ARENA Working Papers
WP 00/16



Liberal Contractualism - Partial and Particularist, Impartial and Cosmopolitan

Andreas Føllesdal


Several authors have explored or defended moderate nationalism, characterised by limited partiality for fellow nationals or fellow citizens, and loyalty to the laws and institutions of one's own society. Critics have argued that such loyalties are incompatible with "cosmopolitan" universalist liberalism, on at least two grounds. The article seeks to rebut these objections from a liberal contractualist position similar to that of Rawls, Dworkin and Scanlon. Liberal theories are thought to disallow deviations from impartial treatment and therefore rule out substantive special claims among compatriots. The scope for contractualist partiality is the subject of section 2. Liberal theories are also considered unable to account for political duties -- the duty to comply with the just laws and institutions of one's own state. The contractualist grounds for political allegiance are addressed in section 3. This is not to say that liberal contractualism endorses nationalism understood as a principle of political order, that political and cultural/ethnic boundaries should coincide*. A brief sketch of some elements of Liberal Contractualism is presented in section 1.



Alleged tensions between liberalism and nationalism have recently received sustained attention. [1] Several authors have explored or defended moderate nationalism, characterised by limited partiality for fellow nationals or fellow citizens, and loyalty to the laws and institutions of one's own society. [2] Critics have argued that such loyalties are incompatible with 'cosmopolitan' universalist liberalism, on at least two grounds. The article seeks to rebut these objections from a liberal contractualist position similar to that of Rawls (Rawls 1955, 1971, 1978, 1993), Barry (1995, 1999), Dworkin (1978), Scanlon (1998) and Freeman (this volume). [3] Liberal theories are thought to disallow deviations from impartial treatment and therefore rule out substantive special claims among compatriots. The scope for contractualist partiality is the subject of section II. Liberal theories are also considered unable to account for political duties - the duty to comply with the just laws and institutions of one's own state. The contractualist grounds for political allegiance are addressed in section III. This is not to say that liberal contractualism endorses nationalism understood as a principle of political order, that political and cultural/ethnic boundaries should coincide. [4] A brief sketch of some elements of Liberal Contractualism is presented in section I.

I Liberal Contractualism

Under what conditions do citizens have reason to accept institutions and cultures as normatively legitimate and binding on their conduct? The contractualist account of normative legitimacy holds that individuals are normatively bound to comply with laws and institutions only if they satisfy principles which can be justified by arguments in the form of a social contract of a particular kind. The principles of legitimacy we should hold institutions to, are those that the persons affected would unanimously consent to under conditions which secure and recognise their status as appropriately free and equal. These standards of legitimacy are specified by consideration of what interests and principles no one could reasonably reject as a basis, given the mutual interest in acting on such non-rejectable grounds. Hence the phrase contractualist. This commitment is honed by the claim that institutions are legitimate only if they can be justified by arguments in the form of a social contract of some specific kind. This notion of possible consent allows us to bring the vague ideals of equal dignity to bear on the questions of legitimacy and institutional design.

The social institutions that surround us have a pervasive impact. They provide the backdrop for the distribution of important goods, powers, burdens and obligations. At the same time institutions shape our expectations and values. We have a strong interest in affecting these circumstances that shape our interests and plans. Furthermore, we have a strong interest in fulfilling our legitimate expectations. Hence control and influence over political decisions is a great good. This is why the distribution of political authority through institutional arrangements is a central issue of political philosophy, and a central topic of Liberal Contractualism.

I.1 Equal Respect - Moral Cosmopolitanism

Liberal Contractualism assumes normative individualism - that is, that the ultimate grounds for all arguments are the interests of the individuals affected by the rules under consideration. It also is universal concerning who has moral status: justification is owed to every person in his or her own right. Thirdly, it has an egalitarian premise; namely that all parties are worthy of equal concern and respect. These features makes it a moral cosmopolitan view (cf. Pogge 1992, 1994a; Beitz 1994).

The notion that all affected parties must be served by the institutions is an interpretation and application of this vague commitment. Those on the inside of national borders have the same fundamental moral standing as outsiders, since the similar claims of each count equally, regardless of citizenship. However, this need not entail institutional cosmopolitanism, that the world order should be one of a universal republic, such that global distributive pattern of benefits and burdens should be independent of the borders of states or other political units. I shall indicate below that Liberal Contractualism may allow different claims among individuals, including more egalitarian claims among fellow citizens.

I.2. Mode of arguments: permissibility versus deduction, underdetermination

Of some relevance to the issues at hand, we should note that the contractualist approach leads us to search for principles against which no reasonable objections can be made. Principles are presented for such assessment, and the process of checking whether objections can be made can leave a range of permissible principles. Note two important features:

There is no sense in which such principles of justice, or particular institutions, are deduced or generated by the process of checking whether equal respect is secured. [5] The procedure checks for consistency, and does not offer a deductive path. Moreover, the process can in principle allow several alternative principles. Thus the set of principles may be underdetermined, in the sense that alternative principles may all be unobjectionable.

