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5-22-2013 Between Cosmopolis and Community: and the Emerging Basis for Frank J. Garcia Boston College Law School, [email protected]

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Recommended Citation Garcia, Frank J. "Between Cosmopolis and Community: Globalization and the Emerging Basis for Global Justice" NYU Journal of International Law & , forthcoming.

This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 34502-nyi_46-1 Sheet No. 3 Side A 02/26/2014 09:18:43 R R R R R : 2, OCIETY June S ( ATIONS IN N LOG B S Nicomachean Eth- ’ NITED U TADE ...... 13 2 NTERNATIONAL -S I 3 in , EATH * H HANGER OLE OF THE R C AVID ARCIA HE ...... 17 D ...... 15 , 1 AME : T AND COMMUNITY: THE J. G G HE 1 EOPLES 164, 179 (David Mapel & Terry Nardin, eds., RANK P : T F ...... 2 E THE (2000)...... 13 Limits of Cosmopolitan Justice ,W 11 , Ubi societas, ibi ius ERSPECTIVES Capacity to Help Capacity to Harm COSMOPOLIS , http://davidheithstade.wordpress.com/2012/06/02/ubi- P NNAN 1. 2. Globalization and the Global Circumstances of Justice A ENTURY LOBALIZATION THICAL NTRODUCTION C A. OFI EMERGING BASIS FOR GLOBAL JUSTICE E K ST “Ubi societas, ibi ius.” “Our post-war institutions were built for an inter-national world, but we now live in a global world.” “[T]here is nothing unjust about international inequalities as such. Such inequalities are a natural feature of a world in which more-or-less independent pursue the aims political and purposes of communities their members, including local conceptions of distributive justice.” I. I Therefore: where the human being is, there is law.) Ubi homo, ibi societas. Ubi societas, ibi ius. Ergo: ubi homo, ibi ius. (Where the human being is, there is a society. Where there is a society, there is law. * Professor and Associate Dean for Global Initiatives, Boston College 1. “Where there is society, there are laws.” Variously attributed to Cic- 3. David Miller, 2. II. G 21 BETWEEN , usually summarized as follows: IVERSE David Heath-Stade D 2012, 10:07 AM) \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 1 26-FEB-14 8:31 Law School. The author thanks Lindita Ciko and Kirrin Hough for research assistance; Paulo Barrozo, Jim Henle, Vlad Perju and insights; and Katie as Young always Kim. for key ero, Ulpian, Hugo Grotius, or Baron Heinrich von Cocceji. The phrase de- rives from a philosophical argument, inspired by Aristotle’s ics THE societas-ibi-ius/. 1998). 34502-nyi_46-1 Sheet No. 3 Side A 02/26/2014 09:18:43 02/26/2014 A 3 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 3 Side B 02/26/2014 09:18:43 R R R R R R R R R R R R R R R at 2 Spring ch. . . . 24 [Vol. 46:1 FF V, . . . . . 33 . A ...... 33 bk. , UB ACE OF ...... 47 P THICS . & P c. 384 B.C.). Thomas ...... 18 E HIL ...... 37 P , 2009) ( ...... 44 AND POLITICS ...... 32 ICOMACHEAN Justice as Fairness? , N ...... 20 ...... 35 ...... 40 NTRODUCTION Global RISTOTLE ...... 22 LOBALIZATION AND THE OSSIBILITIES A I. I ...... 40 P : G The “Global Basic Package” Rethinking Boundaries and the Role of the State Global Public Law ...... 37 The Problem of Global Justice ...... 50 INTERNATIONAL LAW c. a. b. Rawls and An Emerging Communitarian Account of Global Justice? The Global Economy, a Global Basic Structure, and Global Justice A Global Basic Package: Building on a New Base Shared Understandings and Practices about Markets Shared Understandings, Meta-State Institutions, and a Global Basic Structure LOBAL G 1. 2. 1. 2. 1. 2. Shifting the Transnational Justice Frontier A New Justice Architecture for a New Social Reality A Global Community of Knowledge Globalization and Shared Traditions, Practices, and Understandings ISTORY EW ONCLUSION H A. B. B. C. the relevant question is whether we see such relation- 4 Globalization is fundamentally transforming economic 4. “Of particular justice and that which is just in the corresponding David Ross trans., Oxford University Press IV. C III. N and social relations, but its impact has yet to be fully realized in jurisprudence and political theory. Accepting for ment the mo- Aristotle’s contention that there has to be for that minimum level of mutual institutionalized justice to be relationship possible, he refers to as “having tion,” a share in the constitu- 84 ( 2 \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 2 26-FEB-14 8:31 sense, one kind is that which is money or manifested the in other things distributions that fall of to be honour divided or among share those in who the have constitution.” a Nagel has characterized this approach as the “political conception” tice. of Thomas jus- Nagel, 2005, at 113, 113–29. By this he means a conception of justice that does not flow from a comprehensive prior system of morality (as with cosmopolitan- 34502-nyi_46-1 Sheet No. 3 Side B 02/26/2014 09:18:43 02/26/2014 B 3 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 4 Side A 02/26/2014 09:18:43 , 3 CO- in- veloc- ORLD 6 AWLS , E OREIGN R W Jan.–Feb. , F and ., OHN J OLITICS FF A : P LOBALIZATION IN intensity , of distant events is ,G Robert O. Keohane OREIGN F , impact RANSFORMING THE extensity HOMPSON : T T See generally RANSFORMATIONS HIFT T Power Shift AND COMMUNITY S economic de-regulation, 5 RAHAME LOBAL LOBAL & G ., G (defining globalization in terms of unprece- , G IRST COSMOPOLIS ICKEN 81–94 Q. H D ELD ET AL 15 (1999) (“[T]he growing 8 (1979). On this view, sovereign states are “precisely Jessica T. Mathews, H AUL Power and Interdependence in the Information Age ETER P P BETWEEN , or polity, and not across polities. The world has AVID , USTICE ULTURE D J at 120. This view poses special challenges to the possibility of , C 50–51 (1997) (cataloguing the rise of non-State actors facilitated polis (2d ed. 1999) (arguing that an increasingly interconnected inter- But see See generally (3d ed. 1998) (documenting the shift to a global pattern of pro- 50, See, e.g. supra, Each of the dimensions of globalization discussed in the Sept.–Oct. 1998, at See, e.g. 5. We can readily see how what happens in one country now affects 6. There is broad consensus that economic de-regulation is one of the HEORY OF ., of global interactions may also be associated with a deepening UESTION FF CONOMY magnified while even the most local developments may come to have enor- mous global consequences. In this sense, the boundaries between domestic matters and global affairs may be blurred.”). & Joseph S. Nye, ity enmeshment of the local and global such that the A T NOMICS AND global justice, which this Article addresses. others to an unprecedented degree, in matters ranging from financial mar- kets to tastes in fashion and entertainment to political change and civil un- rest. E Q state economy is not synonymous with a global economy). A ism), but rather is rooted in social relations and social institutions—insocial and Rawls’ relations social in rooted is rather but ism), famous phrase, justice as “the first virtue of social institutions.” 2013] ships emerging beyond our national time, borders. the In conditions Aristotle’s he set goods for and justice this (allocation “share of in within a social the constitution”) were met only \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 3 26-FEB-14 8:31 their evaluation of the consequences of this fact. The resulting cross- capital and labor, services, goods, involving increase transactions of number the in ing national boundaries promotes a degree of economic interconnectedness resembling, at least to some commentators, a globe. single spanning the dented degrees of interdependence). This transnationalization flected in is the increasing also number re- of cross-border networks formed by State non- actors such as corporations, civic associations, scientific bodies, and in- dividuals. by telecommunications technology). principal engines of globalization, though commentators differ widely in what give[ ] the value of justice its application, by putting the fellow citizens of a sovereign state into a relation that humanity, an institutional relation which must they then be evaluated by the spe- do not have with the rest cial of standards of fairness and equality that fill Nagel, out the content of justice.” duction). 1997, at changed remarkably since then, and the single word best cap- turing the essence of that change is globalization. literature (inter-connectedness, 34502-nyi_46-1 Sheet No. 4 Side A 02/26/2014 09:18:43 02/26/2014 A 4 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 4 Side B 02/26/2014 09:18:43 see in , , 570 Global- Encoun- at 239, OCALIZA- 156, 157 [Vol. 46:1 NTRODUC- Alfred C. L . 9, 10–11, I N supra See TUD , What is ‘Global’ note 160 and : A S RANSFORMATIONS OWARD hereinafter T T EADER OVERNANCE EGAL EADER 379, 379 (2001) (em- , De- . Kevin Robins, R L See infra R URN G to name only the T See LOBAL 8 TUD Globalization and Justice S G LOBAL LOBAL HE G Jan Aart Scholte, T However, it is the essence EGAL 9 AND POLITICS . J. G L Homogenization of Global See in ND , I RANSFORMATIONS 84, 84 ( & Andrew G. Mc- (David Deese ed., 2012). RANSFORMATIONS Franz Nuscheler, Jon Mandle, , 1 LOBAL . 126, 136–37 (2000) [ T T RENDS AND See CI CONOMY AND FOR A T EBATE . S E . J. G FFECTS But see LOBAL D LOBAL E OC ND I G G LOBAL LOBAL , 8 G HE HE . & S and homogenization, G T T 7 in OL in , Globalization of Law, Politics, and Markets—Implications for in INTERNATIONAL LAW , AUSES AND (showing how globalization accelerates pace of global cul- , . P ] LOBALIZATION : C CAD , at 269, 271 (showing globalization as a significant force in G GAINST THE . A M A supra (Jerry Mander & Edward Goldsmith eds., 1996). In this view, con- The Limits of Globalization and the Future of Administrative Law: From A , ASE Globalization and Cultural Identity 73 8. Globalization is often characterized as homogenization, the unifica- 9. For a thoughtful recent survey of this rich literature, see generally 7. Internationalization describes the shift in power from States to inter- C Jost Delbruck, (1993) (illustrating globalization as signifying changes in the locus of reg- LOBALIZATION NNALS EADER HE about Globalization? TION TO THE 17 TION tural change, but not necessarily in a homogeneous manner); John Tomlin- son, governance). tion or harmonization of cultural forms. ulation). This aspect of globalization often leads to complaints about global- ization as insufficiently democratic, due to the imperfect nature of these in- stitutions from a democratic theory point of accompanying text (discussing the problem of voice in current transnational view. most salient) contributes to an understanding of how global- ization is changing social relations. A R G T 4 ternationalization \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 4 26-FEB-14 8:31 Grew eds., 2d ed. 2003). Commentators worry that shared patterns of sumption con- worldwide tend to break down distinctive and contribute to a collective identity based on that consumption. national systems and institutions. global cultural homogeneity. sumption of products and brands like McDonalds, (and the Coca implicit ratification Cola, of and the cultural Levi’s values that such brands products and signify) is a mode of self-expression, and their ubiquity leads to phasizing change in dynamics of law formation wrought by globalization); by wrought formation law of dynamics in change phasizing also creating and proliferating cultural identity, not destroying it). interdependence in a global system narrows the scope of action open to gov- ernments). This can also be called regulatory globalization, emphasizing the regulation of markets for goods, labor, capital, and services at new levels that require formalized inter-state cooperation through new and powerful insti- tutions like the WTO, and that may, in certain cases, transcend nation-state control to a significant degree, as with the European Aman, Union. Government to Governance (Paul Kennedy, Dirk Messner & Franz Nuscheler, eds., 2002) (noting that ization and Justice 241; Richard Barnet & John Cavanagh, Domestic Law—A European Perspective tering Globalization velopment, and Peace 34502-nyi_46-1 Sheet No. 4 Side B 02/26/2014 09:18:43 02/26/2014 B 4 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 5 Side A 02/26/2014 09:18:43 . 5 M US- see J , A ONDI- LOBAL- 12 C G ULTURAL HE A.G. Hop- NNALS in C Through , , T See 11 noting that the 570 A ARVEY , OUNDARIES AND note 8; Jay R. Man- —that underlies B H RIGINS OF 10 in . 2002) ( , O Preface supra AVID , D note 8, at 86; Mandle & supra AND COMMUNITY Introduction 31 (UNDP 1999) (noting disparate im- See generally A.G. Hopkins ed NQUIRY INTO THE ACE ; Scholte, F E ) N 12, 20 ( COSMOPOLIS : A UMAN Dimensions of Globalization . 8, 8 (2000). H CI ISTORY . S H (arguing that changes in technology have changed capital BETWEEN OC note 10, at 8. By speaking in the aggregate and saying “we” ORLD OSTMODERNITY . & S W supra P (1990) OL Such compression does more than simply facilitate inter- The —and the Globalization of History? . P (David Miller & Sohail Hashmi eds., 2001) (discussing boundaries be- 10. The paradigmatic definition of globalization, drawn from political 11. This compression of space “deterritorializes” social relations, taking 12. Earlier waves of transnationalization had been driven by technologies LOBALIZATION WITH A HANGE CAD A TION OF IZATION IN globalization, we are interconnected irrespective of time and space, to a degree never before seen in human history. TICE the transformative impact of globalization on both global so- cial relations and the possibility of pression global justice. intensifies This com- social relations boundaries and, indeed, transcends territory regardless itself. of territorial national business, networking, and changes information the way sharing: space It enters consequent into changes social at relationships, all levels with of human experience. fundamentally, Most globalization intensifies our awareness of the world as a whole. Geographic constraints tural on arrangements social and recede, cul- and people become aware increasingly they are receding. In real terms, boundaries become geography and sociology, asserts that globalization among there is all one common the element: a many fundamental change definitions in spatial dimensions of the of human interaction. Scholte, G C 2013] of globalization—the compression of space \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 5 26-FEB-14 8:31 flow, politics, and culture). them out of the bounded territory of the nation-state and stretching across them the globe, allowing ideas, power, and criminality information, to cross boundaries capital, at unprecedented rates. goods, On the pathogens, many contemporary pressures on boundaries and our notion of them generally David Miller & Sohail Hashmi, space, or dramatically compress it into a single shared space. kins, tween peoples and how they are being broken down). such as the telegraph, which reduced space but did not virtually eliminate it. global networked by characterized is globalization contemporary contrast, In communications, in which satellites and the Internet effectively eliminate Ferleger, are interconnected I do not mean globalization, to but only ignore to highlight the the marginalizing collective shift. effects On the of former, see dle & Louis Ferleger, pact of globalization’s time-space compressions). internet is not simply a new, faster telegraph, but a new kind of technology that effectively shrinks space 34502-nyi_46-1 Sheet No. 5 Side A 02/26/2014 09:18:43 02/26/2014 A 5 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 5 Side B 02/26/2014 09:18:43 Social (2006), [Vol. 46:1 ICTIONARY 312, 312 fulfilling Cosmopolitan- D note 8 (gather- society, HILOSOPHY NGLISH HILOSOPHY supra P , E P EADER Some theorists see in XFORD 515–29 (1999). Political cos- R 173 n.* (2009) (“The recent 14 O OLITICAL Pauline Kleingeld & Eric Brown, AND POLITICS P . 515, USTICE FF NCYCLOPEDIA OF J see also A In this Article I am focusing on E L ’ 13 NT and involving global social coopera- I DEA OF RANSFORMATIONS I 15 ONTEMPORARY T HE TANFORD , 75 C at 312–29; S , T Id. HE LOBAL EN T S G INTERNATIONAL LAW See Cosmopolitan Definition, in HE T , , MARTYA OMPANION TO e.g. A , A C See See This phenomenon has a whole range of social, economic, in 13. 15. is derived from the Greek word kosmopolites, a cit- 14. , globalization’s effects on justice theory, specifically on the na- ture and possibility of global justice. globalization evidence of an emerging global cosmopolitan principles (2013), http://oxforddictionaries.com/us/definition/american_english/ cosmopolitan?q=cosmopolitan (last visited Mar. 25, 2013). Thus, the etymol- ogy of the word reveals its meaning: Cosmopolitanism characterizes a family of views relying on the idea that all human beings are essentially equal and therefore constitute a single world community. Thomas Pogge, ism (Robert E. Goodin, Philip Pettit & Thomas Pogge eds., 2d ed. 2007). There are two main strands of cosmopolitanism—moral and political (also called legal or institutional). widely (and justly) debated. 6 more porous—we know more about what happens beyond our boundaries, we travel more easily beyond our boundaries, our actions affect others beyond nounced ways, our we are aware of these boundaries effects, and we have new in more and more profound opportunities to pro- engage in commerce be- yond our boundaries. political, legal, and cultural effects, widely catalogued and \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 6 26-FEB-14 8:31 —and indeed survival.”). izen of the world, “familiar with, and at ease in many different countries and cultures . . . .” transformation of the world into a much smaller place, thanks to innovations to thanks place, smaller much a into world the of transformation in communications and transport, and the ongoing development of global media and transnational organizations, have made it hard not to take note of our extensive connections across the world, which have profound implica- tions not only for the form and content of a theory of justice . . . but also for 2013). Moral cosmopolitanism concerns itself with human national political equality boundaries, and our across resulting individual duties to others, to be realized through existing institutional structures. Charles Beitz, and Cosmopolitan Liberalism http://plato.stanford.edu/entries/cosmopolitanism/ (last visited Oct. 1, mopolitanism concerns itself with the implications of moral cosmopolitan- ism for the nature of institutions, and tional reform along cosmopolitan generally lines and even includes the creation of new calls global for institu- institutions. From the point of view of a cosmopolitan, global justice is not a problem. We owe all human beings justice because they are human beings. For this reason, many of the most ambitious in our social relations, simply ing a variety of views regarding the phenomenon of globalization). Cosmopolitanism 34502-nyi_46-1 Sheet No. 5 Side B 02/26/2014 09:18:43 02/26/2014 B 5 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 6 Side A 02/26/2014 09:18:43 , , 7 A- See US- dis- HIL- C J INLEY (Mary 45–83 : P LURAL- OMMU- USTICE K J P IMON , C HOSE A second S . (2005). SSAY 1992) ( ] AVID NCYCLOPEDIA , W E CIENCES D E CCOUNT ENDER S 2–4 A Global Society? IMITS OF The Ethical Signifi- A Theory of Justice. A Ethical Significance USTICE : G EFENSE OF L NTYRE I J UMAN ELF AC HEORY S H TANFORD : A D 23–38 (1992) (discuss- T M S HILOSOPHICAL HE and others for their THICS PHERES OF T USTICE S 17 OSMOPOLITAN E David Miller, J : A P in LASDAIR OLITICAL A , See P Stewart Hall et al. eds., AND COMMUNITY and failing to take into ac- ITUATING THE EACE : A C IBERALISM AND THE 18 , S P , L LOBAL PHERES OF HILOSOPHY AND THE hereinafter USTICE Nevertheless, cosmopolitans are , S ONTEMPORARY 61–116 ( , P J 16 : A G ANDEL ENHABIB C note 15 (laying out a defense of cosmopolitan- 647, 648 (1988) [hereinafter [hereinafter (1988) 648 647, ERPETUAL S B COSMOPOLIS 1–11 (1988). Several prominent communitarian (2009) (attempting to define the relationship be- ALZER ? AYLOR , P LOBAL Communitarianism W UTURES THICS supra T EYLA ORDERS F E , S , G ANT ICHAEL B 98 K M (1985). 