable. in his book on distributive justice, just enough (2016), liam shields explores how his sufficientarian account of justice might be applied to the global realm in order to overcome this stalemate. he does so by introducing two variables that make possible new ways of conceptualizing our duties of global justice. these two new nuancing variables are: 1. the sufficiency threshold: what we owe to others varies according to whether they fall below or above the sufficiency threshold; whether they already have enough. the debate between cosmopolitans and statists has been about whether the domestic and global spheres are different realms to which different reasons apply. shields’ sufficientarianism introduces an additional division of realms: it divides the realms of reason below or above the sufficiency threshold. 2. two components of demandingness: content and stringency. content is about how much we owe others; stringency is about the urgency of fulfilling the duty when its fulfillment conf licts with other duties. the debate thus far has almost exclusively been about content-demandingness. shields seeks to apply his sufficientarian reasoning to both content and stringency in the global realm. shields’ analysis is preliminary, but suggests new ways of nuancing the debate. in this paper, we build and elaborate on his aperçu, investigating how the resulting conceptual map compares to the existing positions on 1 in this paper we use the terms duties and obligations interchangeably 200 siba harb, david v. axelsen leap 5 (2017) global distributive justice, and exploring whether it, in fact, opens up hybrid positions between the two ends of the statist-cosmopolitan divide. we conclude that the combination of a sufficiency threshold and a shift in content-demandingness does not produce new viable positions. however, the distinction between content and stringency can provide new perspectives on the debate. thus, we f lesh out how the stringency dimension can inform contemporary debates of global distributive justice. we begin by brief ly explaining shields’ view on sufficiency and the distinction between content and stringency within demandingness of duties upon which his analysis turns. 2. sufficiency and demandingness in global distributive justice the central claim of shields’ book is that justice makes different demands upon us depending on whether the individuals with whom we are concerned are above or below the sufficiency threshold. this is because our reasons for what individuals are entitled to and what duties we have with respect to meeting those entitlements differ, or shif t, once we move from a context in which some have less than enough to a context in which everyone has enough. furthermore, it is the case, shields stipulates, that for several central dimensions of societal justice, the primary goal is to ensure sufficiency for everyone, and once someone reaches this threshold, benefitting them further brings about a different kind of value or is supported by a different sort of reason. reasons that, in this way, apply only up to a certain threshold are referred to as satiable. for example, our reasons to give a loaf of bread to someone who is starving are different from the reasons we may have to give a loaf to someone who is well fed but collects loaves of bread as a welfare-generating hobby (however passionately). and this might be explained by the fact that when one is below a threshold of basic needs (starvation) our reasons to benefit her are of a different character than the reasons we have to benefit someone above the basic needs threshold (loaf-collector). reasons to do with basic needs are satiable. this is what shields calls the shift thesis.2 this idea underlies the first nuancing variable. in the book’s chapter on sufficiency and global justice, shields, points 2 as robert huseby points out in his article in this volume, there are two ways of understanding the shift; one which concerns the weight of additional benefits above the threshold and one which concerns a shift in the nature of the reasons. we think this second reading is the more plausible one and will, hence, be assuming that here. 201 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice out that there are two ways to characterize the demandingness of a duty; two ways in which one duty can be more demanding than another. first, the demandingness of a duty may refer to the content of the duty. this refers to “the conditions under which the obligation has been successfully discharged” (shields, 2016: 173). in other words, the demandingness of our duties refers to how much it takes for them to be fulfilled. a duty is more demanding than another content-wise when it requires more of us than the other duty does. for example, if a good friend invites you to a wedding then you are, barring exceptional circumstances, obligated to go. if, on the other hand, a stranger (generously and somewhat surprisingly) invites you their wedding you are not obligated to go. however, you do owe them declining their offer politely. duties to friends, we normally think, demand more of us in terms of time and effort. in what follows we refer to the content dimension of demandingness as content-demandingness. second, the demandingness of a duty may refer to its stringency, by which shields means the priority that is attached to the duty’s fulfillment (shields, 2016: 177). a more stringent duty, then, is more urgent to fulfill. a duty, d1, is more stringent than a duty, d2, when fulfilling d1 takes priority over fulfilling d2. this means that we should fulfill d1 before fulfilling d2 and that if the two duties clash such that we could only fulfill one, we should fulfill d1. in terms of demandingness, whereas content concerns the ‘size’ of the duties, stringency denotes the ‘weight’ to assign to the fulfillment of a particular obligation. to illustrate the notion of stringency, imagine you are sitting between a friend and a stranger who are both suffering from heartache (incurred, perhaps, because the weddings to which they both invited you are not going as planned). imagine further that you are in the position to alleviate their pain somewhat by way of a similar effort; a kind word. in terms of content-demandingness, in other words, the two are the same. you might, further, think you have moral reasons to do both. but the urgency of fulfilling those duties would differ; the stringency of your obligation to your friend would be greater. in what follows we refer to the stringency dimension of demandingness simply as stringency. 3. a global shift in content? as mentioned in the introduction, statists and cosmopolitans disagree about the comparative demandingness of domestic and global duties of justice. the notion of demandingness that inf luential statist and cosmopolitan accounts employ is (usually) content-demandingness.3 the 3 see, however, miller (1995: ch. 3; 2013: ch. 7) 202 siba harb, david v. axelsen leap 5 (2017) main focus for statists against cosmopolitans, thus, is that our duties to co-citizens demand significantly more of us than our duties to foreigners in terms of content. in this section, we investigate whether introducing shields’s sufficientarian shift thesis to the current debate about contentdemandingness brings out new distinctive positions. many statists have a sufficientarian component in their theories of global justice and hold that, while we have egalitarian duties to our compatriots, for instance, we are only obligated to ensure that foreigners reach a level of sufficiency (blake, 2001; miller, 2007; sangiovanni, 2007). clearly, on statist accounts, duties to compatriots are more contentdemanding than duties to foreigners. for statists, the difference between what we owe compatriots and what we owe foreigners stems from the fact that the domestic sphere and the global sphere are two distinct areas of interaction each with different reasons of justice operating within it. some cosmopolitans also have a sufficientarian component in their views. either by defending a high threshold of sufficiency for everyone (nielsen & axelsen, 2016; nussbaum, 2000) or by arguing for a (lower) global sufficiency threshold as part of what is owed to everyone (caney, 2005: 122; shue, 1980). for cosmopolitans, unlike for statists, the same reasons of justice are at play within the domestic and global spheres (although, obligations may differ depending on how well-placed one is to fulfill them – caney, 2011: 514; goodin, 1988). the duties to compatriots and foreigners are equally demanding in terms of content. shields suggests that statists and cosmopolitans each capture one familiar and plausible intuition which he calls, respectively, ‘compatriot partiality’ and ‘state is arbitrary’ (2016: 188). the aim of his sufficientarian global justice exploration, then, is to seek to capture both. one can do this, shields holds, by applying the shift thesis to our theorizing: how we reason about distributive justice is different for a context where some fall below the sufficiency threshold compared to a context where all are above the threshold. this opens up positions according to which our obligations to compatriots vary depending on whether they are below or above the threshold, making space for some (threshold-dependent) partiality towards compatriots. but it still leaves room to say that this partiality should be contingent on whether (or the degree to which) foreigners are below or above sufficiency, thus including a concern with the morally arbitrary effect one’s birth country has on one’s life prospects into in the reasoning. this, shields suggests, opens up new positions in the debate. most interesting, he thinks, are those potential positions where compatriots or foreigners crossing the threshold of sufficiency leads one to shift from 203 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice being a statist to being a cosmopolitan, or vice versa.4 shields outlines one version of a shift from statism to cosmopolitanism: “we could owe prioritarianism domestically and sufficiency globally but once some level of sufficiency is reached for one or both groups, we owe equality to all” (shields 2016: 176).5 however, it is unclear to us that a shift in content does, or even could, actually open up any viable or new positions on global justice. consider the example shields uses where one shifts from being a statist to being a cosmopolitan once we cross the sufficiency threshold. now, according to shields, reasons that can justify the existence of a threshold are ones that are satiable. the main candidates for satiable reasons that shields explores in previous chapters are basic needs and autonomy. both are satiable in the sense that they do not provide a normative basis for benefits above a certain level (the threshold) (shields 2016: 34-37). but it is not clear how such satiable reasons can justify a division between the global and domestic realms in terms of content. reasons of basic needs and autonomy apply universally; everyone shares the trait that gives rise to the relevant obligations. and, indeed, when theorists in the global justice debate, be it statists or cosmopolitans, claim that we owe basic needs fulfillment to foreigners, they do so on the basis of universal human traits and vulnerabilities, not because the potential recipients are foreigners.6 shields, it seems, assumes that a division between the two realms can be drawn. but that is difficult to justify on his account, since no satiable reasons seem to support this divide. it is difficult to see, then, how one can be a statist about content below the threshold. now, despite this, one might still consider the global and domestic realms to be distinct when reasoning about the demands justice. one might do so even when the content of our duties in both realms is basic needs fulfillment and where our duties in the domestic realm are more demanding than globally for other reasons, and perhaps this is what shields has in mind. but differences between the two realms are, then, due to the different reasons we have to prioritize duties to compatriots vs. 4 shields refers to this as radical content shift sufficientarianism (2016: 176). 