Furthermore, the same set of principles for legitimacy may allow a variety of sets of institutional arrangements, each of which satisfies the distributive requirements of Liberal Contractualism. The moral unity provided by such a theory is not one, therefore, of deduction, but of an analysis of the institutions which show that they are consistent with, and can be regarded as an expression of, a view of individuals as enjoying equal respect.

In light of these comments, it should be clear that this tradition allows different just institutional arrangements. Blueprints of institutional design are out of reach. Institutionalisation of justice happens or is pursued in different, yet possibly equally just ways - for instance within different just states.

I.3. Relevant interests: include Meeting Expectations and Culture

Among the interests of individuals that can command general agreement for purposes of arguments about legitimate social orders are the satisfaction of basic needs and all-purpose means for pursuing one's conception of the good life. The set of social institutions as a whole should secure the interests of all affected parties to an acceptable degree, including our interests in peace, stability, basic needs, and shares of goods and powers. Among the important interests we must take each other to have, for purposes of such agreements, are interests in joint activity as well as an interest in developing our preferences under acceptable conditions.

The relevant interests also include individuals' interests in social activities, involving the co-operation of others. A further, related interest, is our interest in being assured that others honour our important and good faith expectations. [6]

Contractualist theories are said to deny the intrinsic value of community, and ignoring the "embedded" nature of human beings. [7] However, Liberal Contractualism recognises that the social institutions, culture and practices shape our expectations and aspirations in fundamental and inescapable ways. Social institutions have a pervasive impact on the development and satisfaction of our interests by framing our expectations. We are concerned with the legitimacy of social institutions precisely because they exercise a strong influence on us, or our life plans and our expectations. [8] This is one reason why individuals must be acknowledged to have an interest in procedural control over the social institutions that shape values, goals, options and expectations.

Thus Liberal Contractualism accommodates the communitarian concern for constitutive attachments and commitments, found within the traditions and roles we take part in, and not chosen by the individual. Satisfying legitimate expectations is an important interest, and stable social institutions are crucial for making and pursuing life plans. We thus have good reason to maintain social institutions, insofar as it is only under fairly stable institutions and other practices that expectations can be created and met (Follesdal 1996).

I.4. The Role of Consent for Legitimacy

One contribution of Liberal Contractualist theory is to delineate some limits to the morally binding rules and practices that surround us, employing the apparatus of consent for this purpose. Every individual's interests must be secured and furthered by the social institutions as a whole (Dworkin 1978). This commitment is honed by the notion of possible consent, allowing us to bring the vague ideals of equal dignity to bear on pressing questions of legitimacy and institutional design. To prepare the ground for the discussions below, some remarks about the role of consent are in order.

Undoubtedly, Liberal Contractualism relies on the notion of choice in determining that some institutions are illegitimate. One aim of these liberal theories is to bring the commitment to justice to bear on our rules, institutions and practices in order to determine whether they are compatible with the equal respect and concern accorded every person. We do not have a political duty to comply with regimes that are clearly illegitimate. Our moral obligation to obey the law of the land is justified in part by the claim that this social order could have been the subject of consent among all affected parties. Two further conditions must also be satisfied in order to determine the scope of a person's duties: the content of the institutional requirements, and the issue of whether these institutions or practices apply to that person. I return to this threefold task below.

While legitimate institutions must be such that they could secure hypothetical consent under specified conditions, Liberal Contractualism does not hold that individuals are only bound to institutions by voluntary consent. The aim is not to show that all moral claims are acquired by consent, from self-interested premises or otherwise. Consent, hypothetical, tacit or otherwise, does not create the moral obligation or duty in the same way as free and adequately informed consent binds those who so consent. Instead, Liberal Contractualism serves to delineate the limits of one's duties, acquired by birth or by consent.

The existing legitimate institutions are not binding on us because we actually consent, or participate in a daily tacit plebiscite (Renan 1939). To be sure, we usually act according to the practices we find ourselves part of (Walzer 1977: 54), but we do not have, and have never had, a real freedom with regards to the social institutions. Indeed, ordinarily we cannot choose to reject them, and not even the act of voting expresses a morally binding tacit consent to be governed.

The idea of possible consent in the contractualist tradition does not provide the source of moral duty, but is an expression of one important condition for such duties. Obedience is required only when power is distributed fairly. Appeals to consent thus serves to recognise legitimate authority, but consent is not held to generate the moral authority of institutions (Murphy 1994). Rather: any actual obedience on the part of individuals can at the very most be taken as evidence of their belief about the legitimacy of institutions, rather than as a justification of these institutions themselves (Raz 1994: 338; pace Walzer 1977).

II Contractualist Partiality

II.1. The Challenge: how justify (limited) Partiality?

Several authors have noted the tension between moral cosmopolitanism and special responsibilities toward some individuals. What I have been trying to dispel is the comforting thought that one can embrace universalism in ethics while continuing to give priority to one's compatriots in one's practical reasoning. (Miller 1995: 64). [9]

Several authors seek to defend moderate nationalism. [10] One strategy consists in limiting the range of goods provided to fellow nationals - e.g. denouncing domination and aggression against other states, and according non-citizens rights. Special treatment in the form of medals, statues etc. would also seem compatible with impartial treatment regarding goods that matter for more material interests. But this begs the question: is limited partiality consistent with liberalism's commitment to equal concern and respect?

