CIVIC AND COSMOPOLITAN JUSTICE by ONORA O'NEILL The Lindley Lecture The University of Kansas 2000 The E. H . Lindley ~lemorial LccLUrcsh ip Fund wall established in 1941 in memory of Ernest H. Lindle}. Chancellor of the Cni\·ersity of Kansas from 1920 to 1939. In February 1941 ~Ir. Roy Roberts, t.he chairman of the committee in charge, suggested in the Gmduatr i\·l ag- azi Ill' tha t the Chancellor should invite to the U niversity fo r a l<:c lure o r a se- ries o flect.ures, some o u tstan d ing national or world figure to speak on "VaJues o f Living"-jusl as the late Chan ce ll or proposed to do in his courses "The ll uman Situation'' and "Plan for Living." In the following june ~l r. Rober ts circulated a leuer o n be h alf of the Committee. proposing in somewhat broader terms that The income from this fund should be spent in a q u est of soc ial bet- tennent by bringing to the Univers it}' each year outstanding world leaders for a lecture or se ries oflcc tures, yet with a design so broad in i t.~ outline th at in the yet~rs to come, if it is d eemed wise, th is liv- ing memori al cou ld take some more d esirable for m. The fun d was allowed to acc u mu late unti l 1954, wh en Professor Richard McKeon lectured on "I Iuman Rights and Intern a tio n al Re- latiom. " The next lecture was g ive n in 1959 by Professor Evereu C. H ughes, and has been published by the Cniversity of Kansas School of L'lw as part of his book Strulmt.s' Culture and PerspeclitJfS: l .A•ctures on Medical and CeneralEdu catimr. 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CIVIC AND COSMOPOLITAN JUSTICE by ONORA O'NEILL Professor and Principal of Newnham College University of Cambridge The Lindley Lecture, University of Kansas April17, 2000 © Copyright 2000 by Deparunent of Philosophy University of Kansas Civic and Cosmopolitan Justice Onora O'Neill 1 Justice beyond Boundaries There is, I think, little doubt that we now need an account of jus- tice that stretches beyond boundaries. Many activities, processes and powers have always had effects that reached beyond boundaries of var- ious sorts. Processes such as climate change, activities that may cause harm on a vast scale-such as uses of nuclear or bio-chemical weapons-- are no respecters of boundaries; policies for dealing with them also cannot respect boundaries. There are other activities and processes, such as trade and pollution, which do not invariably spread across bound- aries, but have done so for many centuries. Yet other activities and processes have recently begun to cross boundaries on an unprecedented scale: they include flows of capital, of information (and misinforma- tion), of technologies and of crime. Yet other activities and processes, such as flows of migrants and asylum seekers, are still more or less reg- ulated by various sorts of boundaries. All of these cross-boundary flows maybe altered and their effects magnified or reduced by adopt- ing one or another policy, hence all raise questions of justice. It is not obvious how we should now speak of those aspects of jus- tice that are concerned with activities and processes that cross bound- aries. Traditionally the term international justice has been used, but it has evident infelicities. In the first place, the units whose boundaries may--or may not-be crossed by various activities are seldom na- tions, and rather more frequently states; few of them are nation-states. However, terms such as interstatal justice and intergovernmental justice are hardly more apt, since some of the processes and activities of most concern elude or bypass the control of states and governments. An adequate account of justice and boundaries has to take note of the activities powerful non-state actors, ranging from corporations to non-governmental bodies, from criminal networks to UN institutions, whose location and boundaries are often not well-defined. The term transnational justice shares some of the deficiencies of the term inter- national justice. On the other hand the popular phrases global justice and cosmopolitan justice are too easily understood as presupposing that the outcome of a discussion of justice and boundaries must be uni- tary system of justice for the entire globe, hence as begging con- tentious questions. I have therefore settled on the deliberately minimal phrase justice across boundaries as a starting point. In using this term I assume only that where processes and activities can cross boundaries, reasons would have to be given for thinking that should or should not be permitted to do so. 2 Reason and the Scope of Justice To many people the very idea that (aspects of) justice might have unrestricted scope seems counterintuitive. They may note that jus- tice has been thought of since antiquity as a political or civic virtue, or insist that "justice is the first virtue of social institutions", 1 and sus- pect that uncoupling the link between justice and political units (whatever these may be at a given time) will be incoherent. I believe that this thought is convincing only if we assume that a system of just states will itself be just. But this claim is implausible. Of course, we can imagine a certain sort of plurality of states which would be just provided that each state was just. For example, a set of just states without mutual influence or effects (imagine that they are located on different continents in a pre-modern world, or on differ- ent planets today) would be just. But the system of states in the vari- ous forms in which it has existed in recent centuries is not like this. The prospects and powers of states, and the structures they can es- tablish internally, are always shaped by their relations with other states, by the forms of dependence and interdependence and the sorts of threats and risks, opportunities and advantages that each state pre- sents to others. It is uncontentious that there are relations of power and domination among states, and that interstatal relationships can be major sources of injustice. Nobody who reflects on the unhappy history of the twentieth century could think othenvise. In raising questions about the justice ofboundaries I shall not be concerned with the justice or injustice of their location-a venerable and contentious topic in many parts of the world-but with bound- aries as an institution. Boundaries do not have the simplicity that their linear representation on maps misleadingly suggests. They are not simply demarcations between all activities and processes occurring in one domain and all activities and processes occurring in an adjacent domain. It would perhaps be more accurate to think of boundaries 2 as systems of filters, which can be constructed and adjusted in many different ways. Boundaries can range from the 'supernormal' bound- aries offormer East Germany, which were virtually impenious to cap- ital and people, and permitted only a highly regulated and limited flow of goods and information, to the wholly porous, invisible and often ill- defined demarcations which even today are all that can be found in many frontier regions. In short, boundaries are complex social and political institutions whose form and function can be changed and ad- justed without changing their location. 