1

IMPROVING THE WORLD'S PURSUIT OF CRIMINAL AND DISTRIBUTIVE JUSTICE

AN ECLECTIC POLITICAL ARGUMENT

Jos de Beus, Department of Political Science, University of Amsterdam

Paper for the ECPR Workshop "International Justice and its Critics", Mannheim 26-31 March 1999

First draft, comments are welcome on debeus@pscw.uva.nl

2

1 Introduction Any plausible conception of international justice must entail both criminal justice and distributive justice. International criminal justice concerns the fight against crime, that is, the definition, prevention, investigation, prosecution, adju-dication and punishment of certain kinds of evil behaviour (crimes) on the basis of legal rules and methods of special authoritative agencies. These agencies represent individuals and groups from different nations, either indirectly (through the states that represent nationals in the spirit of Kant's Völkerrecht) or directly (through higher governance that represents persons irrespective of nationality according to Kant's Weltbürgerrecht). The set of current institutions and

practices of criminal justice across nations is generally referred to as humanitarian intervention. One of the prominent operations here is imprisonment of war criminals, in particu-lar persons who committed crimes against humanity in their effort to attain or maintain their own claim to mastery and the privileged use of state power. In a wide view interna-tional criminal justice also includes the humane treatment of all victims of war and repression, such as the allocation of the right to asylum. International distributive justice concerns the promotion of an equal and fair distribution of the benefits and costs of economic society (such as income) between either nations or individuals and classes of individuals across nations. Promo-tion includes the definition of social rights and the transfer of money and goods. In a wide view international distributive justice is also, perhaps mainly, concerned with the allocation

of primary property rights, such as the right to use natural resources and the right to migration. Again, justice is the outcome of a system of rules and procedures followed and enforced by agencies with a modicum of international outlook, representativeness and capacity. The set of current instituti-ons and practices of distributive justice is often called development aid or development cooperation. Criminal and distributive justice are seldom examined in tandem. Doyle's application of realism, liberalism and socia-lism to contemporary issues of international intervention and international distribution is quite exceptional.

1 I see two

reasons for bringing in a comparative perspective. First, the political theory of justice should be as complete and coherent as possible. If there are good reasons for the vindication of cosmopolitan justice (say new prospects of global interde-pendence and liberal pluralism) or against it (say new risks

of global war and cultural imperialism), then such reasons should apply to the transformation of both humanitarian inter-vention and development aid.

1 Michael W. Doyle, Ways of War and Peace, New York,

Norton, 1997, Part Four.

3

Second, applied theory of justice should be sensitive to cases in which the absence or presence of one form of justice

affects the absence or presence of the other. There may, of course, be cases in which moral failure or success in the criminal sphere does not impinge on moral failure or success in the (re-)distributive sphere and vice versa. For example, the social duties of the European Union towards the states and peoples of the former Comecon are morally unconnected to the performance of the latter in coming to terms with the false-hood and injustice of Stalinism. Information about the role of poor Eastern Europeans in the communist past and in the hand-ling of it today is neither necessary nor sufficient to deter-mine their right to Western food and other means of subsisten-ce. Likewise, the role of rich Western Europeans in expanding the domain and scope of their concept of organized capitalism is irrelevant to the assessment of their responsibilities in promoting a truly civilised process of reconciliation.

2 But

surely there are also many other cases of interplay with some moral significance. According to Bok, complex humanitarian emergency means the simultaneity of human rights abuse, vio-lence, famine, and institutional vacuum.

3 Either the proper

elimination of local crimes against humanity facilitates the emergence and stabilisation of the global sphere of distribu-tive justice or the proper elimination of local corruption (state exploitation and exclusion in favour of the ruling élite) facilitates the emergence and stabilisation of the

2 From the viewpoint of Eastern European recipients it

makes much more sense to introduce a democratic mode of reconciliation and the rule of law through domes-tic constitutional politics and accession to the European Union than to introduce submission to gene-

rous governments in the West. From the viewpoint of Western European donors, it is doubtful whether considerations of impartiality or reciprocity carry much weight. Giving priority to the global worse off after 1989 seems to point in the direction of Afri-ca, not of Eastern Europe (concrete impartiality). Foreign policy during the years 1917-1989 has been marked by insulation rather than by harmful interac-tion, say hollow promises to help Stalin's victims, unfair trade during the Cold War or exploitation by Western governments, companies and associations in their joint ventures with Eastern partners(no reci-procity). See John Eatwell and others, Transformati-on and Integration, London, IPPR, 1995, Idem, Not "Just Another Accession", London, IPPR, 1997 and Jon Elster, Claus Offe and Ulrich K. Preuss, Institutio-

nal Design in Post-Communist Societies, Cambridge, University Press, 1998.

3 Sissela Bok, Common Values, Columbia, University of

Missouri Press, 1995, pp.106-107.

4

global sphere of criminal justice.4

This paper is my second attempt in this field. The first

one suggested that international equality by means of global community-building or liberalisation of world markets is impossible.

