Rechtsfilosofie Reader 23-24 (Ov)

Faculteit der Rechtsgeleerdheid
Amsterdam College of Law

Algemene Rechtsleer
Bachelor
Rechtsfilosofie
Reader
2023-2024 / Semester 2 blok 1
3013RFX1VY
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Week 1
G. Radbruch, ‘Statutory Lawlessness and Supra‐Statutory Law (1946)’, Oxford Journal of Legal Studies, Vol. 3
26, No. 1 (2006)
H.L.A. Hart, ‘Laws and Morals’, uit: The Concept of Law, Oxford: Oxford University Press 1994 11
L. Fuller, ‘Positivism and Fidelity to Law’, Harvard Law Review, Vol. 71, No. 4, Feb., 1958 27
L. Fuller, The Morality of Law (selectie), Yale University 1964 41
Week 2
H.L.A. Hart, ‘Law as the Union of Primary and Secondary Rules’, uit: The Concept of Law, Oxford: Oxford 49
University Press 1994
H.L.A. Hart, ‘Formalism and Rule‐Scepticism’ I, uit: The Concept of Law, Oxford: Oxford University Press 1994 61
J. Frank, Law and the Modern Mind (selectie), New Brunswick: Transaction Publishers 2009 (1930) 69
H.L.A. Hart, ‘Formalism and Rule‐Scepticism’ II, uit: The Concept of Law, Oxford: Oxford University Press 1994 83
R. Dworkin, ‘The Model of Rules’, uit: Taking Rights Seriously, Londen: Duckworth 1977 83
Week 3
J. Rawls, A Theory of Justice (Revised Edition) (selectie), Cambridge: Harvard University Press 1999 107
C. Mills, ‘Rawls on Race/Race in Rawls’, uit: Black Rights/White Wrongs, Oxford University Press 2017 131
Week 4
H. Arendt, ‘The Perplexities of the Rights of Man’, uit: The Origins of Totalitarianism, New York: Harcourt 147
1976 [1951]
E.T. Achiume, ‘Migration as Decolonization’, Stanford Law Review, 71, Jun. 2019 1155
Week 5
S.M. Gardiner, ‘Betraying the Future’, uit: Debating Climate Ethics, Oxford: Oxford University Press 2016 197
P. Singer, ‘One Atmosphere’, uit: One World Now, Yale University Press 2016 209
Week 6
J.S. Mill, ‘Of the Liberty of Thought and Discussion’ (selectie), uit: On Liberty 233
J. Waldron, ‘Hatred and Law in a Well‐Ordered Society’, ‘Assurance’, uit: The Harm in Hate Speech, President 247
and Fellows of Harvard College 2012
Week 7
M. Foucault, Discipline, toezicht en straf (selectie), Groningen: Historische Uitgeverij 1997 263
J. Reiman, ‘Driving to the Panopticon’, uit: B. Rössler (red.), Privacies: Philosophical Evaluations, The Board of 271
Trustees of the Leland Stanford Junior University 2004
S. Zuboff, ‘The China Syndrom’, uit: The Age of Surveillance Capitalism, London Profile Books 2019 283
Week 1
1
2
Oxford Journal of Legal Studies, Vol. 26, No. 1 (2006), pp. 1–11
doi:10.1093/ojls/gqi041
Statutory Lawlessness and

Supra-Statutory Law (1946)*
Downloaded from http://ojls.oxfordjournals.org/ at University Library, University of Amsterdam on February 6, 2014