2 Boundaries, like other insti- tutions, are therefore appropriate matters for challenge and criticism. All questions about location apart, the justice of boundaries, and of changes that might be made in the way they regulate and filter the pas- sage of goods and money, people and information, technologies and ways of life, represents a m;~or challenge for political philosophy. These preliminary thoughts about boundaries show very little about the appropriate way to address the justice of boundaries in political philosophy. On some views, both traditional and recent, justice b~ yond boundaries is an important topic, but a theory of justice should nevertheless begin with an account of a just community, society or state, and only then proceed as a second chapter to an account of justice across boundaries. On other views, beginning with an account of justice within boundaries may compromise or even vitiate any subsequent attempt to provide a convincing account of justice beyond boundaries. These issues might be addressed in many ways. In this lecture I shall try to say something about the starting points that we might choose for an account of justice that can cross boundaries. I shall look briefly at some of the implications of a communitarian starting point, but my main focus will be on two very different conceptions of' public reason' which might provide starting points for an account of justice. One is used by .John Rawls both in Political Liberalism (1993) and in The Ltzw of Peoples (1999); the other was proposed by Kant in a number of works, but in particular in his later political writings. Rawls and K.'lnt each advance what may be loosely called a semi- cosmopolitan view of justice: neither endorses a world state, but each thinks that there is more to justice than 'domestic' or 'internal' jus- tice. I shall not however say very much about the specific institutional proposals for international justice Rawls and Kant put forward. There are two reasons for this. The main one is that comparisons between proposals that address such different worlds may mislead. Kant's pro- posals were in their day a remarkable blend of realism and radical think- ing. Writing at time when there were few republican states and no full 3 democracies, he proposes a league of republican states which ac- knowledge certain rights not only for their own citizens but for oth- ers. By contrast, Rawls's proposals for justice across boundaries are quite conservative. Writing at a time at which the United Nations and its or- ganisations, the world bank and various international courts all exist, he suggests that international justice will require these sorts of insti- tutions. My second reason for saying rather little about the specifici- ties is that much has already been said-by Habermas, by Pogge and by many others. 3 But in my view rather little has been said about the respective starting points, so it is to these that I shall tum. For reasons that will become clear, I shall discuss Rawls before Kant. 3 Communitarians and Justice beyond Boundaries Before turning to Rawls, it is useful to call to mind the communi- tarian views he opposes. A merit of communitarian thought is that it incorporates a strong view of the basis of practical reasoning, which it views as grounded in the categories, norms and practices of actual com- munities and their cultures. Altltough this move may seem arbitrary from the point of view of outsiders, it is anchored in a conception of human identity as shaped by the constitutive norms and practices of the communities and traditions of which a given individual is part, and so offers substantial premises for working out an account of justice and other normative issues appropriate to that community. These norms and practices are, to use a useful Hegelian phrase, seen as nichl hinter- gehbar: there is no going behind them. Since they are constitutive of the identity of the community or tradition, and so ofits members, there is no deeper range of premises which could provide the basis for chal- lenging these norms. Communitarians are not unaware of the possibility that the con- stitutive norms of communities and traditions may change, indeed be changed by those within a community. They see the categories and values of communities as open to revision in the light of its internal conceptual resources. Hence it would be a mistake to think that com- munitarian reasoning is inevitably conservative. However, I believe that it would not be mistaken to think that reasoning that proceeds within the constraints set by the categories, norms and other resources of a community or tradition must inevitably be ethnocentric. Communi- tarian reasoning is inevitably insiders' reasoning, and takes no account of the categories, tlte concerns or the views of outsiders. This does not, of course, mean that communitarians can have no view of the proper treatment of out'iiders: they might be convinced of the merits of ex- 4 elusion or of integration, of neglect or of assimilation, or perhaps (more worryingly) of marginalisation, colonisation or extermination. However, they do not think that there could be reasoned dialogue with unassimilated outsiders, with whom neither categories nor norms, nor therefore the means of reasoning, are shared. Although communitarians take a realistic view of the possibilities for change within any given tradition, I believe that they take an un- realistic view of the boundaries between traditions and communities. Political boundaries form highly variable filters; the cultural bound- aries which communitarian reasoning is chiefly concerned with are yet more diverse and malleable. Many people are inward with thecate- gories and norms of a number of traditions; those who arc not initially familiar