5 This pessimist result forced me to conclude that

liberal egalitarians here and now should work out models of globalisation which give access to diffusion of democratic capitalism and the softening of manners of distributive autho-rities at both the supranational level (multinational corpora-tions and their strategies of investment) and the national level (governments and their strategies of investment con-trol). This paper is mainly heuristic. I will try to compare the recent moral experience of humanitarian intervention and that of development aid in order to find arguments that may support a more optimist view of the future of justice beyond the boundaries of welfare states and minimal states. The structure of the paper is the following. The next

section points at what I consider to be the crucial question. Does liberal political theory with its characteristic emphasis on the institutionalisation of critical public morality provi-de the expressiveness which is needed to address the current mood of frustration and disappointment about the performance of the new world order "since 1989" as to the weak enforcement of basic rights? Section three discusses the liberal theory of international justice and singles out some general conditions for the formation of a "party of mankind" (Hume) with respect to, respectively, the expansion of the moral minimum based on sympathy (the passions), the constitutional decision-making on world citizenship (the principles) and the role of rational selectivity in international policy-making (the interests). Section four focuses on unsettled questions in the contempora-ry approach to humanitarian intervention, namely the justifi-cation of the duty to die for strangers who stand outside the

national and Western cultures of humanity (the problem of pseudo-intervention); the justification of the right to mili-tary intervention in nondemocratic regimes which stand outside the liberal tradition of law and function as "ill-ordered societies" in a Rawlsian sense (the problem of paternalist intervention); and the justification of partly selfish consi-derations of security at the level of international agencies that are coping with issues of policy cumulation and control

4 See Brian Barry, Liberty and Justice, Oxford, Clarendon,

1991, p.240 and Idem, "International Society from a Cosmopolitan Perspective", in David R. Mapel and Terry Nardin (eds.), International Society, Princeton, University Press, 1998, p.160.

5 Jos de Beus, "Does Equality Travel? A Note on the

Institutional Preconditions of Global Equality", in Don Kalb et al. (eds.), Globalisation, Inequality and Difference, Amsterdam, University Press, forth-coming.

5

(the problem of optimal intervention).6 Section five suggests

that there is a similar set of unsettled questions in the

sphere of development aid as stepping stone to global social policy (redistribution, regulation, provision).

7 It is surpri-

singly hard to justify the duty to give up the exclusive Western standard of social rights and economic well-being, the right to paternalist social measures beyond the usual projects of humanitarian crisis management, and geopolitical goals at the level of international agencies claiming to act morally responsible. In the closing section I briefly discuss the way to tackle and solve these problems. Since the paper is by and large directed to theoretical problems, it is perhaps useful to add that I am not sceptic about the future of liberal and pluralist practices of cosmo-politan justice. The new problems of international justice are about breaking down certain "walls" of human make-up and individuality, and about constructing a "vault" of world-wide

democracy.8 They resemble familiar problems of national justice

in the history of the democratic welfare state in the sense that they are issues of scale-lifting to be solved in the long run on the basis of solidaristic fellow-feeling, democratic struggle and the prudence of policy sciences.

9 I will refer to

the so-called Schmitt critique of the counterproductivity of international justice which draws a lot of support from the camp of fundamental and reluctant realists.

10 But I do not try

to counter the neo-Schmittean objections here since I happen to think that the real issues lie elsewhere, that is, somewhe-re between the substantive definition of the global moral minimum and the beginnings of full justice beyond benevolence and manifesto rights.

6 The three features of ill-ordered anarchy and autocracy

are war, private law and non-consultation. See John

Rawls, "The Law of Peoples", in Stephen Shute and Susan Hurley (eds.), On Human Rights, New York, Basic Books, 1993, pp.60-68

7 Bob Deacon, Global Social Policy, London, Sage, 1998,

pp.21-25.

8 David Hume, An Enquiry concerning the Principles of

Morals (1751), Selby-Bigge's Edition, Oxford, Cla-rendon Press, 1975, Appendix III, 256.

9 Phillipe van Parijs, Real Freedom for All, Oxford,

Clarendon Press, 1995, pp.226-233.

10 Carl Schmitt, The Concept of the Political (1932),

Chicago, University Press, 1996. Compare Hans Magnus

Enzensberger, Aufsichten auf den Bürgerkrieg, Frank-furt, Suhrkamp, 1994, John Dunn, The History of Political Theory, Cambridge, University Press, 1996, Ch.8, Alain Finkielkraut, L'humanité perdue, Paris, Seuil, 1996 and Danilo Zolo, Cosmopolis, Cambridge, Polity Press, 1997.

6

2 World Disorder and Ethical Institutionalism From the point of view of justice, the stylised facts about global change since 1989 cannot give rise to rational satis-faction.

11 The number of victims of terror increased because of

the return and reinforcement of nationalist, tribal, civil and kleptomanic warfare. The quantity of humanitarian interventi-ons from Angola 1989 until Albania 1997 has become impressive but the quality is low in terms of preventive effects, stable and reasonable agreements on peace, minimisation of the number of death and suffering persons, legal control of crimes against humanity and of war crimes, diplomatic and military efficiency and integrity, supranational administration and, last but not least, moral support of the public and of politi-

cal constituencies both internationally and domestically.12 The

willingness of statesmen and majorities to organise or join humanitarian force declined quite rapidly during the 1990's. The improvement of international legal order in this area of control has been slow and limited, as witness the trials in Arusha (Rwanda) and The Hague (Yugoslavia) and the formation of an International Criminal Court (Rome). As to distributive justice, the annual reports of the United Nations Development Programme and the World Bank show that the record is equally bleak. Most Africans do not share in the fruits of globalisation of technology, trade and life-style. The entry to the world market of autocratic capitalist regimes in Asia did not result in major egalitarian break-throughs but generated new domestic forms of injustice. A similar trend is visible in many post-communist and post-authoritarian strategies of liberalisation in Eastern Europe

and South America. The adaptation of democratic welfare states in the OECD zone to a global regime of negative economic liberty ("de-embedding") engendered new patterns of polari-sation of income and wealth without a clear-cut class compro-mise on social policy innovation. Electoral support of expan-sion of development aid disappeared. The dominant policy here

11 For extensive surveys see Thomas M. Franck, Fairness

in International Law and Institutions, Oxford, Uni-versity Press, 1995, John A. Hall, International Orders, Cambridge, Polity Press, 1996 and Stanley Hoffmann, World Disorders, Lanham, Rowman and Litt-lefield, 1998.

