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Frank J. Garcia, Global Justice and International Economic Law: Three Takes, Cambridge University Press (2013).

In a letter to the semi-pagan Nectarius (Epistle 91, §4), Saint Augustine sets forth one of the most fundamental problems of political life: political philosophers who have sought and ‘indeed described’ justice in private discussion have utterly failed to secure justice for the earthly city. The problem could not be clearer: true justice is not an utter mystery to human beings. It can be made present to thought and speech. But even amongst those who have bothered to obtain a rational image of it, this justice is absent from their activities and their communities. Justice in the earthly community is only ever a relative and internal justice, an ‘ordered agreement of mind with mind’ (De Citivate Dei XIX.13) that is limited to ‘the establishment of a kind of compromise between human wills…’ (IV.4) Even the laws of the most civilised society of Augustine’s time (Rome) represented but the distorted form of justice one finds in a criminal organisation.

The subject of justice in the earthly civitas (i.e. the human world) is examined at length in Frank Garcia’s impressive book, under the modern title of ‘global justice.’ The scope of the book is determined by two factors: (1) it is concerned with the specific dimension of global justice which applies to international economic activity; (2) it analyses the subject according to ‘three takes’ which have dominated recent Western political thought (Rawlsian liberalism, communitarianism, and consent theory) (P. 3.) My focus here is upon the second of these delimiting factors. It is given the following explanation:

There are of course many more theories of justice within Western political theory, and a comprehensive approach to the ethical foundations of global justice would need to engage in a comparative study of justice in normative traditions both within and beyond the West.

Of interest in this passage is its juxtaposition of two critical ideas: on the one hand, the identification of global justice as being, in the last end, an ethical problem; and on the other hand, the belief that the resolution of the ethical problem would come about through a comparative (i.e. empirical) investigation of normative traditions. The underlying implication is (I believe) not that ethical questions can be dissolved by, or exposed as, empirical concerns, but that some form of comparative study represents the realistic limit of what can be achieved by way of progress in the face of so much entrenched division. If so, this reflects the more pessimistic implication of Augustine’s letter: justice in the worldly community is not genuine justice but is forever limited to a kind of compromise between human wills.

Glimpses of this pessimistic conclusion can be found throughout the book, particularly in its introductory pages. The ‘three takes’ have been selected, for example, due to their importance to the way global justice ‘has been theorised’ and ‘applied’ in international economic law (P. 4.) The third, in particular, is included as something which ‘lies closer to our lived experience of trade’ and begins by contemplating ‘the ways in which both language and law recognise that theft, coercion, exploitation, and trade are not the same thing…’ (P. 9: the accompanying footnote makes clear that the reference to ‘law’ here denotes positive law). Here we might begin to suspect that the book’s method is dictated not only by adherence to an Augustinian pessimism, but also a rejection of the more positive implication of Augustine’s message (that true justice may be ‘indeed described’). For the distinctions between trade, coercion, theft and exploitation are not mere legal or linguistic differences, but moral differences which the linguistic (and sometimes legal) distinctions aim to capture. A community’s linguistic distinctions, like its laws, reflect the speakers’ comprehension (and obviously, sometimes miscomprehension) of the deliverances of practical reason. A linguistic community which did not differentiate between, say, forced and free exchanges, would not be in possession of an ethical distinction; but it would be incorrect to say that the ethical difference was dependent upon the development of local terms for ‘coercion’ and ‘consent’: see e.g. Aquinas’s distinction in Summa Theologiae I-II.94.2c between what is self-evident in itself, and self-evident to us.

Methodological detachment (the substitution of empirical for ethical investigation) may represent agnosticism about the practical possibility of resolving ethical problems; but the methodological constraints thus imposed can encourage a deeper moral scepticism, as detectable in this passage, a few paragraphs on: ‘… what emerges from the comparison is that there isn’t (and perhaps cant be) a single path or approach to justice on a global scale in a globalising world. This is so because of the persistent reality of pluralism, central to globalisation and therefore to global justice’. (P. 10, my emphasis). The ‘global’ of ‘global justice’ is thus synonymous with ‘pragmatically agreeable by all’ rather than ‘universally recognised as true’.