with the thought of some community can often grasp a good deal about others' categories and norms, and therefore about their rea- soning. (For evidence consider the amazing spread of the rhetoric of rights). Sense of identity is not invariably anchored in the actual norms and categories of a single community; even where it is, the ways of thought and life of that community may allow understanding of and by a fair range of outo;iders. Like the rest of us, communitarians in fact hold that foreigners and other culmral outsiders are persons with whom we can communicate if not perfectly still a great deal, and that trade and translation, travel and collaboration are real possibilities. In my view these everyday assumptions undermine the plausibility of any communitarian conception of practical reason and show that it does not offer a convincing basis for reasoning either about domestic jus- tice or about justice beyond boundaries. However, reasoning that does not invoke culturally specific cate- gories and norms will be considerably impoverished. It is not obvious what alternative premises for practical reasoning will be available. Once we allow that not all reasoning about justice can take advantage of the rich conceptual resources of a tradition or community we must look for an alternative account of practical reason. One obvious di- rection in which to look is at john Rawls's work, and in particular at his later work, in which he both advances a conception of practical rea- son as public reason and addresses the question of justice beyond boundaries. 4 Rawls on Public Reason In Political Liberali.sm and in The Law of Peoples, which includes a sep- arate essay on 'The Idea of Public Reason',john Rawls explicitly re- jects the underlying assumption of the communitarian pr~jcct: 5 "pluralism is not seen as a disaster but rather as the natural outcome of human reason under enduring free institutions".4 If this is the case, there will be no way to identify constitutive categories and norms for the very units for which Rawls thinks questions of justice primarily arise. justice, as he sees it, has its context in a "bounded society", a perpet- ually continuing scheme of co-operation which persons enter only by birth and leave only by death, and which is self-sufficient. 5 Within each bounded society, reasonable persons will not come to complete agree- ment about ethical matters and may be expected to form differing 'con- ceptions of the good'. However, as reasonable they may be expected to accept a form of reciprocity, namely to be "ready to propose prin- ciples and standards as fair terms of co-operation and to abide by them willingly, given the assurance that others will likewise do so".6 Rea- sonable persons are committed to a conception of public reason, and prepared to work out the framework for the public social world they share, to construct the principles of justice by which they will live to- gether despite irresolvable ethical disagreements. Public reason, as Rawls construes it, is "citizens' reasoning in the public forum about consti- tutional essentials and basic questions ofjustice".7 Evidently this con- ception of public reason as reciprocity between fellow citizens presupposes the constitutive institutions which define fellow citizen- ship: the bounded society, the constitutional basis of citizenship (lib- eral rights and democracy in Rawls's account). This essentially civic conception of public reason is coupled with what we might view as an associative conception of practical reasoning for lesser spheres (Rawls calls this 'non-public reason'; his thought is close to Kant's views on 'private reason ') 8 • In short, although Rawls's conception of public rea- son in Political Liberalism does not assume the shared culture that communitarian reasoning presupposes, it does presuppose shared political arrangements, including boundaries, liberal democracy, and citizenship. It is a nice question whether the boundaries that are pre- supposed are-contrary to Rawls's intentions-in fact state boundaries. On the one hand he claims only to presuppose a 'bounded society', on the other hand the assumption that nobody enters except by birth or leaves except by death suggests that the boundaries of such a polity are well policed, that force is exercised, indeed monopolised, within the territory in question. And this is the Weberian definition of a state. These issues are discussed in more detail in Rawls's Tile Law of Peo- ples. Here he argues that issues of justice beyond boundaries are to be approached by considering public reasoning as conducted by peoples. He rejects both the communitarian thought that the basis of reason- 6 ing is to be culturally defined (a community, a tradition), and the thought that the parties who consider justice beyond boundaries are to be thought of either as individuals or as states.9 Liberal peoples are thought of as inhabiting their own territories, and as negotiating stand- ards of international justice (here the term may be apt) with other lib- eral peoples, as well as with those non-liberal peoples who have what Rawls calls a 'decent hierarchical society'. Rawls believes that the prin- ciples that would be mutually accepted will include those of non-ag- gression, non-intervention except in self defence (and sparingly to end grave violations of human rights) .10 He also thinks that reasonable peo- ples are likely to agree on some version of the UN organisations, some form of World Bank and some form of global trade agreement. 11 Rea- sonable peoples also, he thinks, have some duty to help heavily bur- dened societies, so that all have the means of life; but the difference principle is not to be extended intemationally. 12 Since the procedures ofRawlsian public reasoning are specified only in very general terms, it is hard to be sure whether or in what conditions there would be mu- tual agreement on these or other specific arrangements; in particular it is hard to see whether and why reasonable peoples would not agree to a more extended view of duties of richer towards towards poorer societies. The conception of the state that Rawls rejects in The Law of Peoples is in my view indeed a pretty unpromising basis for any account of jus- tice beyond boundaries. What he rejects is the realist conception of states as "anxiously concerned with their power-their capacity (mil- itary, economic, diplomatic)-to influence others and always guided by their basic interests". 