II.1.1. Why Equality?

I shall briefly sketch why moral cosmopolitanism may allow substantive inequalities within strict limits. The strategy denies that equal concern and respect must also require that institutions secure equal shares to all. [11] I suggest that those who jointly produce goods have particularly strong claims to equal shares of these benefits of co-operation. [12] Those who share institutions create such benefits, or so I shall argue. These communities of co-creators have been coextensional with nation states, at least on some accounts of the ideal system of states. Within a system of somewhat sovereign states, such claims hold among citizens, but not against foreigners to the same extent -- though claims based on vital needs hold against institutions regardless of state borders.

There are at least four different reasons for lamenting specific kinds of inequalities. [13]

a) Preventing misery. From the moral point of view, a set of institutions must be acceptable to all affected parties. If this normative commitment is to have any substantive content, surely, acceptable institutions must engender and distribute benefits so as to meet the basic vital needs of all, securing their survival. Human rights can be interpreted and defended as institutional conditions on domestic and international regimes so as to secure the satisfaction of these needs (Follesdal 1991). The current world order fails dismally on this point: those with nothing to sell in the market cannot buy food, and large economic inequalities can even prevent wage earners from acquiring food. Differences in relative political power perpetuate abysmal prenatal health care for the poor. Among the human rights are some obligations of international support as final resorts, when domestic resources run out or when government powers are grossly abused. But basic needs and human rights do not secure equality (cf. Miller 1995: 191). Instead this consideration limits drastic inequality regarding certain specific goods, insofar as these inequalities engender misery.

b) Preventing Domination. A social order is objectionable if some individuals can drastically restrict the attractive options of others, prevent deliberation or otherwise leave them at the mercy of the powerful.  Individuals have an interest in maintaining control over the social factors that shape their own lives -- in particular if the alternative is that others wield such control. Large inequalities of wealth or income opportunities can prevent the less privileged from exercising control over their lives, and subject them to the bargaining power of the powerful in various spheres of life. These arguments hold against such inequalities that impact on the distribution of control over individuals' lives.

c) Equal power for fair procedures. A further ground for equality also stems from our interest in controlling the social factors that shape our lives. Many social procedures and mechanisms require for their fairness a roughly equal distribution of procedural input levers. Some adversarial procedures illustrate this: If legal trials are to regularly identify the guilty, competent counsel must represent both parties. Democratic arrangements likewise require a broad dispersal of real political power, education and income and wealth, since relative shares of these levers often matter for the distribution of output benefits. Such arguments only apply when we have standards for determining what outputs the procedure should generate.

d) Equal Shares of Products of Co-operation. Individuals may claim equal shares of certain goods when a) they have contributed equally to the production of the benefits, and b) when no one can be said to have prior claims to the benefits -- for instance when there is no prior agreement regarding distribution and each party's contribution cannot be determined. [14] When several jointly labour to produce goods, they have equal claims regarding these goods. I submit that legal powers can be regarded as such products of co-operation. Legal powers and immunities are aspects of social practices, that is, of behaviour that is regulated according to public rules.

For a social practice to exist there must be a set of rules, generally complied with and acted on by the participants in the practice, and this fact of general compliance must be common knowledge. We may think of social institutions as the practices that are maintained by the use of legal powers. Sanctions enforce the public rules, and hence provide public assurance of general compliance; authoritative interpretations apply the rules to new or difficult cases.

Legal powers are benefits of social institutions. Within a state, a wide variety of legal powers and immunities are constituted by the rules of rights of social institutions. Political power, rights, and even income and wealth can be regarded as aspects of the rules that regulate social practices. Money exists, to take an example, only within a social practice regulated by rules defining legal tender. Ownership, freedom of speech, and political rights are likewise aspects of social practices which only exist when there are practices securing such control, regulated by public rules that are generally complied with.

A wide variety of legal powers are constituted by social institutions, i.e. by the general compliance with laws within a state. Thus political power, rights, and even income and wealth can be regarded as aspects of the rules that regulate social practices, which all law-abiding citizens participate in upholding. Someone enjoys these powers and controls if and only if the participants in the practice generally recognise and act according to the rules specifying these rights. A legal right is therefore a benefit of co-operation among a group of individuals: the right exists only when they participate in the social practice specified by that right.

For instance, an individual who validly lays claim to certain objects as her property must show that she has acquired these objects according to certain public rules regulating entitlements. Insofar as she has complied with these rules, the objects are clearly hers, and not anybody else's. But her claim of ownership is only true - and can only be made sense of - because these rules of ownership are publicly known and generally complied with by those participating in that practice. While her entitlements are hers, the entitlements are nevertheless entitlements only because others regulate their actions according to public rules. Legal powers are thus goods that are products of co-operation. In arguments about how institutions should affect the distribution of these goods, all participants in social institutions have an equal claim to the political and other legal powers that arise. This holds not only for those who contribute to the economic production of material goods, but for all those who regulate their actions according to the rules of the practices that constitute these goods. 'Equal shares of products' is an appropriate standard.