5 shields’ example identifies distributive rules; priority, sufficiency, and equality. distributive rules, although they are often built around reasons that provide content, are not in themselves content. this is an issue because several distributive rules have stringency considerations as a constitutive feature. prioritarianism, in particular, says less about how much we owe to someone than about how urgent it is to fulfill such duties. although, this makes it more difficult to evaluate shields’ content-position, we disregard this issue here. 6 this issue applies when the threshold is the same for the domestic and the global realm. one might think that two different thresholds govern the two realms. it is possible that shields has this in mind. if he does, he does not mention it and, in any case, this would give rise to a host of very different and difficult questions. 204 siba harb, david v. axelsen leap 5 (2017) foreigners. in other words, such considerations concern reasons to give the fulfillment of one group’s basic needs higher priority. but this difference is not one of content-demandingness, but of stringency; it tells us something about how urgent it is to get people in different realms up to the threshold. we conclude that it is not clear that applying the shift thesis to the contentdimension of demandingness adds viable and consistent new positions to the global justice debate. we now move to discuss the stringency dimension and explore whether it provides us with new positions or insights into the global justice question. we think it does. 4. stringency in global justice the global justice debate has to a large extent focused on what we owe to compatriots and non-compatriots as a matter of justice: whether and to what extent duties to compatriots make greater demands on us than duties to foreigners. however, as shields points out, the debate about our duties of global justice has paid little attention to a different dimension of demandingness: stringency. to recall, we say that a duty, d1, is more stringent than a duty, d2, when fulfilling d1 takes priority over fulfilling d2. shields says little about what inf luences stringency considerations and how stringency might illuminate the debate on global justice. however, we think the idea of treating stringency as a separate dimension has a number of advantages and generates valuable insights. in this section, we f lesh out and explore how it may do so. introducing the stringency dimension opens up new possible theoretical positions in the global justice debate whose plausibility can be explored further. stringency works as a new dividing line that brings some positions closer together and pushes others farther apart than otherwise assumed. a new and different conceptual map emerges when we take the comparative stringency of duties into consideration because one’s view regarding the comparative stringency of our domestic and global duties of justice need not necessarily track one’s view on the comparative contentdemandingness of those duties. the two dimensions, in other words, come apart. for instance, one might hold, like statists do, that the content of justice-based duties to others depends on whether or not one shares membership in a state; i.e. equality for co-citizens and basic needs fulfillment for foreigners. but one might also think that state membership plays no role in defining the stringency of our obligations. instead, factors such as how badly off a person is, how urgent their plight is, etc., would then determine this. we can say of such a position that it is statist about 205 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice content but cosmopolitan about stringency. to illustrate this difference and how shields’ distinction may look in practice, consider andrea sangiovanni’s account of global justice.7 sangiovanni thinks that we owe more (in terms of content) to conationals than we do to foreigners. this is because, on his reciprocitybased conception of justice, we owe others a fair return on their participation in the cooperative scheme we share with them. as such, we owe co-nationals a fair return on their participation in the cooperative scheme that is the state, and we owe foreigners a fair return on their participation in the cooperative schemes that function globally.8 according to sangiovanni both the type of goods produced and the extent of one’s contribution to their production are significantly more encompassing domestically than they are globally, and this explains why we owe conationals more. but nothing in sangiovanni’s account commits him to assigning higher stringency to domestic duties of justice over global duties. although sangiovanni does not explicitly take a stand on this, his view at least allows for the possibility that the stringency of duties is not membership dependent. a view about content like sangiovanni’s is therefore compatible with a view assigning higher stringency to fulfilling duties to those who are very badly off or to those for whom it is more urgent that duties are fulfilled, independently of whether they are compatriots or foreigners. in policy terms, such a view would entail that we should seek to alleviate global poverty before turning to domestic inequalities. indeed, the grounds upon which sangiovanni’s account is built are particularly well-suited for this interpretation, since there is nothing inherent in his conception of reciprocity or the content of the particular duties that justifies granting one precedence over the other. it would be perfectly compatible with such an account to say that duties to the badlyoff ought to take precedence regardless of whether those suffering this plight are co-nationals or foreigners. thus, for an account like the one proposed by sangiovanni, a whole range of positions on stringency is available. and this includes the one sketched here which, as far as we know, is an unoccupied seat in the global justice debate chamber. the space opened up by introducing the stringency dimension becomes clearer if sangiovanni’s position is contrasted with one that does not allow 7 we also note that thomas nagel (2005) makes a number of comments that suggest sympathy to the view that factors related to urgency of need inf luence the stringency of duties. he writes, for instance, that “[t]he urgent current issue is what can be done in the world economy to reduce extreme global poverty” (118, emphasis added). we thank an anonymous reviewer for pointing this out. 8 see sangiovanni (2007), p. 4, fn. 5 for his view about what is owed to all human beings. 206 siba harb, david v. axelsen leap 5 (2017) for similar interpretations. the way in which david miller’s statist account is grounded, for example, seems to commit him to assigning higher stringency to our duties to co-nationals, to be, in other words, statist about content and about stringency. miller thinks that our duties to co-nationals are more demanding in terms of content than our duties to foreigners. to miller, this is because co-nationals share a relationship that is intrinsically valuable. furthermore, having and acting on special commitments to each other are constitutive elements of what makes the relationship between co-nationals valuable in this manner. in order to maintain the intrinsic value that f lows from such relations, then, co-nationals must give (some, although not absolute) priority to fulfilling their duties of social justice over those of global justice (miller 2007: 40; 2013: 175-179). such relations, on the other hand, do not exist globally and so similar priority is not required. unlike for sangiovanni, then, on miller’s version of statism, higher stringency to domestic duties is constitutive of the account. in our world of massive global inequalities, statist views strike many as morally objectionable for asserting that duties of domestic justice eclipse duties of global justice. but as we have pointed out, when statists talk of demandingness, most often they are talking about content-demandingness. taking note of the fact that one’s view on stringency can come apart from one’s view on content-demandingness renders some statist views less objectionable from this point of view. a statist position as sangiovanni’s, for instance, seems more plausible if combined with a cosmopolitan take on stringency; a view, that is, which assigns higher stringency to fulfilling our duties to the worse off or those most urgently in need of help regardless of their membership. and, in that, it is importantly different from a view such as miller’s which, if we are right, is committed to assigning both higher content-demandingness and higher stringency to our domestic duties of justice. the stringency dimension of our duties of justice has potential implications for cosmopolitan positions too. for just as it is open for statists to be cosmopolitan about stringency, it is open for cosmopolitans to be statist about stringency. cosmopolitans can, for instance, maintain that domestic and global duties of justice are equally demanding but submit that fulfilling our duties to compatriots takes priority. or they can be cosmopolitan through and through, maintaining that both the content and stringency demandingness