13 However, this has always been an idealised, indeed ideologised conception of the state, and it is certainly not the only option. In fact, the conception of a 'people' on which Rawls builds his ac- count of justice beyond boundaries is a remarkably state-like concep- tion, based on the protection of territory and self-interest: Liberal peoples do, however, have their fundamental interests as permitted by their conceptions of right and justice. They seek to protect their territory, to ensure the security and safety of their citizens, and to preserve their free political institutions and the liberties and free culture of their civil society. 14 Evidently Rawls conceives of peoples as politically organised, and as able to appoint representatives15 through whom they are to reason about justice beyond boundaries. In short, peoples are conceived as 7 having all the powers capacities and features of states, apart from one very specific feature: What distinguishes peoples from states- and this is crucial- is that just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equal. 16 In Rawls's view, peoples can be reasonable, but states are wedded to rational self-interest. Rawls's choice of peoples rather than states as the agents whose de- liberations are basic to justice beyond boundaries is, I think, motivated in large part by the inaccurate assumption that states must be ideal typ- ical structures that fit the realist paradigm. Yet states as we have actu- ally known them have always fallen far short of that paradigm. 17 The conception of states and governments as having limited powers, and as observing certain fundamental principles over and above the pur- suit of rational self-interest, is part and parcel of the liberal tradition of political philosophy, and central to contemporary international politics. States as they have really existed and exist never had and never have unlimited sovereignty, internal or external-although some the- orists of sovereignty, some proponents of strategic reasoning, some hawks in powerful states, and some romantic nationalists without powerful states have made grandiose claims. States a.s they currently exist are com- mitted by numerous treaty obligations to a limited conception of sov- ereignty, and there is nothing contradictory about this commitment, although like other commitments it is sometimes not honoured. Peo- ples, as they may once have existed independently of state structures prob- ably did not have bounded territories; those peoples who have the means to negotiate with other peoples, to keep outsiders out and to make agree- ments, have them because they have state and governmental structures. It is not hard to see what leads Rawls to this quite distinctive view of the basis for thinking about international justice. Since he has pro- posed an account of public reason that focuses on the notion of reci- procity among agents, he has to determine who tl1e relevant agents shall be, among whom reciprocity is to be achieved, or not. Since he as- sumes that the only conception of the state is the realist conception, according to which states act solely from self interest and will not be capable of reciprocity, these agents cannot be states. By default, the reasonable agents who arc to carry the burden of international nego- tiation across boundaries are seen as peoples. Yet in reality the only peoples who have firm boundaries and the capacity to negotiate with outsiders on a sustained and perhaps reasonable basis are those peo- 8 pies with states. There is something laborious about anchoring an ac- count of reasoning to a conception of territorial agents who may not be well exemplified in our world, and if they were exemplified would acquire the political capacities Rawls imputes to them only through state and governmental structures which his argument rejects. 5 Kant: Public Reason as Non-Derivative Rawls views his philosophy ao; in many w·.tys Kantian, and makes fre- quent references to Kant's in his writing on justice across boundaries. However, he also, and in my view rightly, distances his work from .Kant's. In 11u? Law of Peopks he writes: Since my presentation of the Law of Peoples is greatly indebted to Kant's idea of Joedus jmcificum and to so much in his thought, I should say the following: at no point are we deducing the prin- ciples of right and justice, or decency, or the principles of ra- tionality, from a conception of practical reason in the background. Rather, we are gi\ing content to an idea of prac- tical reason and three of its component parts, the ideas of rea- sonableness, decency and rationality. The criteria for these three normative ideas are not deduced, but enumerated and char- acterized in each case. Practical reasoning as such is simply rea- soning about what to do, or reasoning about what institutions and policies are reasonable, decent, or rational and why. There is no list of necessary or sufficient conditions for each of these three ideas ... Ill As Rawls sees it, Kant's reliance on an account of practical reason has unacceptable metaphysical presuppositions. 19 Kant, by contrast, does seck to derive his account of justice from an account of practical reason. But I do not think that it follows that Kant's conceptions of ethics, of justice and of international justice must be derived from transcendental idealism under a strongly metaphysical interpretation. Kant's writings on public reason provide relatively accessible argu- ments which do not draw on metaphysical ao;sumptions, yet aim to vin- dicate a specific conception of practical reason: they can be given, indeed they invite, an anti-metaphysical reading. 