82–83[ (1983) ANEY ICHAEL ROCK BETWEEN (2012) http://plato.stanford.edu/archives/spr2012/ent (2012) HARLES C See ATIONALITY M C , EYOND B R APERS ]; LOBALISATION B Daniel Bell, OSTMODERNISM IN P G QUALITY MMANUEL P See HICH ILLIAN I E See, e.g. G HILOSOPHY USTICE AND ODERNITY AND ITS ? W , , J 18. Cosmopolitanism can be criticized as simply the global projection of 17. Communitarianism in its contemporary form emerged in the 1980s 16. M P IVILISING NITY C ISM AND NEY OSOPHICAL OF often criticized by communitarians liberal values in an imagined solidarity, which fails to properly account for in moral psychology: failing to take into account how human be- ings actually form their (within identities specific and communities), moral commitments 55–59 (1982); all the way back to Kant himself (though Kant refrained from what for most political cosmopolitans is the ultimate step—world government). 2013] tion around an emerging normative priority for the individual through human rights. and elegant arguments for global justice at the institutional level are cosmo- politan in nature, for example, in the work of Simon Caney, and stretching \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 7 26-FEB-14 8:31 TICE theorists perceive the political community, and ultimately the nation-state, as nation-state, the ultimately and community, political the perceive theorists necessary for shaping the limits of justice. ing the inconsistencies of universalism); tween globalization and human rights); Anthony McGrew, While communitarian theory does not present a systematic alternative to lib- eralism, several main critiques have developed emphasis in on response the to community Rawls’s and his de- limited view society. of government’s role in cussing the developments of the late twentieth century as moving toward a more global society). as a critical response to the liberal theory of John Rawls’s of Nationality Campbell Smith trans., Motley Press 1903) (1795). ism); critique argues that the individualistic conception of the self under Rawlsian liberalism fails to recognize the important relationship between the commu- nity and the individual, and the inherent role of the community in defining one’s identity. cance of Nationality, generally ries/communitarianism/ (last visited Oct. 1, 2013). One such critique putes Rawls’s dis- universalist view of justice and instead posits that standards of justice are dependent on the interpretative framework within which individ- uals view their world. (2009) (developing a cosmopolitan account of global justice); 34502-nyi_46-1 Sheet No. 6 Side A 02/26/2014 09:18:43 02/26/2014 A 6 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 6 Side B 02/26/2014 09:18:43 , , 3 See, , 99 note [Vol. 46:1 supra be of con- , to those we do note 17. , Miller joins the should ] (characterizing Global Justice, supra supra , tied to one’s identity, USTICE J Global Justice On Nationality In 65–69 (2d ed., 2002) (discussing AND POLITICS , but whose lives Id. essentially ? Communitarians argue that PHERES OF S Ethical Significance of Nationality ) is ATIONALITY 20 N N Global Justice: Between Leviathan and Cosmopolis community note 16, at 9 (emphasis added). Maffetone, himself Maffetone, added). (emphasis 9 at 16, note , O Assessing the Communitarian Critique of Liberalism The nation-state is the necessary basis for 21 supra ILLER INTERNATIONAL LAW , M 443, 443 (2012) [hereinafter ROCK AVID B D OLICY P See 852, 867 (1989). Allen Buchanan, 19 For such communitarian critics, even global society would For communitarians the limits of political community . 21. The key lies in the concept of nationality, a subjective concept of 19. 20. Communitarian theorists differ on the precise nature of these neces- , Sebastiano Maffetone, LOBAL THICS cern to us.” 17, at 648. To these subjective elements, Miller adds nation a should requirement enjoy “some that degree a of political autonomy,” distinguishing it from a mere and moving it closer to that of a “people” under international law and political theory, with some right of self-determination not necessarily involving full Statehood. not know and with whom we are not intimate the cosmopolitan vision as “excessively blind to the role of shared social and political institutions”). As Gillian Brock—herself a moral cosmopolitanism “highlights cosmopolitan—putsthe responsibilities we have it, sary relations, and in general this aspect of communitarianism is under-theo- rized not be sufficient, since they pose an even more stringent test: what about global identity consisting of the shared beliefs of a set of people: that each belongs with the other; that the association is neither but rooted in a long transitory shared history of living together nor that (one expects) will instrumental, continue into the future; and a sense of loyalty adequate to justify sacrificing individual interests for the group. E certain key realities about how people reason morally and act politically. e.g. G 8 count the normative implications moral priority of of local or national this communities over thinner, process, more i.e., abstract notions the of transboundary identity ship. or relation- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 8 26-FEB-14 8:31 integral to one’s flourishing, and constitutive of the very con- cept of justice itself, and to whom we owe it. form the limits of justice, and the apex political community is the nation-state. a liberal but not a cosmopolitan, puts it thus: “When cosmopolitans leave the leave cosmopolitans “When thus: it puts cosmopolitan, a not but liberal a safety of [a] domestic basic structure, they project themselves into another political situation [in which] we cannot take for granted that our what is vision reasonable and comprehensive of is widely shared.” at 451. the variation of relationships and to whom a duty is owed based upon type and closeness of the relationship); and generally expressed in terms of tices, and shared understandings traditions, prac- one’s community (usually identified politically with the nation, the with politically identified (usually community one’s 34502-nyi_46-1 Sheet No. 6 Side B 02/26/2014 09:18:43 02/26/2014 B 6 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 7 Side A 02/26/2014 09:18:43 9 HE US- J , T LOBAL ROWLEY , G C EE ONES L J RIAN B note 17, at 661. HARLES C See supra note 17, at 82–83. at 17, note suggests This , at v (1987) (“. . . liberalism can note 17, at 54–59. (2001) (noting the connection , AND COMMUNITY see also supra , supra , It is only within nations that jus- note 19, at 11. 157–58 In other words, justice requires a As Walzer puts it, justice as a for- 25 note 17, at 313. OMMUNITY 24 23 ANDEL USTICE C Moreover, it is only within particular S J supra 22 , supra See COSMOPOLIS , note 19, at 68–73 (noting that it is the shared public ILLER note 19, at 90–96; M PHERES OF USTICE S OSMOPOLITANISM supra J , C BETWEEN supra , Ethical Significance of Nationality ILLER NDIVIDUAL AND THE M I ILLER PHERES OF EFENDING S M See HE Given these limits, what kinds of norms then apply be- , T : D 25. 23. For Miller, it is only within national communities that you can deter- 24. 22. ELF shared understanding of social goods. Only political commu- nities have such shared understandings, and the pre-eminent example is the nation-state. mal concept requires that a society’s “substantive life is lived in a certain way—that is, in a way faithful standings to of its the members.” shared under- communities that you can determine what justice consists of, and who owes it to whom. that Miller draws between nationality Walzer argues that a shared and notion of the common good is necessary for the solidarity). In a similar sacrifices of sense, justice, since almost by definition justice will be invoked someone has when failed, or perceives herself as having failed, to secure her indi- vidual self-interest. tice makes sense, and it is only necessary, within indeed, even nations possible. that justice is tween national communities? Communitarians do recognize what many commentators point out: that tions today include international many regimes that can be rela- characterized as cooperative associations for mutual self-interest, creating the culture which defines individual and social goods, and only state is in that public the culture united nation- with the rights, obligations and structures of political cooperation through citizenship and statehood). teresting resonance. S concept of nation as ethical community with a notion of self-determination, bringing the idea of “nation” closer to Rawls’s notion of a “people”—an in- 2013] the solidarity or sense Walzer’s terms) necessary of to support the the individual sacrifices common which justice demands. good (in Michael \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 9 26-FEB-14 8:31 mine which people are to have their consensus needs over what considered counts as and “need,” since the these necessary are social and not deter- mined facts. TICE only achieve its goal of creating a rational world by turning men one-dimensional beings.”). Thus, [sic] underlying the debate into about global justice is a disagreement about the proper way to reason about moral obligations, particularly or universally. the larger argument that the communitarian sort of ethical particularism is simply more accurate in capturing how we actually reason morally than the universalist attempt at disembodied rationality. 34502-nyi_46-1 Sheet No. 7 Side A 02/26/2014 09:18:43 02/26/2014 A 7 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 7 Side B 02/26/2014 09:18:43 , LOBALIZA- [Vol. 46:1 , G ] (discussing See also Global also See 7–10 (2012). USTICE note 22, at 8 (listing J NEQUALITY 27 I supra in LOBAL , , G Westphalian World N ONES J AND POLITICS , O See ISSE R others call it society or commu- 28 these are not sufficient to constitute ATHIAS . They do not by themselves create M 190 (Andrew Hurrell & Ngaire Woods eds., 1999) eds., Woods Ngaire & Hurrell (Andrew 190 Justice and Global Inequality note 4, at 114. This argument depends on the “nonexis- INTERNATIONAL LAW OLITICS P Rawls’s Law of Peoples: Rule for a Vanished Westphalian World supra ORLD note 18, at 446 (explaining Nagel’s view). 697, 705–06 (2000) [hereinafter However, while undeniably important to interna- W 26 —that we simply do not have, and perhaps cannot have THICS AND Accordingly, this conception of justice offers a specific provides the most obvious examples, but also there many are forms of from defence treaties political through to environmental pro- cooperation, ranging tection agreements— a global community either a shared sense of identity or a common ethos. And above all there is no common institutional struc- ture that would justify us in describing unequal out- comes as forms of unequal treatment. [A]lthough in the contemporary clearly forms world of interaction there and cooperation are occur- ring at the global level—the international economy In this Article, I argue that globalization is creating new , 29 E 26. Leading examples include the WTO and Bretton Woods institutions 28. Nagel, 27. David Miller, 29. Mathias Risse subsumes both within his category of “relationalist” ap- Nagel calls it sovereignty; TION nity kind of challenge to the possibility of global that justice; namely, global justice requires a kind of global relationship— and, regionally, the European Union. 10 possibility of agreed rules or norms (such as international law itself). view their in not do cooperation of forms such relations, tional rise to the level of community, and therefore do not generate justice obligations. In David Miller’s words: \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 10 26-FEB-14 8:31 at the level of global interaction. But that globalization must is be considered. precisely where normative possibilities for international relations by develop- (emphasis added). Whether the necessary relationship is “society” or “community” is not as cen- tral as their shared emphasis on the necessity of a specific kind of relation- ship for justice to apply. the “global basic structure” that includes these institutions). international institutions increasingly affecting people’s life prospects); Al- len Buchanan, 110 tence” of a global basic structure, which this Article challenges. Article this which structure, basic global a of tence” Justice, supra proaches to global justice. 34502-nyi_46-1 Sheet No. 7 Side B 02/26/2014 09:18:43 02/26/2014 B 7 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 8 Side A 02/26/2014 09:18:43 M- 11 E Global RADE AS THE T ISTORICAL AND in , , H and a global commu- RITICAL Principles of Fairness for Interna- ?: C AND COMMUNITY note 29, at 17 (defending a plural- cosmopolis ECURITY supra S , ISSE John Linarelli, R , See COSMOPOLIS (Padideh Alai, Tomer Broude & Colin Picker eds., IBERTY AND , L See, e.g. 124 EACE BETWEEN P and communitarian critics of global justice. This is 30 ERSPECTIVES Accepting for this purpose communitarian theory’s P I am not arguing, however, that at this point in our history our in point this at that however, arguing, not am I 31 30. Contractarians also critique cosmopolitan theories of global justice 31. The notion that the global justice debate requires fresh thought and UARANTOR OF PIRICAL global social relations constitute the sort of full-blown political community that communitarians find in domestic social rela- tions, or that cosmopolitans posit in their compelling yet vul- alter- third a creating is globalization Instead, account. nerable native, something between a on related but different through its social grounds. context, but understand Contractarians the latter to also calls involve participation what in Rawls approach cooperative ventures for justice mutual advantage. This rela- tionship is arguably “thinner” than communitarian relationships but essen- tial for justice nonetheless. sorts of shared understandings, practices, and traditions capa- ble of supporting obligations of justice at a global level. Mem- bers of this global web of relationships are increasingly aware of each other’s needs and circumstances, increasingly capable of effectively addressing these needs, and increasingly contrib- uting to these circumstances in the first place. They find them- selves involved in the same global market society, and together they look to the same organizations, meta-state level, to provide regulatory especially approaches to problems those at the of global social policy. I argue institu- issues, different to respect with community constituting that these developments are tions, and sets of social relations within the global social space. so because globalization is creating, facilitating, and contribut- ing to the sorts of relationships others cite as necessary for justice, but at a new, transboundary which communitarians and level. As globalization reduces or eliminates the role and of space in time many kinds of interactions, we see emerging the G 2013] ing the social basis for a truly scending “global” justice, the thereby tran- objections tractarian most commonly raised by con- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 11 26-FEB-14 8:31 2006) (elaborating a Scanlonian contractualist account in comparison with a Rawslian account). new possibilities “between” or “beyond” gaining momentum. existing dichotomous choices is ist view of global justice “‘between’ justice two apply standard only views, within States that or principles else of apply to all human beings”); tional Economic Treaties: Constructivism and Contractualism nity. 34502-nyi_46-1 Sheet No. 8 Side A 02/26/2014 09:18:43 02/26/2014 A 8 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 8 Side B 02/26/2014 09:18:43 See HREE LOBAL : T G necessity [Vol. 46:1 AW L ILLARS OF P CONOMIC HE E , T , of community at the APALDO AND POLITICS C elements of community, and elements NTERNATIONAL I notes 141–153 and accompanying text. 141–153 notes accompanying and ICCARDI Z enough infra note 29 (advancing a theory of ‘pluralist inter- ‘pluralist of theory a (advancing 29 note USTICE AND IULIANA note 14, at 1–27 (defending a ‘plural grounding’ supra J G , Among other implications, this allows for a See 32 ISSE supra INTERNATIONAL LAW of community, to support an inquiry into jus- LOBAL R , EN , G developing a pluralist approach to global justice theory and S of global social relations such as economic relations, note 18, at 449–51 (arguing for a third alternative beyond statist beyond alternative third a for 449–51 at (arguing 18, note see also see pockets ARCIA . supra J. G (2013) ( , In order to develop this argument, I examine in Part II areas at xiv–xv (2008) (identifying expansion of the “social base” of interna- , 32. This development is a key transformation underlying the emergence AKES AW RANK munitarians posit, we find enough by establishing that degree of social bond necessary to support justice. While global social relations taken as a whole may not rise in all cases at this time to the level of community that com- nationalism’); F T L Justice or cosmopolitan views). In my view, this development suggests the growing recognition that global justice, by its very nature, requires a comprehensive and pluralist approach that includes a diverse range of normative theory. tice even on communitarian terms global in social at relations least such key global economy. as areas fundamental of rights and the 12 characterization of both community and justice, I argue that globalization is creating certain \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 12 26-FEB-14 8:31 of the emerging global space, in the same way we consider jus- tice a necessary element of domestic social life. I conclude by arguing that globalization is changing not only the content of our substantive norms but also the pace at which bonds emerge, allowing us to begin envisioning a “post-global” communal future how globalization is making justice relevant to this new global “Global Basic Package” or “global minimum ethics” approach to global justice, consisting of a basic bundle of cial, and economic political, rights safeguarded so- through global law and delivered in a partnership between global and national institu- tions. In fact, if the communitarian intuition about the social dimension of justice holds true, and if this article is about accurate globalization, then global justice is no longer simply debatable possibility—it a is a fundamental and organic tional law as a key variable in the emergence of contemporary global On the notion of global law, see law). approach to global justice). well. as law global of discourse); global level, such as knowledge of inter-connectedness and of the circumstances of others; and creating community in tain cer- 34502-nyi_46-1 Sheet No. 8 Side B 02/26/2014 09:18:43 02/26/2014 B 8 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 9 Side A 02/26/2014 09:18:43 A 13 AWLS R EADING R (D. Estlund ed., 393 HANGER C HEORY T AME G note 4, at 8. I will return to this AND COMMUNITY HE OLITICAL : T P supra , AWLS , Rawls selects a particular level of so- R COSMOPOLIS ANDBOOK OF , Rawls never argues that justice could not exist at the H LOBALIZATION BETWEEN XFORD ); for a more recent comprehensive overview see Leif Wenar, O II. G Globalization and the Global Circumstances of Justice in , It is within this set of social relationships that the need the that relationships social of set this within is It A Theory of Justice 34 A Theory of Justice 33 A. In As the most influential justice theorist of the twentieth 33. Justice as Fairness has a voluminous and learned literature of com- 34. Rawls is often cited as the leading contemporary theorist against the cial relationships, the nation-State, and conceives of it “for the time being” as a closed States. system separate from other nation mentary, critique and elaboration, as befitting the most important political theory of the twentieth century. For a useful entry point, see John Rawls for and possibility of justice arises. Rawls discusses this phe- (Norman Daniels ed., 1989) (collecting initial critical responses to Rawls’s Theory of Justice suggesting further directions for development. I conclude in Part IV with a few observations on the pace of change and the nature of history in this globalizing environment. 