of our duties to compatriots are on par with our duties to foreigners. reasons for why a person can have a more stringent duty to fulfill d1 (e.g. domestic duties) than to fulfill d2 (e.g. global duties) include that she is in a better position to fulfill d1, or that she has created the expectation in targets of d1 that she will fulfill d1, or even 207 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice plain partiality towards the targets of d1 on account of their special relationship. several factors, thus, might impact our judgement of the comparative stringency of our duties, some have to do with the level of wellbeing of the target of the duty, others have to do with the capacity of the duty holder, and others still with the relationship between the duty holder and the target. some cosmopolitans have noted this possibility. simon caney, for example, is of the view that both compatriots and foreigners are equally entitled to equality of opportunity but entertains the possibility that: “[o] ne has a ‘special’ duty to protect the (cosmopolitan) entitlements of one’s fellow citizens, as well as a ‘general’ duty to protect the cosmopolitan entitlements of everyone” (2008: 511). caney is vague on what could justify uncoupling entitlements from duties. and it seems to us that the best way to make sense of caney’s view would be to understand him as highlighting exactly the distinction between the content of duties of justice and their stringency: the content of what we owe to compatriots and foreigners is the same; but in terms of stringency, what we owe to compatriots might be more demanding. this is an interesting potential position on global justice, one that may in some of its variants be attractive to those who worry that standard cosmopolitan views do not leave adequate space for ethical partiality towards those with whom one shares special bonds such as one’s family or, in the case at hand (which is not as similar to that of families as some theorists would have us believe), one’s compatriots. besides separating the two dimensions of demandingness, shields mentions the possibility of applying the shift thesis to stringency. shields suggests that our reasons about the comparative sufficiency of duties shifts according to whether some are below the sufficiency threshold or all are above. it seems plausible to us to hold a view according to which stringency is determined by level of wellbeing when some are below the threshold but then shifts to being determined by other considerations such as legitimate expectations and ethical partiality when all are above the threshold.9 we merely want to note that if shields is correct then this quickly multiplies the possible positions in the debate. here is one possibility: one might be statist about content and cosmopolitan about stringency when some are below the sufficiency threshold (like in our reconstruction of sangiovanni’s view), then back to being statist about stringency when all are above the threshold. another possibility would be that one is cosmopolitan about content and stringency when some are below the sufficiency threshold and 9 it may seem as though there are no duties left to fulfil after everyone is above the sufficiency threshold if one is a statist. however, recall that shields’ account is shiftsufficientarian and, thus, places some (diminishing) value on adding benefits above the threshold. 208 siba harb, david v. axelsen leap 5 (2017) statist about stringency when all are above the threshold.10 here, we have sketched a range of new positions that become possible with the introduction of stringency as a dimension of the demandingness of our duties of justice. it goes beyond the scope of this piece to evaluate the sketched positions. what we have done, instead, is to show how reconceptualizing and f leshing out shields’ notion of stringency casts the global justice debate in a new light. 5. conclusion shields introduces two new ideas to the global justice debate. first, he applies the notion of a sufficiency threshold and suggests that this could apply to both the global and domestic realms; that we might have different obligations to both compatriots and foreigners, depending on whether they have enough. second, he differentiates between two ways in which our obligations may vary in demandingness: content and stringency. in this paper, we have cast doubt on the usefulness of applying the contentdimension of shields’s sufficiency thesis to the global justice debate in which the global and domestic realms are separate. when spelled out clearly it turns out that it opens no new, viable positions regarding the content of our duties of global justice. the stringency dimension, however, does illuminate the global justice debate in new and interesting ways. while global justice theorists have sometimes hinted at considerations of stringency, it is indeed surprising that so relatively little attention has been paid to this aspect of our justice-based duties. picking up on shields’s suggestion that the content and stringency dimensions of our duties of justice are distinct and inf luenced by different considerations, we have tried to show how introducing the dimension of stringency can provide an alternative map of the global justice literature. but this is not just about conceptual possibilities. understanding demandingness not only in terms of content but also in terms of stringency, allows us to see that some positions have more similar implications and others more dissimilar implications than otherwise thought. consider two discussed statist accounts, sangiovanni’s and miller’s. while both agree 10 things become more interesting, and perhaps more plausible if we think that different goods may have different levels of stringency. for instance, we may think that we have especially stringent duties to ensure some goods for our compatriots – i.e. social status and political inf luence – which we are particularly well-placed to facilitate qua compatriots. but the duty to ensure other goods – i.e. those pertaining to material opportunities and freedom – might not entail differences in stringency across the two realms (because we are equally well-placed to provide these for foreigners). 209 leap 5 (2017) owing me, owing you: sufficiency, demandingness, and global justice that our duties to compatriots are more demanding than duties to foreigners (albeit for different reasons) sangiovanni’s account opens up the possibility of giving priority to the fulfillment of the basic needs of poor foreigners over social justice obligations to compatriots (even if the latter are more demanding in content). miller’s account, on the other hand, does not seem to allow assigning the same stringency to basic need fulfillment. in this way, sangiovanni might be closer to a cosmopolitan who assigns higher stringency to basic needs fulfillment, while miller might be closer to a cosmopolitan who assigns higher stringency to fulfillment of domestic duties of justice. this reshuff ling of positions can be useful in pulling the debate about global justice out of the stalemate in which it has, arguably, landed. and, no less importantly, thinking about stringency points us towards important discussions about what to do first, rather than merely speculating about where we should end up. bibliography blake, m., 2001: "distributive justice, state coercion, and autonomy", philosophy and public affairs 30: 257–296. caney, s., 2005: justice beyond borders, oxford: oxford university press. — 2008: "global distributive justice and the state", political studies 56: 487–518. — 2011: "humanity, associations, and global justice: in defence of humanitycentred cosmopolitan egalitarianism", the monist 94. goodin, r. e., 1988: "what is so special about our fellow countrymen?", ethics 98. miller, d., 2007: national responsibility and global justice, oxford: oxford university press. — 2013: justice for earthlings. cambridge: cambridge university press. nagel, t., 2005: "the problem of global justice", philosophy and public affairs 33: 113-147. nielsen, l., & axelsen, d. v., 2017: "capabilitarian sufficiency: capabilities and social justice", journal of human development and capabilities, 18: 46–59. sangiovanni, a., 2007: "global justice , reciprocity , and the state", philosophy & public affairs 103: 48–75. shields, l., 2016: just enough : sufficiency as a demand of justice, oxford: oxford university press. shue, h., 1980: basic rights subsistence, affluence, and u.s. foreign policy, princeton: princeton university press. leap 5 (2017) reply to critics1 l i a m sh i e l ds university of manchester abstract in this paper i reply to the response articles in this issue, which discuss my recent book. in addition, i restate the main claims of the book and clarify some of the key distinctions and arguments. keywords: distributive justice; sufficientarianism; autonomy; education; global justice; parents’ rights 1. introduction in this paper i reply to the critical responses to the arguments in my book that appear in this issue. i am very grateful to all of the contributors for their detailed, thoughtful and forceful criticisms of the arguments and to the editors of the issue for their hard work in putting it together. i will not be able to reply to every aspect of their responses in this piece, so i will focus my discussion on the few that i have replies to. i know that i will continue to ref lect on these criticisms and i hope i will find fully adequate ways to confront them, but for now this is my immediately reply. i shall begin by restating some of the central claims of the book and, in particular, set out one distinction that is not made in the book but is important for my replies, and then i engage with each of the responses, beginning with those that respond to earlier parts of the book and ending with those that respond to later parts of the book. 2. restatement of main claims the book defends the claim that the prospects for sufficientarianism are 1 i am very grateful to pierre-etienne vandamme, lasse nielsen and david a xelsen for helpful feedback on an earlier draft. d oi : 10. 