211 The central thought of Kant's account of public reason is that the standards of reason cannot be derivative. Any appeal to other, exter- nal authorities to buttress our reasoning must fail. Just as a learner cy- clist who clutches at passing ol~ccts and leans on them to gain his balance thereby fails to balance at all, so a would-be reasoner who leans on some 9 socially or civilly constituted power and authority which lacks reasoned vindication fails to reason. This view is explicit in the quite distinctive way that Kant characterises the difference between his conceptions of publicand private uses of rea- son in various works of the 1780's and 1790's.21 Here I shall refer only to two short essays of the 1780's, neglecting other extended discussions of public and private reason.22 In these writings Kant characterises uses of reason that appeal to rationally ungrounded assumptions, such as the civilly constituted authority of Church or state, not as public but as private. In What is enlightenment? he speaks of the reasoning of military officers, of pastors of the established Church and of civil servants in car- rying out their roles as private. these functionaries derive their author- ity from their civil or public office, and their official communications assume without argument the authority and the edicts of that civil power and the rules of office that it has instituted. Kant states quite ex- plicitly that "the private use of reason is that which one may make ofit in a certain civil post or office with which he is entrusted" 23 It follows that the sorts of reasoning exhibited in democratic political debate and in communitarian thought. as well as in the civic reasoning Rawls com- mends, are all in Kant's view private, or at least as not fully public, because each appeals to the authority of civilly and socially constituted roles, institutions and practices. Rawlsian peoples are not in fact identifiable independently of the constitutive institutional structures that secure their territories, distinguish citizen from non-citizen, and enable their dem- ocratic government, including that part of democratic government which counts as foreign policy: hence Kant would see their reasoning as less than fully public. Kant himself offers a quite different view of (fully) public reason as intrinsically non-derivative. He contrasts all 'private' uses of reason with "the public use of one's own reason ... which someone makes of it as a scholar before the entire public of the world ofreaders",24 a scholar "who by his writings speaks to the public in the strict sense, that is, the world".25 In these and many other texts Kant sets out a dilemma. If we ap- peal to any civilly or socially constituted powers or authorities, let alone to mere brute force-if we try to constrain or control attempts to reason-we lose the very justifications we seek. Discourse that is sub- ordinated to authorities that lack reasoned vindication achieves at best restricted scope and authority. Those who buttress their conclu- sions by appealing to authorities they do not vindicate end up relying on the dubious merits of an argument from authority. 10 6 Kant: Public Reason as Freedom without Lawlessness Kant's criticism of private uses of reason is both convincing and pro~ lematic. It is convincing because it is clear enough what the appeal to contingently available authorities amounts to-the introduction of some arbitrary premise asserting the claims of that authority; and dear enough what it costs-the relativisation of conclusions to that arbitrary premise. It is easy to agree that reasoning is limited as soon as it is be- holden to any civilly constituted authority, indeed to any contingent power or authority for which no justification is provided, and that this independence is the condition of reaching audiences of wider scope. It is easy to see how this Kantian criticism of private reason can be ex- tended to undermine attempts to develop democratic, communitarian and even Rawlsian-in short, civic-conceptions of public reason. However, it is less easy to understand what we are going to be left with when all appeal to 'alien' authorities is set aside. Kant's favoured image of public reason is scholarly communication with the world at large. It has evident limitations. Perhaps Kant could find no better image of non-derivative reasoning than tl1is; but we are more suspicious, and in my view rightly suspicious, about the relations between power and knowledge. Practices of scholarly communication include and ex- dude, highlight and suppress. Can we seriously expect to find or to live by communicative practices which are do not introduce unargued assumptions-even if these assumptions change through history? (I personally doubt whether the much heralded emerging global com- munication regime, which some see as the basis for a deeper democ- ratisation of political life, lives up the Kantian ideal of public reason any better than the communication among scholars to which Kant pointo;.) Can we expect to say anytllingabout the requirements of reasoned communication, other than making the negative point that it fails wher- ever it merely defers to the edicts and assumptions of civil or other powers or authorities? Reasoning surely cannot be merely a matter of discourse that does not defer-for if this were the case, every sort of gibberish and incoherence would count as reasoned, provided only that it does not draw on the authority or edict<> of whatever pow- ers there be. Clearly K.mt thinks that we can say more about the demands ofpu~ lie reason. He never maintains that reasoning has merely to be free and non-deferential. He seto; out the other requirements of reasoning rather clearly in 'What does it mean to orient oneself in thinking?, which was pu~ lished quite soon after What is enlightenment?. In the second essay he 11 argues that nothing could deserve to be called reason if it was wholly without structure and discipline, because a minimal condition for any discourse to count as reasoned is that it be communicable. Reasons arc the sorts of things that we give and receive, accept or refuse. He re- jects the idea that reasons could be devised by the arbitrary fiat of in- dividual reasoners: ... how much and how correctly would we think if we did not think as it were in community with others to whom we communicate our thoughts, and who communicate theirs with us! 26 The standards of reason cannot be found in solitary thinking: on the contrary those who seek to reason must structure their thought, speech and communication in ways that others can follow. At times Kant uses a fiercely sarcastic rhetoric27 to chastise those who try to purvey the illusion that reasoning could be ·without all struc- ture or discipline and delude themselves that this 'lawless' freedom will be liberating. He had clear targets in mind, including the fans of re- ligious enthusiasm (Schwarmerei) and of exaggerated views of the powers of genius; today his targets might include a fair range of post- modernists, new-agers and deconstructionists. In each case he believes that the opponents of reason fail to see that the unstructured libera- tion of thought and discourse which they crave will be a disaster: .. .if reason will not subject itself to the laws it gives itself, it has to bow under the yoke oflaws given by another; for without law, nothing-not even nonsense-can play its game for long. Thus the unavoidable consequence of declared lawlessness in think- ing (ofliberation from the limitations of reason) is that the free- dom to think will ultimately be forfeited ... 