12 Sean D. Murphy, Humanitarian Intervention, Phila-

delphia, University of Pennsylvania Press, 1996,

Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention and Contemporary Conflict, Cambridge, Polity Press, 1996, Linda Polman, `k zag twee beren, Amsterdam, Atlas, 1997 and Michael Ignatieff, The Warrior's Honor, London, Chatto and Windus, 1998.

7

is marked by bilateral advantage, budgetary control and condi-tionality with respect to "good governance". The alternative

to development aid, namely the acceptance of political and economic immigrants from underdeveloped countries of origin, is far from credible. Many governments in rich and stable countries are closing their borders, fearing both the loss of social cohesion and competitiveness on world markets. Improve-ment of the most important distributive organizations turns out to be slow and limited. The days of Keynesian and Tinber-gian masterplans for the World Bank, the United Nations agen-cies and the European Union (minimal standards, special regio-nal funds) are over.

13

The response of liberal political theorists to the present stagnation of international justice has been dual. On the one hand, they deny that the wrong is rooted in funda-mentals such as the impossibility of moral unity at a planeta-ry scale (conceptual, biological, historical), the infeasibi-

lity of global public policy within the bounds of democracy (failures of collective action) and the lack of a moral sense of natural persons (malice, egoism). The ultimate cause is the inability and unwillingness of citizens and officials in affluent world regions to imagine the institutional dimension of their humanitarian sensitivity. This "transnational majori-ty of good will" remains virtual, partly because of entrenched nationalisation of moral desires and beliefs and the indeter-minacy of moral disgust which is engendered by television coverage of humanitarian disasters. The virtual moral majority tends to misunderstand the flaws in the world's basic structu-re, the need for an inclusive moral account of non-decisions, remote effects and group effects, and the potential of second-order human rights and duties concerning participation in the design and reform of just institutions. In the words of Pigou: there is something missing or failing in the "telescopic

faculty" of would-be residents of the emergent world order.14

On the other hand, liberal political theorists argue that globalisation of the circumstances of justice allows for the timely and proper construction of new principles, designs and policies of justice. A newly institutionalist and refined utopian approach to the world order will be able to solve the perennial problem concerning the stable pluralism of loyal-ties, tasks and rights (not only liberty rights but welfare rights as well). The most far-reaching claim here is that political theory can add something to the common knowledge about military and social policies that will restore the innocent internationalist dream and will boost transitions toward world citizenship.

15

13 Deacon (1998), Chs.3,4.

14 Thomas W. Pogge, "How Should Human Rights be Concei-

ved?", Jahrbüch für Recht und Ethik, 3, 1995 and Samuel Scheffler, "Individual Responsibility in a Global Age", Social Philosophy and Policy, 12, 1995.

15 See David Held, Democracy and the Global Order,

8

In the rest of this paper I will examine a derivative claim. Can political theory contribute to an over-all legiti-

mate solution of recurrent and often tragic problems of inter-vention in the United Nations system of states given the fact that theorists disagree about the very content and structure of liberalism? The unsettled questions to be discussed are all concerned with the phenomenon of externally and globally justified interventions in domestic affairs and local relati-ons of power, scarcity, justice and morality. To reformulate it in somewhat uniform terms: the role of excessive obligati-ons in pseudo-interventions, the role of paternalism during democratic interventions in pre-democratic conflicts, and the role of oscillation between determinate universalism and plain opportunism in the pursuit of optimal interventions. 3 Eclecticism in the Liberal Theory of International Justi-

ce A general theory of international justice in the tradition of modern ethics and liberalism seems to concern the justificati-on of a number of presuppositions. First, the moral unity of mankind based on a conception of human beings in international relations and interactions which is roughly plausible from several reasonable and valid points of view about cultural plurality - related to religion, philosophy, science and poli-tical thinking. Second, moral unity as core of a global legal order and global public policy based on a conception of all the humane and civilising ways in which politics can turn morality into the rule of law and bureaucratic logic. Third, the institutional framework for enabling and constraining differentiation of societies, cultures and polities in an

ideal world. And fourth, synoptic strategies for the trans-ition of incomplete justice in the real world to full justice in the ideal world, in particular democratic control of the negative consequences of both current regimes of division between nation-states and current regimes of global public authority. I am prepared to defend the following substantive positi-on along these general lines. The articulation of the moral point of view should be connected to the idea of the primacy and dignity of all humans (ethical individualism). Generalized

Cambridge, Polity Press, 1995, Richard Falk, On Humane Governance, Cambridge, Polity Press, 1995 and Onora O'Neill, Towards Justice and Virtue, Cambrid-ge, University Press, 1996. The general case for ethical institutionalism is well made by David Held

(ed.), Political Theory Today, Cambridge, University Press, 1991, Robert E. Goodin, Utilitarianism as a Public Philosophy, Cambridge, University Press, 1995 and Idem (ed.), The Theory of Institutional Design, Cambridge, University Press, 1996.