310 0 9/l e a p. 2017.v 5.18 211 leap 5 (2017) reply to critics good and better than has been thought because sufficiency principles have an indispensable and extensive role in our thought. it does so through first articulating the central commitments of sufficientarianism. these are the necessary and sufficient conditions that must be satisfied by some principle for it to count as “sufficientarian”. the plausibility of these, and only these, principles is what determines the prospects for sufficientarianism. i have taken as my starting point the idea that sufficientarianism is concerned with the concept of sufficiency, the idea of having enough, and its important role within an account of distributive justice. if sufficiency is to have an important role in an account of distributive justice it must have normative significance. in other words, it must make a difference to our reasons of distributive justice. in particular, securing enough cannot merely be instrumentally valuable. if it were, then it would be possible to fully state the demands of justice without ever referencing sufficiency. i therefore characterized sufficientarianism as endorsing two claims. the positive thesis: we have weighty non-instrumental reasons to secure at least enough of some good(s). the shift thesis: once people have secured enough there is a discontinuity in the rate of change of the marginal weight of our reasons to benefit them further (2016: 34-35). for short-hand i refer to the shift of sufficiency as a change in the nature of our reasons, but for reasons to do with distinguishing it from prioritarianism the technical definition is important. this definitional statement of sufficientarianism may appear to contrast with the commonly used upper-limit definition of sufficientarianism, which combines the positive thesis with the negative thesis. the negative thesis holds that once enough has been secured there are no distributive reasons that apply to benefits and burdens. appearances are a little deceptive here though. for those who endorse the negative thesis, the particular shift in our reasons, once sufficiency is achieved, is a shift from some set of distributive reasons to no distributive reasons. as such, the negative thesis specifies a particular shift and so those who endorse the negative thesis offer one type of sufficientarian view, on my conceptualisation. the definitional statement of sufficientarianism that i presented above allows a rich variety of views to count as sufficientarian. the reason to celebrate this is that, the negative thesis has attracted a good deal of forceful criticisms and so if the negative thesis were a definitional claim, the prospects for sufficientarianism would appear to be poor. i conclude that if the prospects for sufficientarianism are to be good and better than has been thought, then it must be because there are some more attractive positions that reject the negative thesis. 212 liam shields leap 5 (2017) in the book, i defend as plausible and theoretically and practically significant several sufficiency principles that endorse a non-instrumental concern with distributions once the threshold is met. each of these views rejects the negative thesis and insists that different distributive reasons applying to supra-threshold benefits and burdens. because of this let’s call these views versions of positive shift-sufficientarianism, a label i do not use in the book but it will be helpful to use here. to defend a positive-shift sufficientarian principle, one must defend a shift as specified by the shift and positive theses and reject the negative thesis. i set out two ways of defending a shift. first, one could defend the existence of justice-relevant satiable reasons. by their very nature, satiable reasons cease to confer their weight on claims once they are satisfied. one way this can happen is if a person has enough of something. so, if we have satiable reasons that cease to confer their weight on claims once that reason is satisfied, the point where that reason is satisfied is likely to cause a shift in our overall reasons to benefit that person, but it does not entail nor imply that there are no other reasons that apply to the distribution of benefits and burdens thereafter. it merely entails that at least one reason that did apply before does not apply after, thus changing the overall set of reasons that apply. second, one could defend a relative change in the weight of our reasons at the point of sufficiency. this can occur with insatiable reasons. imagine a uniformly diminishing insatiable reason, one that confers weight on claims for one unit more of some good but confers less weight the more of the good that is possessed, and imagine another non-diminishing insatiable reason, one that confers equal weight on claims for one unit more of some good, regardless of how much someone has. imagine the non-diminishing reason confers weight of 5 onto any further unit of the good. the diminishing reason could outweigh the nondiminishing reason, be weightier than 5, when low amounts are possessed, but the non-diminishing reason will, as that reason diminishes, be decisive, as greater amounts are possessed. this cross-over point is a shift or change in our reasons to benefit someone and represents a noninstrumental sufficiency principle. by these two methods for defending a shift i aimed to show that principles of sufficiency could be defended as plausible and had an important role to play in theoretical and practical debates. in chapter three, i argued for a principle of sufficient autonomy, by appeal to the satiable reason we have to secure the social conditions of freedom, the conditions under which belief can be freely held. in chapter four, i explained that this principle should play an important role in theoretical debates in helping us to correct a defect in theories of equality of 213 leap 5 (2017) reply to critics opportunity, especially those that take meritocracy as an important component, and it should help us to justify compulsory schooling to those who would opt out on welfarist grounds. in chapter five, i argued for a principle of adequate upbringing, by use of the value clash method. i argued that parents have a relevant interest in parenting, but one that is often outweighed by a child’s interest in the quality of her upbringing as part of her life as a whole. according to this argument, a good enough parent, that is a parent who is good enough to retain the right to rear her children in the face of superior alterative parents, may fall short from the best alternative custodian by no more than the significance of her own interest in parenting. i argued that this position is theoretically important, since it elucidates the most plausible way of thinking about the good enough parent and it strikes an important departure from minimalist abuse and neglect thresholds and demanding best custodian views. i argued that this position is practically important because it helps us to determine the good enough upbringing threshold and directs us to think carefully about the relative quality of alternatives to parental care prior to severing a relationship. finally, in chapter six, i sought to show how the shift-sufficientarian conceptual apparatus made possible new and plausible positions in the debate about the fundamental demands of global justice. i argued that the shift in reasons once one group has secured enough could help explain both compatriot partiality, the belief that we can be required to do more for compatriots than non-compatriots, and state is arbitrary, the belief that the factors that determine compatriot status are morally arbitrary. if we relax these statements of intuitions slightly, we find that they need not conf lict. they can be reconciled. and one way of reconciling them would be to introduce a shift in our reasons to benefit people at the point of sufficiency. so, once people have secured enough, our reasons of compatriot partiality may be sated, or our cosmopolitan reasons may be sated. so, once we have secured enough, we may transition from holding a cosmopolitan position to a statist one or vice versa. 3. reply to vandamme pierre-etienne vandamme characterizes my position in certain ways that i would like to discuss in order to clarify and hopefully strengthen my arguments. first, vandamme characterizes my position as both agnostic and partial. my characterization of sufficientarianism does leave open the possibility that we may be concerned with inequality or priority to the worse off even once the threshold has been met. the shift thesis is 214 liam shields leap 5 (2017) compatible with a wide-range of views about how to distribute suprathreshold benefits and burdens. as the view i defend does not commit us to any specific recommendations, or lack thereof, once the threshold is met vandamme characterizes this position as agnostic. “shields rejects the principles of equality that fail to take into account the discontinuity introduced by the sufficiency threshold, but he does not provide a justification for not adopting a form of sufficiencyconstrained egalitarianism. and this might be explained by agnosticism towards residual inequalities” (vandamme, in this issue). vandamme also notes that my commitment to the shift thesis renders my favoured views partial. unlike most sufficientarians, who endorse a particular distribution of sub-threshold benefits and burdens and an attitude of indifference to supra-threshold benefits and burdens, my favoured view does not provide a determinate answer to the question of what to do with supra-threshold benefits and burdens on its own, though i do think some principle does apply. therefore, it is true to say that my view is partial. i think that a single sufficientarian principle could, at most, be part of a full account of distributive justice. while it is true to say that the conceptualisation of shift-sufficientarianism, the combination of the positive thesis and the shift-thesis, is agnostic, it is intended only to identify which views are and which views are not sufficientarian. any conceptualisation of sufficientarianism should be compatible with a wide variety of specific accounts of sufficientarianism. in other words, it should be agnostic, to some extent. it should allow for different currencies, different placements of the threshold(s) and different guidance for how to deal with both sub-threshold and supra-threshold distributions of benefits and burdens. so, the conceptualisation is certainly agnostic about that and partial in that it insists that other principles must be included alongside sufficiency principles in a complete theory of justice. however, there is one important way in which the conceptualisation it is not fully agnostic. what it means to count as a sufficientarian, on the shiftbased understanding, is that the distributive reasons that apply to suprathreshold benefits are not the same as the distributive principles that apply to super-threshold benefits. this still leaves open a w ide range of possible combinations, but it rules out one v iew of how to distribute suprathreshold benefits and that is, the same as sub-threshold benefits. such a v iew would not contain a normatively significant threshold, one that makes a difference to our reasons. more