Freeman replies

what is it that picks out a Rawlsian “people” as distinct from other “peoples”, as a distinctive cooperative unit? Usually, it is their legal and institutional unity. In fact, this is normally the only thing, since state boundaries are rarely congruent with ethnic, religious or linguistic boundaries. Rawlsians may want, given the morally dubious history of nationalisms, to promote this as a feature rather than a bug. But it is questionable, then, whether Rawlsian peoples are really distinct from the states that organize them as such.

This is a good point. But it’s a problem not just for Rawlsians, but for any liberal political theory — which means for almost all of us.

On the one hand, we say that government derives its legitimate authority from the consent of the governed. But consent isn’t given individually, but collectively, so it would seem that the nation or people must exist prior to the state that represents it. This solution works as long as we conceive of antions as organic wholes joined by history, language, religion, etc., but modern liberal states explicitly rejects this basis (with the obvious, highly contested exceptions). So you’re left with the state deriving its authority from the people, and the people being those under the authority of the same state — a circularity that works breaks down as soon as you’re faced with serious challenges/alternatives to the status quo.

The main solution to this dilemma seems to be to abandon democracy as a basis of legitimacy for state power and base it instead on conformity with a set of objective rules. We’ve seen this to date mostly in the real of economic policy — where liberals like Alan Blinder explicitly say that the political authority should be transferred from elected representatives to unelected bodies of credentialed experts, i.e. should not be based on representation at all — and “human rights”. This is the program — call it undemocratic liberalism — that follows from criticism of “illiberal democracy” by people like Fareed Zakaria. Peter Mair is very good on this; obviously it was the subject of Empire. This seems to be where CT’s political philosophers come down, too, given that the right to secession is based not on any inherent right of a people to self-government, but on whether the existing government has violated some objective standard of justice. But who gets to rule on that?

So it’s not clear that the relationship between states and peoples is a bigger problem for Rawlsians than for anyone else. There may not be a solution — once we dispense with organic peoples prior to politics, what is the consistent legitimate basis for state authority short of humanity as a whole?

A couple of brief thoughts- the cotton subsidy argument would work better if you had anyone (in this argument) supporting the current situation, but no one involved here is, so it’s a bit of a straw-man. (One gets this sort of thing from Thomas Pogge a lot but it’s very annoying since no one involved in this conversation supports the current global order- certainly Rawls, despite what Pogge sometimes suggest, and what seems to be implied by your above comment, does not. (Reading Pogge is often a very good idea to not get clear on what Rawls thought, I think.) If you actually go back and read LP, for example, you’ll see that while Rawls doesn’t say very much about trade relations he’s quite critical of the ones that currently exist and thinks that his approach properly condemns them. So, maybe you could show that it does not, but you can’t just assume (as many critics do) that it does not.

On a more specific level, I think that most, if not all, subsidies, when given by the developed world, are usually going to be bad ideas. There might be some exceptions, but they will be few. But, it doesn’t seem that societies have a duty of justice to buy things from other societies if they don’t want to. They do have a duty to help every society achieve a minimum acceptable level of well-being. We might think that societies can do their share in a number of ways. It would be extraordinary, though, if duties of justice said something about where a particular country must buy its cotton. Now, the US (and nearly every, perhaps every, country) does not now do their part. And trade rules in place often make easier paths harder or serve no good purpose. But it seems to me that we’ll never get clear on the real issues if you frame the case the way you do above.

I’ve got a paper pressing the Rawlsian case on just this point coming out in Social Theory and Practice (it’s also on SSRN, and called ‘Defending the Duty of Assistance?’). You could extend your question further, Chris. What matters, for Rawls, is that we help other peoples achieve well-ordered institutions (rather than targeting well-being directly, as Matt implies). But many of the inequalities of the contemporary world make it more difficult or expensive for societies to maintain well-ordered institutions. Look at the flows of healthcare workers from Europe to Africa, which makes the continued running of hospitals in some African countries very difficult indeed (but not impossible). Matt is right, contra Pogge, that Rawls need not endorse these facts about the contemporary world – but the question remains how, on his account in the Law of Peoples, we might object to them? It is at best unclear, on his account, what the basis of our objection is to (legal) practices which do not threaten the autonomy or well-orderedness of other peoples, but do make it very much more difficult or onerous than it might be if we acted otherwise. They do not touch on his grudging acceptance that we might object to global inequalities if they undermined political equality or self-respect, for instance. And remember that Rawls professed that it might be better, all round, if peoples reconciled themselves to a life of relatively poor well-orderedness in any case. Perhaps to object to these practices we need to smuggle in criteria from distributive justice theory 0r, as Chris B suggests, some account of reciprocity?