9

demands of liberalism, such as the self-determination of nations and cultural minorities, should be connected to the

idea of tolerance. The formulation of the philosophical issue should focus on a quasi-Sidgwickian balance between natio-nalist egoism and cosmopolitan altruism. The distinction be-tween classical schools (Stoa, Christianity, natural law) and modern schools of internationalism should be taken seriously: it concerns the implications of modernity, in particular of reflexivity, democracy and the creative conflict between the forces of rationalism and romanticism (Berlin's point). Disag-reement within modern schools should be kept in mind as well. Internal plurality bears not only upon the contradiction between liberalism and antiliberalism, like Schmitt's Catholic and Darwinianian version of realism, but also upon the diffe-rences between thin and thick interpretations of reciprocity (Hobbes, Hume) and impartiality (Kant, Bentham)). Other cruci-al distinctions relate to international justice and humanita-

rian charity, true and false modes of universalism and parti-cularism and, consequently, creative and destructive practices of internationalism and nationalism. My favourite benchmark of the desirable distribution of goods is not sensitive to moral-ly arbitrary nationhood, yet sensitive to the agent's free choice of national identity (special collective obligations based on contract, convention or association). It should also draw the line between comparative principles of justice ap-plied to inequalities between strangers as members of commu-nity and noncomparative principles of justice applied to differences between strangers as members of society. Finally, the normative argument about international justice should be completed by an argument within the twin debate on new forms of federalism (the modelling of sovereignty pooling and multi-level governance) and public-private administration (the mix of policy-instruments in capitalist settings that eliminates

certain patterns of inequality and maintains broad solidari-ty).

16

It is well-known that all of these propositions are still widely contested among political theorists. As a matter of fact, we need to seek controversy by exploring the cutting-power and the deficit of certain pure theories. Two enlighte-ning examples are Dworkin's effort to conceive distributive obligations to compatriots as the best interpretation of the practice of large political communities in terms of equal concern and respect, and Rorty's effort to conceive cosmopoli-

16 Charles Beitz, Political Theory and International

Relations, Princeton, University Press, 1979, Henry Shue, Basic Rights, Princeton, University Press, 1980, 1996, Barry (1991), Chris Brown (ed.), Politi-cal Restructuring of Europe, London, Routledge,

1994, Simon Caney et al. (eds.), National Rights, International Obligations, Boulder, Westview Press, 1996, Robert McKim and Jeff McMahan (eds.), The Morality of Nationalism, New York, Oxford University Press, 1997 and Mapel and Nardin (1998).

10

tan justice as the outcome of enlarged membership and loyal-ty.

17 But I would like to suggest another move, namely the

enterprise of combining and testing the most appealing compo-nents of different pure theories in contemporary political thought. David Hume referred to social and universal principles against vice and disorder as the "party of mankind".

18 These

principles may control and restrain the short-sighted voicing of human self-love. They entail linguistic and conceptual contrasts between the personal, the collective and the univer-sal, such as the distinction between family duties and patrio-tic duties. They rectify certain dimensions of egoism. And they turn into rules of conduct during a process of cultural evolution: "(...) several distinct societies maintain a kind of intercourse for mutual convenience and advantage, the boundaries of justice still grow larger, in proportion to the largeness of men's views, and the force of their mutual con-

nexions. History, experience, reason sufficiently instruct us in this natural progress of human sentiments, and in the gradual enlargement of our regards to justice, in proportion as we become acquainted with the extensive utility of that virtue".

19

Hume's system entails conventionalism, private property, civilization by long-distance trade, concentric circles of care, and fixed standards of universal morality. One does not need to swallow all of this in order to appreciate the value of the concept of party of mankind. I define the party of mankind as a global public sphere in which political movements and organizations are engaged in cultivating the humanist viewpoint and in experimenting on social structures which fit the ideal of public morality amongst world citizens, including democratic justice. A neo-Humean view of global morality is not founded upon the will of God or objective order but upon a

threefold sense of solidarity, equal dignity and public ratio-nality. Without fellow-feeling and enlargement of the self-image and the space of loyalty, the pursuit of international justice will get stuck into empty rhetoric. Without a reasona-ble sense of justice, solidarity will merely include the ones who happen to live nearby. From the abstract viewpoint of universal reasoning, however, the proper conception of social membership should somehow include all those who are likely to be hurt or helped by our actions while being beyond our daily life. Without an empirical and instrumentally rational orien-tation towards the general interest and the institutional and administrative conditions for the realisation of the general

17 Ronald Dworkin, Law's Empire, London, Fontana Press,

1986, Ch. Six and Richard Rorty, "Justice as a Lar-ger Loyalty", in Pheng Cheah et al. (eds.), Cosmopo-

litics, Minnesota, University Press, 1998.

18 Hume, Principles, 224.

19 Hume, Principles, 153.

11

interest in a progressive civil society, the whole community of states based on solidarity and equal dignity is doomed to

fail. Even the most noble authority - whether natural or corporate - cannot be effective without rational calculations. Although Hume himself endorsed the principle of non-interven-tion in international affairs, I want to derive some general and coherent prerequisites to the legitimacy of substitute legal protection in this sphere: - the expansion of minimal civilisation based on sympathy

and other basic emotions (the passion of mankind); - the constitutional choice of world citizenship (the

principle of mankind), and - the institutionalisation of rational selectivity (the

interest of mankind). 4 Some Unsettled Questions Concerning Humanitarian Inter-

vention The first prerequisite presupposes that humanitarian military order in a plural world society is a limited form of spiritual and moral unity, namely, a moral minimum. Addressed formally, moral minimum has a number of features. For example, it is supposed to be within reach of all persons with general emoti-onal intelligence, in the core of practical consensus, and instrumentally useful - as to its critical contribution to common survival.

20 Psychologically, moral minimum is the most

basic and intense manifestation of human unity. It transcends the boundaries of language, culture, history and morality in a thick sense. It operates during inter-community crises, it is temporarily fused with solidarity and it serves as critical test of conventional morality.