28 The illusions of 'lawless' thinking end, Kant thinks, not merely in intellectual confusion, but in lack of defences against the very sorts of deference and subordination which enthusiasts for lawless thinking wish to escape. Because anarchic, 'lawless' thinking is no more than bab- ble, it is defenceless in the face of the claims of superstition, of en- thusiasm and of religious and political dogma. 7 Kant: Public Reason as Law-like If 'lawless' thinking ends not in freedom of thought and commu- nication, but in gibberish and isolation, even in superstition and cog- nitive disorientation, whose political consequences include vulnerability to tyrants and demagogues, then any activity in human life that can 12 count as reasoned must be structured. This structure must enable us to distinguish good reasons from poor reasons, to decide which we ought to accept and which we ought to reject. Reasoning whether the- oretical or practical will lack authority and normative force if it has no stnacture by which this distinction can be made So if anything is to count as more than 'priv.ne' reason, in Kant's sense of the term, if there is to be anything that is to count as fully public reason, then it must have a structure which it does not derive from existing institutions and practices. What then can provide the intemal, non-derivative discipline or structure of fully public reasoning? K.mt's answer is straightfor- ward: Freedom in thinking signifies the subjection of reason to no laws expect tluue which it gives itself; and its opposite is the maxim of a lawless use of reason ... 29 Public uses of reason must have law-like rather than lawless struc- ture, but since they are not to derive their law-likeness from any ex- temal sources, it will have to be freely chosen: the discipline of reason is that of self-kgislatio11 or autorwmy. Kant's identification of reason with autonomy is initially starding, despite the fact that the Groundwork of the Metaphysic of Morals makes it plain that practical reason is to be identified with autonomy.:lll The reason that it is startling is surely that the contemporary conception of autonomy identifies it with independence rather than with reason. Kant, however, never equates autonomy with mere freedom or with independence.31 Unlike most recent 'Kantian' writers (and many of their critics), he views autonomy or self legislation as emphasising not some (rather amazing sort oj) self that does the legislati11g, but rather legisla- tion that is not borrowed from others, that is 110t clerivalive, that is therefore freely chosen, lmd yet has the fonn of law. Non-derivative 'legislation' can- not require us to adopt the actual laws or rules of some institution or authority; it can be only a matter of requiring .that any principle we use to structure thought or action be law-like, that it have 'the form of law'. Only those who freely choose principles that have the 'form of law' meet the demands of Kantian autonomy; only they show com- mitment to public reason. This is why Kmn can write: Now the power to judge autonomously-that is, freely (ac- cording to principles of thought in general)-is called rea- son.32 Another way of making the same point is to note d1at Kant identi- 13 fies public reason with a double modal criterion: with the requirement of structuring our discourse in ways in which (we believe) others can follow. A general statement of this criterion can be found at the end of What does it mean to orient oneself in thinking?, where Kant identifies reasoning with the practice of adopting principles of thinking and act- ing that have the form oflaw, which can be adopted by all: To make use of one's own reason means no more than to ask oneself, whenever one is supposed to assume something, whether one could find it feasible to make the ground or the rule on which one assumes it into a universal principle for the use of reason.33 We are most of us more familiar with a restricted version of this principle, formulated specifically for the domain of action, which Kant labels 'the supreme principal of practical reason' or 'the Categorical Imperative'. The best known of these more restricted formulations is the Formula of Universal Law version of the Categorical Imperative, whose double modal structure is particularly plain: 'act only in accord- ance with that maxim through which you can at the same time wiU that it be- come a universal law'. 34 8 Kant and Domestic Justice Where does this account of the vindication of practical reason take Kant's account of justice, and specifically of justice beyond boundaries? I shall first comment briefly of Kant's account of domestic or 'inter- nal' justice. His justification of political institutions does not appeal simply to a version of social contract35 or contractarian thought but to a more abstract Universal Principle of justice. A particularly clear for- mulation of this principle is given early in the Doctrine of Right (the first part of the Metaphysics of Morals). It runs: Any action is rigid if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in ac- cordance with a universallaw.36 The Universal Principle of justice makes no explicit reference to con- sent. Its justification lies rather in its relationship to the formulae of the Categorical Imperative, and so to Kant's vindication of practical reason as grounded in the necessary conditions for any possible fully public reasoning. Kant's argument for justice begins simply from the requirement that reason be fully public, in the sense that it never in- 14 voke arbitrary authority, hence can be followed in thought or adopted in action by all, without presupposing any pre-established agreement, shared ideology or religion or other given source of coordination. The most familiar statement of this requirement for the domain of practical reason is the Formula of Universal Law version of the Cat- egorical Imperative. This principle covers maxims-practical princi- ples-for all sorts of action, inward and outward, personal and public. By contrast the Universal Principle of Justice is restricted in two ways. First, it is concerned only with maxims for outward action, that is with the aspects of action which could be enforced (hence not, for example, with maxims for virtue or with moral