Dsquared- if there was any evidence that you knew what you were talking about on this issue I’d be more worried here. Have you even read the relevant texts? Recently? With any care? Please be honest in your reply. You’re a really smart guy whose opinion I respect on many things. (One reason why I say that I’m not sure subsidies are always bad, for example, was your argument about how the agricultural subsidies of the EU might actually be good for Africa. I don’t know if it’s true but it might be and that’s enough to make me less sure of what I thought before.) But, I don’t see any evidence that you know what you’re taking about here (i.e., what Rawls’s position is or what’s entailed by it) so unless you can show some you shouldn’t go on.

I largely agree with what Chris Armstrong says. Rawls’s remarks in LP on trade and the like are very few and there’s a danger of treating him like an oracle that should be avoided. But, a charitable interpretation, one that fits together all of what he says, gives a much more plausible picture than the one Pogge, or Chris B, suggests. And Chris, again, if you bother to go back to the text of LP you’ll see that the case you mention is addressed, if briefly, there. You might not be happy with the answer- there is a lot one might object to- but the case is addressed, even if briefly, and it would be better for you to go back and look at that and see what you think than for me to give a rehashing of the text here, especially since I know you’ve read it. Acting as if the case isn’t addressed in LP isn’t very helpful and tends towards the sort of dishonest approach one gets from Pogge, one that should be avoided.

This is fascinating, particularly for the way people seem to assume that what they are talking about has real-world relevance. As if proving that people ought to behave one way or another is ever going to make them behave that way; as if you could prove such a thing in the first place…

So how’d UK-based academic contributors do in the RAE today? Anyone likely to be made redundant as a result of catastrophic underperformance? Now there’s a real-world relevance.

Another point. On the question of Rawls interpretation (as opposed to what I think may or may not be right independently of that) I think that Chris’s account isn’t right on the issue of trade. Rawls says pretty clearly that the evaluation of institutions such as an idealized WTO (not, contra what Pogge often suggest, the current one!) is done by representatives of societies behind a veil of ignorance. The agreement must be “reasonable” as well as rational- it would have to exhibit the appropriate degree of reciprocity and respect for societies, for example. Now, given this, it seems likely that societies, not knowing if they’d be rich or poor, would not agree to the sort of harmful restrictions or subsidies found in Chris’s example. Societies, Rawls says, would seek to “preserve the independence of their own society and its equality in relations to others.” Insofar as we think the simple example Chris gives makes sense (and I’m not sure it does, for reasons Jon makes nicely clear) it seems that this motive would give parties behind the veil of ignorance reason to reject a global trading system that allowed for the sort of subsidies and trade restrictions suggested above. This doesn’t mean that all subsidies would be illegal- those done to protect “infant industries” in developing countries would probably be okay, and perhaps even some subsidies such as the French agriculture subsidies could, within certain bounds (and assuming the difference is made up in other ways), be acceptable. But, subsidies to create an artificial comparative advantage or to bankrupt a weaker country (US Cotton subsidies probably fall in the former) or restrictions that are otherwise quite harmful and serve primarily to protect powerful corporate interests (such as at least some of the IP restrictions pushed by the US and EU in many recent trade agreements) would, it seems, fail the requirement of being acceptable to reasonable and rational parties representing societies behind a veil of ignorance in a way that’s pretty straight-forward on Rawls’s account. So, I think that the example in 7 above, and elaborated below, doesn’t really hit Rawls very squarely, or for that matter, fit with his text. (I think that Pogge has done a lot of damage on this front with his really quite inaccurate accounts of what Rawls says. Whatever his other virtues may be he’s an unreliable guide to Rawls.) Anyway, I think this is the right way to understand Rawls’s position, especially after having discussed this a bit with Samuel Freeman. I’m not completely sure it’s what I’d say as to what I think the right answer is but I think it’s at least the more plausible account of what Rawls’s view is.

restrictions that are otherwise quite harmful and serve primarily to protect powerful corporate interests (such as at least some of the IP restrictions pushed by the US and EU in many recent trade agreements)

Ahhh, what luck, a subject upon which I have done vast amounts of work and read all the relevant texts!

This is a perfect example of the argumentum ad Dershowitz I was complaining about above; the temptation to simply state by fiat that one’s theory doesn’t have a politically unpalatable conclusion. The first TRIPS proposal was highly inegalitarian in a global sense, but it’s really quite glib to just write off the whole issue of the international context of pharmaceuticals patents as “harmful and serving primarily to protect powerful corporate interests”. I think that the issue of whether Brazil (clearly a much richer country than Mali) had the right to override retroviral patents actually raises some really quite difficult issues for the Rawlsians in this context.