21 Substantively, moral minimum

implies the absence of "murder and the destruction of life, imprisonment, enslavement, starvation, poverty, physical pain and torture, homelessness, friendlessness" (Hampshire). Bok refers here to positive obligations to mutual care and reci-procity, negative prohibitions of violence, fraud and betray-al, and the norms of decency and procedural justice. Walzer is quite explicit about the relation between the content of moral minimum and humanitarian intervention. In normal times justice should not be imposed by foreigners, yet "there are times when it is morally justified to send armed men and women across a border - and minimalism alone (ultra-minimalism?) defines the time and fixes its limits".

22

20 Bok (1995), pp.16-23,76.

21 Michael Walzer, Thick and Thin, Notre Dame, Univer-

sity Press, 1994.

22 See respectively Stuart Hampshire, Innocence and

Experience, Cambridge (Mass.), Harvard University Press, 1989, p.90, Bok (1995), pp.13-16 and Walzer (1994), 16,31,80 (quoted on p.16).

12

It is, of course, an empirical question to determine who shares which basic moral feelings (joy, surprise, fear, anger,

disdain, nausea, hurt, curiosity, shame) and why, when, where, and how.

23 I will consider the normative question. Does moral

minimum justify the principle of substitute legal protection in international relations? Walzer's answer suggests some resemblance between humanitarian intervention by cooperative governments and the use of force by individuals who want to stop suicide by their fellow human beings.

24 According to

Walzer, this comparison helps us to say something about the problem of moral spokesmanship. Both the victim of genocide and the self-murderer want to be saved, yet cannot save them-selves. Thus, Walzer neglects the subtle difference between humanitarian intervention as "large number context" in which the third party runs the risk of dying and prevention of suicide as "dyadic context" in which such a risk is often small.

25 If the principle of substitute legal protection is

reduced to the moral duty of you and your brothers in arms to risk your life for the sake of the human rights of many stran-gers, then the global moral minimum is turned into a global moral maximum that is on a par with the patriotic obligation to be willing to sacrifice one's live for one's country. This is, however, incompatible with Walzer's general argument since he assumes - rather persuasively - that the required identifi-cation and allegiance are conceptually and empirically possi-ble at the level of nation-states but impossible at the level of an unbounded and undifferentiated world community (the world as "one nation"). For the sake of coherency, minimal moralists (Hampshire, Walzer, Bok) should argue that there is no moral duty to physical participation in military intervention or that such a duty is supererogatory. More concretely, this conclusion would entail that volunteers, conscripts and professionals may

refuse to join dangerous missions, and that executive officers in field positions may refuse to follow the commands of their superiors if these commands are extremely or needlessly dange-rous for their men. If my argument so far is correct, then we are back at square one. The humanitarian obligation of civilised states and peoples to assist during the build-up or restoration of legal order in failing or missing states is not proven. The pseudo-nature of many interventions in the real world (Rwanda, Sebrenica) is not only recurrent but also morally permitted in the minimalist view of global public morality. This seems to

23 Kristen Monroe, Michael Barton and Ute Klingemann,

"Altruism and the Theory of Rational Action", Et-hics, 101, 1990 and Kristen Monroe, The Heart of Altruism, Princeton, University Press, 1996.

24 Walzer (1994), p.16.

25 Russell Hardin, Morality within the Limits of Rea-

son, Chicago, University Press, 1988, pp.35-37.

13

be an unsettled question in political theory which is caused by the fact that ethically acceptable humanitarian interventi-

on generates high net costs for the countries involved. The second prerequisite (principles of world citizenship) follows from the insight that the dynamics of the United Nations may be seen as the practical development of global rule of law by trial and error. First religious freedom, then colonial independence and today the human rights of each living individual.

26 Rationalist philosophers tend to focus on

this aspect of the party of mankind. The aspect is central in Hume's works, yet contemporary rationalists (Rawls, Habermas, Barry, O'Neill, Pogge, Held, Korsgaard) connect their views of international constitutionalism and republicanism to Kant and to Kantian conceptions of personal autonomy, moral universali-sation, and peace between republican regimes. They all defend the ideal of equality of certain liberties, opportunities and modes of basic well-being within and across today's polities.

They argue that civilised states should establish confederal and federal ways of cooperation and specialisation in order to prevent and contain war, represssion, injustice and destructi-on of the natural habitat. In this framework the principle of substitute legal protection deserves some space, together with the principle of subsidiarity of Althusius (which appears to be less notorious). Typically, the role of moral affection and passion falls into the background here while the role of constitutional democracy becomes crucial. Without democracy the very concep-tualisation of constitutional human rights becomes impossible; via democracy the protection of human rights as goal-rights is maximised; only democracy can bring about the elimination of majoritarian or consensual violation of human rights (such as protests of the poor and the immigrants). The argument of Habermas is exemplary. He sees a fixed relation between the

human freedom to act of subjects and the public autonomy of citizens: "Der gesuchte interne Zusammenhang zwischen Men-schenrechten und Volkssouveränität besteht dann darin, dass das Erfordernis der rechtlichen Institutionalisierung einer staatsbürgerlichen Praxis des öffentlichen Gebrauchs kommu-nikativer Freiheiten eben durch die Menschenrechte selbst erfüllt wird".

27 Habermas recognizes that the so-called classi-

cal rights, like the liberty of conscience, not only have limited instrumental value to the intended flexible performan-ce of democracy (compared to political and communicative rights) but also have intrinsic value which can hardly be

26 Daniel Philpott, "Ideas and the Evolution of Sover-

eignty", in Sohail H. Hashmi (ed.), State Sov-ereignty, University Park, Pennsylviania State Uni-versity Press, 1997, p.47.