2013] social level, using Rawls’s concept of the circumstances of jus- tice and applying it to globalization. I then examine in greater detail two particular aspects of tion globalization—the of globaliza- knowledge, and the which these globalization changes of are regulation—in salient and communitarian go argument against to global justice. the In heart Part III, of I outline the new possibilities which globalization opens for global justice, extending the work of Walzer, Miller, and others, and \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 13 26-FEB-14 8:31 tions of my thesis for Rawls’s seminal theory of Justice as Fair- ness. century, John Rawls and his work are a natural point of depar- ture for considering justice theory for the twenty-first century. In this section, I start with Rawls’s articulation of the relation- ship between justice and our social and material environment. I consider in Part III some of the more substantive implica- assumption below in Part III. 2012). possibility of global justice. However, it is critical to note that in his principal work, global level. In fact, at the theoretical level, Rawls leaves open the possibility of global justice, when he advanta- as regarded rationally something of allotment an is there “whenever states more generally that justice geous could or apply disadvantageous.” 34502-nyi_46-1 Sheet No. 9 Side A 02/26/2014 09:18:43 02/26/2014 A 9 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 9 Side B 02/26/2014 09:18:43 36 [Vol. 46:1 AND POLITICS The circumstances of justice are those 35 note 4, at 126–30 (following Hume’s treatment). INTERNATIONAL LAW supra , at 3. AWLS R Id. It is in this sense that society precedes justice. It is our Because of these five circumstances, we are led to cooper- The circumstances of justice can be divided into two cate- 35. 36. arrangements for mutual advantage. mously writes, “Justice,” is the “first as virtue” of such social Rawls institutions. fa- ends. This, in essence, is society, which Rawls defines as a co- operative venture for mutual advantage. As a consequence of the circumstances of justice, we are led social to arrangements through form which a we variety hope of to cooperate the in furtherance of our mutual principles by welfare. which to We choose among the need, various possible however, so- cial arrangements, principles that will guide the distribution of the fruits of this venture, and these are the principles tice. of jus- need to cooperate, as a response to the circumstances of jus- tice, which leads us to form and consider a variety of social stances: a moderate scarcity of resources; a shared geographi- cal territory; and a capacity to help other words: or there is not harm enough to each go around for other. everything In we each want to do; we are all going to resources in the same places; and we have the capacity to unite be looking for these to defeat one another’s goals, many of them. or The second category is work subjective and includes together to achieve two circumstances: people are mutually disinterested; and they have conflicting claims. In other words, we are what not after go we it, get to and want, we what want We altruistic: generally each other has. ate as the rational means toward achieving our individual conditions of our situation that make cooperation both possi- ble and necessary. Where they obtain, and they lead cooperation, justice to is relevant, and such where they do not, justice is not. gories. The first category consists of three objective circum- Absent the circumstances of justice, cooperation, and the de- velopment of social mechanisms for the allocation of the fruits of cooperation, there is simply nothing for justice to do. 14 nomenon through an inquiry into what he calls “the circum- stances of justice.” \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 14 26-FEB-14 8:31 34502-nyi_46-1 Sheet No. 9 Side B 02/26/2014 09:18:43 02/26/2014 B 9 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 10 Side A 02/26/2014 09:18:43 , 37 15 Javier Perez, (Oxfam Dis- Diaspora Bonds For example, note 5, at 15. 40 largely indepen- 43 See generally supra ., Commentators have sug- 38 AND COMMUNITY ELD ET AL Sleeping Lions: International Investment H Globalization creates the techni- See 39 note 22, at 9 (introducing and addressing the COSMOPOLIS and policy expertise 42 supra , 1005, 1060–74 (2001). . ONES BETWEEN J EV labor, , R 41 at 9–10. See, e.g. Id. Applying these circumstances to the question of global Because of globalization and its technical and economic Capacity to Help 38. This is a particular example of the general interconnectedness that 37. Although it is true that not all resources can be equally well exploited 39. 40. 41. Anupam Chandler cites the role of diaspora communities in mobiliz- cal ability to affect global resource question distribution, making of the its justice quite relevant now. global non-governmental networks facilitate the mobilization of capital, sources on a global scale in a shared territory: our planet. justice and global social tion—in relations, particular through its one characteristic transnationaliza- sees that tion and globaliza- interdependence—is bringing about cumstances of justice at the global level that Rawls described at the same cir- the domestic level. To begin with, there is of course the same basic scarcity of resources at globalization people the are increasingly global competing for level, these re- and through shifting (and privatizing) ownership and access rights to these fundamental resources). characterizes globalization today. regardless of geographic proximity, and not suited to compete globally for resources, all such competition is undeniably oc- persons are equally well- curring even with respect to what are traditionally considered the most “lo- cal” of resources: arable land and potable Myriam water. Gistelinck & Dima Karbala, Treaties, State-Investor Disputes and Access to Food, Land and Water cussion Papers, May 2011) (documenting the role of foreign investment in gested that earlier in our history, talk of global justice was pre- mature, in the sense that our capacity to redistribute resources across the globe was weak. That they are mutually claims disinterested over these resources and does not need to assert be argued. conflicting 1. revolutions, we have an increasing capacity spond to the needs and concerns of others beyond our bound- to effectively re- aries through the transnational mobilization of information, power, capital, or public opinion. 2013] \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 15 26-FEB-14 8:31 “incapacity objection”). ing capital for homeland governments. Anupam Chandler, 76 N.Y.U. L. 34502-nyi_46-1 Sheet No. 10 Side A 02/26/2014 09:18:43 02/26/2014 A 10 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 10 Side B 02/26/2014 09:18:43 , 45 UL- : C INGER S [Vol. 46:1 ARGE ETER L P (citing example See ODERNITY AT M note 3, at 164. Paradoxically, in 156–58 (2002) , 226, 276 (1998). of failure when our response to AND POLITICS supra L. , L sense 158, 167 (1996). ’ This level of response, even if at NT The “International Community”: Facing the For communitarians, this is a crit- 46 44 . J. I LOBALIZATION UR G The Other World Wide Web: Global Public Policy Net- E LOBALIZATION , 9 G , Winter 1999–2000, at 44, 44–45 (discussing global Y ’ THICS OF INTERNATIONAL LAW Patriotism and its Futures E 47 OL Section C. HE P : T Limits of Cosmopolitan Justice IMENSIONS OF OREIGN See infra ORLD F D By creating a real capacity to respond to another’s needs , W 45. 46. Put another way, it is also our 42. Transnational NGOs such as Habitat for Humanity mobilize volun- 47. Bruno Simma and Andreas L. Paulus list Rwanda and Somalia as ex- 43. Wolfgang Reinicke, 44. Even David Miller, a communitarian critic of global justice, acknowl- NE O TURAL such solidarity emerging? I elaborate on this point below, ical element in the creation of global solidarity as well. But is times still limited, weak, and inadequate, suggests an emerging sense of solidarity or sense of community at the which global for level, all its weaknesses would not 100 have years ago. happened at all and capacity, which renders such a failure an injustice. the speed and scope of recent military interventions abroad also confirm our confirm also abroad interventions military recent of scope and speed the capacity to bring significant resources to bear on short scale. I notice am on indebted to a Jim global Henle for pointing this out. humanitarian crises abroad is inadequate, despite having both knowledge teer labor for cross-border Arjun projects Appadurai, in human environment restoration. but at this juncture would simply note that we see contempo- rary evidence of such solidarity in our global needs common and atrocities. response to 16 dent of state action, and thus largely independent of our tradi- tional mechanisms for evaluating their justice and political le- gitimacy. and concerns, globalization contributes to an important ment ele- of the rationale for both society and justice—in help. to capacity the terms, Rawls’ \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 16 26-FEB-14 8:31 works of 1970’s humanitarian crisis in Bangladesh). amples of a weak solidarity, which can global community is suggest either half-full or half empty. They either decide it is half full, that the concept of asking “[a]fter all, who would have cared—and how—a hundred years ago.” Bruno Simma & Andreas Paulus, Challenge of Globalization public policy networks experimenting with new ways to gather and distribute knowledge across borders). edges that the “prosaic observation that technical the capacity rich countries to now transfer have large the morally become have transfers such that case facie prima a makes countries,” quantities of resources to the obligatory. poorer 34502-nyi_46-1 Sheet No. 10 Side B 02/26/2014 09:18:43 02/26/2014 B 10 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 11 Side A 02/26/2014 09:18:43 , 17 ILLER Thus, M 48 ICHARD R 185–86 (if (1989) Our responsibility USTICE J 50 AND COMMUNITY note 8, at 129; HEORIES OF note 8, at 129–30. , T supra ARRY , supra 49 B , COSMOPOLIS RIAN B See 59–77 (2010). BETWEEN USTICE J 51 Globalization and Justice Globalization and Justice Together, these global circumstances of justice, especially This capacity to harm each other globally is an important Because of globalization, we also increasingly find that Capacity to Harm 49. Thus globalization extends to the level of the individual as global ac- 48. 50. This is also a basic element of justice in the social contract tradition: 51. LOBALIZING G global level is a rationale for global suggested, transcends justice the entire cosmopolitan-communitarian that, it has been divide. completing Rawls’s basic conditions, we have the capacity harm each to other as well. over the effects, even attenuated, of our own conduct at the tor, which is the basic argument Barry transnational harms. and others make about states and our capacity to both help and harm each other, make justice both possible and necessary at the global level, and begin con- tributing to the formation of those deeper bonds we call soli- darity. I now turn to two further aspects of globalization that element in creating a sense of solidarity, understood as a sense of responsibility for one other. Through our economic inter- dependence, we have to take seriously the possibility that are we contributing to others, a the basic criterion of socioeconomic community. circumstances of processes, mutual fund and pension plan investment returns, etc. The very fabric of global society—its division of and territory jurisdiction to political entities called States—is arrangement for which we are a collectively responsible. social 2013] 2. our State’s policies choices and are influencing our the life prospects own of others and dramatic ways. The globalization of markets political in means that in direct and consumer many cases we are directly profiting from the social economic and conditions in other sourced parts of the services, world through out- low wages, multinational production \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 17 26-FEB-14 8:31 we “take seriously” the circumstances of tional level, justice we argument must at take into the account interna- our tional harms capacity through for the state inflicting system). transna- Obligations apply when one has accepted the benefits of the social arrange- inter- one’s further to offers it opportunities the of advantage taken or ment, ests. 34502-nyi_46-1 Sheet No. 11 Side A 02/26/2014 09:18:43 02/26/2014 A 11 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 11 Side B 02/26/2014 09:18:43 : , ] 43 , OARD LOBAL under- ATIONS G B [Vol. 46:1 in N , CIENCE S (2011) (a review of (2010) (demonstrat- Law and Globalization ETWORKS AND ATIONAL ENTURY N , N C ESEARCH , ST R Moreover, this flow of in- Such knowledge is both a hereinafter AND POLITICS 53 21 52 note 7, at 46–50at 7, note cen- the (discussing See, e.g. NOWLEDGE supra , K NGINEERING , E World Society—Structures and Trends From International Law to Law and Globalization and Law to Law International From OCIETY note 5, at 58 (asserting that the globalization and S 54 OVERNANCE L. 485, 516 (2005) [ (2005) 516 485, L. A Global Community of Knowledge L OLLABORATION IN THE supra ’ CIENCE AND G OYAL INTERNATIONAL LAW ., C S R B. , Dirk Messner, LOBAL HE T RANSNAT G CIENTIFIC ELD ET AL S H See, e.g. . J. T our deepening interdependence, with the symbolic, so- One of the salient features of contemporary globalization Through globalization, we know a great deal, immediately 52. 54.Berman, Schiff Paul 53. LOBALIZATION OF LOBAL OLUM RENDS AND C G Globalization—particularly its global security nance and aspects—is also global contributing to fi- a shared nerability sense to of “remote” vul- forces even among citizens of wealthy, developed nations. formation is not simply about global harms to “poor Others.” G factor in our increasing cally—the interdependence, essential vehicle and—most through which we criti- come to stand cial, and legal ramifications such knowledge brings. and intimately, about the suffering of people in other parts of the world; indeed, we are more familiar now with than we ever their were previously. suffering T ment of both global media and the capability to organize so- cial concern at a global level (through networks of NGOs, for a as to referred be can what creating is globalization example), global community of knowledge. 18 bring us even closer to meeting the criteria lay communitarians down for justice: a global shared community traditions, practices, of and understandings. knowledge and is its effect on information flows. As a result of the global tele- communications revolution, the Internet, and the develop- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 18 26-FEB-14 8:31 telecommunications revolution brings people into other social realities they otherwise would not know). ing that science and engineering research is endeavor); increasingly an international the globalizing nature of scientific research). trality of knowledge, its diffusion, and its networks in shaping a global episte- reflects knowledge of community global This community). cognitive and mic on a wider scale the globalization of scientific knowledge—a phenomenon that predates and parallels the globalization of other forms and of itself knowledge, contributes to a shared epistemic community and edge shared knowl- base for key social questions. 34502-nyi_46-1 Sheet No. 11 Side B 02/26/2014 09:18:43 02/26/2014 B 11 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 12 Side A 02/26/2014 09:18:43 19 HE T avail- , TANLEY S note 7, at 158–59. It is significant, 58 Does One Super-Corpora- supra AND COMMUNITY The literature is remarkably 55 37 (1981). note 47, at 272 (listing bases for a dialogue ORDERS supra COSMOPOLIS B 57 note 52, at 24; Nuscheler, note 52, at 24 (discussing a ‘global risk community’); EYOND B Moreover, the desire for security, environmen- supra supra note 7, at 158–59 (citing the interdependent nature of a BETWEEN , 56 UTIES supra , Oct. 20, 2011, http://www.dailymail.co.uk/sciencetech/article- Simma & Paulus, Paulus, & Simma , D AIL See http://www.cnn.com/2009/POLITICS/09/23/obama.transcript/in Although awareness of shared risks is not by itself enough One specific type of shared knowledge important to M 57. 58. Even a realist like Stanley Hoffman acknowledges this much. 55. Messner 56. Messner, OFFMAN AILY moreover, that such shared interests exist and are recognized as such, since this creates conditions favoring increased coop- eration, which can lead to fighting these a risks. sense of common purpose in mental degradation; economic crises and increased economic competition and dislocation; infectious pandemics; natural disasters; and disease rapid , to and global name a few. consistent in its listing of common risks facing all human be- ings: war and security challenges; climate change and environ- tion Run the Global Economy?: Study Claims It Could Be Terrifyingly Unstable General Assembly, in which he said the self-interests of states Obama, Barack President today. are they than aligned more been never have First Speech to the United Nations General Assembly (Sept. 23, 2009), able at dex.html. President Obama alluded to this in his September 23, 2009 remarks to the to create community, such international conditions lead to a shared interest in survival and development. globalization is the growing recognition of the risks we share as human beings on this planet, and the growing recognition of our shared interest in addressing those risks. In this sense, globalization is “de-territorializing” risk, creating what can be called a “community of risk.” tal well-being, and sustainable across all cultures. development can be found H (“We [meaning the ] also may feel the growing significance of ‘remote’ forces on our lives, whether those forces are multinational corpora- tions, global terrorist organizations, world capital markets or distant bureau- cracies such as the European Union.”); Rob Waugh, D 2013] \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 19 26-FEB-14 8:31 on a minimal set of common values). Nuscheler, ‘global risk society’). 2051008/Does-super-corporation-run-global-economy.html 2051008/Does-super-corporation-run-global-economy.html (documenting financial and economic interconnectedness and potential quences). systemic conse- 34502-nyi_46-1 Sheet No. 12 Side A 02/26/2014 09:18:43 02/26/2014 A 12 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 12 Side B 02/26/2014 09:18:43 59 RIGIN O [Vol. 46:1 We not 60 EFLECTIONS ON THE note 17, at 653–54 (citing : R supra AND POLITICS , OMMUNITIES C (1991) (noting the importance of media in al- and Understandings MAGINED that we do, and we know what such help or , I INTERNATIONAL LAW ATIONALISM Section A. know N Globalization and Shared Traditions, Practices, NDERSON supra A C. See Ethical Significance of Nationality PREAD OF In order to more fully evaluate whether solidarity or com- Nevertheless, the mere fact that we are increasingly aware Taken together, these various types of knowledge also sat- we are responding. The community of knowledge and risk S 59. 