generally, i am sceptical of indifference as the correct attitude to take to supra-threshold benefits and burdens. i believe that the indifference objection will always have force against the negative thesis within the 215 leap 5 (2017) reply to critics circumstances of justice. the specific sufficiency principles that i defend in the book do endorse a positive shift, that is, they endorse the shift thesis but deny the negative thesis. however, in the book at least, i am silent, if not agnostic, on what principle(s) should apply to supra-threshold benefits and burdens. but the fact that i endorse a positive shift, means that i also accept a partial view. i am sceptical about sufficientarians that endorse the negative thesis, which is why i recommend the positive shift. however, vandamme is correct to note that i am quite silent on what this should be, i simply doubt being agnostic or offering a partial view amounts to a problem. being agnostic is essential to a broad conceptualisation and being partial is the only way that sufficientarians can be at least moderately plausible. second, vandamme characterizes my position as pragmatic and concerned with rules of regulation, rather than fundamental moral principles when he says that “what shields seems to be looking for is a clear rule of regulation, and this pragmatic motivation might partly explain his non-selection of luck or outcome equality as the primary or secondary principle of justice” (vandamme, in this issue). although vandamme notes a number of reasons that could be used to defend sufficientarianism that are themselves pragmatic, such as reasons of urgency, reasons of feasibility or reasons of modesty, these are not reasons that i believe should figure in a task like mine. my concern with sufficientarianism is to see whether it is justifiable simpliciter rather than justifiable to currently existing people or justifiable as a means to an end. i can see why there might be good pragmatic arguments from these bases for sufficientarianism, but such pragmatic arguments are too contingent to provide a secure grounding for principles of justice. for example, if, as is likely the case, the most feasible option is the status quo some pragmatic reasons would not support sufficiency, but that would not seem to be a good reason to favour the status quo. but there is another sense in which my view could be pragmatic. vandamme says i seem to endorse the view that principles of justice should directly guide action, which appears in my claim that if principles “had little significance in terms of policy implications […] then it could not have an extensive role in our thought” (shields 2016: 10-11) characterizing my project as seeking rules of regulation and not fundamental principles of justice. i can understand why the quoted passage would lead someone to think i was seeking rules of regulation, but i am not. it is important to recall that my objective is to assess the prospects for sufficentarianism and this turns on the extent of their role in our thought. i think that if a principle was true and sound, but nevertheless has no important policy or practical 216 liam shields leap 5 (2017) implications it wouldn’t much improve the prospects for that principle, even though it would have an indispensable role in our thought. for example, imagine that in order of lexical priority our first principle is sufficiency (basic needs), our second principle is equality, our third principle is priority to the worse off and our fourth principle is efficiency. now imagine a fifth principle of individual desert is added. according to this arrangement of principles, individual desert would make a difference only in those cases where, the first, second, third and fourth principle were satisfied as far as possible in lexical order. because of this, we would not expect the principle of individual desert to play much of a role in our thought nor about practical debates, even if it is strictly required in a full description of the demands of justice. concluding that some principle has an indispensable role in distributive justice would be too trivial a conclusion on its own, i think. so my concern with the practical and theoretical significance of a principle of justice is not a concern with a principle having clear policy implications here and now. rather, it is a concern with its place within a theory of justice and its capacity to help us to understand practical debates. the latter can be achieved by derivation. indeed, all rules of regulations are derived from, and in this sense account for, the actionguidingness of the fundamental principles they are grounded in. 4. reply to nielsen lasse nielsen’s response to the arguments of chapter two advances an argument in favour of retaining the upper-limit character of sufficientarianism, against my suggestion that sufficientarians do better by opting for, what i have here called, a positive shift. nielsen thinks that by defining sufficientarianism as i do i allow that non-sufficientarian reasons could outweigh the reasons we have to achieve sufficiency, but this would betray the strong sufficientarian conviction that securing enough is paramount. he also objects that the shift sufficientarian position remains vulnerable to the indifference objection, which partly motivated its creation. i shall respond to each point in turn before engaging with a further objection. nielsen suggests that to be worthy of the label sufficientarian one must believe that sufficiency is the only thing that matters or that it is the most important among a plurality of considerations. the label sufficientarian would cease to capture a wide range of positions that give a fundamental role to sufficiency that could not be avoided in fully describing the principles of justice. but it would also limit sufficientarianism to a number 217 leap 5 (2017) reply to critics of positions to which there are already good objections.2 those who hold that only sufficiency matters or give lexical priority to sufficiency, which is the f lip side of my allowing other reasons to outweigh reasons of sufficiency, will implausibly always favour helping the badly off by tiny amounts at the expense of helping the well-off by huge amounts. for this reason, we should wish to look for positions that use the attractive and common sense idea of sufficiency in more plausible ways. in setting out the shift-thesis i believe i have articulated the central idea in a way that is compatible with more plausible views. if we took nielsen’s suggestion and applied it to other views too, then we would see the problems more clearly. for example, if we restricted the label egalitarian to views that held that equality is the only or most important demand then egalitarianism would always be vulnerable to levelling down. if we apply this to prioritarianism and restrict the label prioritarian to views that held that priority to the least advantaged was the only or most important demand then all prioritarian views would be vulnerable to a waste-based objection too, as it would only include absolute prioritarianism. i think this approach would impoverish our understanding of different ideas that can be useful in distributive justice. it would restrict use of these labels to views that were quite implausible, necessitating the creation of more labels. this is just to say there are good reasons to be pluralist and this comes from the problems there are with monist views. moreover, my characterization includes those monist views in any case. nielsen is right to say that my own characterization of sufficientarianism doesn’t fully avoid a version of the waste or indifference objection because the objection attaches itself to lexical priority, which is compatible with a rejection of the negative thesis, and not merely the negative thesis itself. but the difference between my position and upper-limit sufficientarianism is that i don’t have to endorse a claim that has this implication, such as lexical priority or the negative thesis. i set out a way that sufficientarians can be distinctive without endorsing lexical priority. overall, i suppose some of the disagreement between nielsen and myself is that i do not find lexical priority plausible. i do not think there exists a disadvantage (however tiny) such that ameliorating it is more important than any other benefit. i do not know what further to say about this, though i think the discussion of the illusion of numbers discussion in nielsen’s paper is relevant to it, so i shall now turn to that. in nielsen’s response, he develops a point about the illusion of numbers, which i think give expression to an idea that underpins the suspicions that 2 w hether these are good objection is, obviously, a matter of dispute between me and nielsen (and many others). 218 liam shields leap 5 (2017) relational egalitarians have for luck egalitarians and others, and expresses a suspicion about outlandish numerical counter-examples to upper-limit sufficientarianism. i think that my particular use of numbers provides an ideal case for his objection, but i think the numbers are forceful even when the differences are lower than those i state. the point of using very large numbers is to simply exaggerate the point to make the implausibility of indifference as clear and as forceful as possible. we could describe a case to illustrate that point instead, without using numbers. either it can be modelled using numbers – in which case the illusion is not one – or it cannot be modelled using numbers – in which case it is unclear how people can be said to be better or worse off. it appears, however, that the upper limit sufficientarian thinks numbers matter below the threshold but not above it and that seems odd to say the least. there is much more to say about this, but a final brief remark will explain my caution in accepting it. the structure of the move made by nielsen in the discussion of illusion of numbers is to deny that there are numbers so big that they can represent different levels of advantage, but it seems to me that the underlying sufficientarian position he endorses is insensitive to the fact of the matter. it should not matter to the sufficientarian position whether it is possible to have huge inequalities once enough is secured or not. the position states that even if massive inequalities are possible, they do not matter. so nielsen’s suggestion that we deny the possibility of these inequalities does not provide a defence of that claim any more than a denial that slavery would maximize aggregate utility is a defence of utilitarianism. i am sure there is much more to say about this on both sides. 