Adapting Chris’s example to model the Brazilian generic AZT case:

Richland and Poorland have whatever history they have, and as a result of this, Richland has a national income of 10,000 and Poorland of 150 (the “sufficient” subsistence level is 100).

Both Richland and Poorland are plagued by the disease of bellyitis, which was previously incurable. However, after making a substantial investment in research (financed by loans from the Bank of Richland), Richland Pharma invents a wonder drug, Havitall, which cures bellyitis.

Having made the fixed cost investment, Richland Pharma can produce Havitall for 1 per dose. If Poorland could buy Havitall for 1 per dose, then it could buy Havitall for its 10 bellyitis sufferers, and the country of Poorland would then get by on 140. Suppose that bellyitis is so nasty that there’s a Rawlsian obligation for curing bellyitis sufferers to be given absolute priority, domestically.

On the other hand, in order to pay back its loans to the Bank of Richland, RichPharm needs to sell Havitall for 5 to citizens of Richland. It therefore has to set the price at 5, and it can’t sell for Poorland for 1 because it’s worried about parallel imports. Richland is a country where financial obligations are taken very seriously indeed, and has a massive part of its cultural identity tied up in being “the land of shareholders” (NB: large corporations are actually a pretty important part of the US and EU political and economic system, they can’t just be blown off as “obviously we don’t support that nasty stuff”).

So the Poorlanders are going to have to buy Havitall at 5 per dose, leaving them with 100 of national income, just at the sufficient level. Richland could actually just buy ten doses of Havitall and give them to Poorland, and it would hardly notice the cost (it would still have 9950). But why should they?

One quick point on the methodological point: it’s obviously not that I’m opposed to simplifications as such. But, I don’t think just any work, either. Often they obscure more than they make clear and I think that’s the case w/ Chris’s examples. He compares them to the 2-country, 2 product examples from economics. Leaving aside the problems with those, the big difference is that for those we know what we are doing- we set this up and ask, “what should the countries do to maximize utility/wealth/welfare?” And, we’ve set it up so that there’s a clear answer w/in the model. That’s just not the case in the example Chris has set up, where the question is “is this situation just?” The model doesn’t provide us an answer. So, the two cases are really not comparable.

As for Dsquared’s example- I’m not sure I disagree with him. If he’d bother to not take points out of context (both in the larger set of comments and in the context of discussion it would be easier to deal with him. Since he’s usually more interested in scoring zinger points he’s less benefit to us than he might be. That’s too bad since he’s very clever. Still, if you take my qualifications, such as that I don’t know if certain types of subisdies would be rejected or not, and that you can’t tell this sort of thing just from doing philosophy, then I don’t see why I need to disagree.

Talking about people in the third person looks really passive-aggressive, you know Matt.

A few moments ago Matt was telling everyone to RTFM, and in his most recent comment asserts that “you can’t tell this sort of thing just from doing philosophy” (i.e., by
reading the f—ing manuals’ and thinking about them). Perhaps his copy is printed on tea-leaves.

Chris – there might be a deep issue of method here, but I don’t see it yet. There seems to be an ordinary disagreement about distributive justice. I’m not playing a debater’s game of not answering until I first elicit some kind of embarrassing confession from you. Nor am I opposed to abstract models. I said as clearly as I could – twice in 17 – that as I think about injustice, I don’t see it in the scenario as you’ve described it. But you are right, I do feel an egalitarian impulse, and that is the basis for my request for more details. My hypothesis is that as the details get filled in, the source of injustice will become clearer or the details of the case will dissolve the egalitarian impulse. I tried to give a few examples of how that might happen. The gross inequalities are enough to get us to investigate further, but for me they don’t decide the case.

But in the same spirit of trying to clarify the source of the injustice that you see, I’ll ask you again to answer my question. Wealthyland is just as rich as Richland, but doesn’t consume widgets, hence doesn’t trade with Poorland at all. Over the decades the relative wealth of Poorland and Wealthyland has gone from 10:500, to 10:1000, to 10:2000. Is Wealthyland acting unjustly toward Poorland (by not buying any widgets)? Or better: is Wealthyland acting more or less unjustly than Richland is toward Poorland? You might think that it is even more unjust, since at least Richland is engaging in some trade with Poorland and this is essential to keeping Poorland afloat. Or you might think that they are equally unjust. In either of these cases, the trade in widgets is not the source of the injustice. It is simply the gross inequality that matters – in other words, you included too many details in your example! Alternatively, you might think that trade is a source of the egalitarian duties of justice. Richland has special egalitarian duties of justice toward Poorland because they engage in trade, but Wealthyland avoids these duties because there is no economic interaction between them. But if this is the case, this generates a massive incentive for Richland to completely eliminate trade with Poorland. If they cut off all trade, they have relieved their egalitarian duties of justice, but have made Poorland even worse off.