27 Jürgen Habermas, Die Einbeziehung des Anderen,

Frankfurt, 1996, p.300. Compare the extended defence of this claim in Idem, Faktizität und Geltung, Frankfurt, Suhrkamp, 1992.

14

overestimated. However, this value is ultimately derived from autonomy; ultimately, free human beings are the source of

morals and of social rules that constrain themselves and the others as well. Human rights and popular sovereignty are the Habermasian co-product of autonomy as experienced and applied - actively, militantly and creatively - in the practice of posttraditional civil society. In this perspective of funda-mental autonomy and universal emancipation, human rights and popular sovereignty reinforce each other and presuppose each other. I will not deal with the critique of the purely procedu-ral nature of Habermas's approach of democracy, nation-buil-ding and state-building.

28 Such criticisms do not affect the

essential point of Habermas and other neo-Kantians. They argue that altruism in the sense of temporary caring for the human rights of others is inferior to permanent legal ordering by the affected subjects themselves. Desirable legalisation

should not be uncoupled from desirable democratisation. Con-stitutional rights should not be manifesto rights. Therefore, rights are not the business of judges, lawyers and lobbyists alone but also, and primarily, the going concern of the people at large. However, this conception of democratic world citizenship makes the risk of paternalist spokesmanship far from smaller. The political theorist will demand that all persons involved - and their real representatives - should as much as possible join the specification of human rights and the policy-making about enforcement. There should also be a generally accepted procedure for autorisation of humanitarian interventions that is related to a global democratic sense of justice, that gives some army a mandate on the basis of public delegation, and that exploits all possible resources of consent of the victims of humanitarian crimes. All these demands aim at minimising

the disadvantage of human rights paternalism. Unfortunately, it is extraordinarily hard to fulfil them. Theoretically, most rationalistic models of the liberal democratic contract at the level of international agents are concerned with the ideal world and with radical premisses, like deep neutrality or representation beyond the framework of national governments.

29

Practically, the current regime of international law does not satisfy even the most obvious ethical requirements on account of emergent world citizenship. The United Nations strategy of humanitarian interventions is focused on issues of peace and security in a broad sense, dominated by the most powerful

28 See Charles E. Larmore, The Morals of Modernity,

Cambridge, University Press, 1996, pp.210-221.

29 See for example Thomas Pogge, Realizing Rawls, Itha-

ca, Cornell University Press, 1989, part three and David Held, Democracy and the Global Order, Cambrid-ge, Polity Press, 1995. Compare the discussion of neo-Kantianism in Philip Pettit, The Common Mind, Oxford, University Press, 1993, pp.297-302.

15

nations from the post-world war era, sensitive the interests of bureaucracy and big business, and incomplete as far as

secondary norms are concerned. There are many outlaw regimes, which did not sign the particular treaty on human rights, signed noncommittedly, signed under the pressure of foreign powers or forget about old signatures. The practice of humanitarian intervention will as yet be coloured by paternalism unless one would be willing to consi-der a relapse into Kant's position. This is limitation of the domain of humanitarian intervention to the group of democratic countries and well-ordered autocratic countries. Such a ban of paternalism brings us back in the iron circle of Kant's theory of eternal peace (1795). When humanitarian intervention is democratically legitimate, namely in the cluster of civil polities, it is not needed, but when humanitarian intervention is crucial to make the world safe for justice, that is, in the cluster of barbaric (proto-)states, then it is not democrati-

cally legitimate. This is the second unsettled question. The final prerequisite to the formation of the party of mankind (enlightened self-interest) can be clarified in the following way. The quantity and gravity of human rights viola-tions cannot be the only consideration or the prior considera-tion of the future branch of international and supranational government with respect to justice. First, anticipation of problems of overload should lead to some demarcation of basic violations, like "massive slaughter, enslavement and expulsi-on" (Walzer) or "the right to life, liberty, property and procedural equal treatment" (Rawls).

30 And second, the choice

between full intervention or limited intervention (such as diplomatic pressure, arbitration and monitoring on the spot) should be sensitive to broad considerations as to the impact on local and global peace and security. Therefore, the real issue is how to define selectivity and determinate universa-

lism in foreign policy without ending with moral arbitrariness or worse, namely, the concealment of balance of power policies (opportunism with a humanitarian face). That seems to be the first challenge to realist thinkers working on something they call "sophisticated liberalism".

31 The phenomenon of selection

is particularly biting here: "While the interventions were occuring in Iraq and Somalia, thousands of people in a wide variety of other African states, from Sudan (next door to Somalia) to Zaire and Burundi (next door to Rwanda), and in

30 Michael Walzer, Just and Unjust Wars, New York,

Basic Books, 1977, pp.101-108 and Rawls (1993), pp.56,62.

31 Robert Keohane, "International Liberalism Reconside-

red", in John Dunn (ed.), The Economic Limits to

Modern Politics, Cambridge, University Press, 1990 and John Hall, International Orders, Cambridge, Polity Press, 1996. Compare Stanley Hoffmann, Duties beyond Borders, Syracuse (NY), University Press, 1981.

16

certain former republics of the former Soviet Union, were suffering similar circumstances".