5. reply to huseby in his response to chapter three, robert huseby identifies several ways in which the principle of sufficient autonomy is not clearly specified. in my reply i will aim to provide some clarification in those areas. the first area that huseby identifies as needing clarification concerns the satiability of the principle of sufficient autonomy. on one understanding autonomy is itself satiable, which is to say that you can get enough autonomy and once you have enough you cannot get any more autonomy. on another understanding the principle of sufficient autonomy is satiable in that the changes or improvements in autonomy it calls for can be fully met, even when it is possible to get “more” autonomy. huseby states that “if satiable in this way… the principle of sufficient autonomy now looks like a highthreshold sufficiency principle that conforms to the negative thesis” (huseby, in this issue). 219 leap 5 (2017) reply to critics huseby is right. if one cannot get more autonomy than sufficient autonomy, then the position i defended would be vulnerable to the main objection that motivates my argument. i am happy to clarify that my view is that one reason to promote autonomy is the conditions of freedom and that with respect to the promotion of autonomy it is satiable. once we have enough autonomy to be free we might need more things to be free (though not more autonomy) and we may have reasons to obtain more autonomy (to be happy). so i think that you can get more autonomy, or the related features, once enough autonomy is secured. anticipating this response, huseby claims that “this might be perfectly reasonable, but the level would have to be specified.” (huseby, this issue). but i wasn’t sure why this particular view had any more burden of explanation than any other. why for example, doesn't an upper-limit principle of sufficient autonomy also have to explain where the threshold is? my position is that i don’t think it has to be specified more than saying that in order to enjoy the social conditions of freedom one must be sufficiently autonomous and to point to gains in terms of autonomy, perhaps valuable options, that wouldn’t make you more free. as it applies to belief formation, one needs a certain amount of autonomy but not full autonomy. the level doesn’t have to be specified for it to be true, vagueness is an acceptable feature of moral principle. this is one reason why the vagueness objection that has been levelled at sufficientarianism is not one i consider in the book. huseby also urges me to clarify the link between social conditions of freedom and autonomy. huseby works through several ways of understanding what i have said at various points. when huseby says “if autonomy is a part of what constitutes the conditions of freedom (or if it is a condition of freedom in itself ), then it could be the case that autonomy can be sated with respect to the conditions of freedom” (huseby, in this issue) he describes my view. autonomy can be sated with respect to the conditions of freedom, but autonomy is not sated conceptually, at that point, you can get more autonomy. nor is it sated normatively. there may be other reasons to promote autonomy. the social conditions of freedom include sufficient autonomy. sufficient autonomy is not the only aspect of the social conditions of freedom and so being sufficiently autonomous, is not sufficient for the social conditions of freedom, but it is necessary. huseby goes on to point to a particular problem with this understanding, “if autonomy is a part of what constitutes the conditions of freedom (or if it is a condition of freedom in itself ), then it could be the case that autonomy can be sated with respect to the conditions of freedom. sufficient autonomy just is autonomy sufficient for the realization of 220 liam shields leap 5 (2017) (sufficient) conditions of freedom. in my view, however, this interpretation squares badly with shields’ presentation of the principle, according to which there are supposed to be weighty, non-instrumental, satiable reasons to provide peoples with sufficient autonomy” (2016: 45). as i understand huseby’s point, it is that the non-instrumental character of the principle of sufficient autonomy is threatened by its being sufficient for the social conditions of freedom. to clarify i don’t think sufficient autonomy is sufficient for the social conditions of freedom, there are other conditions, but the “sufficient” in “sufficient autonomy” is a level determined by what is required, if other conditions are met, for the social conditions of freedom. in other ways, the whole justificatory basis for the principle of sufficient autonomy is that it contributes to the realization of the social conditions of freedom. it therefore looks instrumentally valuable. if it were instrumentally valuable, then it would not support the prospects for sufficentarianism as i have characterized them. instrumental sufficiency principles can be omitted from a complete description for the demands of justice. however, i think that the link between the principles of sufficient autonomy, as the autonomy component of the conditions of freedom, has a tighter link than an instrumental principle might. this is because nothing else could help us realize the conditions of freedom in its place. sufficient autonomy is not substitutable. one way of characterizing this link is in terms of the constitutive value of sufficient autonomy. the commitment to the social conditions of freedom, always and every where, includes a commitment to sufficient autonomy because they are so linked. for this reason, a complete description of the principle of justice could not omit reference to sufficient autonomy. 6. reply to mills in responding to the arguments of chapter three, chris mills makes two points about the principle of sufficient autonomy' which states that individuals should secure enough autonomy to secure the social conditions of freedom. first, he states that the principle is too thin and will fail to protect us from all violations of autonomy, in particular he is concerned that the principle i offer relies on a distinction between coercion and external threats, capturing only the latter and not the former. second, that constitutive views of autonomy and welfare can be defended and won’t have a threshold. with regards to the first point, that the principle i offer relies on a distinction between coercion and external threats, capturing only the 221 leap 5 (2017) reply to critics latter and not the former, the principle that i put forward is only supposed to offer a partial defence of autonomy. my aim is to show that there exist sufficientarian shifts, and so all i need to do in this chapter is show that autonomy has one such shift. i don’t need to say these are the only or even the most important violations of autonomy. so then mills could emphasize his remarks about how our views might not have been arrived at freely when there is self-deception. that freedom to set and pursue our ends can be thwarted or frustrated by our own selfdeception. in reply, i would say that the requirement to deliberate, and be disposed to deliberate, with others seems sufficient for avoiding some kinds of self-deception at least. this focus generates the requirement that citizens are: “(a) well-informed, (b) able to give reasons for one’s views, and (c) disposed to exchange reasons and participate in a public deliberative process with others.” (mills, in this issue) these attributes would provide good protection against self-deception through being ill-informed or unref lective. however, it might not avoid the problem entirely. there may be some forms of self-deception that are consistent with sufficient autonomy, and if they too frustrate our freedom, particularly freedom in belief formation, that would be a problem. one avenue sketched by mills seems attractive. i am tempted to say that some forms of self-deception themselves are not obviously a concern of justice. not in the purest case of self-deception at least. where the social background or particular policies or laws encourage self-deception, it is not clear that the deception is really self-deception rather than something else. i follow mills when he is mapping the possible positions i could take to the point where he characterizes my view are being concerned primarily or exclusively with interpersonal threats. while it is true that sceptics will respond by “denying the downstream relationship and arguing that our autonomy is threatened by more than a mere loss of freedom” (mills, in this issue) my view is not incompatible with other additional justifications for a concern with autonomy and while i have not yet developed an account of what they are i could possibly adopt them and thereby explain these cases too. mills’ second point is that a non-instrumental constitutive value of autonomy as a pre-condition for welfare could be defended and could be governed by a prioritarian principle. he states that “if you are a uniform prioritarian about welfare, then constitutive welfarism allows you to: (a) distinguish between qualitatively different disadvantages, and (b) appeal to some reasonably fine-grained metric of well-being in order to distribute autonomy without necessarily appealing to sufficientarian reasons” (mills, in this issue). 222 liam shields leap 5 (2017) the first thing i would like to say in reply is that prioritarian welfarism is not incompatible with my view. the idea that we have reasons to promote autonomy that are grounded in welfare and that are uniformly diminishing in moral importance is consistent with thinking that there is an overall shift caused by our reasons grounded in the social conditions of freedom. it is only if prioritarian welfarist reasons were the only reasons to care about autonomy, that this would be a rival to the principle of sufficient autonomy. but that sort of monist view would be implausible and would fail to meet criterion a). if our only reasons to be concerned with autonomy are to do with well-being, then there would be no qualitative difference between violations of autonomy. one possible way around this would be to give the account of autonomy a special place within well-being, so that violations of it were different from violations of well-being simpliciter. mills suggests that autonomy might be a pre-condition for well-being in his discussion and i discuss that below as danielle zwarthoed develops this point further. 