worth). Second, it is concerned only with maxims for structuring individuals' external freedom, that is with maxims for shaping the public domain, so not with maxims for other outward aspects of individual conduct, such as the outward as- pects of duties to self or personal relations. The Universal Principle of Justice requires the rejection of any basic maxims for structuring the domain of the external use of freedom which could not be adopted by all. Kant thinks that the implementation of this principle in the actual conditions in which we live is not straightforward. We find ourselves living on a spherical and finite globe that brings us into contact with others and competing with them for scarce resources; and we are not reliably altruistic.37 In our world external freedom will therefore be insecure without at least a limited form of coercion, aimed at 'hindering the hindrances of freedom'. In these conditions the Universal Princi- ple of Justice can be best implemented by establishing states with re- publican constitutions, which guarantee freedom within the law at least within a certain territories, although they can do so only by coercive use of a conditional form of state power. Kant justifies state power not as an intrinsic requirement of justice, but as the compromise which we have to make under actual conditions. A succinct formulation of this compromise is given in Kant's state- ment of the elements of a republican constitution: A constitution established, first on principles of the freedom of the member of a society ... second on principles ofthe dependence of all upon a single common legislation ... third, on the law of their equality (as citizens of a state)-thc sole constitution ... on which all rightful legislation of a people must be based-is a re- publican constitution.38 15 Republican justice is evidently not democratic justice, but I do not think it is trivial. Consider how much it rules out. Societies or states which do not secure the rule of law (anarchic or despotic societies) undermine or jeopardise external freedom for some or for all, so base their constitution on a principle which cannot be a principle for all and are unjust. Societies or states which leave some persons above or outside the law (monarchies, dictatorships, states within states, slave states) undermine or jeopardise external freedom for some or for all, so base their constitution on a principle which cannot be a principle for all, so are unjust. Societies or states which do not secure equality of status for all citizens under law (feudalism, caste societies, patriar- chal societies) undermine or jeopardise external freedom for some or for all, so base their constitution on a principle which cannot be a prin- ciple for all, so are unjust. It may be that Kant's account of domestic justice could be improved by showing that the abolition of gender discrimination and the institution of full democracy are also compo- nents of a just constitution. 9 Kant On Justice Beyond Boundaries. I want now to indicate quite briefly some advantages of an ap- proach to justice across boundaries based on Kant's conception of pub- lic reason. The first advantage is that his conception of public reason does not presuppose the status quo; it merely insists on the modal con- ditions that all discourse must meet if it is to be fully public. If any- thing can count as a vindication of reason, as opposed to mere assertion that something is reasonable because it is liked, or accepted, even liked or accepted by lots of people, or even by a people, this seems to me the most promising strategy. The second advantage is a corollary of the first. Because he has offered a vindication of reason, Kant has no need to presuppose any institutional structures in arguing for the basic principles of justice: he can address the agenda of seeing which principles would and which would not be reasonable without begging questions. In Kant's thought human rights, democracy, state power and (some sorts of) boundaries arc The approach has several further advantages. Kant docs not ground his account of justice in the realist conception of the state, with its eth- ically disreputable disregard of the moral standing of some of those with whom we in fact interact across boundaries, and to whose suffer- ing we may contribute. Nor does he argue for a merely abstract cos- mopolitanism.39 Nor does he anchor justice in the puzzling conception 16 of a tenitorial people who lack a state but police their boundaries tightly. For Kant an account of a just world-of a form of cosmopolitan justice in which boundaries may not be absent, but must be shown not to inflict injustice-begins with an account of the reasons we have for seeking principles that could be adopted by all. The Universal Prin- ciple of justice formulates this requirement specifically for the public domain-the domain in which conflict is least avoidable-and legit- imates constitutionally limited forms of state power within bounded territories. However, since there is no antecedent reason for think- ing that states must be anything like those about which realists fan- tasise, the way is left open for considering which sorts of interaction between all agents, including states, are compatible with justice and which are not. In my view this may provide a better starting point for thinking about justice beyond boundaries than the one Rawls offers, not only because the Kant's strategy of vindication aims deeper, but because it is more realistic and more open. The greater realism lies in the clear ac- knowledgment that republican states are not in themselves just: they are a compromise we have to make in order to start securing freedom under real world conditions. By the same token the boundaries of these states are not intrinsically just: the particular filters they institu- tionalise, the inclusions and the exclusions, the domination and the subordination which they secure, may constitute unjust action towards outsiders. If boundaries are a requirement of realism in the conduct of life, their construction and adjustment and the sorts of filters that they institutionalised is a matter of justice. In the world as we now know it, state boundaries are porous not in all but in many ways: they arc for the most part fairly porous to trans- fers of goods and capital, communications, technologies, and rather less so to cultures and religions. The respects in which they arc least porous are to flows of people and of public finance. However, for Kant the status quo is never the end of the story. If we can find more just ways in which to structure boundaries in the world as it actually is, this will be a better implementation of the Universal Principle ojjustire. In the meantime we should not deceh•e ourselves by imagining that the power relations between states are exempt from considerations of jus- tice, or that the degree of cosmopolitan justice we have established at the start of the twenty first century is all that might be achieved. 