60. See ENEDICT how we respond to such knowledge and risks. These responses grow, both spontaneously and institutionally, out of our per- create solidarity itself. Can we say that such solidarity is emerg- ing at the global level? This becomes a communitarian key argument about question global for justice. any munity is emerging from our mutual knowledge and the rec- ognition of our shared risks, we need to look more carefully at how I outlined above is increasingly shared traditions, becoming practices, a and community understandings of concerning scale, but we harm looks like. Further, globalization least reducing, is the spatial and temporal barriers to our eliminating, knowl- or at edge of one another’s needs, preferences, and situations, mak- ing it possible to recognize, develop, and exercise effective re- to manner similar a in well-being another’s one for sponsibility that which communitarians cite as essential to national munity. com- of one another’s situation sponding to it across vast and distances of time and space is not by increasingly capable itself of enough to re- create solidarity or community. Put way, the another existence of the basis for solidarity is not sufficient to only have the capacity to help or harm each other at a global AND isfy a basic requirement for community: the effective capacity to know one another’s needs, concerns, and preferences. B 20 This knowledge forms the basis for Miller’s social determina- for basis the as well as count,” needs “whose and “need” of tion Walzer’s shared understandings. This goes beyond the global circumstances of justice argument I outlined above: \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 20 26-FEB-14 8:31 lowing dispersed bodies of people to think of themselves as belonging to a single community)). 34502-nyi_46-1 Sheet No. 12 Side B 02/26/2014 09:18:43 02/26/2014 B 12 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 13 Side A 02/26/2014 09:18:43 61 21 UL- C in UNTHER , G 1, 1 (1997)). 1 1, Finally, at note 12, at 31 63 supra , ACE note 52, at 22, 31 (“One F NTHROPOLOGY Hugh Collins ed., Michelle ( A supra UMAN note 8, at 71–77 (noting the ho- H AND COMMUNITY RITICAL note 54, at 500 (noting the role of note 54, at 512 (citing Akhil Gupta & C ONTRACTS supra Messner, . C ); supra supra , , COSMOPOLIS ONNECTED discussing the important emergence of networks as C XPLORATIONS IN LOBALIZATION WITH A G : E Culture, Power, Place: at the End of an Era See BETWEEN LACE 2011) ( , Barnet & Cavanagh, , P ETWORKS AS At the associational level, enterprises such as mul- , N 62 OWER See, e.g. See Law and Globalization See Law and Globalization Globalization has been a powerful force for supporting , P 61. 62. 63. EUBNER TURE the regulatory level, the post-war growth of universally recog- nized international human rights has played a particularly im- T More fundamentally, the “de-territorialization” associated with the cross-border human and cultural migrations characteristic of contemporary globalization is breaking down the notion of territorially distinct, epistemically unique “cultures” or “com- munities” due to “social and economic processes that connect . . . even world.” the most isolated of tinational corporations, local NGOs, and settings global scientific with coopera- a tion bodies build wider and constitute their own epistemic commu- nities across national boundaries, which also contribute to the development of shared traditions and practices. 2013] and help to capacity our interests, and needs shared of ception to harm, and our awareness of each other’s plight—in short, our understanding of globalization as interlocking our fates. the development of shared practices at many levels. At the su- perficial level of popular culture, many have noted (often with concern) the through mass harmonizing consumption of tendencies Western cultural products. of globalization \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 21 26-FEB-14 8:31 mogenizing effect that Western products are having on cultures globally). James Ferguson, (“Economic integration is thus dividing developing mies and into those that are benefiting from transition global opportunities and those that econo- are not.”). Everson trans., of the effects of international joint ventures between companies as well as of various forms of coordination and cooperation between the different levels of action of the global governance architecture is that actor orientations and modes of action are mutually intertwined, influenced, altered, and reconsti- tuted across international borders.”) Of course, as I noted above, not all are engaged, or equally engaged, in this new global space, even as all may in some sense be affected by it and there- fore “within” it. cooperative business arrangements institutional bureaucracies in implementing international norms); 34502-nyi_46-1 Sheet No. 13 Side A 02/26/2014 09:18:43 02/26/2014 A 13 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 13 Side B 02/26/2014 09:18:43 N- I at 65. in , . Id. [Vol. 46:1 note 8, at 60, The Globalizing of note 3, at 17–35. supra , supra , EADER 64 R At this point in world his- world in point this At 65 AND POLITICS ERSPECTIVES P arguing that the increasing intercon- , Global Inequality and International Institu- See THICAL E However, for our purposes here, it is RANSFORMATIONS 66 T 34 (2001) ( IVERSE Legal Positivism as a Theory of International Society : D LOBAL INTERNATIONAL LAW Andrew Hurrell, G HE OCIETY T S ETAPHILOSOPHY in , M See generally The global market society created through globalization In the next section, I take a closer look at two fundamen- Shared Understandings and Practices about Markets , 32 64. Terry Nardin, 66. One way to view globalization is as the world-wide extension of the 65. TERNATIONAL between globalization and our structural, community-building responses to the fundamental interconnectedness that perme- ates twenty-first century social reality. 1. results in a complex shared practice or contributes to set a of global practices community that of shared understandings organization. socioeconomic about tal sets of widely shared practices: markets as an the economic structure (“market social society”), and our significance of shared approaches to regulating markets (“institutions”). Mar- kets and our regulation of them are not contemporary way of only life, but central they also highlight to the interplay our transition to market society that European culture went through in the sev- enteenth to nineteenth centuries. tory, it is possible to say that virtually all form people live of in some organized market economy. Globalization without not and trend, this of accelerator and facilitator a both has been significant controversy. 22 portant role in international law’s shared practices and status understandings. as a global set of \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 22 26-FEB-14 8:31 nectedness of global society has made global justice more realistic) tions globalization will be viewed as threatening to the old social order and chal- lenged by those who benefited from entrenched social patterns or are favored less by the new dispensations. Giddens considers this cultural an aspect globalization of that, the together with industrialization global and media, has the “torn rise the of modern away from Second, to the extent the that globalization is understood as traditional.” extending a partic- ular version of market society—under-regulated capitalism or the “Washing- ton Consensus,” for example—globalization will be resisted those as who partisan view by this particular ideology as non-capital classes. This inimical complaint is more a to normative judgment about the the interests of the 60–65 (citing globalization as the global spread of , with all of its characteristic features and complications). This can lead to two kinds of ten- sions. First, since market society’s patterns of contractual exchange are cor- rosive of old status-based patterns and the power that flowed from them, Modernity 34502-nyi_46-1 Sheet No. 13 Side B 02/26/2014 09:18:43 02/26/2014 B 13 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 14 Side A 02/26/2014 09:18:43 70 23 HE ELL- HINA : T OBERT , S C R (2003); RA ARKETS AND UANG E NTERESTS AND necessarily H NTERNATIONAL : M I RANSITION I Colin Crouch & not EGIONS IN T ( EFORM R OCIETY ASHENG R Y S OMESTIC RAPPED 69 : D T S APITALISM ARKET ’ HINA C , M URING THE C HINA See generally D AND COMMUNITY NDERSTANDING THE In fact, markets have been has certain attributes—the , C (2006). ODERN 68 ONKISS : U EI note 8, at 130. This is one of the more note 12, at 42–43 (discussing dangers T M P IBERALIZATION AND THE comparing Anglo-American, European and note 67. RAN supra supra NVESTMENT , INXIN CONOMY UTOCRACY : L For a nuanced account of the role of national I . & F E COSMOPOLIS supra A 92–116 (2001) (surveying the range of institutions 1997) ( market society CONOMY OF NTERNATIONALIZING EIJING IRECT LATER , I E S Hopkins, B D OLITICAL HEORY The contrast is even more marked when one (2002); M See (2001). AN WEIG BETWEEN T P 67 D , EYOND Z OREIGN RDER OLITICAL EVELOPMENTAL P , B e.g. : F OCIAL O INKAGES AVID LOBAL , D S L Globalization and Justice See See ANG , G HINA Nevertheless, The widespread use of the market does not, of course, Y C 69. 68. Crouch & Streeck, 67. 70. ODERN LOBAL ILPIN ALI IMITS OF CONOMIC D touted on instrumental grounds precisely because they can fa- cilitate efficient transfers among people who do share identical conceptions of the good. economies—and their differences—in the global economy, see tue of their significant spill-over effects, contribute to the for- mation of important shared interests among participants. ventures beyond comparison between the United States Western European and market and looks at Asian capital- ism, even Chinese capitalism. need for bureaucratic regulation, recognition of private prop- erty, and functioning civil courts, to name a few—which by vir- (1997); D G L M global spread of under-regulated capitalism than a judgment on the global economy per se. posed by weakened regulatory power over capitalist system). G E of market economy which differ competition in important policy, ways such labor-management as level for relations, among tolerance citizens, and social fare wel- policies. 2013] the ubiquity of the market itself that perspective is of significant shared from the understandings and controversial nature. practices, not its mean that all countries have identical interests with respect to markets or identical forms of market society. To take just one example, the United States and Germany (two of the world’s most developed countries) practice advanced capitalist forms \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 23 26-FEB-14 8:31 Asian models of capitalism) ING which markets require and/or are embedded in). Wolfgang Streeck eds., promising aspects of a global market. The more sinister is a the global bottom race through to deregulation. 34502-nyi_46-1 Sheet No. 14 Side A 02/26/2014 09:18:43 02/26/2014 A 14 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 14 Side B 02/26/2014 09:18:43 L 71 & A , [Vol. 46:1 EOHANE RANSFORMA- T O. K LOBAL OBERT G R HE T in , 246 (2001). AND POLITICS Who Should Run the Global Economy? NTERDEPENDENCE I Clash of Globalizations INTERNATIONAL LAW OWER AND supra note 8, at 106 (citing Raymond Aron). , P , , Deborah James, YE This is but one aspect of a larger move toward meta- EADER This shared need is more than an intensification of , Apr. 23, 2012, http://www.aljazeera.com/indepth/opinion/2012/ S. N 72 See, e.g. 73 One category of shared practices around markets is partic- is markets around practices shared of category One Perhaps the strongest evidence of an emerging global R Shared Understandings, Meta-State Institutions, and a Global Basic Structure 71. Stanley Hoffman, 73. Keohane and Nye refer to this as an aspect of “complex interdepen- 72. This does not mean, of course, that there is agreement on the nature AZEERA OSEPH J TIONS for example by compensating the “losers” through some form of wealth transfer. But emerging what global economy is is truly the need for shared institutions distinctive regulating the market recognition at about a trans-national of the the level. ularly significant for the purposes of this article: the practice of practice the article: this of purposes the for significant ularly regulating the market through institutions. Most market socie- ties have experience in developing domestic institutions capa- ble of supplementing and mitigating the rigors of capitalism, J 24 Such liberal pro-market norms have been called the “germ of a universal consciousness” insofar as held in common by developed and developing market states. they have come to be \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 24 26-FEB-14 8:31 to institutions beyond the State in order to frame an adequate social response to many of the problems face. and challenges we prior trends toward internationalization, just as meta-state in- stitutions are not just a specialized regulatory tool of States for certain problems in international relations. The need for in- creased global governance, rather, is standing characteristic of this itself new social space, and the a reality shared under- state institutions at a global level. 2. community involves our recognition of a shared need to look 04/2012422104847102233.html. dence”: “More and more issues are up for grabs regulations internationally, and practices—ranging including from pharmaceutical testing to account- ing and product standards to banking regulation—thatgarded as the prerogatives of national governments.” were formerly re- tion. of such institutions or on what ideology should guide their market regula- 34502-nyi_46-1 Sheet No. 14 Side B 02/26/2014 09:18:43 02/26/2014 B 14 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 15 Side A 02/26/2014 09:18:43 J. 25 It is supra , 7 . , These ELATIONS 77 ONES R NTERNATIONAL note 22, at 8; , I supra Through global- , 76 NTERNATIONAL ONES J I ; ] 240–80 (1989); J surveying global institutions and ONSTITUTIONALISM HEORY AWLS AND COMMUNITY ] ( note 26, at 705–06. T R ?: C HEORY AND ORLD T supra Jeffrey L. Dunoff & Joel P. Trachtman eds., ORLD W , ( OLITICAL EALIZING P W , R COSMOPOLIS OLITICAL note 26, at 705–06. Thomas Eskelinen warns us, note 4, at 8. , P OGGE ULING THE OVERNANCE R supra EITZ supra ULING THE G , , R BETWEEN B W. P 47, 47 (2011). , Westphalian World 75 AWLS LOBAL R THICS G HARLES HOMAS E hereinafter C T See, e.g. See By leading us to create new institutions and shift responsi- Globalization’s many facets are together pushing us to- AND 74 , 77. 76. 74. 75. LOBAL AW activities that have been traditionally understood in the do- G however, that while such institutions doubtless comprise a global basic struc- ture, they cannot be fully understood nor reformed toward a more just rangement without ar- proper consideration of the agendas pursued by power- ful individual governments within Global their Basic Structure frameworks. and Thomas Institutions: Eskelinen, The WTO as a Practical Example rights, opportunities, privileges, membership, and resources— organizations, in addressing such needs, are involved in allo- cooperation—suchsocial of burdens and benefits as the cating ization, we find ourselves in precisely the sort of venture for cooperative mutual advantage that is the subject of justice; we opportunities, (trade cooperation social of fruits the share also World the as such institutions meta-state through example) for Union. European the and (WTO) Organization Trade ture”—i.e., the institutions we employ and to opportunities, and allocate which resources thereby directly affect prospects. our life bility for many social allocations to the meta-state level, global- ization is creating a global basic structure. ward increased cooperation at the meta-state level. Returning to Rawls’s account of the circumstances of justice, the rational human response to these circumstances is tems of social cooperation for mutual to advantage. Through this enter into sys- cooperation we create “society,” in particular the “basic struc- 166–67 (1979) [hereinafter L 2009) [ 2013] of global governance by its nature constitutes a tice. shared prac- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 25 26-FEB-14 8:31 Westphalian World useful at this juncture to recall the point I discussed earlier, that understand- ings and practices can be debated and contested without necessarily render- “shared”—thisnot them ing communities no fact in are there or so be to has at all. cataloguing the emerging constitutionalization of global governance) note 22, at 8; 34502-nyi_46-1 Sheet No. 15 Side A 02/26/2014 09:18:43 02/26/2014 A 15 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 15 Side B 02/26/2014 09:18:43 In In West- 78 79 See also [Vol. 46:1 tending note 18, at 447 merely AND POLITICS When a community is no 81 but see Global Justice, supra note 17, at 31. supra , note 26, at 700–01. note 4, at 7; USTICE note 22, at 8 (“[T]he institutions and quasi-formal ar- INTERNATIONAL LAW J 80 supra supra supra , , , note 14, at 409 (“The distribution of benefits of global relations AWLS PHERES OF ONES R S J This global basic structure could be seen as First, this shift suggests that the communitarian assump- supra , 79. 81. 78. “ . . . [T]here is a global basic structure, which, like the domestic 80. EN prospects, what they can expect to be and how well hope they to can do.” fact, global social regulation today is increasingly through conducted a complex partnership consisting of such meta-state institutions, States and their constituent organizations, and non-State actors, through mechanisms such units, international as the market, all regulated through Rawlsian international terms, law. such global level institutional “define men’s arrangements [sic] rights and duties and influence their life longer capable of fixing its own patterns change, of it is division no longer and sufficient to ex- analyze the justice of that creasingly international ones—international financial institutions, transna- tional corporations, the G8, the World Trade Organization . . . .”). (Maffetone, a Rawlsian, arguing that empirical evidence structure is of inconclusive). a global basic rangements affecting persons’ life prospects throughout the world are in- tional level. Walzer describes the political community of justice of community political the describes Walzer level. tional as one “capable of arranging [its] own patterns of division and exchange, justly or unjustly.” toward the creation of global society, which in the communi- tarian view does not go There are, far however, enough at least for four global ways in ward a community. transnational and which meta-state partnership has this profound shift to- communitarian consequences. tion of bounded distributive communities no longer holds at the nation-state level, necessitating a distribu- relevant which in community of level inclusive” “more shift to a “higher” tive decisions are or also taken. This “higher” level is the transna- basic structure, is an important subject of justice and enduring effects because on the prospects it of individuals has and groups . profound . . .” phalian World S 26 necessary. and relevant both justice make to sphere mestic \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 26 26-FEB-14 8:31 depends not only on domestic policies but on a variety of international cial so- arrangements . . . .”). 