32

In this partly Hobbesian, partly Machiavellian perspecti-ve it is crucial to formulate certain principles for the case-to-case setting of priorities. Here is one illustration. The third party is a coalition of states that includes hegemons, like the United States of America today. The third party should focus on: - human rights violations in civil wars (since interference

with repressive states showing "official disrespect" of the law of peoples (Pogge) would increase global insecu-rity);

- pacification of civil wars on territory nearby (since here the promotion of human rights and the promotion of security are overlapping and mutually reinforcing, such as when the Western European Union would intervene in the Balkan wars);

- humanitarian crises in weak states, that is, states with-out nuclear weapons, pivotal roles in the United Nations and friends in high places; and on

- timely mobilisation of means that pre-empt the need for humanitarian intervention.

33

The merit of taking long-term interests into account is that universal indignation of public opinion in the stable and prosperous world region is translated into rational selec-tivity with a somewhat higher probability of minimisation of disappointment, disillusion and backlash "after the fact". Its main weaknesses are the open-ended and contextual nature of the mix of realism and liberalism, and the risk of premature capitulation for the dull circumstances of global justice in the present situation. To illustrate the latter: it may be relatively easy to demonstrate moral failure in the case of Rwanda 1994 (non-intervention of Belgium, France and all other

strong stakeholders in Africa), but it is much harder to demonstrate the over-all moral wisdom of giving Russia leeway in Chechnya given the Western leaning towards overestimation of Russian state capacity. The trade-off between substitute legal protection and international stability looks like a third unsettled question. 5 Some Unsettled Questions concerning Global Social Policy One of the conclusions of the argument so far is that idyllic pictures of the party of mankind are overdone if we bring in normative political argument (and even if we would leave aside the mixed experience of muddling-through since 1989). There is

32 Murphy (1996), p.321.

33 Paul Scheffer, "Nederland in eeen gebroken rechtsor-

de", in Gijs de Vries et al., Een continent op drift , Amsterdam, Van Oorschot, 1994, pp.231-235.

17

no "virtú contro a furore" here, no crooked timber of humanism against the bent twig of tribalism, no most inclusive univer-

salism against most exclusive particularism, in short, no great party of mankind against the small party of barbarism. Are the preconditions of legitimacy less, equally or more tight if one moves on from international criminal justice to international distributive justice? Will the Marshallian sequence of civil rights --> civil rights + political rights --> civil rights + political rights + social rights ever spill over from the national arena to the international one? Prima facie, the answer seems to be that development aid involves lower moral costs for the donor than humanitarian intervention. The conventional package consists in blankets and medicine, soft loans and surplus products of agriculture, subsidised bilateral trade and public money for nongovernmen-tal associations at home and abroad, all of this regulated by the norm of 1 % of Gross Domestic Product of the sponsoring

country. This practice seems roughly compatible with the moral minimum, reasonable acceptance by all parties involved and the balance of justice and stability. However, such a comparison would be misleading. There does exist a mode of humanitarian intervention which is at least as cheap as development aid in terms of the mobilisation of moral sources and economic re-sources. It includes peace keeping (mapping, inspection, talking, preventive diplomacy), elements of weapons control, and cost-price payment and burden-sharing by the users of humanitarian missions.

34

The real issue is the absolute and relative meaning of global social policy. This is the set of international and supranational arrangements which brings about a major redis-tribution of welfare-enhancing and productivity-enhancing inputs in a broad sense from rich countries to poor countries and from rich classes, households and individuals world-wide

to the poor ones world-wide. Given the sheer size of the gap between the current international distribution and the just distribution, it is to be expected that global social policy must be ambitious and radical. It will include a single stand-ard of living; a safety net (with or without obligations to work); earmarked and progressive taxation of the use of the global commons; the entry to globally regulated markets and the benefits of globally coordinated investments in public infrastructure; and supranational standards, budgets and civil services in the area of social security, housing, health care, transport, and arts. I do not have the competence to determine the exact size and structure of systematic transfers of money and goods from the global rich to the global poor. Furthermo-re, political theory is still in need of an ideally internati-onalist benchmark that classifies persons with unearned sur-plus income, persons with unearned income deficits and a well-

ordered grey zone of persons with economic prospects which are nearly fair. It is unlikely that all denizens of the West

34 See Zolo (1997), pp.156-158, who refers to moderate

pacifism here.

18

belong to the first category while all denizens of the non-Western world belong to the second one and the third category

remains empty. Still it is heuristically important to explore the moral foundations of this virtual egalitarian regime.

35 My

argument will be brief since I will restrict myself to a general account of the unsettled questions here. There are three reasons for questioning the liberal credentials of global social policy in terms of the moral minimum. First, it is hard to understand the moral force of fair sharing by foreigners in cases where compatriots are excessively passive and avoid their primary responsibility for the social rights of their poor and deprived fellow citizens. Why should non-Bulgarians step in when Bulgarians do not step in themselves to abolish ill-conceived social reforms?

36 In the

minimalist view third parties feel responsible for injustice abroad. It is clear that terror and famine are unjust, and therefore should arouse certain feelings of commitment in safe

world regions. It is less clear why the resilience of laissez-faire and residual social policies should engender a similar response. Second, the transformation of Western levels of social protection into world-average levels of social protec-tion will hit the middle classes and the working classes in the West hard. Perhaps political leadership will produce the degree of public purposefulness, procedural justice and sub-stantive fairness which is necessary to trigger sufficient democratic consent for transnational schemes of redistributi-on. But even in this special case the kind of sacrifice that the Western worse off have to make will exceed the kind of social obligation that moral minimalism demands. Finally, moral minimalism thrives on hot solidarity, while global social policy is based on cold solidarity. Mass demonstrations and other modes of one-shot participation can be sufficient to bring about fund-raising (and instant military operations with

clear missions, for that matter). They can also create windows of opportunity for constitutional, legislative and administra-tive innovation. But they cannot replace the routines of solidarity which are needed to stabilise systems of social policy.