What of the second term in that phrase, the ‘justice’ of ‘global justice’? Here the book prescinds from agnosticism and doubt, but directly considers ‘the nature of justice itself.’ (P. 12.) Justice is ‘a relationship between a set of core political and social [cf. moral] values about the distribution of benefits and burdens, and the outcomes of social processes.’ (Id).1 The context here ascribed to justice (political, social) invites the conclusion that it is some form of social construction, arising and existing in a domain concerned with practical possibilities and ideals, power and agreement: a conclusion reinforced by the reference to the ambiguous word ‘value.’ (Are ‘political and social values’ those things which are valuable for a community, or those that are valued by a community?) Likewise, the qualification that justice is one of a community’s ‘core’ values might be taken to suggest that some political (social!) questions inevitably stand in need of answers, however they are resolved in substance; or maybe it is simply that justice is, prevalently, ‘valued’ as a ‘core’ element of a community’s political and social character.

The author’s position is revealed a few lines further on. Social outcomes (such as decisions of a court) can be evaluated in all kinds of ways, for example in terms of their efficiency, but justice evaluates them ‘in terms of their consistency with the values of those affected by them.’ (P. 12, my emphasis.) The question of justice is ‘whether affected people will judge a particular institutional outcome consistent with core values about proper distributions.’ (PP. 12-13, my emphasis.) Hence, in questions of ‘global justice’ it is necessary to ask:

But whose core principles, and which ones? Put another way, is global justice possible, and is the very idea of it coherent? (PP. 13-14.)

This, Professor Garcia says, is a question for philosophers and theorists; the practical question (on which the book focuses) is how to ‘establish a truly global basis for global justice’. (P.14.) But here the book has exceeded its methodological constraints: one asks the practical question only because one believes that the ‘discourse’ between plural ideas is one in which nothing can be definitively established on the basis of sound reason, but only by agreement. Where Augustine laments the imperfect reasoning of ‘those affected,’ contrasting this with the proper understanding of justice that it is possible to obtain through sound reasoning, the book’s practical concern suggests that global justice is established on a ‘global’ (i.e. agreed, negotiated) basis: in other words, a political and not an ethical basis. Divided interests obviously erode the possibility of global agreement (as Augustine well understood), but the book’s concern is with ‘the normative implications that follow from such pluralities.’ (P. 14, my emphasis).2 The book’s hope is less than Augustine’s: though its aim is global justice and not some phantom of justice, it seeks for true justice on the plane of ‘compromise between human wills’ (De Civitate Dei, XIX.17) without elevating its gaze toward the truly right and ethically reasonable.3

The three main chapters of the book develop possible ways of conceiving the problem of global justice. Each can be regarded as proposing a different way of characterising the relationships between states:

1. Integrity-based

Integrity is here understood not, as in Dworkin’s usage, as an interpretative principle (the reconciliation of present decisions of principle with past practice as well as moral soundness), but as ‘a way of characterising the locus or source of one’s moral obligation’. (P. 120.)4 Here, a suitably revised conception of ‘Justice as Fairness’ represents an integrity-based approach to global justice because ‘it links a liberal state’s foreign policy back toward that state’s own normative commitments.’ (P. 121.) Political leaders in the White House may well disagree with those in Tehran or Beijing about the nature of obligations of justice; but for any of these states to act with justice in the face of such disagreement, it is necessary only that each acts in a way that is true to its own traditional principles of justice, soberly and honestly conceived. This allows for the maintenance of trade relationships between states separated by ideological differences. Calling upon Rawls’s distinction between non-liberal and ‘outlaw’ states, the integrity conception enables liberal states to trade with non-liberal states even when they are ‘pursuing the most destructive policies.’ (P. 27).

As Professor Garcia concedes, this is not really a ‘take’ on global justice, but of justice understood in transnational contexts. It has nothing substantive to say regarding distributive justice, or any other difficult question concerning the demands of justice, and it proposes no doctrine concerning the status or operation of international institutions.5 To these observations let me add two more: (1) it relies upon the idea that the principles of Justice as Fairness are indeed a faithful representation of the traditional political and social values of liberal states (states as ideologically distinct as the United States and France, for example); but is not this suggestion just as much an ‘imposition’ on liberal peoples who disagree about the very meaning of liberalism? (2) it moves from the pragmatic methodological premise that one may profitably focus on the justice of trade relationships whilst holding other concerns of justice in abeyance, to the substantive (and false) premise that obligations of justice in trade do not intrinsically belong to (i.e. are severable from) a comprehensive enquiry into just actions: that it is possible to trade (justly) with states which have committed terrible human rights atrocities, so long as one is true to one’s own principles of fairness in dealing.6)