34502-nyi_46-1 Sheet No. 15 Side B 02/26/2014 09:18:43 02/26/2014 B 15 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 16 Side A 02/26/2014 09:18:43 N- 27 I in , 86 (1998) (globaliza- (1998) 54–69 (Davd Mapel & 47, 49 47, In other words, una- 82 RADE T ERSPECTIVES AND COMMUNITY ORLD P In Andrew Hurrell’s words, J. W J. 83 Natural Law and International Order THICAL , 32 , E Even the many anti-globalization pro- From a distributive justice perspective, COSMOPOLIS 85 84 Globalization: A New Political and Economic Space Re- IVERSE : D note 65, at 36. Global Private Regimes: Neo-Spontaneous Law and Dual Con- BETWEEN supra OCIETY Robert P. George, S Alberto Tita, See See also The drive toward a higher level of institutions is precisely 82. This also echoes criticisms made about the validity of Rawls’s assump- 83. 86. It is in this sense that Teubner characterizes such protest movements 84. Hurrell, 85. ble to fix its own distributions entirely itself, the community is not capable of delivering its own justice. look We to must that therefore further level of institutions that community’s is distributions, and affecting to that its justice as well. the effect of globalization. as the allocation of trade benefits, crisis financing, and devel- opment aid), though often falling short in this role. TERNATIONAL tests focused on Bretton Woods institutions indicate the grow- ing awareness that these institutions increasingly constrain al- locative decision-making at the national level, even as these in- (such well as functions distributive positive in engage stitutions the boundedness of political communities weight much so given are living of ways and traditions cultures, whose particular by communitarians.” “[I]ntegration and globalization have eroded and undermined and eroded have globalization and “[I]ntegration tion of self-contained national distributive communities in his analysis of do- mestic justice. globalization is revealing domestic society to be an incomplete community (even as it is also an agent rendering domestic so- ciety increasingly less complete), incapable overall well-being of of its members securing by itself, the thus prompting us to look to a higher level of community as part of group efforts to secure well-being. 2013] community with sole reference to itself. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 27 26-FEB-14 8:31 quiring Supranational Governance Supranational quiring tion leads to internal pressures on States as traditional macroeconomic pol- icy tools “becom[e] less and less capable of being determined at a national level by democratically elected governments.”). could) secure the conditions of its citizens’ overall well-being (that is, their common good) without more or less systematically coordinating its activities with other nation states and, indeed, without the active assistance of supra- national institutions.”). as “parasitic” (though I would choose a different word): “They presuppose specialized institutions with high problem-solving potential, which they ac- cuse of over-specialized tunnel vision and Gunther can Teubner, provoke into innovations.” Terry Nardin, eds., 1998) (“[T]he national state can no longer (if it ever 34502-nyi_46-1 Sheet No. 16 Side A 02/26/2014 09:18:43 02/26/2014 A 16 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 16 Side B 02/26/2014 09:18:43 C- in , E supra UBLIC Global P [Vol. 46:1 . Hurrell, NTERNATIONAL Our increasing I , 2008) 87 see also LOBALIZATION AND G UTURE OF F in , HE AND POLITICS T in The UN Security Council and the Crisis in , Mar. 12, 2012. L.), note 11, at 249, 256; L ’ NT supra I Y , ’ Territorial Boundaries: A Liberal Egalitarian Perspective OC note 65, at 42. A current example of this idea is re- note 65, at 39. In this sense, even the anti-globalization , Saira Mohamed, . S INTERNATIONAL LAW USTICE M William J. Davey & John Jackson eds. J note 14, at 173. supra supra (A 88 For this reason, such institutions themselves can See, e.g. 71, 81 (Karl-Heinz Ladeur ed., 2000). On the re-distributive 23 ( supra 89 , AW L EN NSIGHTS S Third, the role of institutions in global regulation—eco- Second, the fact that globalization is forcing us to look to I , 89. Hurrell, 88. Hurrell, 87. Will Kymlicka, OVERNANCE OUNDARIES AND ONOMIC Syria responses to social and environmental problems globally, re- flects a shared understanding that such institutions play an in- creasingly prominent role in formulating or channeling social policy decisions and orchestrating and social that welfare few States responses, can act social without issue. them on any important tendency to look, at least in part, to meta-state institutions for potential of the Bretton Woods Institutions see, e.g., Frank J. Garcia, Justice and the Bretton Woods Institutions nomic and otherwise—is itself increasingly source of recognized norm-creation as and shared a understandings.created, institutions “Once act as platforms for on going debate, for the mobilization normative of concern, and for debating and revising ideas about how international society ganized.” should be or- international institutions such as the United Nations and the WTO for global policy solutions has an inherent community- building effect. The role played by common institutions shar- ing a common language in building polities out of peoples has disparate long been recognized in international relations as well as domestic politics as “nation-building.” flected in the critique of the United Nations for failing Syrian crisis. to interfere in the stitution of Autonomous Sectors in World Society? G B 28 \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 28 26-FEB-14 8:31 protests contribute to the community globalization they take up one is part of a larger global debate over creating, the most humane ideol- insofar as ogy for global market society. According to Sen, “Even tions our and shared shared frustra- thoughts on global helplessness can unite rather than vide.” di- note 65, at 39 (on how state institutions are tremendously important in the creation and development of national States are no strangers communities). to this phenomenon: We We reinforce our shared iden- in and allocations resource for level Federal the the to look we when nation a as tity United policy responses, as in the case of natural disasters or security crises. 34502-nyi_46-1 Sheet No. 16 Side B 02/26/2014 09:18:43 02/26/2014 B 16 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 17 Side A 02/26/2014 09:18:43 , 29 USTICE J Ethical Signifi- PHERES OF , S 90 primary rules are those ALZER W (1961) ( Both approaches suggest a AND COMMUNITY 92 AW L note 17, at 313. ). supra ONCEPT OF COSMOPOLIS , C note 17, at 657–58. In addressing a similar problem concern- HE 91 note 65, at 42–43 (citing USTICE , T supra J , note 8. However, my point here is about social goods in a ART BETWEEN supra PHERES OF See supra S H.L.A. H 93 This approach to social conflict—shifting the level of Fourth, this shift toward meta-state institutions represents note 17, at xiv.). This may or may not also reinforce the cultural ho- 93. 90. Hurrell, 92. Noting that nationality as a fact is often created out of disparate eth- 91. hierarchy of shared understandings, Hart’s reminiscent of distinction H.L.A. between rules. primary and secondary legal ing the relation between nationality and ethnicity in an ethni- cally plural nation-state, Miller creates a similar distinction, be- tween public and private culture. analysis to “understandings about understandings,” or “shared public cultures”—casts a community’s identity in light. a It different seems communitarians are linking justice tional at level the to na- a kind of than a simple community of shared primary beliefs; what shared com- institutional culture, rather munitarians are identifying when they speak of the common good is really a commitment to the second-order set of under- system for managing conflicts over understandings and their application. For example, Walzer suggests that disagreement over the meaning of social goods—where a given social under- standing is controversial—triggers a sort of “second order” set of understandings concerning how disputes are to expressed, managed, and adjudicated, and even mechanisms for “alterna- tive distributions.” the emergence of a shared understanding with respect to regu- to respect with understanding shared a of emergence the lating global social conflict. When responding to social the conflict, particularly fact conflict of over what are purportedly “shared” understandings, communitarians shift analysis the to a secondary level set of practices of and understandings, a nic groups and even forced upon minority ethnic groups with prior existing identities of their own, Miller posits a tween bifurcation a shared of public national culture culture, and differing be- private cultures. cance of Nationality 2013] “move different States and societies standings towards of the meaning ‘shared of social goods.’” under- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 29 26-FEB-14 8:31 distributive sense, not consumer goods. supra mogenization tendencies many commentators note with alarm about global- ization. that actually govern conduct whereas secondary rules are those that govern primary and secondary rules 34502-nyi_46-1 Sheet No. 17 Side A 02/26/2014 09:18:43 02/26/2014 A 17 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 17 Side B 02/26/2014 09:18:43 a priori [Vol. 46:1 The Fragile EASONABLE- R EASON AND . 3: R OL AND POLITICS , V 96 IALOGUE D note 18, at 445. HE T in supra , , We may find more of a consensus over this INTERNATIONAL LAW Ricardo Dottori ed., 2005). 95 : shared social institutions for conflict management, If this is so, then what we are talking about when we Global Justice 94 This move to a second or public set of shared understand- 407, 407–10 ( 96. This starts to look more like the liberal commitment to institutions 95. This might resemble, for example, what Sebastiano Maffetone calls 94. Thus framed, the sense is closer to what Maffetone calls a second, for managing social conflicts among good, people and suggests more common ground with communitarians than may at with differing visions of first the be apparent. ception. the creation of a global Fabric public of reason. Public Reason Sebastiano Maffetone, “less intuitive,” but valid reading of Rawls’s “priority of right,” namely a striction re- of comprehensive conceptions of the good to the “political” con- 30 standings about disputes, the rules about rules or “public cul- ture.” \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 30 26-FEB-14 8:31 far as justice is concerned, may look less community like in a the single national global sense of shared and history (to identity, the degree even those are commonly shared in culture, of set global a like more and State), nation complex modern, a shared understandings about claims and conflicts, or a global public culture. ings about justice is important for the question of global tice jus- because it suggests a location global justice for that are independent of primary understandings understandings about or nationality-based commitments, which are understandably plural and divergent. If we understand Walzer and say Miller that to shared understandings of justice involve agreements over the priority of public over private culture in certain cases, or agreements about the institutional management of conflict- ing claims, then we can look for global justice and the community for global justice by looking at the emerging meta- state or public culture for shared understandings concerning as community, global words, other In claims. global conflicting discuss community at the national level is something more like governance decision-making over resource allocation, and the administra- tion of justice, operating according to shared understandings and standing astride a range of smaller normative communi- ties. NESS public culture and these secondary understandings than a sim- ple survey of the diverse range of primary understandings and private cultures would suggest. 34502-nyi_46-1 Sheet No. 17 Side B 02/26/2014 09:18:43 02/26/2014 B 17 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 18 Side A 02/26/2014 09:18:43 31 97 In the de- 98 AND COMMUNITY COSMOPOLIS note 65, at 41. BETWEEN supra These changes have significant communitarian conse- be judged—thebe inter- community objective an of idea est or of the common interest of global society. If so, the ongoing shift to meta-state institutions has [T]he density, scope and complexity ments, norms, of and rules in which states the and societies agree- are already enmeshed provide some basis for positing a community interest or an agreed and set values against of which new substantive purposes norms may 97. Hurrell, 98.into GATT the of transformation the include this of examples Recent basis of shared institutions and mutual expectations: If we are relying on people’s loyalty in a shared enterprise, we had bet- or rules about rules, at the global level. quences regarding justice, based on new meta-national claims for our loyalty. For example, Miller defends our compatriots partiality to in part on the roles that the nation plays basis in the identity and flourishing of its of the many members. fundamental To the extent both constrain the nation’s role, that and arrogate elements of this global meta-state institutions role to themselves, they tional can claims create on corresponding our loyalties, transna- supporting distributions of goods and resources. In new a similar way, Richard transnational the on partiality of form limited a justify to attempts also Miller velopment of new forms ance, of we are developing a new meta-state form of shared understanding, institutional govern- profound consequences for global justice. Quoting Hurrell’s excellent analysis: the WTO system in tandem with the globalization of the and the emergence of the Basel Committee source on of global Banking financial accords Supervision in the as wake of a the global keyfinancial crisis. When global social relations involve conflicts between incom- plete national communities of justice over allocative decisions, globalization can bump us up a level, invoking a new understanding that shared the meta-state level is the place to resolve this conflict, according to new understandings regarding ap- propriate distributions, and norms in general, level. Insofar at as these global the practices deepen and global extend, we see stronger shared traditions and practices policy of formation and global allocative social decision-making. 2013] \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 31 26-FEB-14 8:31 34502-nyi_46-1 Sheet No. 18 Side A 02/26/2014 09:18:43 02/26/2014 A 18 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 18 Side B 02/26/2014 09:18:43 [Vol. 46:1 It is pre- 100 101 As a general matter, 54 (2006). (2010). (2010). ARS AW OSSIBILITIES L W AND POLITICS P NJUST LOBAL U contractarian and communitarian G LOBAL EW G note 51, at 43–46. N and At the global level, this means that to EW HE UST AND 99 supra , J , T , INTERNATIONAL LAW ALZER III. N ILLER OMINGO W M D ICHAEL ICHARD AFAEL R M R Now I will turn to some substantive suggestions as to the I have argued that in global social relations today we see, This kind of shared participation goes beyond mere par- 99. 100. 101. omy, and global regulation are developing who share among this planet. all of us the extent we share institutions, we owe each other some de- gree of partiality at the global level. ticipation in a cooperative scheme. Quoting Walzer, “Over long period of a time, shared experiences and cooperative activ- ity of many different kinds shape a common life.” cisely such a common life that globalization, the global econ- between our evaluation of the communitarian theory, and our empirical evaluation of the so- claims of contractarian and cial changes of globalization. shape of global justice as informed by globalization and its ef- fects on contractarian and communitarian approaches, and I will examine how this analysis of globalization might new suggest possibilities. The challenge—and the clear: Paraphrasing Domingo, society opportunity—areis globalizing, but States (and international law) theories of justice are merely internationalized. both inter-subjectively and at the regulatory level, the constitu- tive elements of a limited global community emerging. In this manner, traditional contractarian and communitarian objec- tions to the possibility of global justice are being weakened by globalization itself. My goal thus far has been to globalization suggest is itself changing the why very nature of the phenom- ena that moral and political theories of global justice seek to explore. Therefore, my main effort has been to establish a link 32 ter be loyal to them. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 32 26-FEB-14 8:31 global justice theory has assumed social and inter-State relations as they were “pre-globalization” even as they have discussed globalization as a phenome- non, that is, either looking at universal strictly theoretical normative or positivist grounds (as or cosmopolitans and human rights legal obligations on advocates do) or at social relations on a national level (as contractarian communitarian critics do), or but seldom looking at the transformed social ba- sis for transnational normative obligations, as I am suggesting. 34502-nyi_46-1 Sheet No. 18 Side B 02/26/2014 09:18:43 02/26/2014 B 18 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 19 Side A 02/26/2014 09:18:43 33 102 supra supra , , 11–15 AIRNESS IN OGGE F P , CONOMICS RANCK , E Westphalian World M. F ORDHAUS HOMAS T AND COMMUNITY D. N 12–13 (1998). For similar reasons, ILLIAM note 77, at 166–67; & W NSTITUTIONS supra COSMOPOLIS Justice as Fairness? Simply put, global economic interdepen- economic global put, Simply , I 103 HEORY AMUELSON Global AW AND A primary motivating force behind the need for need the behind force motivating primary A Shifting the Transnational Justice Frontier T BETWEEN L 104 A. S A. OLITICAL AUL P P The fact of economic interdependence among the Globalization, including the global economy and the In much the same way that changes in technology can Rawls and 102. 103. In his study of the concept of fairness in international law, Franck 104. NTERNATIONAL note 26, at 705. In a similar sense, single Pogge global institutional scheme involving argues both international law that and terri- the emergence of a torial States has made all human rights violations “at least potentially every- (2010). issues of social justice. world’s societies is a key element in establishing the possibility of any contractarian argument for obligations. international distributive concludes that the requisite level of community has emerged at the interna- tional level to sustain a fairness analysis. dence makes it impossible for completely deliver and safeguard for its citizens the conditions any one domestic society necessary for just to allocations of social goods. Instead, Justice as Fairness should be constructed with inter-dependent societies in mind, and then evaluated as it applies generally to global justice, according to Rawls, is that some mechanism is needed I emergence of global regulation, allows us to definitively move beyond Rawls’s limitation of Justice as Fairness to domestic so- ciety to a more concrete conception of a global Justice as Fair- ness. The developments in globalization, the global economy, and global regulation discussed here have rendered Rawls’s as- sumption of a closed domestic society untenable today even at theory. of level the 2013] globalization has shifted the “transnational justice frontier” for theories which limit justice according to underlying social rela- tions. 1. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 33 26-FEB-14 8:31 shift production possibility frontiers for a given economy, Pogge argues that Rawls’s bifurcation of the choice problems into separate domestic and international ones is untenable, because the international en- vironment in which States actually operate will significantly affect the nature of domestic societies, something representatives should know in the original position if they are to ratify their choices post-veil of ignorance. note 76, at 255–56. 