This complex view of social institutions provides an argument that citizens have equal claims on how social institutions should regulate the distribution of political power, income and wealth. This grounds a claim to equal shares of these benefits. I suggest that this account provides an argument in favour of Rawls' egalitarian principles for Social Primary Goods - political and civil rights, and equality of opportunity and income and wealth. These goods are rights-clusters specified by rules governing the practices maintained by citizens. These legal powers are created and maintained through individuals' participation in social practices, can only be described and identified in terms of the practices, and can only be distributed among the participants in the practice. Thus Rawls' theory is exclusively concerned with the internal goods of practices.

II.1.2. Domestic Equality, Global Inequality

I submit that these reasons for claims to equality fail to hold globally within the states system as traditionally conceived. Sovereign states enjoy broad formal powers of external sovereignty, as guaranteed by international institutions. There are few if any decision-making bodies above it, and states will generally not intervene forcibly or dictatorially in one another's internal affairs. (Bull 1977: 70). Thus, the government - and, in a democracy the citizens - are formally free from external agents, to influence the social institutions which shape their lives. This is not to deny, of course, that natural facts and the actions of other powerful agents often restrict the range of alternatives. Still, I suggest that formal external sovereignty affects the standing of arguments for equality.

Market shares, oligarchic trans-national corporations, and structural adjustment policies affect a state's ability to determine its international and domestic policies. Citizens' control over outcomes is reduced when they have little purchasing power relative to foreigners in international markets. So a legitimate world order must clearly constrain global inequalities of income and wealth. However, international inequalities in income do not determine the domestic distribution of control over non-material goods. Domestic legislation can often insulate domestic political institutions from the impact of international economic inequality. For instance, legislation may prohibit foreign funding of political campaigns, and bar the immigration of foreigners who outbid domestic applicants to education and employment, and regulate access to international markets. Hence when states enjoy de facto sovereignty, the government can serve as a buffer to reduce the impact of international income inequalities.

So the claim to international equality of income and wealth is not supported for instance by the concern to avoid misery or domination, or to secure fair processes, as long as states enjoy formal external sovereignty.

In addition, foreigners do not maintain the domestic social institutions of sovereign states. So they cannot claim that they participate in shared institutions to the same extent as compatriots do. The 'constitutive' argument for equal shares of products of co-operation thus does not apply across state borders as traditionally conceived.

II.2. Implications

This sketch of reasons for equality indicates how Liberal Contractualism may allow partiality for fellow citizens, within limits. Partiality is limited by consideration of human rights, but citizens in different sovereign states will have fewer claims to equal shares, and to limits to inequality. Another important limit is that citizens of different states participate in shared practices across state borders. Thus Thomas Hurka claims that "there are no comparable institutions joining non-nationals, even ones living just across a national border, and therefore no comparable goods they can be said jointly to have produced." (Hurka 1997: 155)

I believe that this claim is mistaken with regard to income and wealth. The global economic interdependence of trade and finance makes individuals more vulnerable to cross-border effects of misery, domination and unfair procedures - and make it less plausible to regard domestic economies as constituted solely by co-operation among compatriots. [15] In the European Union, member states have pooled sovereignty to such an extent that it seems plausible to hold that similar distributive principles must apply within the Union as within member states. [16] The upshot of this is that while claims to partiality are theoretically sustainable within Liberal Contractualism, the empirical interdependence makes for less extensive partiality.

II.2.1. Objection: Cosmopolitan commitments exhaust all resources

Two objections to this account may now be considered. Several authors suggested that liberalism cannot provide for substantive partiality, since global impartiality would squeeze out any special duties that entail unequal shares. Once cosmopolitans have ensured that institutions give individuals globally their due, nothing would be left to distribute among conationals (MacIntyre 1984: 6).

The challenge is to explain how, if at all, "if justice really does generate nonparticularized reasons, how does the scope of those reasons get reduced by the individual's relation to a particular set of institutions." (Scheffler 1997: 197; cf. Miller 1995: 60).

In response, the argument above indicates how liberal contractualism allows substantive commitments for fellow citizens, partly because the claims of non-citizens is not to equal shares, but to institutions that secure basic needs. Thus there is no unavoidable conflict between particularist obligations and the universal requirements of human rights. However, liberal contractualism will hold that vital human needs - and human rights of aid - restrict the share of goods to be distributed equally among co-producers (Follesdal 1991).

Insofar as international or global distribution must also satisfy egalitarian standards, this is not a feature of Liberal Contractualist formal impartiality, but a normative implication of the social fact of institutional interdependence.