17 NoTES I. john Rawls, A Thtory of]usti« Harvard Uni\•crsity Press, Cambridge, Mass., 1971, 3; in later writings Rawls has increasingly emphasised the specifically political charac- ter of reasoning about justice. References to and quotations from Rawls's writings will use the following abbreviations: A Throry of]ustia: 7]; Political LiM-a/ism, Columbia Uni- versity Press, New York, 1993: PL; TM Laru of Peopla, Harvard University Press, Cambridge, Mass, 1999: LP. 2. Compare the boundaries of Europe in 1950 and in 2000: few have changed their location; all have become more porous to more activities and more sons of people. 3.ji'trgen Habermas, 'Kant's Idea of Perpetual Peace, Y.ith the Benefit ofTwo Hun- dred Year's Hindsight' in james Bohman and Matthias Lutz-Bachmann, eds., Perpttual Peace: &says on Kant's Cosmopolitan Ideal, MIT Press, Cambridge, Mass., 1997, 113-153; Thomas Pogge, 'An Egalitarian Law of Peoples', Philosopliy and Public Affairs, 23, 1994, 195-224. 4.John Rawls, Pl., Columbia Uni,·ersity Press, New York, 1993, xxiv; cf. 47, 55. 3; LP31- 2; .'The Idea of Public Reason' (included in IP) 131. 5. This formulation is to be found throughout Tf, in later works the emphasis on bounded societies continues, but their liberal democracy and the citizenship of their members arc increasingly emphasised; these shifts arc corollaries of Rawls's shift to 'po- litical' justification. 6. PL 49; see also the note on this page. 7. PL 10; cf2121T. and LP 132-3. 8. For Rawls's views on non-public reasoning see PL 213fT., esp. 220-22 and l.P 134; for Kant's views on public and priv.tte reason, sec section 8 below. 9. PL 18; LP23-30. 10. LP35. II.IP38. 12. IP 115-119; for contrary views see Charles Beitz, Political Thtory and lnlmlational &lations, Princeton University Press, Princeton,l979 and Thomas Poggc, 'An Egalitarian Law of Peoples', Philosophy and Public Affairs, 23, 1994, 195-224. 13. LP28. 14./J>29. Note also the folloY.ing: 11te point of the institution of property is that, unless a definite agent is gi\"en responsibility for maintaining an asset ... that asset tends to deteriorate. In this case the asset is the people's territory and its capacity to support them in perpetuity; and the agent is the people themselves as politically organised", IP 39. 15. /J>32, 34. 16. LP35. 17. Titeorists of international relations acknowledge that many of the states we see around us fall far short of the realist paradigm of statehood: they speak of quasi-states and dependent states; Rawls acknowledges that realism about st;Ue action is false-yet leaves realists in possession of conceptions of the state, see /.P 46. 18./.P86-7 19. For a discussion of some of Rawls's reasons for distancing himself from Kant, and some of the ways in which he arri\'CS at a \"Cry weak conception of public re-dSOn see Titomas McCarthy, 'A Reasonable Law of Peoples' in James Bohman and Matthias Lutz-Bach- mann Perpetual Ptau: Essays on Ka11t's Cosmopolitar~ldral, MIT Press, Cambridge, Mass., 1997, 201-217. For further suggestions for an anti-foundationalist reading of Kant's \indication of reason see Onora O'Neill, Constnutions of&ason: Explomtions of Kant's Proc- tiral PMiosophy, C.ambridge University Press, Cambridge, 1989, especiall)· the first two papcrs, and 'Vindicating Reason' in Paul Guyer, ed., TM Cambridgr Companion to Ka11t, Cambridge University Press, Cambridge, 1992, 280-308. 18 20. Kant presents other arguments for the non- ( 1795); \Wwt dOI'.s it mmn to orimt orrrsrlfin thinking7: WO ( 1786); Rrligiotr withi11thl' bormdarie.s of mnr reason: R ( 1793); 11re mrrjlicl of lht fanrllifs: CF ( 1798). 22.ln particular,! shall say nothing about Kant's discussion of public and private uses of reason in the interpretation of Scripture, which is a major theme of Cf"and discussed using closely related terms in R. 23. \\7·:8:37. 24. l\7~"8:37 25. \~"8:38 26. W08:144 27. As those who seck to reason with post-modernists often discover, rhetoric is the only remaining \~-ay to engage. 28. \\'08:145 29. wo 8:145. 30. Sec especially (; 4:440. 31. K.,nt does think that Yarious sprrijicforms of independence arc important-but they arc quite different from Kantian ;uuonomy. A just, republican state is one where independence of action is safeguarded by the fact that nobody is either outside or abo,·e the law; acti\·c citizens need a degree of economic independence (Sclbstst.indigkcit). 32. (Jo"7:27. 33. WO 8: 146n. 34. G4:421 35. For Kant the term'social conu-.Jct' refers not to the fundamental principle of po- litical justification, but to a specific step in the dcrh-ation of an account of just institu- tions from the Uni\"ersal Principle of justice. Unlike that principle, the idea of the social contract takes cognizance of historically specific conditions, l<•r example of the fact that we live with moderate scarcity and limited altmism yet in mutual proximity. Hence in our world the social contract has to accept state coercion, but can require state struc- tures to t<1kc a republican form. Sec Onora O'Neill, 'Kant and the Social Contract Tra· dition', in Claude Picht!. ed., (E.'Isays in honour of Pierre l..abcrge: title to be supplied) forthcoming. 36. MM 6: 230. 37. For K.,nt the bounded globe rather than bounded societies arc limrlamentally significant for justice. 38.1'1>8:350; cf. MM6:340. 39. Thomas Pogge, 'Cosmopolit.,nism and Sovereignty', Ethirs, 103, 1992,48-75. 19 i\ The following lectures have been published in individual pamphl et fo1m and may be obta in ed from the Deparlme n tat a price of S2.50 plus $ 1.00 for ha ndling ($3.50 per lcciU re) . * 1961. ·~rhe Id ea of Man-An Outline ofPhilosophical Anthropol ogy. ~ By .J ose Fcrrater Mora, Professor of Philosoph y, Bryn Mawr College. 1962. ''Changes in Eve nts and Changes in Things. ~ By A. N. Prior. Professor of Phil osophy, University of Manchester. *t 1963. "~lora ! Philosophy and the Analysis of Language.~ By Richard B. Br;mdt, Professor of Philosophy, Swarthmore College. *t l 964. ~Hum