34502-nyi_46-1 Sheet No. 19 Side A 02/26/2014 09:18:43 02/26/2014 A 19 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 19 Side B 02/26/2014 09:18:43 TH- RIS- E A Cosmo- [Vol. 46:1 , 103 591, 595 (1983). I am using 106 . HIL AND POLITICS J. P Cosmopolitanism and Sovereignty , 80 note 77, at 131. Beitz has subsequently lim- supra , HEORY INTERNATIONAL LAW T note 4. OLITICAL As Charles Beitz puts it in his seminal study of political supra P , In this sense, international economic relations and inter- Trade and international economic relations satisfy this 105 48, 51 (1992). 105. Put another way, people so cooperating and benefiting thereby, have 106. TOTLE ICS the requisite “share in the constitution” for contractarian obligations. claims of justice, which would apply to social the goods allocation that are of the subject the of the treaty in question. national economic law can be said to involve the benefits creation of from social cooperation. The need domes- in raised issues of sort same the precisely to raises benefits allocate such tic society when such benefits stand to be allocated. Therefore, even if there is a justifiable distinction between domestic and international society for some purposes, with regard to the ap- condition because they lead to increases in individual and na- tional wealth through the operation of comparative advantage and principles of efficiency in general. trade As regulatory system the has international grown in scope and capacity institutional with the creation of the WTO, social the cooperation gains increase, from as such does the institutional capacity for allocative decision-making and enforcement of norms. One might resulting say, therefore, that at a minimum, interna- tional economic relations in the contemporary global system satisfy the minimum requisites for a consideration of the one’s concern.” Thomas W. Pogge, 34 to allocate the advantages that arise from social cooperation. One can argue, therefore, that wherever has created some social wealth or cooperation advantage which otherwise would not exist, the social predicate exists for the application of jus- tice. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 34 26-FEB-14 8:31 ited the scope of this argument from the strong claim that such cooperation makes necessary a global difference principle, to a more limited claim that such relationships render such a principle feasible. Charles R. Beitz, politan Ideals and National Sentiment relative or absolute benefits or burdens that would not exist if the social activity did not take place.” philosophy and international law: “[T]he requirements of jus- tice apply to institutions and practices (whether are or genuinely not cooperative) they in which social activity produces this argument in a similar restricted sense to address the contractarian objec- contractarian the address to sense restricted similar a in argument this tion to such a principle, and not to argue for the principle itself. 34502-nyi_46-1 Sheet No. 19 Side B 02/26/2014 09:18:43 02/26/2014 B 19 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 20 Side A 02/26/2014 09:18:43 35 219, OWARD AW : T L Westphalian USTICE J (given the nature AND THE , However, we can Humanity and Justice in Justice and Humanity note 101, at 102–03. 110 note 65, at 46. Neverthe- supra 121 (2000) , CONOMICS supra NEQUALITY AND , E (developing the argument that , I AND COMMUNITY USTICE J Although globalization is fun- OMINGO THICS RADE D 109 (2003) , T RADE ARCIA OUNDS OF XXIV: E T note 54, at 516. 108 COSMOPOLIS , B J. G UST EILL OMOS J supra , N RANK F in O’N BETWEEN , If global economic relations establish the necessary HEORY OF NORA note 26, at 706 (“It is therefore unjustifiable to ignore the global the ignore to unjustifiable therefore is (“It 706 at 26, note O T 107 (J. Roland Pennock & John W. Chapman eds., 1982). See See generally supra These developments also allow us to begin to speak in im- , An Emerging Communitarian Account of Global Justice? IBERAL 108. 107. 110. Hurrell cautions that “whilst the idea of a global moral community is 109. When Domingo speaks of “global community” he intends it in this L 229–34 A damentally changing global social relations, I am not arguing that global community has emerged richness and force of national community. fully formed, with the not entirely illusory, the elements of deformity [in contemporary global so- cial relations] provide good grounds for arguing that it and cannot is bear too certainly much weight.” fragile Hurrell, less, with Berman we can at least say “[t]hese ideas of space and community [do] complicate the presumed naturalness Law and of Globalization nation-state communities.” portant ways of limited degrees of community, or “spheres of justice” to borrow Walzer’s phrase, with respect to different is- sues, institutions, or sets of social relations within social space. Thus we can speak of the “limited global community” global as embracing that level of “community” necessary to support relations of justice, even if it does community not necessary manifest to that speak level of of “global community” fullest in communitarian sense. the 2013] plicability of justice theory, the same basic predicate is present in both. 2. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 35 26-FEB-14 8:31 predicate for contractarian obligations, then there is no theo- retical bar to international distributive obligations patterned along Rawlsian principles—in fact, global social relations de- mand such principles. transnational distributive justice resembles domestic distributive key parameters). Barry’s objection to justice the extension of justice as fairness obli- in gations to international society on the basis of the absence of such economic Barry, Brian ‘pre-global.’ as seen be thus can relations Global Perspective of contemporary international economic relations, “[q]uestions of transna- tional economic justice cannot now be World ruled out of order”); mous . . . .”). latter, totalizing, aspirational sense. basic structure in a moral theory of international law—toif international as of either theory proceed moral a in structure basic societies are economically self-sufficient and distributionally autono- 34502-nyi_46-1 Sheet No. 20 Side A 02/26/2014 09:18:43 02/26/2014 A 20 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 20 Side B 02/26/2014 09:18:43 113 12–17 OME AND [Vol. 46:1 With re- H USTICE 112 J in which he 115 , LOBAL at 44–47. G RGUMENT AT Id. A . At the transnational level, ] ORAL AND POLITICS : M Thick and Thin HIN at 265. In many situations, our individ- T ESPONSIBILITY AND Id. ESPONSIBILITY R R HICK AND 114 T ATIONAL , ATIONAL 111 , N note 65, at 43. N INTERNATIONAL LAW ALZER ILLER supra W M at 263–65. at 48–49. The reason such weighing is justified has to do with the ICHAEL AVID hereinafter (1994). M D Id. Id. Even Walzer’s approach in These changes have begun to influence even communi- , in a cosmopolitan sense, responsible for everyone), or when another has 111. Hurrell, 112. 113. 114. 115. BROAD (2007) [ spect to our negative duty to Miller is at his refrain most cosmopolitan: This duty admits of from no spe- rights violations, cial preference for compatriots. to posi- However, with respect tive duties and resources, our responses can favor be of weighted compatriots in under the majority of circumstances. tries to demonstrate a zone of overlap among different theo- ries of justice at least with respect to grave injustices, misses a tarian theorists. Recently, Miller has been willing to acknowl- edge a collective responsibility to protect basic human rights in response to grave injustice outside our borders. A munities throughout. Miller’s conception of a global response to injustice mains inherently thus both nationalistic re- and static: We evaluate in- justice with respect to the national communities for it, and we respond to it responsible out of a sense of collective national responsibility, presuming the pre-eminence of national com- 36 say (with Hurrell) that “[s]hared and institutionally embedded understandings as to what constitutes justice and injustice are no longer confined within national communities. In examin- ing the changing structure of international society we are dealing surely with ‘an identifiable set of institutions whose pact on im- the life chances of different individuals can be traced’ (quoting Miller).” \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 36 26-FEB-14 8:31 Miller recognizes a negative duty to refrain from basic rights violations our- positive a and others; by violations rights prevent to duty positive a and selves duty to secure the basic rights of people we are responsible for (and we are not failed in their responsibility toward these people. basis for these duties, which for Miller remains the nation. “By virtue of iden- of virtue “By nation. the remains Miller for which duties, these for basis tifying with compatriots, sharing their values, and receiving the benefits that national communities provide, we are also involved in collective responsibil- ity for the things that nations do.” ual responsibility to our collective “at sponsibility home” to other outweighs collectives than our our own. collective re- 34502-nyi_46-1 Sheet No. 20 Side B 02/26/2014 09:18:43 02/26/2014 B 20 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 21 Side A 02/26/2014 09:18:43 37 AND COMMUNITY COSMOPOLIS BETWEEN A New Justice Architecture for a New Social Reality B. Given its and contours, it seems relatively clear A second alternative is something along the lines of If one is willing to accept that globalization is leading in At least two basic approaches are possible. First, we might The Global Economy, a Global Basic Structure, and Global Justice comprehensive community at the global level. 1. that the global economy meets contractarian criteria for tice jus- as a cooperative scheme for mutual benefit with socially around a specific set of issues and practices, it shares a clearly identifiable set of robust normative scope, commitments even within if its that scope is not foremost example of comprehensive. this possibility is the global economy Perhaps and the its regulatory framework. Walzer’s “thin” approach to global justice, covering only those areas of overlap among normative communities, but in a new, dynamic and evolutionary sense: The overlap is not coinciden- tal, but constitutive of an emerging global consensus. This ap- proach assumes that a communitarian theory of global justice at this juncture will be truly global in scope, yet not be as com- no still is there since justice, of theory domestic a as prehensive some manner or degree to the emergence of a global commu- nity of some kind, then the stage is set for an examination of the nature of such a community or communities and the sub- stance of a communitarian approach to global ever, this justice. undertaking poses quite How- a complex set of questions. If the central tenet of communitarianism is that justice from flows community norms, practices, and understandings, then what exactly are the norms, practices, and understandings of the partial or limited communities I am positing here? find that insofar as there is a “partial” global community 2013] critical conclusion implied by globalization: The zone of over- lap is not static, and globalization itself intensifies the process of convergence. There is now a dynamic process of emerging consensus around shared understandings in a newly constitut- ing global social space, something Walzer does plate. not contem- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 37 26-FEB-14 8:31 34502-nyi_46-1 Sheet No. 21 Side A 02/26/2014 09:18:43 02/26/2014 A 21 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 21 Side B 02/26/2014 09:18:43 In 118 a sort of sort a OLITICAL [Vol. 46:1 P — HILOSOPHY ATURE AND note 26, at P N (discussing the If this is so, supra 117 , The global econ- OLITICAL (arguing that the eco- (1944) P note 22, at 8; 116 supra , NQUIRY INTO THE (1778) I AND POLITICS N ONES ANDBOOK OF ch. II , A Westphalian World , RANSFORMATION H T MITH S 238–80; J XFORD ATIONS REAT insofar as we see emerging pockets of liberal O G N DAM — A note 77, at 48. HE HE ). T , T See in note 76, at supra INTERNATIONAL LAW , ., 2012 EALTH OF note 77, at 166–67; OLANYI W supra , P ARL supra OGGE K , P , Global Justice participants—States and institutions alike—in the spe- What are the normative commitments of this global eco- all 117. Thus extending at a global level Polanyi’s Market Society argument. 116. 118. We might even find, in the end, that communitarian changes in AUSES OF THE HEORY David Estlund ed See, e.g. 705–06; Eskelinen, pation in this market and these institutions reflects, at least in part, a consensus among participants that a liberal approach other words, we might find that a liberal theory of economic justice is an appropriately nomic pluralistic justice theory for the of global global the economic global economy is community. eco- built on a market Because model and regulated along liberal lines by global institutions, near-universal partici- we might find that a liberal theory of economic justice such as Justice as Fairness, generally considered a domestic theory of justice within liberal States, might be sustainable with regard to cialized partial global community of the global market. market reflects principles of economic liberalism, due to the relationship between liberalism and markets, and the ideology liberal of its core institutions and key actors. omy as a collective social widespread enterprise adherence of has any perhaps such the level enterprise to most a at set of the shared traditions, global practices, and ings—here, understand- centered around markets, economic and regulation, market society. nomic community? One often hears the view that the global ( T C 38 produced goods and an allocative scheme. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 38 26-FEB-14 8:31 global social relations make cosmopolitanism sustainable bit by bit by bit sustainable cosmopolitanism make relations social global nomic and political potential of served the by freeing—not regulating—trade French-British between the relationship two rivals). was best triumph of liberalism in economic theory). Whether or not forming optimally markets per- naturally reinforce liberal principles is a debate at least as old as Adam Smith. creeping cosmopolitanism community. In a related sense, Risse suggests that we already live on “a cos- mopolitan plateau”—that cosmopolitanism has already won its most impor- cred- any of part essential an is equality moral that establishing in victory tant ible theory of global justice, whatever the disagreement about the tions implica- of this view and its consequences for institutional structures. Risse, Mathias 34502-nyi_46-1 Sheet No. 21 Side B 02/26/2014 09:18:43 02/26/2014 B 21 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 22 Side A 02/26/2014 09:18:43 39 475, 486–87 Thus, for this YSTEM S 119 EGAL note 4, at 13. WTO L supra AND COMMUNITY , AWLS R 121 OUNTRIES IN THE COSMOPOLIS C Justice, the Bretton Woods Institutions and the Problem of BETWEEN EVELOPING D in This would mean as a general matter that the institu- , 120 What might such justice look like? While a full discussion The global economy as a “specialized” community within 120. “[T]he second [principle] holds that social and economic inequali- 119. Of course, when a market is truly global, participation reflects at 121. Frank J. Garcia, Chantal Thomas & Joel P. Trachtman eds., 2009). ( oration: International social and economic inequalities are just are inequalities economic and social International oration: only if they result in compensating benefits for all persons sub- ject to them, and in particular for sons. the least advantaged per- partial global community, justice would be robust scope even was confined to economic if relations among participants. its of such a conception of justice is outside the scope of this Arti- cle, I suggest an international difference principle to guide in- cooper- global of outcomes the allocating in involved stitutions ative schemes, drawn directly from Rawls’s own domestic elab- queuing to join the WTO or the EU, point for the distinction example), between suggests motives loses that meaning. at some ties, for example inequalities of wealth and authority, result are in compensating just benefits for only everyone, and if in particular they for the least advantaged members of society.” some level simply the recognition though the that fact that abstention is there possible (North Korea, for example), is and no other a high degree of game volitional behavior among States (the long in list of countries town, ized set of traditions, practices, and understandings and devel- community.that for justice of norms oping community a Such is global in terms of membership but limited in sponsibilities. terms Implicit of in such an approach is a kind of “moral re- federalism,” to borrow Wilfried Hinsch’s concept, a structure within which different principles of justice complementary kinds of work at different do levels within the sys- different but global social relations represents one globalization: partial communities emerging possibility around a special- opened by Inequality 2013] to socioeconomic organization is appropriate. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 39 26-FEB-14 8:31 tions of this partial community such as the WTO, Bank, the World and the International make significant allocative decisions involving the benefits and Monetary Fund (IMF), which burdens of global economic cooperation among participants, must be guided by the difference tional decision-making. principle in their institu- 34502-nyi_46-1 Sheet No. 22 Side A 02/26/2014 09:18:43 02/26/2014 A 22 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 22 Side B 02/26/2014 09:18:43 OR- On CHIFF B 58, 59 122 S [Vol. 46:1 EDIEVAL TO EYOND AUL B M ; P AW ROM L : F note 31(applying the ETAPHILOSOPHY M ]. note 101 IGHTS supra , 32 , , R 123 supra ARCIA AND POLITICS LURALISM , G P URISPRUDENCE OF UTHORITY EGAL : A J OMINGO , A L LOBAL LURALISM their economic relationship, but differ- G ERRITORY Global Distributive Justice P , T (2006); D EGAL INTERNATIONAL LAW within L ASSEN S at 60. Thus, for example, the United States can pursue one hereinafter Id. LOBAL SSEMBLAGES ASKIA S , G A A second possibility involves a truly global community in The developments in globalization discussed here are A Global Basic Package: Building on a New Base Rethinking Boundaries and the Role of the State (2012) [ 122. Wilfried Hinsch, 123. A complete account of the extent of such shared global norms, prac- ERMAN the question is whether in each case the principle of justice is the appropri- this view, justice between members community of might be along the the lines of a global robust global differ- economic ence principle DERS GLOBAL terms of both membership “shallower” and sets of norms scope, or commitments. Although it albeit is not with possible to offer a definitive possibly account of such a community and its norms here, nevertheless I will offer some preliminary ob- servations on its possible dimensions. ent among these same States when they act outside this partic- ular economic community on other matters of shared interest. 