II.2.2. Objection: Non-contributors are excluded

Yael Tamir has criticised contractualist theories for excluding the truly needy. They have no claim on the benefits of co-operation. "Only those who have participated in one way or another in the production process deserve a share of the goods. But those most in need are frequently those who have not participated in the production process -- the 'worst off' could be unemployed, seriously handicapped, ill, drug addicts, minors, or old." (Tamir 1993: 120)

In response, note that contributors who jointly create legal powers are all those who regulate their actions according to public rules - not only those who are participants in economic production. Those who uphold their part in practices have a claim that the institutions should secure an equal distribution of the benefits. Nevertheless, this account does leave some individuals with less than a full claim to equal shares, namely those who are unable or unwilling to regulate their actions according to such public rules. Some severely handicapped individuals may thus not have reasonable claims to an equal share, on this account. However, the claims to satisfy basic needs would still hold. [17]

III Contractualist Political Allegiance

Several authors challenge contractualist accounts of political allegiance - or lack thereof. David Miller, for instance, questions whether universalist liberal theories can account for the intuition that "in a national community a case can be made out for unconditional obligations to other members that arise simply by virtue of the fact that one has been born and raised in that particular community." (Miller 1995: 42; cf. Tamir 1993: 105)

An acceptable theory of legitimacy must justify the particular interests and political allegiance of persons towards their own culture and state. One central challenge to liberal accounts is their stress on voluntary choice. This is why liberals get particularist duties wrong: "cultures, unlike ships, are not vessels to be boarded and abandoned at will." (Miller 1994: 154).

Samuel Scheffler gives a precise diagnosis of the alleged inability to account for involuntary political obligations. The foundational role of choice in contractualist liberalism prevents involuntary obligations: "the idea that unchosen ties to a community or tradition can carry moral weight may seem, at the very least, completely alien in spirit. (Scheffler 1999: 273).

In order to address this issue, we must consider the grounds for political allegiance. How does Liberal Contractualism account for our duty to obey the laws of our government - if at all? And what role does consent play - actual, hypothetical or tacit?

III.1. Natural duty of justice defended

We often have special duties towards particular others - e.g. one's family, and compatriots - and to obey the laws. How are we to understand the moral force of the claims of existing practices and institutions we are born into? Contractualism does not deny that we have a moral duty to obey the laws of the land, even in the absence of any consent on our part. We have many duties that we have not explicitly or tacitly consented to. Actual, tacit or hypothetical consent is not the source of moral obligation to comply. I submit that John Rawls' appeals to a "natural duty of justice" provides a more robust answer than critics have acknowledged. The Natural Duty of Justice:

requires us to support and to comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves. Thus if the basic structure of society is just, or as just as it is reasonable to expect in the circumstances, everyone has a natural duty to do his part in the existing scheme. Each is bound to these institutions independent of his voluntary acts, performative or otherwise. (Rawls 1971: 115, cf. 334)

Special duties to comply with the laws and policies of one's government, then, are supported by a principle of an "impersonal" theory of justice. The special duties an institution imposes are morally binding insofar as the institution is permissible, i.e. part of a society that satisfies contractualist principles of justice.

III.1.1. The threefold grounds of political duties

An affirmative answer to whether institutions are legitimate is only one necessary condition for determining the question of political duty - when an individual is morally bound to comply with an existing arrangement.

I submit that a determination of our duties, on this view, includes three tasks:

-- Determination of the social facts concerning the practice, including the institutions.What are the rules of the practice, and are they generally complied with to such an extent as to shape the expectations of those affected? We must show that this particular set of institutions, and not another one, does in fact exist in the society: these rules, and not another set of rules, are publicly known and generally complied with. Thus a thoroughgoing justification of our institutions over other just ones must refer in part to our shared history, the general acceptance of these rules etc.

-- Criteria of normative legitimacy. A determination of whether this practice is legitimate, such that it generates a moral duty on participants to meet the corresponding expectations of others. Arguments appealing to hypothetical consent are made in this context. Note that involuntary participation need not render such practices normatively illegitimate, though voluntariness may affect the criteria of legitimacy.

-- Criteria of applicability. Does this practice in fact apply to this person, according to the social facts? A person may be held subject to the practice through consent - e.g. by promising - or held to be subject by being born into certain positions, roles and offices, in such a way that others form expectations of future compliance with the rules. Thus some 'relational facts' may be relevant - though only such as are normatively permissible.

These three issues must be addressed in order to determine the duties of an individual. For instance, citizens have special duties such as abiding by the laws, including conscription, to their own country insofar as the nation-state (including the office of citizenship), firstly, includes such requirements among the rules of the practice; secondly is a just set of institutions, satisfying the relevant contractualist principles; and thirdly, applies to that individual.

This threefold account is compatible with many views that insist on the relevance of historical and cultural context. Tamir holds that justifications for political obligations must be grounded partly contextually (Tamir 1993: 134). And it would appear to be a version of what David Miller calls Ethical Particularism, an ethical universe "in which agents are already encumbered with a variety of ties and commitments to particular other agents, or to groups or collectivities, and they begin their ethical reasoning from those commitments." (Miller 1995: 50)

Miller's criticism against "ethical universalism" does not apply against Liberal Contractualism as presented here. Miller holds that "No ethical universalist can allow 'because he is my brother' to stand as a basic reason for action." (Miller 1995: 50). However, Liberal Contractualism would respond that within any set of institutions, individuals justify their actions by appeal to the rules of the set of institutions in place, drawing on the social facts of the practice (cf. Rawls 1955). So one's culture may well spell out the content of these special duties and thus give reasons that are said to bind us. However, these rules and practices do not give a complete justification of the duties, since we must at times offer a justification of the existing culture as well. But this need to assess practices critically is not a problem as Miller sees it: we need not "conclude by endorsing the moral demands that conventionally attach to those relationships." (Miller 1995: 50).