GUSTAV RADBRUCH
TRANSLATED BY BONNIE LITSCHEWSKI

PAULSON AND STANLEY L. PAULSON
I.
By means of two maxims, ‘An order is an order’ and ‘a law is a law’, National
Socialism contrived to bind its followers to itself, soldiers and jurists respec-
tively. The former tenet was always restricted in its applicability; soldiers had no
obligation to obey orders serving criminal purposes.1 ‘A law is a law’, on the
other hand, knew no restriction whatever. It expressed the positivistic legal
thinking that, almost unchallenged, held sway over German jurists for many
decades. ‘Statutory lawlessness’ was, accordingly, a contradiction in terms, just
as ‘supra-statutory law’ was.2 Today, both problems confront legal practice time
and time again. Recently, for example, the Süddeutsche Juristen-Zeitung published
and commented on a decision of the Wiesbaden Municipal Court [handed down
in November of 1945], according to which the ‘statutes that declared the property
* ‘Gesetzliches Unrecht und übergesetzliches Recht’, first published in the Süddeutsche Juristen-Zeitung 1 (1946)
105–8, repr. inter alia in Gustav Radbruch, Gesamtausgabe (Collected Works), 20 vols, Arthur Kaufmann (ed.), vol.
3: Rechtsphilosophie III, Winfried Hassemer (ed.) (Heidelberg: C. F. Müller, 1990) 83–93, 282–91 (editor’s notes),
and in Radbruch, Rechtsphilosophie, Studienausgabe, Ralf Dreier and Stanley L. Paulson (eds) (Heidelberg: C. F.
Müller, 2nd edn, 2003) 211–19, 234–5 (editors’ notes). The translators have drawn on the original printing of
1946; on a reprinting in Gustav Radbruch, Rechtsphilosophie, 4th–7th edns, Erik Wolf (ed.), and 8th edn, Erik Wolf
and Hans-Peter Schneider (eds) (Stuttgart: K. F. Koehler, 1950–73); and on a partial, unpublished translation by
Lon L. Fuller, which appeared, inter alia, in his ‘Supplemental Readings in Jurisprudence, 1958–9’ (Harvard Law
School). The translation here is published with the kind permission of Mrs. Dorothea Kaufmann (Munich). The
translators would like to thank Ralf Dreier (Göttingen), Thomas Mertens (Nijmegen), and Julian Rivers (Bristol) for
very helpful comments and suggestions.
1
Military Criminal Code of 1940, § 47.
2
[Translating ‘Unrecht’ as ‘lawlessness’ here—not as ‘injustice’, ‘wrong’, or ‘evil’, among other possibilities—and
‘Recht’ as ‘law’—not as ‘justice’ or ‘right’—underscores the legal context of the sharp distinction Radbruch draws
between the two terms. Better reflecting the ‘positivistic legal thinking’ he mentions, the phrases themselves might
read ‘statutory (or positive-law) lawlessness’ and ‘supra-statutory (or supra-positive) law’.]
© The Author 2006. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org
3
2 Oxford Journal of Legal Studies VOL. 26
of the Jews to be forfeited to the State were in conflict with natural law, and null
and void the moment they were enacted’.3
II.
In the criminal law, the same problem has been raised, particularly in debates
and decisions within the Russian Zone.4
1. A justice department clerk named Puttfarken was tried and sentenced to life
imprisonment by the Thuringian Criminal Court in Nordhausen for having brought
about the conviction and execution of the merchant Göttig by informing on him.
Puttfarken had denounced Göttig for writing on the wall of a WC that ‘Hitler is a
mass murderer and to blame for the war’. Göttig had been condemned not only
because of this inscription, but also because he had listened to foreign radio broad-
casts.
Puttfarken was condemned by the Thuringian Criminal Court not as an indi-

rect perpetrator of the crime, but as an accomplice to murder. Accordingly, the
judges who condemned Göttig to death, contrary to law and statute, had to be
guilty of murder.12
4
SPRING 2006 Statutory Lawlessness and Supra-Statutory Law (1946) 5
2. In fact, the Chief Public Prosecutor of Saxony, Dr J.U. Schroeder,
announces in the press the intention of enforcing the principle of criminal
‘responsibility for inhuman judicial decisions’, even when such decisions are
based on National Socialist statutes:
The legislation of the National Socialist state, on the basis of which death sentences
like those cited here were pronounced, has no legal validity whatsoever.
National Socialist legislation rests on the so-called ‘Enabling Act’ [of 24 March 1933],
which was passed without the constitutionally required two-thirds majority. Hitler had
forcibly prevented the Communist representatives from participating in the parlia-
mentary session by having them arrested, in spite of their immunity. The remaining
representatives, namely from the Centre Party, were threatened by Nazi storm troopers
(the SA) and thereby compelled to vote for the emergency powers.13
A judge can never administer justice by appealing to a statute that is not merely unjust
but criminal. We appeal to human rights that surpass all written laws, and we appeal to
the inalienable, immemorial law that denies validity to the criminal dictates of inhuman
tyrants.
In light of these considerations, I believe that judges must be prosecuted who have
handed down decisions incompatible with the precepts of humanity and have pro-
nounced the death sentence for trifles.14
4. In Saxony again, the following case comes to light in an article by Chief