2. B a. challenging and transforming traditional political concepts that have hitherto and organized social relations at an in- legal 40 tem (in particular, the national and the transnational). \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 40 26-FEB-14 8:31 kind of distributive justice through its domestic social welfare and tax legisla- Differen- & Special WTO through justice distributive of kind different a tion, tial Treatment, and yet a third kind of distributive justice without through there USAID, necessarily being a conflict. Or, to put it more simple precisely, fact the of their difference does not by itself create a justice problem— ate one and the implementation adequate. On the possibility of proaches plural to global ap- justice, see generally theory to global justice). tices, and understandings would require combining traditional domestic po- litical theory with the many innovative ongoing social studies and legal reality, and of constitute nothing short of our a legal new global of global justice. Interesting and promising beginnings of such an account include three approaches to Rawlsian liberalism, communitarianism, and consent (2001). For Hinsch, there is no reason in principle why domestic and trans- national principles of distributive justice need to con- more be be may justice of conceptions compatible but divergent for lowing identical. Indeed, al- sistent with the pluralist nature of global society, and with liberal autonomy. values of 34502-nyi_46-1 Sheet No. 22 Side B 02/26/2014 09:18:43 02/26/2014 B 22 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 23 Side A 02/26/2014 09:18:43 41 763, . ENICHI K . L. 1, 4 OL L CONOMIES ’ Joshua Co- & P E NT . See L L . J. I International Insti- ’ UR NT Beginning with EGIONAL See generally E R 125 , 15 note 12, at 19 (and sources ISE OF N.Y.U. J. I B.S. Chimni, R Because of globalization, HE supra See , 37 AND COMMUNITY 128 : T note 126, at 763 (“ . . . something new TATE note 77, at 3, 35–50domi- 3, the at (critiquing 77, note S Hopkins, supra note 101, at 55–57 (noting the globalization supra , ATION Historically, the dominant view of the COSMOPOLIS supra N , . But see Global Democracy? 124 127 HEORY note 65, at 41. Or, depending on one’s view, that T OMINGO That “other” consists of the range of individuals, supra BETWEEN D ND OF THE , Cohen & Sabel, , 126 E OLITICAL P HE arguing that the state is an inefficient unit of organization in a See, e.g. See, e.g. See , T These changes have implications throughout domestic 128. 124. 125. 126. Indeed, insofar as the new global rulemaking transcends the State, 127. Hurrell, HMAE the very notion of what tional” or “global” is is undergoing a “national” change, as even “national” and what institutions is can “interna- now be transnational a of components integrated horizontally as rately sometimes understood more accu- (2004). cited therein) (globalization is itself the product of flourish nation only if States nation and States remain can strong). nant, Hobbesian view of the State in international relations). the questions of agency and accountability extend beyond the State as well, to the accountability of a new global administrative process. hen & Charles F. Sabel, role of the State in international relations has been as a sover- eign actor acting in its unitary self-interest. is happening politically beyond the borders of individual states and irreduci- ble to their voluntary interactions. To distinguish these developments from what is commonly called ‘international law and ‘global politics,’ politics.’). we use the term understanding of the State as actor on the international stage, to the State as agent in the sense of one who acts on behalf of another, in an increasingly rich multipolar and networked en- vironment. the post-War through globalization, social human processes and, increasingly, regu- rights lation movement are occurring and on These dynamics have intensifying been a challenging and transforming this transboundary networked basis. and international politics and social been conventionally relations understood. as they have O (1995) ( groups, and national communities that States represent on the international level. 2013] ternational level—in particular, the role of States and the na- ture of boundaries. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 41 26-FEB-14 8:31 globalized environment) of social relations forcing a globalization of law). gence of global politics). 765–66 (2005) (noting shift in accountability models necessitated by emer- “other” is the transnational capitalist class. tutions Today: An Imperial Global State in the Making 34502-nyi_46-1 Sheet No. 23 Side A 02/26/2014 09:18:43 02/26/2014 A 23 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 23 Side B 02/26/2014 09:18:43 . A- UB 131 N . & P [Vol. 46:1 ITIZENSHIP But see HIL C P 130 , 11 , 23 AND POLITICS note 126, at 795 (“The emergence (“The 795 at 126, note 109, 110 (2000) (“. . . the [transna- L. supra L ’ NT and Empire An Egalitarian Law of Peoples note 112, at 167 (distinguishing any minimum . J. I HI The State and : Any Implications C supra , , 1 Globalization emphasizes the arbitrariness of INTERNATIONAL LAW 129 , Barbara Arneil, Particularly insofar as globalization involves the , Thomas W. Pogge, ESPONSIBILITY See, e.g. See See 132 R If global community is possible and emerging, as I have . 301 (2007) (proposing an alternative view of global citizenship based 195 (1993) (borders have tremendous distributive impact which re- . 129. 132. 131. As things stand, there is a pernicious anomaly: free movement of cap- 130. FF TUD A TIONAL many contemporary territorially-based such allocative as citizenship, principles because it allows plight of others as us never before, forcing us to to ask whether the be aware of traditional the way of allocating sources is really adequate rights, in a globalizing world. opportunities, and re- they the necessary result of changes in border policies. The primary reason for such shifts would be economic inequality, a subject that poses a central challenge to global public law. quires justification); Cohen & Sabel, & Cohen justification); quires of global rulemaking, with direct consequences for individuals and firms as well as States of course, puts pressure unsettles on the existing delicate national compromises of arrangements, decades past, and actors to justify what were once sovereign choices to a requires world of foreigners.”). national ital but no free movement of persons, which could be seen attempt as a to deliberate keep labor costs from equalizing. A mands global economic something space approaching de- the free movement some notion of carrying of capacity or assimilation rate. The very idea conjures persons, subject to images of unsupportable mass migrations, which are not inevitable, nor are argued, then we have to rethink the discretion given to States to use boundaries as primary determinants of global justice. S We need to develop a model for the international delivery of justice—a conception of effective global citizenship—in which the accident of birthplace, or the law, vagaries do of naturalization not pects. fundamentally affect each person’s life pros- 42 system, than as vertically accountable components of a tradi- tional “State.” \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 42 26-FEB-14 8:31 tional] system also lies, to a far higher inside particular degree components of than national states.”). is usually recognized, global spread of market society, each person’s access to basic social rights becomes more face important, the local as disruptive effects they of market increasingly society while living on our shared fate and on the protection of basic social rights). set of ‘global’ rights from citizenship, and reserving the latter political communities). for national for International Law? 34502-nyi_46-1 Sheet No. 23 Side B 02/26/2014 09:18:43 02/26/2014 B 23 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 24 Side A 02/26/2014 09:18:43 43 EW , A N globaliza- ) (compar- It is increas- (1989 engaging LAUGHTER Filling Power Vacu- 135 S CTS A ARIE -M . 919 (2013). EV NNE A Indeed it has been argued 133 AND COMMUNITY 136 NTERNATIONAL I at 15. note 54, at 500–07. On the subject of 54 B.C. L. R Id. , supra , USTIFYING COSMOPOLIS The State and Globalization: Denationalized Participa- , J 1141, 1150–58 (2004) (States are L. L ’ 134 NT RILMAYER BETWEEN note 10, at 14. One way to address the ethical consequences (2004) (analyzing the emergence of new kinds of regulatory B . J. I EA L Saskia Sassen, ICH RDER supra M Law and Globalization See See O Global community demands a new view of the role of the This does not, however, mean that global institutions , 25 ORLD 136. 133. This can be conceived as a global version of the welfare net that ad- 134. 135. sively “national”). On the changing role of the State and its relationship to both law and power, see generally Anne-Marie Slaughter, ums in the New Global Legal Order tion as offering new ways to deliver basic public goods such as law through what she terms “legalities”—statutes, regulations, other court decisions, etc.—in ways that are legislative neither exclusively “global” nor exclu- output, ingly common to understand the State variety as of cross-border networks. co-existent with a that one key shift in the role of the State in globalization is as vanced economies offer their members as a means market society to and minimize the adverse soften political consequences of job the turn- rigors of over. To the extent that globalization involves creation of society, it a points to global the gap market in this welfare net at the global level. Mandle & Ferleger, of global market society, and the social disruption it the causes, kinds is of to compensation establish mechanisms that have long been recognized as essential in domestic economies. States along duly authorized treaty lines, but will require some increased form of public participation, principles reflecting of political theory in the same normative way that domestic in- stitutions must. State, in which the State no longer holds a monopoly on delivery the of basic public goods, but rather, as the guarantor of last resort, plays a central role in their delivery. must be modeled on domestic State. institutions Rather, we must to see that, in normative form terms, global in- a world stitutions must be justifiable according to the same principles we apply in domestic political theory. The legitimacy of global institutions can no longer rest entirely on their creation by W 2013] under territorial units increasingly unable to effectively ame- liorate these effects on their own. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 43 26-FEB-14 8:31 partnerships not necessarily mediated legisla- even regulators, insurance judges, police, regulators, financial among through the State, such tors). as those networks in general, the place to begin is ing international ethics and domestic political theory). tion 34502-nyi_46-1 Sheet No. 24 Side A 02/26/2014 09:18:43 02/26/2014 A 24 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 24 Side B 02/26/2014 09:18:43 NOWL- HOMAS The Net- T K All of [Vol. 46:1 ESPONSIBILI- When a 140 See ROM R 139 : F OCIETY S OSMOPOLITAN : C ETWORK N AND POLITICS HE IGHTS T R In governance terms, networks note 54, at 502–03. 137 UMAN . H supra , note 137 States retain a fundamental backstop role in INTERNATIONAL LAW 147–48 (2002). 138 OVERTY AND supra 15, 15–16 ( & Gustavo Cardoso eds., 2005). P , If a global community or a global basic structure EFORMS OLICY ORLD 141 . R P Id Law and Globalization , W This notion of the has fundamental This implies, among other things, that a State’s legitimacy Global Public Law 140. 141. Other doctrines that must be reexamined from the perspective of 137. Manuel Castells has argued that globalization is bringing about a new 138. 139. Castells OGGE EDGE TO TIES AND can be said to exist in this transboundary space. This quire will a re- profound re-examination of core doctrines international and legal institutions such as boundaries, sovereignty, le- gitimacy, citizenship, sources. and the territorial control of re- this is profoundly changing our understanding of boundaries: They are to be managed by the State for the good of the indi- viduals and groups it represents, according to some emerging notion of the global public good. b. implications for international law and its possible to ask role what sorts of and rights and institutional makes structures it State exercises such agency, it is increasingly to be guided by emerging notions of an international public good. global justice include the basic notion of territorial sovereignty as a virtually unlimited right over resources and the combination and of soft hard human rights rules of economic deregulation and competition. form of nation-State, the “network State,” whose principle duty is to success- fully manage on our behalf this web of networks. Manuel Castells, work Society: From Knowledge to Policy, in do have their darker side, involving risks to transparency and accountability. not resisting, emerging transboundary networks. protecting us from these risks while they maximize opportuni- ties for us as our agents. will increasingly depend on its ability to successfully deliver so- managing, by represents it groups and people the to goods cial P 44 manager of these networks. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 44 26-FEB-14 8:31 with some notion of global public good is emerging, at least in a limited form, then it needs something like a global public 34502-nyi_46-1 Sheet No. 24 Side B 02/26/2014 09:18:43 02/26/2014 B 24 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 25 Side A 02/26/2014 09:18:43 , 45 LOBAL- . 1155, DMINIS- G EV A as an ex- INGSBURY K at xvii (2008) Here I can . L. R acquis Law and Global- LOBAL This change This , ANAGING AL G 146 AW 143 Reason and Authority ENEDICT : M L B S. C , The Transformation of Eu- (Henry S. Richardson & OODS , 80 LOBAL G 307 (2009). note 65, at 43. The founda- G 167 See, e.g. L. MERGENCE OF International Law as Inter-Public L ’ E UBLIC supra AND COMMUNITY NT P HE Such a shift at the global level , T ILLARS OF LURALISM . J. I A 144 LOBAL P P V G HE TEWART , 49 , T Globalization is fundamentally trans- Global Legal Pluralism COSMOPOLIS note 101, at 121 (“Global law. . .does not yet con- 142 B. S ROVIDING Benedict Kingsbury, APALDO P supra , 2403 (1991). For a recent overview of this process that C NIVERSALISM AND ICHARD 145 BETWEEN U L.J. & R note 54 (emphasizing law and globalization, rather than tradi- OMINGO ICCARDI ALE D See generally ORAL See generally Y Inge Kaul et al. eds., 2003) (providing a series of analyses to create Z . M ( RISCH See supra , What can we say about the content of such a global public K in , , 100 145. Indeed, Hurrell cites the European Union’s evolving 142. Global public law can be conceptualized as the organization of the 143. 146. Benedict Kingsbury’s global administrative law project has, of course, 144. Paul Schiff Berman, ICO IULIANA 1157–58 (2007). tional treatment of this is of course J.H.H. Weiler, rope N IZATION disparate States involved in the European integration process; a new legal order both facilitates, and emerges out of, a recon- stituted (and constitutive) set of socioeconomic and political relationships. resembles the emergence at the regional level of a “European” law and a “European” economic community out of the many been central to this kind of development. works in both directions, as international law is itself facilitating regulatory globalization and the interconnection of a force disparate legal communities. forming international law from the public law of inter-state re- community. global a of law public the to lations ample of the sort of shared community-building understandings that trans- national institutions can build. Hurrell, lic goods structure of powers, duties, and limits of meta-state governance ficers; relations of and the meta-state levels of governance (International Organi- its of- zations) to the midrange (States) and to individuals; and the definition and exercise of powers of meta-state governance for tively, the one can think of public it as the regulatory system good. for delivery of global Alterna- pub- law? Answering this question will require the much lines work, of along a comparative study of public law. emphasizes the role of legal institutions, see Vlad Perju, in the European Court of Justice G 2013] law for its structure. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 45 26-FEB-14 8:31 a fuller understanding of the provision of public goods). stitute a legal order in the strictest sense, but it is called to become one.”); Melissa Williams eds., 2009) (arguing that international law should be theo- rized as the law between public entities outside of the state); ization tional international law). (“[T]oday’s international legal order is developing into a truly global system of law.”). Law 34502-nyi_46-1 Sheet No. 25 Side A 02/26/2014 09:18:43 02/26/2014 A 25 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 25 Side B 02/26/2014 09:18:43 J. AW L. 149 RBI- L RAG- ’ supra L A F , OVERN- NT NDIANA G [Vol. 46:1 I . J. I ORLD ESPECT AND ONFLICT OF ACING A AW AND , 10 , CONOMIC RANSNATIONAL V W note 83, at 50. : F L , R , C Alfred Aman, E T AW and the effect , 54 (2008). ULTILEVEL Public and Private in L supra EPRESENTATIVE OF THE M 150 ROTECT see also to take but a few AUWELYN R ; IGHTS ULING THE ) , P NVESTMENT 151 R P R IGHTS AND I The burgeoning litera- R PECIAL NTERNATIONAL OOST S 147 UMAN J , I AND POLITICS NTERNATIONAL H UMAN LURALISM AND (2012); NTERPRISES I P (2009). H E note 74, at 3 (“As a historical matter, OODS AW NTERNATIONAL I L G ETERSMANN http://ssrn.com/abstract=2144019. supra EPORT OF THE , USINESS SSUE OF P USINESS AND , R I B UBLIC B ORLD P NTERACTION IN IGHTS IN LRICH ONSTITUTIONAL I outlining Kingsbury’s work R 152 THER W UGGIE -U . available at : C R O INTERNATIONAL LAW NTERNATIONAL . 125 (2003) (arguing that a new global administrative law EGIME RNST UMAN I R OHN E H J , TUD , , ENTURY ., (2005) ( ENERAL ON THE RAMEWORK FOR ULING THE . S UBLIC C e.g (Margaret Young ed., 2012); R -G AW , NTERDEPENDENT EG P ST (Pierre Dupuy et al. eds., 2009); Julie Maupin, I the fragmentation of the international legal regime, L L : A F See See, e.g. See, e.g. See See, e.g. 21 The tasks of a new global public law will include the regu- 148 74. Federalist Papers 152. 149. 147. The current model of inter-State cooperation (such as the OECD ap- 148. 150. 151. ORMS IN LOBAL ORPORATIONS AND EMEDY ECRETARY G IN THE tures on the constitutionalization of international law, economic of investment treaties on social welfare, MENTATION examples, constitute the deepest contemporary exploration of a global public law in its economic regulatory dimension. The key paradigm shift is to recognize that these literatures are not simply scholarly reflection on isting existing disciplines; they problems are, within if not ex- the tional convention disaggregated of this new global public order, then at constitu- least its TRATION ANCE OF constitutional discourse has predominantly—but not exclusively—occurred in the domestic setting. However . . . recent years have witnessed an intensifi- should fill some of the gaps created by globalization). proach to global competition law) is inadequate. Tita, C R (forthcoming 2014), TRATIVE N S lation of the global economic space. the social responsibility of corporate actors, 46 suggest that if we begin with the traditional functions of public law, we can see that a global public law will governance set structure out the of basic this new space. This may institutions, mean or it new may simply mean new roles and levels of co- ordination among institutions. However the scope of the pro- ject is defined, it will mean reflection along fundamental pub- lic law lines concerning the shape of this emerging new order. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 46 26-FEB-14 8:31 International Investment Law: An Integrated Systems Approach Globalization, Democracy and the Need for a New Administrative Law Administrative New a for Need the and Democracy Globalization, note 34502-nyi_46-1 Sheet No. 25 Side B 02/26/2014 09:18:43 02/26/2014 B 25 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 26 Side A 02/26/2014 09:18:43 47 154 note supra , a global con- 153 note 18, at 450 (“natu- note 123, at 152–90. ESPONSIBILITY International Society from a 144, 148 (David R. Mapel R supra , supra , OCIETY S AND COMMUNITY ATIONAL N LURALISM note 22. Brian Barry adds to this a list of list a this to adds Barry Brian 22. note P EGAL , supra see also Global Justice L NTERNATIONAL COSMOPOLIS I ONES J in These are widely recognized in human , LOBAL note 17, at 1–19; note 63, at 33. Here I am thinking in more general 155 G BETWEEN See supra supra See generally This allocation of resources may be discussed through ref- This list can be drawn in a variety of ways—I suggest that Global public law must also include regulation of basic so- The “Global Basic Package” 153. Walzer, 155. Charles Jones offers three core values: subsistence, liberty, and physi- 154. This substantive approach complements but differs from a more pro- variety of federal/State partnerships in the United States. his or her vital interests met, regardless of nationality or zenship, citi- through the allocative local that and affect his global or her institutions particular life prospects. c. erence to terms of a “basic package” that encompass the core necessities for human “Global life. Basic Package”: a basic bundle of I political, social, and call economic this rights, minimum safeguarded through core global law ered in the a partnership between global and national institutions, and deliv- in much the same way rights are safeguarded that by federal law and political, delivered through a social, and economic sensus has emerged that every human being has a right to have to right a has being human every that emerged has sensus at a minimum, the Global Basic Package as it is emerging con- sists of the following four elements: security, subsistence, lib- erty, and voice. cial welfare issues at the global level. In my view, the dynamics analyzed here with respect to emerging globally shared under- standings about market society and its regulatory also framework justify a global approach to human social welfare. ing on Draw- the work of Walzer, Miller, and Dirk Messner regarding what Messner calls a “global minimal ethics,” cation of constitutional discourse in ance.”). many sites of transnational govern- 2013] \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 47 26-FEB-14 8:31 cal security. & Terry Nardin eds., 1998); “vital interests” such as clean drinking water, medical care, and sanitation, primary education. Brian Barry, clothing, shelter, Cosmopolitan Perspective ket, might be able to support a ‘thicker’ set of norms, as suggested above. cedural approach such as Berman’s collection of tools for managing a global legal pluralism. 112; Messner, terms, along the lines of what sorts of reflect norms, the albeit broadest possible ‘thinner’ support ones, from could a limited ‘global’ community. A particular, deeper, ‘sub-community’ of globalization, such as the global mar- 34502-nyi_46-1 Sheet No. 26 Side A 02/26/2014 09:18:43 02/26/2014 A 26 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 26 Side B 02/26/2014 09:18:43 CO- 156 ON- and IGHTS IGHTS E : C OVERN- ERSPEC- note 16 R R 157 [Vol. 46:1 P & G IGHTS note 101, at UMAN supra UMAN R note 65, at 41. , H THICAL OLICY H supra ONSTITUTING P E , supra C INLEY K , ULTURAL OCIAL IVERSE C Justice Diversity and Law in S OMINGO OUNG : D D Y NTERNATIONAL NTERNATIONAL I LOBAL I AND POLITICS OCIETY , G OCIAL AND note 127, at 3. More recently, Rafael S . , S ATHERINE K (E. Riedel et al. eds., 2014) (forthcom- EACON supra D ANDBOOK ON OB ANDBOOK ON CONOMIC H B E 158 note 18, at 449–52. note 14, at 172 (arguing that enough grounds H 1–2 (2012) in Chimni, HALLENGES NTERNATIONAL I , C supra ESEARCH IGHTS in R INTERNATIONAL LAW , R ESEARCH see also R , Sen, ., . OCIAL SSUES AND note 3, at 247 (The world’s leading religious and philosophical S I note 156 (reviewing a range of implementation models and path- Economic, Social and Cultural Rights in the World Trade Organization: Global Justice, supra See, e.g See, e.g See generally supra supra , 136 (2007); , (Sarah Joseph & Adam McBeth eds., 2010) (surveying a range of 157. 158. 156. AW AW NOMIC AND TEMPORARY ANCE TIVES are implemented (to varying degrees, of course) throughout global and domestic political relations by States, civil society, and other institutions. Domingo has placed dignity, liberty, and equality (including addressing eco- nomic inequalities) at the center of global law. L cal participation to this list. L 48 rights instruments and multilateral treaties of various kinds, theory, normative of range full the across supported are including rights, human socioeconomic few a include rights basic these rally, the right to subsistence and good health”). Importantly, Deacon adds politi- \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 48 26-FEB-14 8:31 exist in the major normative traditions to more than adequately compel ac- tion to address grave injustice); David R. Mapel, International Society rubrics. ways). Katherine Young has recently suggested an entirely new and emerg- ing conversation around economic and traditional social divide rights between that such transcends rights the unites all of them in and an evolving and pluralist framework of implementation civil and political rights, through and many levels and actors. traditions can be said to converge around the triad of human rights, democ- racy and distributive justice.). These different traditions offer, of course, va- net the but consensus, this of elements different for support of degrees rying overall effect is strikingly consistent. Drawing on Scanlon, Sebastiano fetone Maf- suggests that the “urgency” of core human security in needs particular) (subsistence requires and and permits global action independently of theoretical arguments as to the justifiability of such action under different human rights instruments, fora, and policy issues). There is, moreover, evi- dence of the interpenetration of the human rights regime into hitherto frag- mented regimes such as international economic law, a critical development in an integrated approach to protecting basic rights. ing) (noting complex but evolving interaction between these regimes). 139–42. Similarly, Andrew Hurrell cites emerging norms around safeguard- ing peace and security, managing common challenges (such as the environ- ment or the global economy), and promoting common values (such as self- determination, human rights, and democracy). Hurrell, termeyer, Legal Aspects and Reality (integrating human rights, economic law, and globalization); Holger Hes- 34502-nyi_46-1 Sheet No. 26 Side B 02/26/2014 09:18:43 02/26/2014 B 26 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 27 Side A 02/26/2014 09:18:43 , , 49 note Most Preface , Globaliza- supra 159 note 65, at supra Interestingly, Chimni Dimensions of Globalization AND COMMUNITY . 8, 16 (2000). CI . S note 127, at 3. OC These limitations reflect the emer- Jay Mandle and Louis Ferleger refer supra 162 . & S 161 COSMOPOLIS OL . P note 65, at 43 (listing problems of distributive fairness, and, we still lack an effective mechanism for CAD 160 BETWEEN supra . A L. 885 (2004) (providing an overview of different European L M ’ A NT . J. I NNALS Nevertheless, there continue to be what Hurrell charac- In order to take the next step, global public law needs to UR E 159. Hurrell, 160. Chimni notes “strong resistance from powerful States to put in place 162. Jay R. Mandle & Louis Ferleger, 161. Hurrell attributes this to the unresolved tensions between globalist hence, their underdevelopment at the global level. Hurrell, glaringly, there is uneven support for democratic voice at the State and transnational levels, implying consequent problems of legitimacy; and compensation, both necessary global for market the society. regulation of justice, of community global a on consensus any of nature gent a even at the partial or limited levels posited here. tackle distributive and legitimacy within States. issues The non-globalization view both of international law between and traditionally put the question of justice outside the international realm law. of Globalization makes inequality macy and central problems legiti- of global social relations—and fore there- central problems for international law—in the same way they are central problems of justice at the domestic level. to these deformities as the absence of mechanisms of control governance, , and the international rule of law). a transparent and democratic decision-making process.” Chimni, 127, at 3. On the general problem of protecting and deepening democratic Bogdandy, von Armin see framework, globalizing a in participation tion and Europe: How to Square Democracy, Globalization and International Law 15 terizes as “deformities” in the global legal framework. global wealth transfers at the scale necessary Global Basic to Package. support the 570 A 2013] \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 49 26-FEB-14 8:31 State power to manage economic crises and effect global wealth transfers— 44. theories regarding democracy and statehood in globalization and their inter- their and globalization in statehood and democracy regarding theories action). norms and statist enforcement models: We still need to rely on effective also sees the two as linked: The would more be the pressure for democratic wealth redistribution, as the those facing massive system, ine- the greater qualities far outnumber those more fortunate (or powerful)—hence underdevelopment. Chimni, their 34502-nyi_46-1 Sheet No. 27 Side A 02/26/2014 09:18:43 02/26/2014 A 27 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 27 Side B 02/26/2014 09:18:43 note ISTORY [Vol. 46:1 164 H , supra note 19, at supra USTICE , ACE OF J P ILLER M One objection to the PHERES OF S 163 at 48; AND POLITICS 17, ” of shared history, often masking note myth , supra LOBALIZATION AND THE : G USTICE INTERNATIONAL LAW J ONCLUSION PHERES OF 165 S Another consequence may be that globalization narratives globalization that be may consequence Another One effect of globalization’s transformation of time and Thus far, I have not commented on the role of shared 163. 164. There has been plenty of history ( comes to mind) but 165. We find a hint of this changing nature of the pace of change itself in IV. C of global community is simply that it may take more time: At the global level, even granting the changes I above, there has have simply been too little suggested shared history for these changes to ripen into communitarian-style solidarity. claim that the changes discussed above are forming some kind can occur at a much faster rate, meaning that a common life might be shaped more rapidly during periods of globalization than otherwise thought possible. Therefore, it may possible to be see quite global community emerge in cades. a matter of de- themselves function as the sort of constitutive myth, which his- torians cite as essential in actually creating the identity myths these already assert. As Miller points out in his discussion of nationality, the very concept of sense nationality depends upon a “ in the operative space may be to change the role community, making of global community time possible in at a the relatively creation of fast pace. Time or history may community be in necessary part ingredients because for a been considered necessary for social period contact and social knowl- of time has edge to attain the sort of cumulative intensity necessary for the generally creation of more intimate bonds. Because of globalization, it may well be that the process of building intense social bonds history in forming communities of like Walzer and Miller cite “time” and “historical continuity” as justice. Communitarians hodge- a of out community of formation the in ingredients key podge of shared experiences and raw cooperative material activities, of the mutual self-interest. 50 \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 50 26-FEB-14 8:31 23–24. little of it “shared” in the sense communitarians mean. Walzer’s comparison of the fall of communism with the Christendom: The time span “fall” of the former of is much shorter medieval than that of the latter, “as befits the rhythms of modernity.” 17, at 47. I am suggesting, in this sense, may be that even faster. the rhythms of globalization 34502-nyi_46-1 Sheet No. 27 Side B 02/26/2014 09:18:43 02/26/2014 B 27 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 28 Side A 02/26/2014 09:18:43 51 HE 168 T , supra , 170 This in- MITH Berman HANGE EFLECTIONS S 166 C 168 : R AVID (nation-states are D note 22, at 159–60. The many diver- 169 supra OMMUNITIES HOUGHT AND , NTHONY A C 6 (1991) , T note 17, at 654–55 (emphasis ONES J AND COMMUNITY see also Law and Globalization supra ELLNER MAGINED , 167 G note 54, at 516–18at 54, as note states (discussing , I ATIONALISM N note 126, at 796 (suggesting that the emer- (1986)); RNEST supra , E NDERSON 42 supra COSMOPOLIS A PREAD OF S ATIONS note 19, at 122–23 (citing N ENEDICT BETWEEN B supra , , RIGINS AND Cohen & Sabel, RIGIN OF ILLER O O M Ethical Significance of Nationality See See Law and Globalization and Law See See, e.g. Using the literature of imagined communities, 166. 170. 169. 167. 168. THNIC munities at the meta-state or global level. argues that the very fact that our national community “identi- ties” have been constructed suggests that changes in global so- cial relations can, in the same way, lead to new imagined com- ON THE vention of a “communal national past” is an essential element the of part becomes and identity national a of formation the in identity itself once established. gent globalization narratives at work in the present historical a as world globalized a creating in role vital a play can moment matter of identity. The globalization debate itself—evencontestation of globalization—reinforces the subjective forma- the tion of a globalized identity sharing many of the same features of national identity already discussed: We discover ourselves to which in process, social-historical ineluctable an in together be our interests are bound up with each other’s interests. E 2013] actual social processes of domination and conquest. \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 51 26-FEB-14 8:31 Here I would like to accept for the time being historical narratives (as Miller does for nationalist narratives) and explore its this mythological aspect of relation to globalization narratives. note 54, at 516 n.123 (citing “imagined communities” and the shift through globalization to community “imagined” at the global level). gence of global politics, global rulemaking, and a global public sphere could create among dispersed peoples “a new identity as common members of an organized global populace” whose “fates as human beings our would—despite cultural and shaped by mutually accountable rulemaking that depends on local debate, is linguistic differences—be deeply informed by global comparisons, and and works in a self-consciously space of public reasons”). “imagined communities” because “the members of even the smallest nation will never know most of their fellow-members, meet them, or even them, hear yet of in the minds of each lives the image of their communion.”). (1964) (“nationalism is not ‘the awakening of nations to self-consciousness:’ it invents nations where they do not exist . . . .”)). jecting to nationalism as justified partiality. added). The mythological aspect of national histories is one basis for ob- 34502-nyi_46-1 Sheet No. 28 Side A 02/26/2014 09:18:43 02/26/2014 A 28 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 28 Side B 02/26/2014 09:18:43 26 ORALS [Vol. 46:1 M the “Other” (2009) (arguing 172 However, and this RINCIPLES OF P 171 OMMUNITY C AND POLITICS ORLD W note 54, at 500. Viewed in this light, the present ONCERNING THE 173 C supra , ISIONS OF , V NQUIRY E N , A INTERNATIONAL LAW ARTELSON UME Because of globalization the connections have B H 174 ENS J AVID See D See Law and Globalization In this sense, we find ourselves at a historic moment in the in moment historic a at ourselves find we sense, this In Moreover, as an identity this new form of inclusion would 173. 172. I am speaking here in a structural sense—as I mentioned above, I 171. 174. on global versus pre-global. we would be distinguishing from in globalization narratives is not the Other of a rival but the Other of a pre-global past. contemporary In other words, our identity political community, would no longer be based solely on nation versus nation, but lations, which is part of the equity problem in that contemporary must globalization be addressed. recognize that globalization currently marginalizes certain people and popu- boundaries of justice still grow larger, largeness of in men’s proportion views, and to the the force of nections.” their mutual con- debate over the possibility of global justice development itself of reflects a the new global identity, and a cess communal of pro- deliberation over possible shared understandings and shared institutions, which are themselves both evidence of and constitutive of such community. emergence of a consensus over global and least, at half-century past the for building justice. actively been has This moment has been foreseen even earlier by thinkers as diverse as Hume and Kant. A quarter of a millennium ago Hume wrote that if we “suppose that several distinct societies maintain a kind intercourse of for mutual convenience and advantage, the continue to distinguish us from “Others.” is the crucial difference, global community is by nature because comprehensive, social membership in a (J.B. Schneewind ed., Hackett Publishing Co., 1966) (1777). 52 \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 52 26-FEB-14 8:31 never been more forceful. Indeed, almost made as what long may be ago the Kant argument argued when for he the universal right of decent treatment for all per- sons on the basis of the curved nature of the planet’s surface: “Since it is a globe, they cannot disperse indefinitely, but must that nationalist thinkers have trapped the idea of community into bounded national polities, but that history suggests an alternative vision that allows for a world community based on a diversity of views within space). a shared planetary 34502-nyi_46-1 Sheet No. 28 Side B 02/26/2014 09:18:43 02/26/2014 B 28 Side No. Sheet 34502-nyi_46-1 34502-nyi_46-1 Sheet No. 29 Side A 02/26/2014 09:18:43 53 446 per- ANT all K nor is the achieve- HILOSOPHY OF of globalization, and 176 P HE T in AND COMMUNITY , community Kant could not have foreseen, but COSMOPOLIS 175 Perpetual Peace note 12, at 36. globalization. Its evolution will be incremental supra BETWEEN just We must recall, however, that the progression toward 175. Immanuel Kant, 176. Hopkins, ment of a and will involve work at the and theoretical, institutional doctrinal, levels. political, Recalling Hume, people’s views is central the to the “largeness” of globalization is not inevitable or linear, would recognize, how globalization has dramatically tightened the curve of this space into a single point within which sons are present, bringing us into with deeper each sustained contact other than could. the We have, in a mere sense, cut right through surface the heart of the of globe. the planet ever 2013] tolerate each other.” \\jciprod01\productn\N\NYI\46-1\NYI101.txt unknown Seq: 53 26-FEB-14 8:31 it is the largeness of our views, their scale, and that this our Article own has sought recognition to both of chronicle and foster. Continuing the work global justice of in economic and non-economic matters is a task “thickening” this model for all of of us. (Carl J. Friedrich ed., The Modern Library, 1977) (1795). 34502-nyi_46-1 Sheet No. 29 Side A 02/26/2014 09:18:43 02/26/2014 A 29 Side No. Sheet 34502-nyi_46-1