III.1.2. Objection: Whence the binding force of non-voluntary institutions?

We now turn to consider objections to this contractualist account of political allegiance [18]. A. John Simmons questions whether such accounts can explain why institutions bind us (Simmons 1979, ch. 6). How can institutions we have not consented to, still impose moral duties on us - Whence their binding force?

Institutions cannot simply impose duties by fiat, they must somehow have the authority to do so. In particular, why does one have responsibility to comply with the institutions of one's own society? Simmons holds that the only way to determine whether institutions 'apply' is to determine whether they are in force within the territory where one lives, but this is deeply problematic: "my birth and growth in a territory within which the institution's rules are enforced; but my birth is not an act I perform, or something for which I am responsible." (Simmons 1979: 149-50). He holds that 'application' must be morally significant - which must be more than simply being specified by the institution's rules. "Only in cases of application in the strong sense, those that involve an individual's consent, say, or his acceptance of significant benefits, does 'application' begin to look morally important." (Simmons 1979: 150-51). Only voluntary acts can generate duties, claims Simmons.

We may challenge Simmons claim that the only morally relevant sense of application can be consent or explicit acceptance of benefits received: this begs the question (Scheffler 1997: 197). But Samuel Scheffler notes that the liberal who accepts that we may have involuntary duties due to particular other members of significant social groups, appear to be committed to recognising associative duties, at least in this special case (Scheffler 1997: 197). But such associative duties run counter to the liberal commitment to choice as a central element in accounts of legitimate duties.

In response, let us first clarify a discrepancy Sheffler notes between associative duties as he defines them, and the natural duties discussed by Rawls (Scheffler 1997, 1997). Associative duties are owed to specific individuals, while natural duties are owed 'to persons generally.' Michael Sandel appears to dismiss this account of political duty for this very reason: Natural duties cannot justify our compliance with particular institutions because these duties hold among all regardless of institutional affiliation (Sandel 1982: 110). I submit that the apparent discrepancy can be resolved by noting that the natural duty of justice is a principle about institutions and institutionalised duties. It is not itself an institution. Instead, the natural duty of justice holds among all regardless of institutional affiliation. It is part of the justification of the role-specific duties among particular individuals that are specified by legitimate institutions. Thus Liberal Contractualism may accepts associative duties in principle, by appeal to the natural duty of justice.

The challenge posed by Scheffler, then, is how this can be compatible with the alleged liberal commitment to voluntariness and choice (Scheffler 1999: 273). Note that Liberal Contractualism gives a central role for choice only for the second of the three grounds for determining political duties: criteria of normative legitimacy, but not criterion of applicability. However, more must be said about why some, but not all, associations may give rise to binding, involuntary duties. Why may not state power be used to enforce a variety of cultural affiliations? (Scheffler 1999: 274). Two general comments must suffice.

In the first place, the issue of political allegiance to a political order is of a fundamentally different kind than the question of compliance with associations existing within such an order. Thus Rawls' comments about the basic structure of society seems appropriate. The basic structure consists of institutions that define and regulate political authority, securing background conditions for life and associations necessary for human flourishing (Rawls 1978). It is only within such a framework that consent can be made under such conditions as to be morally binding. Two important questions concern the plausibility and justifiability of relying on consent. Firstly, it is unclear whether individuals can give consent to a political order in such a way that their consent establishes moral obligations. No plausible alternatives are available - neither emigration nor internal exile from the political order and the cultures and associations it facilitates are so costless as to render consent uncoerced.

Moreover, we must ask what grounds are there for insisting that political allegiance should be acquired only by consent, given that an arrangement with consent would lead to loss of assurance and trust among citizens, regarding issues of paramount importance. In the absence of this assurance, individuals are unable to form stable expectations on the bases of institutions and practices. It is unclear that anybody has interests sufficiently important that they warrant that duties of compliance must be made conditional on consent. [19] After all, the existing institutions that bind individuals must satisfy whatever principles of legitimacy are appropriate, thus safeguarding a wide range of interests.

Simmons claims that the Natural Duty of Justice does not get rid of all assurance problems, since there will still be an assurance problem insofar as some citizens reject this account of involuntary political allegiance. (Simmons 1979: 144). However, this is a different issue altogether, arising not if this duty is accepted but if is not generally accepted. This cannot count as an objection to the account, particularly without arguments that some other account is more plausible.

III.1.3. Objection: Why duties to my state, rather than to the most just state?

Simmons and Tamir reject justifications of political duties that rely on a normative evaluation of the political framework. Such strategies allegedly miss their aim: these arguments would appear to impose duties on us all to support and abide by all just governments, instead of duties to one's own less just state (Tamir 1993: 117, 133; cf. Simmons 1979: 156).