37 Hence the return of the first unsettled question.

There is one big reason to question the constitutional base of global social policy. That reason is the repetition of

35 Compare Abram de Swaan (ed.), Social Policy beyond

Borders, Amterdam, University Press, 1994, Stephan Leibried and Paul Pierson (eds.), European Social Policy, Washington D.C., Brookings, 1995, Bill Jor-dan, A Theory of Poverty and Social Exclusion, Cam-bridge, Polity Press, 1996 and Deacon (1998).

36 Elster et al. (1998), p.245.

37 See Philippe van Parijs, Qu'est-ce qu'une société

juste?, Paris, Seuil, 1991, pp.229-230 and Margaret Levi, Consent, Dissent, and Patriotism, Cambridge, University Press, 1997, pp.200-219.

19

Kant's iron circle. When external imposition of social rights is democratically legitimate, namely in the cluster of Western

welfare states (in particular social democratic ones), it is not needed, but when such imposition is warranted to make the world safe for economic equality, that is, in the cluster of explotative states and minimal states, then it is not democra-tically legitimate. In order to maintain a sound base for high-quality redistribution in an environment of global compe-tition and domestic individualisation, it is necessary to create international trust and international harmonisation. This is the standard case for international redistributive authority that applies today on the European Union as a quasi-Kantian sphere of eternal security in the social, medical and epistemological sense. However, this case depends on the implicit assumption that the states and peoples involved have thrown out the rascals (warlords, aristocrats, bourgeois politicians, and so on). Global social policy in a world

crowded with exploitative and minimal governments is inevita-bly paternalist. Hence the return of the second unsettled question. There is no general reason to argue that global social policy will jeopardise international order as far as stability (peace, security) is concerned. On the contrary, the quickened and steady decrease of poverty and economic inequality may be conducive to the decrease of suspect forms of mobility (smug-gling of women and children, arms traffic, asylum seeking) and the weaking of the causes of contemporary destabilisation. There is, however, a special reason to pay attention to the selectivity of social policy-makers at the international level. Both the permanent residence of governmental and non-governmental organizations in the area of social assistance and protection and the introduction of advanced methods of finance, organisation, management, service and control may

distort local systems of market exchange, giving and bureau-cracy in underdeveloped countries. If the issue of modernisa-tion of methods of redistribution is not solved by medium-term initiatives, the unintended consequences in terms of new instability may be quite large. This problem of logistics is a final unsettled question, although less intractable than the other two.

38

6 Concluding Remarks The main argument of this paper has been rather destructive to the case for international justice, especially for the princi-ple of substitute legal protection beyond borders. Given the endemic plurality of international moral order (if any), one

would expect that mixed political theories (which celebrate value pluralism) are better equipped to the tasks of problem

38 See Jean Drèze and Amartya Sen, Hunger and Public

Action, Oxford, Clarendon Press, 1989.

20

solving, orientation, consolation and criticism of common-sense morality than pure theories, which tend to embrace value

monism.39 Yet my eclectic argument uncovers some major holes in

the justification of violent and coercive intervention in sovereign and proto-sovereign states for the sake of interna-tional justice. Political theorists usually point at the flagrant injustice of the present regime of national justice and the huge potential justice of the ideal regime of interna-tional justice. However, they should take into account the role of power in the transition from national to international justice. Pseudo-assistance, paternalistic assistance and opportunistic assistance are hard to defend from the viewpoint of liberal egalitarian, yet recurrent in the history of inter-nationalist progressive politics.

40

Fortunately, there are some ways-out. Perhaps the questi-on of the obligation to make great sacrifices for strangers (death, loss of luxury) can be tackled by an argument about

the extension of associational obligations in overlapping political cultures.

41 The question of interfering with nondemo-

cratic and pre-democratic understandings of public law and citizenship may be dealt with by the deepening of the United Nations Charter with respect to nonproliferation, weapons control, the safety net, and much more.

42 The question of

optimisation of interventions in the light of global stability can be solved by feasibility studies. The chain of Boutros-Ghali entails preventive diplomacy, arbitration and humanita-rian assistance, invasion and temporary custodial care, regu-lar prosecution of war criminals, and the reconstruction or construction of civil society. One can stop getting into the chain connection, or one can improve the links once one hap-pens to be in, by early signalling, flexible response, spel-ling out the goal of human rights enforcement, and multiplying the deterrent effects of humanitarian tribunals on the spot.

43

39 See, for example, the fixation on non-domination in

John Braithwaite and Philip Pettit, Not Just De-serts, Oxford, Clarendon Press, 1990 and Philip Pettit, Republicanism, Oxford, Clarendon Press, 1997.

40 See Tom Nairn, Faces of Nationalism, London, Verso,

1997, Part I.

41 See Samuel P. Huntington, The Clash of Civilizations

and the Remaking of the World, New York, Simon and Schuster, 1996, pp.316-320, Murphy (1996), Chapter 7 and A. John Simmons, "Associative Political Obliga-tions", Ethics, 106, 1996.

42 See Stanley Hoffmann, The Ethics and Politics of

Humanitarian Intervention, Notre Dame, University Press, 1996 and Deacon (1998).

43 Murphy (1996), pp.321-334, Johansen in Hoffmann

(1996), p.68 and Charles W. Kegly Jr., "Internatio-

21

Similar ways-out can be invented as to the modernisation of the distributive state function in poor world regions. All

these suggestions are not the stuff of a new paper but of the revision of the paper before you "after Mannheim".

nal Peacemaking and Peacekeeping", Ethics and Inter-national Affairs, 10, 1996.