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San Diego Law Review

Horacio Spector

Document Type

Article

Abstract

Political associations raise special questions of justice. Some authors contend that those special questions derive from characteristic features of the modern state. For instance, Thomas Nagel argues that two defining features of the political community justify associative redistributive duties that hold among its members but not among members and nonmembers. Those features are the fact that the political community exercises sovereign power over its members by resorting to the imposition of coercive rules and the fact that it exercises that power in the name of its members. In this paper, I will not challenge this assertion but will nonetheless argue that two other features strongly bear on the special questions of justice raised by political associations. Those features, though contingent, are also commonly true of political associations: (a) their contestability, and (b) their power of self-transformation (which is a feature of sovereignty).

I will argue that the fact that international associations lack sovereign power makes the problem of global justice dissimilar from the problem of domestic social justice. In fact, the principle of self-determination of national States is applicable to national States, but inapplicable to international associations. International associations can only be transformed by the sovereign decision of their State members. Therefore, whereas social justice theorizing can support constitutional interpretation and potential self-transformation of the political community, global justice theorizing can support neither treaty interpretation nor self-transformation of international associations. A corollary of the discussion is that global justice denotes a highly idealized political program for the future organization of a global redistributive association. Free and voluntary membership in such association would be jeopardized by the fact that it could not guarantee substantial exit rights, thus rendering the program dystopian rather than utopian.

In pursuing my argument, I will have to address a myriad of issues. In Section II, I discuss an example of the transactional conception of justice. My example is Hume’s account of the conventions of justice. It is a good example, I think, because Hume contends that such conventions do not presuppose the prior establishment of a political association. In Section III, I discuss the associational conception of justice. I argue that this conception always refers to distributional concerns within a particular kind of association, and I show that associational distributional criteria normally depend on the character of the relevant association. I also explain the problem of political or national justice in terms of the associational conception of justice. In Section IV, I enumerate some varieties of national political associations and briefly review the different distributional concerns generated by each variety. Section V is devoted to explaining why national political associations are contestable. Contestability, in such associations, derives from a twofold form of constitutional indeterminacy. In Section VI, I point out that international customs generally establish forms of transactional justice but not a regime of global redistribution. In Section VII, I discuss four types of international associations, and I contend that none of these associations can be construed as providing for global redistribution. In Section VIII, I assert that international associations do not offer the same leeway for constitutional interpretation that is present in most national political communities. The orthodox form of legal interpretation that international associations impose, together with their lack of sovereignty, constrain the self-transformative abilities of such associations. A natural outcome of these characteristics of international associations, which I discuss in Section IX, is that the practical import of global justice arguments is much more limited than that of domestic justice arguments. Because there is no way to argue that existing international organizations establish the essentials of a redistributive association, associational justice can justify no redistributive measure to which national States do not explicitly commit themselves by their spontaneous and sovereign decisions. In addition, because transactional justice is irrelevant for warranting those measures, global justice is a misnomer save as a label for designating a program for a global redistributive association. This new kind of association is not required by justice, and may even be hard to reconcile—conceptually and in practice—with basic civil liberties.

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