In response, consider the threefold grounds presented above. The fact that other institutions exist elsewhere, or that they may be somewhat more just, does not by itself generate a duty on my part to abide by them. The first and third grounds of political duty are missing, because the first and third steps are missing. By hypothesis, the foreign practices and institutions do not regulate individuals' conduct and expectations: they are not generally complied with. And the question of applicability is presumably answered in the negative. Since this account includes the normative legitimacy of institutions as only one of several necessary conditions, this objection is avoided.

III.1.4 Objection: No one has Duties of Political Allegiance

David Lyons has criticised the Natural Duty of Justice on opposite grounds: such accounts lead to the conclusion that no one has duties of political allegiance. The problem is not that one is bound to support all governments, but that no government is sufficiently just to merit obedience. "the real social circumstances ... rarely if ever satisfy the conditions required for the principles' application. (Lyons 1995-96: 11) Compliance can still be required, according to Lyons, "but as a means of preventing worse immoralities." (12)

These observations seem accurate, but it is not clear that they amount to an objection to this account. Even when the Natural Duty of Justice fails to apply, we may still have several reasons to abide by illegitimate regimes -- though this is not a political duty. These reasons may include, in addition to reasons of self-interested prudence, consideration of those who are unjustly treated and the chances of improving their plight by reforming unjust regimes. It would seem plausible that respect for them should lead us to be careful of hurting them even more by partial compliance on our part. Thus the absence of a duty to obey does not entail that individuals have a moral right to disobey.

III.1.5. Objection: Contractualism Fails to motivate

This contractualist account might appear to give insufficient force to special duties, since abstract principles fail to provide the proper motivation "to participate in public life or to defend their community. (Miller 1997: 81). The cause of this failure is the aspirations of liberal universalist thought, to "establish by abstract reasoning foundational principles in moral and political philosophy from which more concrete injunctions are then derived... The abstract arguments generate only formal principles, and the content has to be smuggled in from elsewhere. (Miller 1997: 71). Bernard Williams appears to voice similar worries: A practice "may be so directly related to our experience that the reason it provides will simply count as stronger than any reason that might be advanced for it." (Williams 1985: 114).

At least two responses are appropriate. [20] Firstly, Liberal Contractualism does not aim to provide a theory or principles of legitimacy that should motivate individuals at all times. What should motivate individuals is a separate question from what principles are appropriate for assessing institutions. [21] To be sure, there are times when principles of justice motivate, for instance when citizens and politicians deliberate about the justification of an institution and of institutional change prior to deciding how to act, e.g. when voting. [22] However, it need not be the case that a just person's motivating thought should always include the three-fold grounds sketched above.

Secondly, this objection seems to ascribe to Liberal Contractualism the view that the prime motivational mover is abstract principles, and that this motivation is transferred by some mechanism akin to derivation. This view seems mistaken, on at least two counts. Firstly, Contractualism of the form sketched here - and indeed familiar from John Locke onwards - does not hold that the principles of legitimacy are algorithmically generated from some original situation, hypothetical or otherwise. The role of consent, suitably specified, is to test principles generated elsewhere, by creative and historically informed contributors to political thought. Similarly, just institutions are not derived from these principles, since the principles are standards for legitimacy, not fountains of institutional design. Neither principles nor institutions are theorems derivable from axioms. And the assumption that motivation flows from abstract principles to concrete particulars goes against the method of reflective equilibrium, by now a (contested) commonplace of moral methodology (Rawls 1971: 20 and passim; Daniels 1996).

The method of reflective equilibrium applied to normative theory seeks to secure consistency among our commitments to considered moral judgements at various levels of generality. Reflective equilibrium will often build on local norms in the sense of norms that are shared and accepted in the population concerned; nevertheless, such norms will often be general in subject matter. The considered judgements may be judgements about particular cases; but also general and vague principles e.g. about the value of freedom and equality, and the injustice of slavery; as well as second-order judgements about conditions on moral judgements, such as what counts as inappropriate grounds for moral claims.

This method starts, therefore, with our commitments both to particular practices and judgements, and to abstract principles. On the contractualist account, justification of a conviction consists in showing its logical relations to other beliefs and moral judgements. The relation between general or abstract principles and judgements about particular situations need not be one that channels moral motivation from the top down. We are already motivated to act on our moral judgements at all levels of generality -- even though our commitment to any particular judgement, and our preparedness to act on it, may be strengthened by becoming aware of these relations

Reflective equilibrium is achieved by bringing these various judgements to bear on one another, seeking to adjust them to one another in order to remove inconsistencies and settle conflicts among them. But attention to more general or abstract principles do not necessarily entail a jump to some stance outside our practices and considered moral views, as long as there are "shared" norms at various level of generality and principle. Thus reflective equilibrium does not necessarily apply universal principles "from the outside", but "from the inside".

Furthermore, a complete justification of our obligation or duty to comply with the rights and duties of our roles requires both a thorough account of the existing pattern of expectations, rights etc., we are part of, and an argument showing that this set of institutions satisfies general principles. Often we will not need to make this further argument, but that is not to say that our public culture/shared conception of society manages without it.