Dsquared – on intellectual property, I may be missing the point, but I don’t see that the Havitall case yet involves IP. So far it’s just a case of trade in a (very important) widget – doses of Havitall. It becomes an IP case when we ask what happens when Poorland wants to start producing generic Havitall and infringing on Richland Pharma’s patent. And now the question, I take it, is whether Poorland would be unjust toward Richland in doing so. My answer is that as described – in the absence of some kind of agreement on IP – Richland Pharma’s patent has no standing in Poorland – there’s no injustice here and Poorland can do what it likes.

On the other hand, producing generic Havitall might trigger trade retaliation from Richland and a trade war would be bad for everyone. It might also discourage Richland Pharma from making further research investments. So it might make sense for everyone to agree to some kind of IP regime. This was my point in suggesting that we shift focus to the design of global institutions. At this point, we hit the limits of my untutored intuitions (and I don’t see that what I’ve said so far commits me to any particular IP regime). It’s just not clear to me what IP regime would be just – for exactly the reasons mentioned at 23. It seems to me that this makes a hard case for everyone, not only Rawlsians. But one thing I don’t understand – why, dsquared, do you stipulate that RichPharma “has to set the price at 5, and it can’t sell to Poorland for 1 because it’s worried about parallel imports”? In the absence of an IP regime this may be a real concern, but isn’t a prohibition on parallel imports exactly the kind of thing that is up for grabs in designing a just IP regime?

Jon – while the design of institutions to make parallel imports illegal is up for grabs, preventing them is more or less impossible; in lots of real life cases, companies find that it’s more profitable to simply refuse to supply certain markets. Let’s assume that we can set it up such that Havitall is such a case.

If we do that, I think the problem is that RichPharm just has to be made to earn less profits than it otherwise could. Which wouldn’t be a problem if it was being forced to do so for the benefit of the worst-off Richlanders (because of the domestic justice standard), but is a problem because as I understand it, the whole point of the law of nations concept in this case is that although it’s OK to coerce Richland and expropriate its shareholders for the benefits of fellow citizens, it’s not OK to do so for foreigners unless they’re living at less than the bad level. This isn’t a problem for anyone with a theory under which it’s OK to carry out this sort of mild redistribution on behalf of foreigners as well as domestics, and it’s not a problem for Rawlsians who think that the approach of the first Seattle TRIPS round was basically OK. It’s just a problem for people who want to hold a theory of justice under which there aren’t obligations of this sort to foreigners, but who also want to find some basis for redistributing a few of Pfizer’s profits to Brazilians.

I think the real objection here is that it’s always going to be possible for me and Chris to create examples like this, because the whole point here is to create a theory of justice which doesn’t require some sorts of international distribution, so if we’re allowed to gerrymander and draw our targets round the bulletholes, we’re always going to be able to create a case in which a redistribution wouldn’t be made in a way that looks really unjust. Surely the underlying Rawlsian response here is to say “basically, them’s the breaks, the law of nations in fact does imply that Brazilian AIDS patients don’t have the right to any of Pfizer’s profits, maybe as a Pfizer shareholder and US citizen I might want our pharma companies to play the nice guy here, but it’s not a demand of justice”. (Which is what I think you actually do say in the Wealthyland example).

Chris – the incentive to break off trade comes if you assume that justice requires an egalitarian distribution only when there are trading relations. Imagine that Richland sincerely wants to avoid treating Poorland unjustly. But they find themselves at t4. If they are convinced that they have egalitarian distributive duties only toward their trading partners, then they face a choice. They can continue to import widgets, but then send 995 units to Poorland, or end their trade relations (and then maybe send them 3 units to get them up to 10 – or less if there are other rich countries that would share a similar duty). Either of these would be equally just. It doesn’t seem realistic to me that they would continue to trade with such a massive transfer required. For that to be the case, the counterfactual at t4 would have to leave Poorland at 7 and Richland at 1008 (I think?). And I deny that it is realistic to suppose that trade in widgets will result in a gain of 3 to Poorland but 992 to Richland. So, under anything like realistic assumptions, if trade generates a requirement of egalitarian distribution, Richland will choose to comply by breaking off trade.