7. reply to zwarthoed in her response to chapter four, danielle zwarthoed advances two arguments. first, zwarthoed argues that at least some instrumental accounts of autonomy, where autonomy is causally necessary for welfare, can justify mandatory autonomy enhancing education, thus denying parents the right to remove their children from aspects of civic education. this point runs contrary to my argument that because instrumental accounts of autonomy cannot justify mandatory autonomy enhancing education and intrinsic accounts of autonomy can, we should endorse an intrinsic account like the principle of sufficient autonomy. second, zwarthoed argues that the requirement of talents discovery, which holds that individuals have an entitlement to sufficient opportunity to know and develop their native talents, does not fit well with rawls’ principle of fair equality of opportunity, as i claim, because that principle points us towards the development of different talents than does the principle of talents discovery. i shall respond to each point in turn. in advancing the claim that instrumental arguments can justify mandatory autonomy enhancing education zwarthoed considers whether autonomy is a necessary pre-condition of well-being. if it is, then mandatory autonomy-enhancing education would follow from this instrumental argument. in my response i put forward some reasons for doubting that autonomy is a pre-condition for well-being and that autonomy as a precondition could justify an intuitively plausible level of mandatory 223 leap 5 (2017) reply to critics education, particularly at a level that would address the practical disagreements around mandatory education. regarding autonomy as a pre-condition, it seems odd to say that some people haven’t lived good lives simply because they are not autonomous. indeed, i think that this view implausibly commits its holder to the view that childhoods cannot go better or worse or cannot make your life go better or worse. consider two more plausible roles autonomy might play that are constitutive of well-being. autonomy can be said to amplify our well-being in a way that means our successful pursuit of objectively valuable ends is much greater when that pursuit is autonomously chosen. autonomy can be said to enable us to reach high levels of well-being that it is not possible to reach non-autonomously. rather than being a precondition, autonomy might more plausibly be an amplifier or the lifter of a cap on well-being. but once we reject the pre-condition account of the value of autonomy we cannot make the causal claim and so the account ceases to be instrumental. moreover, we lose its ability, on its own, to ground mandatory education, since there is going to be a trade-off between the kind of well-being that a person can get from living a non-autonomous, traditional, way of life. i suppose that persons can live f lourishing lives in such communities. others may deny this, but, this denial is implausible and uncharitable to those who argue against autonomy enhancing education. the strongest point those from traditional communities have is that these children are currently on a path that leads to f lourishing. my argument does not deny this, it simply insists that f lourishing is not the only thing that matters. being free also matters, and it matters a great deal. but even if there is some way around this problem, even if autonomy really is a pre-condition for well-being, the kind of education for minimal autonomy that is a pre-condition is not going to support compulsory education beyond a very minimal level. the reason for this is that the higher the threshold is set the more implausible its implications. in the case of autonomy, it gets implausible because it implies that very many people live lives of zero well-being. so the view is only plausible if the threshold is set fairly low, but this may be set too low to ground an intuitively plausible account of mandatory autonomy education. if you look at the court cases yoder v. wisconsin and mozert v. hawkins, the traditional communities are not asking for their children to be exempt until they are almost teenagers. at which point i think it is plausible to think they have enough autonomy to have met the pre-condition for well-being, but it is not plausible to think that they have enough autonomy to be making free choices. in her second argument, zwarthoed takes issue with my account of the 224 liam shields leap 5 (2017) requirement of talents discovery. that account states that each person should have sufficient opportunity to identify and develop their native talents. i claim that this account is a pre-requisite for any plausible version of fair equality of opportunity, which is concerned with equalizing the prospects of those with equal native talent and ambition (rawls 2001: 42-44). i argue that the requirement of talents discovery is attractive partly because it fits well with fair equality of opportunity. if it did not, i take it, that would be a reason to be suspicious of it, if not reject it. zwarthoed argues that the fit is not good. this is because the sorts of talents that the requirement of talents discovery focus on are not the same as fair equality of opportunity, so there is a tension between the two. she claims that the requirement of talents discovery will focus on talents requirement for the conception of the good, while fair equality of opportunity will focus on the talents required for economic positions. while i agree that fair equality of opportunity might naturally focus on talents for acquiring economic positions i think this would be included in any conception of the good planning. so, without conception of the good planning, an adequate range would include a focus on marketable talents, but this would not be the exclusive focus. moreover, the grounding of fair equality of opportunity is in self-realization, which itself is grounded in the two moral powers, so i don’t think that we can say that economic talents would have any significance for rawls except insofar as they are conception of the good talents (see taylor 2003; 2004). the fit then, with rawls and with his explicitly stated grounds of fair equality of opportunity is good. 8. reply to gheaus in her response to the arguments of chapter five, anca gheaus raises some very important issues in relation to my account of when parental rights over particular children can be re-allocated. i will respond to two of the counter-arguments she provides. first, gheaus argues that what i take to be a unique advantage of my version of the dual-interest view, its ability to explain why we need not reallocate wherever there is a better custodian available, can be had by both the child centered and dual-interest views. i believe her argument, however, begs the question. gheaus concedes that one way that my rivals might respond, by appeal to the child’s interests in continuity of care, would be question begging. the reason for this is that this type of case is not the one that separates my view from the rest. if children do have a very strong interest in continuity of care, then it is hardly likely that there is a better alternative custodian, though this isn’t necessarily the case. my concern is 225 leap 5 (2017) reply to critics with showing that the dual-interest view i defend can explain that even if there is an alternative custodian who would in fact do a better job in terms of the child’s interests, we would not usually be justified in re-allocating rights to her under certain conditions. gheaus then presses what she takes to be a more decisive argument, which is to appeal to the need for the right of parent to be securely held, something which she finds in the work of vallentyne, a child centered theorist, but which can also be adopted by dual-interest theorists, since they are concerned with the child centered reasons and other reasons too. “there is, however, a reason why a change in custody away from adequate parents is impermissible even when the child would really be better off with extraordinarily good parents. this reason is advanced by some child-centred theorists (vallentyne 2003). children‘s interests are well served if, once acquired, the right to parent is securely held – that is, immune to custody change, as long as the parent is at least adequate” (gheaus, this issue). this example looks structurally identical to the question begging case. securely held rights would have to be grounded in an interest that children have for vallentyne to endorse it. the details of the interest are not so important, the fact that it is a child’s interest suggests that in this case, the interests of children are being best promoted by maintaining a secure attachment, which, if severed, would leave the child to live a worse life, even if the alternative custodians would have done a better job excepting the costs of severing this attachment. so, again, this is not a case where rival dual interest or child centered views do succeed in explaining why the best custodian should not get the child. the objection from secure attachments relies on an assumption that my view identifies as the best parent, the parent who would do the best job if there were no costs of severing the relationship. but that it not my position. my position is that the best parent(s) would do the best job from now, taking into account all the relevant costs, which include the costs of separation. one could argue that this makes the view uninteresting because all children and parents value secure attachments, making redistribution unjustified in all but the most extreme cases. of course, this wouldn’t be an objection to the soundness of my view, but even if secure attachments are very important to children, this interest will likely vary in its strength when applied to particular attachments. for example, in the early years it may be possible to remove a child from a current parent without creating large costs and without jeopardising the possibility of the establishment of a secure attachment with the new carers. as the child ages, and their initial attachment and relationship develops, the costs could be much larger and 226 liam shields leap 5 (2017) therefore harder to outweigh. i believe our views should be sensitive to this case and mine is. the second major issue is explained by gheaus as follows, “most of us now believe that children are our moral equals except from the fact that their lack of full autonomy makes paternalistic behaviour towards them permissible (indeed, required.) if so, then exercising authority over children must be justified by appeal to their consent or by appeal to their own interests but not, usually, by appeal to the interests of those who exercise the authority. children cannot give valid consent. therefore authority over them cannot be denied to those likely to advance their interests as much as possible for the sake of advancing the interest of other prospective authority-holders” (gheaus, this issue). according to