2. Relation-based

Here, justice is not considered to be a matter of acting consistently with one’s own principles, but of commitments and responsibilities which arise from one person’s (or organisation’s) relationship with another. In the context of international trade, developments in law and state practice are giving rise to new forms of inter-state relationship, and introducing (through ‘shared commitments and understandings’) incipient forms of ‘global community.’ (PP. 34-35.) This approach suggests that the increasing closeness and complexity of relationships between states creates shared understandings, including shared notions of justice. The starting point for this suggestion is that ‘justice requires … community’ (P. 146); but the substance of the idea is perhaps expressible as the claim that community requires justice (if it is to avoid collapsing into hostility and anarchy). Unlike the first approach, this relational idea provides a basis for ‘global justice’ in the proper sense. But notice also that (like the first), the resultant norms of justice are not ‘imposed’ but come from state practice; and in that context it seems relatively unimportant whether the ‘model’ of international relationships is one conceived through the lens of social contract(s), or through that of communitarian philosophy (where nevertheless ‘justice is determined by the members’ shared understandings, not coercive of them—otherwise, justice would be tyranny.’) (P. 147.)

Here it seems to me that there are two questions worth raising. (1) Given the book’s insistence on respect for cultural differences, can ‘globalisation’ be considered somehow free-floating and exempt from that same requirement? If not, then the book’s optimism (which reflects Rawls’s optimism) must itself be questioned. Would developing nations regard ‘globalisation’ as a positive force, increasing the prospects for justice over the world, or as the strengthening of political, economic and ideological ties between a relatively small club of North American and Western European nations in whose hands, for the most part, lie the sorts of technological advances that have eliminated ‘time’ and ‘distance’ from foreign affairs? (2) What role is played by ‘shared understandings’? In the sentence-fragment quoted above, justice is determined by shared understandings, and cannot be coercive of them unless justice is to collapse into tyranny. The emphasis here falls on ‘shared’ rather than on ‘understandings’: an ‘understanding’ (of justice) that is not ‘shared’ would in fact be tyranny and not justice at all. Furthermore, ‘shared understandings are not only necessary for us to know what justice is, they are necessary to make justice work.’ (P. 147; see also PP. 149-50: it is necessary to examine to what extent the understandings are ‘actually shared’). More emphatically:

Finding out what justice consists of requires a historical analysis of a society’s shared life, not an a priori argument or a rational reconstruction of their beliefs. (P. 146.)

But such an enquiry could only tell us what certain people asserted, held or believed about justice; it could reveal nothing about justice itself. Nor would such a history of ideas amount to an account of a community’s ‘shared’ conception of justice, for the members of a community do not ordinarily hold beliefs about justice ‘as positive’, but rather as true.7 The explanation or defence of belief must proceed from what is understood, not from what is shared. To be sure, the detailed elaboration of the demands of justice will involve a process Aquinas calls determinatio: a process of working out the detailed content of operative laws with the same creative freedom that an architect works out the detailed design of a house (Summa Theologiae I-II.95.2c & 99.3 ad 2; 104.1c; II-II.57.2 & 77.2 ad 2; IV Sent 15.3.2.). But potential divergences in practice between states that may result from this freedom are not so great that they allow fundamental disagreement about human goods (such as peace). There are not in fact infinitely diverse conceptions of human good or of what counts as a flourishing human life, and practices which are inconsistent with the human good (i.e. which prioritise the good of one people over that of another) cannot be justified by reference to the weight of traditional conceptions.

3. Transaction-based

What is at stake here, according to Professor Garcia, is consent: it is the consensual characteristic of trade relationships which distinguishes trade (as a mode of economic exchange) from theft, coercion, exploitation, etc. (P. 42.) By focusing on the dynamics of consent, it becomes possible to distinguish genuine trade from arrangements which outwardly resemble it, but contain elements of an exploitative or predatory nature. Much of the analysis of the third chapter is devoted the differences between legitimate and illegitimate forms of trade. The analysis will be of tremendous importance to those working in the area of international trade law, as well as international politics more generally. The key passage for present purposes however is this one, on the social costs of unjust action:

My concern [over the distinction between trade and non-trade] has nothing to do with moral principles but simply reflects an attempt correctly to evaluate our collective economic self-interest. Insofar as we make consensual bargains and not other kinds of exchanges, we preserve and enhance the opportunity to engage in future beneficial consensual bargains, and we reduce the social costs of overreaching. On the other hand, to the degree we engage in predation, coercion or exploitation, we may lose potential partners for future beneficial transactions, and we certainly increase the social costs of making and enforcing such bargains. (P. 238.)