Dsquared – I confess I don’t fully follow the example. Tell me more about the first round of TRIPS. I will say that I don’t think Brazilians have a right to any of Pfizer’s profits – but I don’t think Americans have a right to them either. For that matter, I don’t think Pfizer shareholders have a right to them in the relevant sense. I think that property rights are political creations, so Pfizer shareholders only have a claim to those profits to the extent that US law says they are entitled to them because they have done various things to acquire them. This doesn’t mean that any legal system of property rights is okay. On the contrary, I think that’s exactly what the principles of justice apply to. But I do think that there are many different schemes that could be legitimate and different countries will legitimately choose different schemes. Philosophical questions about international trade are questions of how these different schemes should (or may) hook up to each other. Global economic institutions which tell us how to do this are therefore parasitic on legitimate domestic schemes of property.

I do want to explore your point about parallel imports a little more. You say that although making them illegal is one thing, “preventing them is more or less impossible.” I believe you that it may be expensive and that companies may find it more profitable simply to refuse to supply certain markets. I’ll have to think about this some more, but the right thing to say here may be that we simply have to rely on a second-best solution – one that indirectly approximates what would happen if a fully just IP agreement could be implemented. But now look at your stipulations to flesh out Chris’s example – you say that Poorland only produces widgets but that they can’t produce them – in other words, they can’t produce anything – without Richland-trained technicians. I already said that justice might require economic adjustment assistance, but more generally, this scenario seems objectionably unrealistic to me. If you can invoke leaky borders with respect to the re-importation of drugs, is there a reason I can’t invoke technology transfers and the spread of production information? Chris – there might be a deep issue of philosophical method lurking here and this is another point that is likely to come up in the discussion of Cohen: must principles of justice be applicable to all conceivable circumstances or can we invoke certain empirical assumptions about the circumstances in which they will be applied (i.e. what’s “realistic”)?

Daniel, since I did not say that anything can “definitely” be ruled out, at least in the actual world, but at most said that it “seems” that way, I’m going to say that you’re making shit up here. “Seems” here means something like, “at first glance”, which of course leaves open the chance things might be the other way. Since I repeatedly qualified my statements about what we can say about trade agreements in the actual world in ways similarly to how Jon did, you’re getting pretty close to just telling a lie here. You should stop it. I should also say that, since you don’t know Rawls’s view very well at all, you shouldn’t speak so assuredly about what it implies or not. To find this out you’d have to not just imagine what you think is the case from what you’ve read in a few blog posts but do some work to try to see what might be possible given the framework and to provide some arguments for that. Jon has done a bit of that while you’ve just boldly asserted otherwise, despite really knowing little about the subject (what Rawls’s views are and what they imply) in question. I know that speaking strongly about things you know little about is an internet tradition and all but it makes you look silly, on top of looking dishonest here. Please, stop.

Daniel, you’re conveniently _not_ highlighting the _seems_ or the _some of the_ part, aren’t you? When someone makes a claim that has qualifications and you attribute to them a categorical one (i.e., “definitely”, and about a wide range of cases) you’re being dishonest. Do you disagree with that? If so, I’d love to hear why. That’s what you’ll need to explain here if you’re not to be making shit up. Please explain that.

you highlighted (bolded) a part that seemed to support you claim, but only if you don’t note the qualifications right before that. That’s the sort of thing that seems to me to be dishonest. If it were done to you I’d expect you’d think the same. Again, if you can explain how taking a qualified statement and claiming it’s a categorical one isn’t, at the very least, misleading, I’d be glad to hear it.

I’ll admit that “it seems to me that X” doesn’t seem to be adequately paraphrased by “definitely X” . If you think so, well, I guess there’s nothing to say about that. It’s either dishonest or, frankly, very, very, strange. Additionally, the specification you give as to the issue is also one that you came up with and not one that was in my remarks. So, I don’t see why I’m stuck with that, either. (In the case of the US I had in mind in particular some IP issues in the bilateral trade agreements with South and Central American countries, for example.) Whether other people think “seems to be X” is adequately paraphrased by “definitely X” I’ll leave to them, but I’ll say that this seems to me to be dishonest. That leaves open the possibility that you’re merely sloppy on the matter, since of course “seems” doesn’t mean “definitely” on any plausible account.

“it seems to me that X”

No, Matt, look at your actual words, which I helpfully quoted above although apparently not in a font of your liking. Not “It seems to me that X”. Not “seems to be X”. What you said was “X, it seems, in a way that’s pretty straightforward”. Given that the context is you accusing me of dishonesty, I would have thought that you’d take particular care not to give the slightest appearance of an impression of a suspicion that you were trying to rewrite history for your own convenience.

The word you are looking for is “sorry”.

I’ll agree with Chris on this!