gheaus, as someone who believes that children have full moral status i am committed to the presumptive principle that authority over them can only be justified by reference to their own interests. the only acceptable exceptions are where there are very strong overriding reasons, such as equality. but, as a sufficientarian, i do not believe in equality, so i cannot avoid being committed to the presumptive claim that authority over children can be justified only by reference to children’s interests, thus making me a child-centered and not dual-interest theorist. indeed, all those who reject equality and endorse the full moral status of children, should think this, if gheaus is correct. this is a very interesting and intricate argument, and so first a few clarifications are required. i do believe that equality in distributions does matter and that is part of what motivates me, if not motivates the view that i defend throughout the book. also, i don’t think that i am committed by this particular argument to saying that children have full moral status if that means they have the moral status of fully competent adults. i do find it plausible to think that children may have a moral status that is different, i do not know what “full” means here, but if all it means is that children can have basic rights, then i do agree with it, but i don’t see why it follows from that that we cannot make decisions that affect them or yield authority over them in the interests of others. having said all of this, i don’t think these points suffice to produce an adequate response to gheaus on my part. instead, my response will question the claim that an agent with moral status cannot have someone else wield authority over them in the interests of others. gheaus argues that dual-interest theories violate the sound (prima facie) principle that one cannot claim legitimate authority over someone possessing full moral status by appeal to one’s own interests. on my view, 227 leap 5 (2017) reply to critics it is possible for the interests of parents not only to matter, and to be decisive in tie-breaks, but to out-weight the interests of children. so, one might think my view violates this principle in the worst way and not only in some way. gheaus describes two ways of resisting the presumption. one way of showing the presumption can be overridden is by appeal to equal opportunity to f lourish and the way that parenting contributes to f lourishing can override that principle. but in order to advance this argument one must accept that parenting is non-substitutable and that justice requires equality of opportunity to f lourish. but i reject the nonsubstitutability of parenting. so i cannot avoid this problem, it seems. there’s plenty of ambiguity in the so-called “sound principle”. in particular, it could be interpreted as prohibiting authority over someone simply because it is in the interests of the prospective holder of authority, or it could be that no one can have authority over someone in anyone’s interests but those of the person over whom authority is held. these two interpretations have quite different extension. moreover, if the principle gheaus describes, and borrows from vallentyne, is true then it is unclear that, for example, democratic institutions, where authority is exercised, at least in some significant life-affecting decisions, in the interests of all. so the idea that no one can have authority over me in anyone’s interests but my own must be false on either interpretation. i agree with lots of the examples gheaus gives about adults having control over other adults, e.g. romantic partners. but the problem with drawing conclusions from that example this is that someone must have control over children, no one else need have control over the bodies of competent adults. that is a morally relevant distinction that can explain different treatment. moreover, insofar as gheaus accepts this she accept that children’s status is different from adults. this is just to say i think the “sound principle” is questionable. i think the cases i describe are still the best to show why the parents’ interests can justify shortfalls from the best custodian in some cases because they illustrate the following. while some of the child’s interests are very weighty, such as their interest in avoiding neglect and abuse, their interests are not all weighty. those less weighty interests can be outweighed by the interests of parents. moreover, i think cases where parents make decisions that have costs for their children, like taking a different job, relocating, etc. can, in some cases be justified. gheaus’ view cannot explain this except if she appeals to an artificially robust distinction between the interests that are relevant to decisions parents make once they have the rights and the interests relevant to the decision to give a particular parent the right. there should be continuity between these, not least because 228 liam shields leap 5 (2017) what a parent would do with the rights is a determinate of how well they will do it and so a sharp discontinuity here cannot be justified. 9. reply to harb and axelsen siba harb and david axelsen’s response to chapter six has two parts. part one of their reply argues that there is nothing new in one of the distinctions i make while part two provides an interesting development of one of the lines of thought in the chapter. as the second part is mainly complimentary i won’t engage with that much, except to say “thanks”. i will use this reply to try to explain why the first distinction is of importance. i argue that the achievement of sufficiency could trigger a shift in the content of our obligations to compatriots and to foreigners, and not merely their stringency. by this i mean that once the sufficiency threshold is met for at least one of these groups, then we may move from being statists to being cosmopolitans. that means we move from thinking that the content of our obligations to compatriots and foreigners is different, to thinking that they are the same. the authors discuss the example i give in the book about moving from being a statist to a cosmopolitan by reference to the satiable reasons that can justify a threshold. “now, according to shields, reasons that can justify the existence of a threshold are ones that are satiable. the reasons that shields explores in previous chapters are basic needs and autonomy. both are satiable in the sense that they do not provide a normative basis for benefiting above a certain level (the threshold) (shields 2016: 34-37). surely, however, reasons of basic needs and autonomy apply universally; everyone shares the trait that gives rise to such reasons. and, indeed, when theorists in the global justice debate, be it statists or cosmopolitans, hold that we owe basic needs to foreigners, they hold that we do so because they are human beings, not because they are foreigners. it is difficult to see, then, how one can be statist about content below the threshold” (harb and axelsen, this issue). now, i do not claim that only satiable reasons can justify a noninstrumental threshold, but i claim that some do, and these may very well be the most plausible such reasons that justify thresholds. reasons that focus on basic needs and autonomy, once met, no longer apply. these reasons however appear to apply universally and so would not be plausible candidates for the sorts of reasons that can explain why the content of our obligations can change. 229 leap 5 (2017) reply to critics the concern that the category of shift sufficientarian content approaches to global justice does not contain a plausible member, is a serious one. to respond i will develop the statement in the book explaining this view. i state that “possible examples include a view whereby we owe sufficiency to non-compatriots and equality to compatriots but once noncompatriots have enough, we owe equality to all” (shields 2016: 187). this is all too brief, so i am grateful for the opportunity to expand here. the line of thought set out in the quoted sentence described a view whereby we pursue equality among compatriots and sufficiency globally. these are two of our duties of justice. how they are to be weighed is a further question and concerns stringency. this position remains too vague to test its plausibility comprehensively, though a good deal of the plausibility test will be met by the implications of such a view and whether they can explain intuitions like compatriot partiality and state is arbitrary. so consider a possible example. imagine our set of reasons include a commitment to global sufficiency, perhaps specified by basic needs or autonomy, and a commitment to local or statewide equality of opportunity, as well as a global commitment to helping the worse off in the form of a priority principle. at this point our reasons are mixed. some are cosmopolitan and others are statist. whether our outlook is statist or cosmopolitan, i think, depends on how far we have gone in meeting our reasons of justice. if some of our reasons (cosmopolitan or statist) can be sated, then once enough is secured, the content of our remaining obligations is different for compatriots and non-compatriots. this would mean that the satisfaction of global sufficiency means our outlook is statist. this might appear to be a superficial shift since the totality of our reasons remains the same: a mix of cosmopolitan and statist reasons. it’s just that some no longer apply. alternatively, the achievement of global sufficiency might bring into existence new reasons. for example, once everyone is sufficiently autonomous perhaps political equality matters between compatriots but not globally. perhaps also equality of opportunity matters between compatriots but not globally. the last example would be a more thoroughgoing account of a shift in the content of our obligations 10. conclusion i am very grateful to the contributors for pressing me on these and other areas, and i hope i will be able to more fully appreciate those contributions as i continue to think about them. 230 liam shields leap 5 (2017) bibliography rawls, j., 2001: justice as fairness: a restatement. cambridge, ma: harvard university press. shields, l., 2016: just enough: sufficiency as a demand of justice. edinburgh: edinburgh university press. taylor, r. s. 2003: “rawls's defense of the priority of liberty: a kantian reconstruction”, philosophy & public affairs 31: 246-271. taylor, r. s. 2004: “self-realization and the priority of fair equality of opportunity.” journal of moral philosophy 1: 333-347. vallentyne, p. 2002: "rights and duties of childbearing." wm. & mary bill rts. j. 11: 991 – 1009. leap law, ethics and philosophy leap_5.2_parr.pdf _goback