Public Prosecutor J.U. Schroeder: A soldier from Saxony, assigned to guard
prisoners of war on the eastern front, deserted his post in 1943, ‘disgusted by the
inhuman treatment they received. Perhaps he was also tired of serving in Hitler’s
army.’ While on the run, he could not resist stopping by his wife’s apartment,
where he was discovered and was to be taken into custody by a sergeant. He
succeeded, unnoticed, in getting hold of his loaded service revolver and shot the
sergeant in the back, killing him. In 1945, the deserter returned to Saxony from
5
Switzerland. He was arrested, and the office of the public prosecutor prepared to
charge him with having maliciously killed the official. The Chief Public Prosecutor,
however, ordered his release and the abandonment of criminal proceedings,
appealing to section 54 of the Criminal Code and arguing that the soldier, hav-
ing acted out of necessity, was blameless, since
what the judiciary called law then is no longer valid today. In our view of the law,
deserting the Hitler-Keitel army is no misdemeanor dishonouring the deserter and jus-
tifying his punishment; he is not blameworthy because of it.16
With statutory lawlessness and supra-statutory law serving, then, as points of

reference, the struggle against positivism is being taken up everywhere.
III.
Positivism, with its principle that ‘a law is a law’, has in fact rendered the
German legal profession defenceless against statutes that are arbitrary and crimi-
nal. Positivism is, moreover, in and of itself wholly incapable of establishing
the validity of statutes. It claims to have proved the validity of a statute simply
by showing that the statute had sufficient power behind it to prevail. But while
power may indeed serve as a basis for the ‘must’ of compulsion, it never serves
as a basis for the ‘ought’ of obligation or for legal validity. Obligation and legal
validity must be based, rather, on a value inherent in the statute. To be sure,
one value comes with every positive-law statute without reference to its con-
tent: Any statute is always better than no statute at all, since it at least creates
legal certainty. But legal certainty is not the only value that law must effectu-
ate, nor is it the decisive value. Alongside legal certainty, there are two other
values: purposiveness17 and justice. In ranking these values, we assign to last
place the purposiveness of the law in serving the public benefit. By no means is
law anything and everything that ‘benefits the people’. Rather, what benefits the
people is, in the long run, only that which law is, namely, that which creates
legal certainty and strives toward justice. Legal certainty (which is characteris-
tic of every positive-law statute simply in virtue of the statute’s having been
enacted) takes a curious middle place between the other two values, purposive-
ness and justice, because it is required not only for the public benefit but also
for justice. That the law be certain and sure, that it not be interpreted and
applied one way here and now, another way elsewhere and tomorrow, is also a
requirement of justice. Where there arises a conflict between legal certainty
and justice, between an objectionable but duly enacted statute and a just law
16
Tägliche Rundschau, above n 14, 9 May 1946.
17
[The German ‘Zweckmäßigkeit’ is often translated, respectably, as ‘utility’ or ‘expediency’. In the present con-
text, however, any suggestion of utilitarianism would be misleading, as would the connotation of opportunism that
attaches to ‘expediency’. ‘Purposiveness’ has the virtue of stemming directly from ‘purpose’, thereby underscoring
Radbruch’s point.]
6
that has not been cast in statutory form, there is in truth a conflict of justice
with itself, a conflict between apparent and real justice. This conflict is per-
fectly expressed in the Gospel, in the command to ‘obey them that have the
rule over you, and submit yourselves’, and in the dictate, on the other hand, to
‘obey God rather than men’.18
The conflict between justice and legal certainty may well be resolved in
this way: The positive law, secured by legislation and power, takes prece-
dence even when its content is unjust and fails to benefit the people, unless
the conflict between statute and justice reaches such an intolerable degree
that the statute, as ‘flawed law’, must yield to justice. It is impossible to draw
a sharper line between cases of statutory lawlessness and statutes that are
valid despite their flaws. One line of distinction, however, can be drawn with
utmost clarity: Where there is not even an attempt at justice, where equality,
the core of justice, is deliberately betrayed in the issuance of positive law,
then the statute is not merely ‘flawed law’, it lacks completely the very nature
of law. For law, including positive law, cannot be otherwise defined than as a
system and an institution whose very meaning is to serve justice. Measured
by this standard, whole portions of National Socialist law never attained the
dignity of valid law.
The most conspicuous characteristic of Hitler’s personality, which became
through his influence the pervading spirit of the whole of National Socialist ‘law’
as well, was a complete lack of any sense of truth or any sense of right and
wrong. Because he had no sense of truth, he could shamelessly, unscrupulously