Take three is therefore probably best understood as promoting a kind of social Darwinism: norms of global justice represent the fittest (i.e. most fitting/appropriate) arrangements for international relations, and it is therefore to be assumed that a process of adaptive selection will ultimately motivate states to accept or enact such norms as the basis of their dealings. It is an explanation very close in spirit to Hart’s account of why the (positive) law of virtually all human societies reflects the promotion of certain traits (‘truisms’) deemed to be of value by human beings. But a Darwinist account is a descriptive theory, even if concerned with the ‘internal’ attitudes of participants, when what is needed is a practical one: for the issue is not simply that human beings, or those associations of human beings known as ‘states,’ ‘peoples,’ ‘multinational corporations’ and so on, regard certain sorts of relationship as beneficial to them, and worth having more of. It is that human reason, operating practically (i.e. deliberating not about what is, but about what should or can be brought about through action), apprehends certain things (‘human goods’) as beneficial components of a flourishing life, and elects to pursue them. Among these goods are the goods of peace and justice between nations. It is therefore reasonable for states to act in ways which foster, maintain or even extend these goods, ‘creating conditions’ for their appearance or persistence; and it is unreasonable for states to act in ways which sabotage or impede them.

The point about this practical explanation is that justice appears in it as an end, worth having for its own sake, and not simply as an adjunct or instrument for some further end (such as subsequent possibilities for trade). We glimpse the truth of this when we understand that the further opportunities that justice may enable us to pursue are precisely peaceful, just opportunities: the peace and justice being something valued more highly than the profit gained (for high profits can be gained through wars of domination). Global Justice indeed offers sound, concrete guidance to the practical reasoning of those engaged in international relations. This is a welcome contribution, but the carefulness and sensitivity of the book’s practical project must nonetheless resist transformation into a pragmatism to which international law is, perhaps, especially vulnerable.

This leads me to a conclusion quite distinct from that of the book. For Professor Garcia (who is after all writing in the specific context of international trade), the problem is that of elaborating an agreed vision of global justice. But it seems to me that the fundamental problem lies instead in the effort (diplomatic, economic, legal, military, etc) to oppose the demands of justice to the Machiavellian actions of states which care nothing for justice, except perhaps as further lip-service in the diplomatic game. This is as much the case in trade as in any other area of international relations (with which trade is, after all, inextricably linked). The profound importance of Global Justice lies in its articulation of strategies for the organisation of such efforts, and its clear drive to move justice from the realm of academic discussion into the concrete and problematic realities of earthly politics.

  1. To be exact, the text refers to what ‘[t]he term “justice” essentially describes’, but what the term describes essentially is (disquotationally) justice itself. []
  2. I pass over the issue of whether the derivation of normative conclusions from descriptive premises in this context violates the principle known, somewhat erroneously, as ‘Hume’s Law.’ []
  3. See P. 22: ‘[i]f we ignore the real limits of consensus … (ignoring, in a sense, the reality of pluralism), we run the risk of imposing in an equally oppressive manner our own conceptions of justice’ (my emphasis). []
  4. Given Dworkin’s characterisation of ‘integrity’ as ‘justice in the real world’, the book’s version is not all that far removed. []
  5. PP. 117-35. []
  6. See in particular P. 27: the ‘claim’ (of justice) on liberal states ‘cannot reach beyond … to other states’; and offers no firm position on ‘how to manage relations between liberal and illiberal states’ (PP. 27-28. []
  7. See Finnis, ‘Natural Law Theory: its Past and its Present’, 57 Am J Juris (2012) 81-101. []
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Cite as: Sean Coyle, Theorising Global Justice, JOTWELL (March 27, 2015) (reviewing Frank J. Garcia, Global Justice and International Economic Law: Three Takes, Cambridge University Press (2013)), https://juris.jotwell.com/theorising-global-justice/.