On this account, then, particular duties do not need a foothold to enter this theory: to the contrary, particular duties are part of what the theory takes as its subject. I have suggested that there is no reason why such contractualist theories prohibit legitimate institutions from including such particular duties. But whether any particular project or any particular conception, say of the institution of citizenship, is permitted, is of course a different question -to be determined by considering the set of institutions of which this office is a part.

IV Conclusion

I have considered two criticisms raised against a Liberal Contractualist defence of moderate nationalism, characterised by limited partiality for fellow nationals or fellow citizens, and loyalty to the laws and institutions of one's own society. Liberal theories are thought to disallow special treatment to groups of individuals, hence unable to account for special claims among compatriots. In response, I have argued that there is in principle room for deviation from egalitarian shares within contractualism - though the drastic interdependence characterising our world makes the claims for equal shares less rejectionable. Liberal theories are also considered unable to account for political allegiance. I have argued that the Natural Duty of Justice can provide the requisite justification, rebutting or deflating various criticisms along the way.

To conclude these discussions concerning the relationship between principles of justice and participation in partial and particularistic institutional practices, we might recall Rawls' discussion of how citizens may express their "sense of justice". On this view, acting on a sense of justice does not only mean a commitment to two very general principles of justice in abstracto, or to abstract constitutional principles. Rather, the sense of justice is

"an effective desire to comply with the existing rules and to give one another that to which they are entitled." (Rawls 1971: 312)

How do we act on a sense of justice within an existing society, with our day-to-day lives shaped by and interwoven in multiple practices and institutions? By interacting with those other individuals, far and near, with whom we jointly create institutions, goods and expectations, honouring their trust that we will indeed do as expected.


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* For discussion of this claim cf. Gellner 1983, Buchanan 1991 and others.

[1]. For book length discussions cf. Miller (1995), discussed in Symposium on Miller's On Nationality 1997 and Miller (1997) and Tamir (1993). Collections of articles include McKim and McMahan (1997), Nussbaum and respondents (1996) and The Monist: 82, 3, July 1999. Earlier contributions to this issue include Sidgwick (1919), Lichtenberg (1981), Beitz (1983), Pogge (1992, 1994a).

[2]. cf. "universalist nationalists" (McMahan 1997); "moderate cosmopolitanism about justice" (Scheffler 1999), "moderate nationalism" (Nathanson 1997).

[3]. It goes beyond the scope of this article to discuss whether each of these authors fall prey to the objections addressed below - I am here concerned with sketching how one such theory may respond.

[4]. For discussion of this claim cf. Gellner (1983), Buchanan (1991) and others.

[5]. Liberal Contractualism is thus not an example of the abstract political philosophy criticized by David Miller (cf. Miller 1997: 71).

[6]. Scanlon (1978: 102).

[7]. For different sorts of criticisms, and defenses on other grounds: Gutmann 1985; Cohen 1986; Buchanan 1989; Caney 1992; Mulhall 1994; Mulhall and Swift 1996.

[8]. John Rawls (1978).

[9]. cf. MacIntyre (1983, 1984); Beitz (1983); Nussbaum and respondents (1996); and of course Sidgwick (1919).

[10]. Nathanson (1989, 1997); McMahan (1997); Freeman this volume.

[11]. My exploration here pursues a distinction noted eg by Thomas Hill, between formal and substantive impartiality (Hill 1991: 47); and Brian Barry, between first-order and second-order impartiality (Barry 1995: 11). Cf. McMahan (1997) and Freeman in this volume. I deny the strong presumption for first-order equality of treatment (Barry 1995: 70).

[12]. I here summarise arguments made in Follesdal (1991). See Hurka (1997: 154) for a similar point about focussing on the distribution of goods internal to a practice.

[13]. For details, cf. Follesdal (2000). I draw on Scanlon (1996), Temkin (1993, 1995).

[14]. Scanlon notes (1988, 12) that this argument is weak: "the force of appeals ... depends on a prior claim that as participants in a cooperative scheme the individuals in question have equal claim to the fruits of this cooperation. This is an appealing moral idea, but a controversial one to serve as the starting point for an argument in support of a particular conception of justice." My account in the following seeks to make the premise more acceptable.

[15]. Several authors on global justice make similar points: Beitz (1979), Pogge (1994b), Lichtenberg (1981); and cf. Miller (1995: 104-5).

[16]. Follesdal (1997, 2000).

[17]. As may other reasons, cf. Scanlon (1998: 177-88).

[18] For further reflections, cf. Freeman this volume.

[19]. Scanlon discusses these issues in defense of a "Principle of Established Practices". Scanlon (1998: 339).

[20]. For further, decisive clarifications on the communitarians' misdescription of liberalism evidenced in these quotes, cf. Caney (1992).

[21]. On this conflation, cf. Scheffler (1986) and Herman (1983).

[22]. Rawls (1971: 337), and O'Neill (1975).

[Date of publication in the ARENA Working Paper series: 15.09.2000]