lend the ring of truth to whatever was rhetorically effective at the moment. And
because he had no sense of right and wrong, he could without hesitation elevate
to a statute the crudest expression of despotic caprice. There is, at the beginning
of his regime, his telegram offering sympathy to the Potempa murderers,19 at the
end, the hideous degradation of the martyrs of 20 July 1944.20 The supporting
theory had been provided by the Nazi ideologue, Alfred Rosenberg, writing in
response to the Potempa death sentences: People are not alike, and murders are
not alike; the murder of the pacifist Jaurès21 was properly judged in France in a
different light than the attempt to murder the nationalist Clemenceau;22 for it is
impossible to subject the patriotically motivated perpetrator to the same punishment
18
[The Holy Bible, King James Version, 1611, Hebrews 13:17 and Acts 5:29 respectively.]
19
[In 1932, five Nazi storm troopers were condemned to death by a court in Upper Silesia for the brutal murder
of a Communist in the village of Potempa. Under pressure from the Nazis, their sentence was commuted to life
imprisonment. After Hitler came to power, they were pardoned.]
20
[Wehrmacht officers and others, arrested following their failed attempt to assassinate Hitler on 20 July 1944,
were tortured, viciously humiliated in a sham trial, and executed.]
21
[Jean Jaurès, an eloquent politician known as an intellectual champion of socialism, was assassinated in Paris in
1914 by a fanatical nationalist, Raoul Villain. Villain was taken into custody pending trial, but acquitted in 1919 by
jurors who reportedly felt he was a patriot who had done France a favour by getting rid of the antiwar Jaurès.]
22
[Georges Clemenceau, a Radical Nationalist politician, survived an attempt on his life made in 1892 by a rival
political group, taking revenge for his repudiation of their leader, General Boulanger, a convicted traitor who had
committed suicide in 1891. The Boulangist who failed in his attempt to assassinate Clemenceau was unceremoni-
ously executed.]
7
as one whose motives are (in the view of the National Socialists) inimical to the
people.23 The explicit intention from the very beginning, then, was that National
Socialist ‘law’ would extricate itself from the essential requirement of justice,
namely, the equal treatment of equals. It thereby lacks completely the very
nature of law; it is not merely flawed law, but rather no law at all. This applies
especially to those enactments by means of which the National Socialist Party
claimed for itself the whole of the state, flouting the principle that every political
party represents only a part of the state. Legal character is also lacking in all the
statutes that treated human beings as subhuman and denied them human rights,
and it is lacking, too, in all the caveats that, governed solely by the momentary
necessities of intimidation, disregarded the varying gravity of offences and
threatened the same punishment, often death, for the slightest as well as the
most serious of crimes. All these are examples of statutory lawlessness.
We must not fail to recognize—especially in light of the events of those twelve
years—what frightful dangers for legal certainty there can be in the notion of ‘stat-
utory lawlessness’, in duly enacted statutes that are denied the very nature of law.
We must hope that such lawlessness will remain an isolated aberration of the
German people, a never-to-be-repeated madness. We must prepare, however, for
every eventuality. We must arm ourselves against the recurrence of an outlaw state
like Hitler’s by fundamentally overcoming positivism, which rendered impotent
every possible defence against the abuses of National Socialist legislation.24
IV.
That looks to the future. In the face of the statutory lawlessness of the past
twelve years, we must seek now to meet the requirement of justice with the
smallest possible sacrifice of legal certainty. Not every judge acting on his own
initiative should be allowed to invalidate25 statutes; rather, this task should be
reserved to a higher court or to legislation.26 Such legislation has already been
enacted in the American Zone, based on an agreement in the Council of German
States. It is ‘Act No. 29, on the Redress of National Socialist Wrongs Commit-
ted in the Administration of Criminal Justice’ [31 May 1946]. A provision
according to which ‘political acts undertaken in resistance to National Socialism
or militarism are not punishable’ surmounts the difficulties, for example, of the
previously mentioned case of the deserter.27 On the other hand, the companion
statute, ‘Act No. 22, concerning the Punishment of National Socialist Crimes’
23
Völkischer Beobachter (Munich) [publication of the National Socialist Party], 26 August 1932.
24
Buchwald, too, argues for supra-statutory law in his book, above n 14, at 8–16. And compare Walter Roemer,
Süddeutsche Juristen-Zeitung 1 (1946) 9–11.
25
[‘Entwerten’ (translated ‘invalidate’ here) appears in the Wolf editions of Radbruch’s Rechtsphilosophie, but
‘entwerfen’ (‘to draft’) is used in the original printing as well as in the Collected Works, above at asterisk note. In the
context here, ‘invalidate’ is clearly the better fit.]
8
The culpability of judges for homicide presupposes the simultaneous determi-

nation that they have perverted the law,31 since the independent judge’s decision
can be an object of punishment only if he has violated the very principle that his
independence was intended to serve, the principle of submission to the statute,
that is, to the law. Objectively speaking, perversion of the law exists where we
can determine, in light of the basic principles we have developed, that the statute
applied was not law at all, or that the degree of punishment imposed—say, the
death sentence pronounced at the discretion of the judge—made a mockery of
any intention of doing justice. But what of judges who had been so deformed by
the prevailing positivism that they knew no other law than enacted law? Could
such judges, in applying positive-law statutes, have had the intention of pervert-
ing the law? And even if they did have this intention, there remains one last legal
28
[See § II, case nos 1–3, above.]
29
[See § II, case no. 1, above, and see above, n 6.]
30
It is of course the height of subjectivism in the doctrine of complicity, that criminal intent—in the form of a
‘subjective element of wrongdoing’—entails in the person of the indirect perpetrator illegality that is lacking in the
person of the direct agent or instrument.
31
§ 336 and § 344 of the Criminal Code.
9
defence for them, albeit a painful one. They could invoke the state of necessity
contemplated in section 54 of the Criminal Code32 by pointing out that they
would have risked their own lives had they pronounced National Socialist law to
be statutory lawlessness. I call this defence a painful one because the judge’s
ethos ought to be directed toward justice at any price, even at the price of his
own life.
V.
We do not share the opinion expressed at Nordhausen that ‘scruples of legal
form’ tend ‘to obfuscate’ the plain facts. Rather, we are of the opinion that after
twelve years of denying legal certainty, we need more than ever to arm ourselves
with considerations of ‘legal form’ in order to resist the understandable tempta-
tions that can easily arise in every person who has lived through those years of
32
[See also § II, case no. 4, above.]
33
Karl Binding, Lehrbuch des Gemeinen Deutschen Strafrechts, Besonderer Teil, vol. 2 (Leipzig: Engelmann-Verlag,
1st edn, 1905) 569.

menace and oppression. We must seek justice, but at the same time attend to
legal certainty, for it is itself a component of justice. And we must rebuild a
Rechtsstaat, a government of law that serves as well as possible the ideas of both
justice and legal certainty. Democracy is indeed laudable, but a government of
law is like our daily bread, like water to drink and air to breathe, and the best
thing about democracy is precisely that it alone is capable of securing for us such
a government.
10
HART:
THE MINIMUM CONTENT OF "NATURAL LAW"
11
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20
21
22
23
24
25
26
Fuller:
Positivism
Fuller: and Fidelity
to Law and Fidelity
Positivism
to Law
27
28
29
30
31
32
33
34
35
36
37
38
39
40
Fuller:
The Morality of Law
THE MORALITY
THAT MAKES LAW POSSIBLE
II
lAl law which a man connot obey, nor act according to ít, ís voí,j and no
law: and it is impossible to obey contradictíons, or act accordíng to them.
C. J. in Thomas v. Sorrell, 167'l
-Vaughan,
It is desired that our learned. Iawyers would answer these ensuing querìes
, . , whether ever the Comtnonwealth, when they chose the Parliament,
41
gave them a lawless unlimited power, and at theír pleasure to walk con-
trary to their own laws and ordínances before they have repealed them?
England's Birth-Right Ìustified, 1645
-Lilburne,
This chapter will begin with a fairly lengthy allegory. It concerns

the unhappy reign of a monarch who bore the convenient, but
not very imaginative and not even very regal sounding name of
Rex.
Eight Ways to Fail to Make Law
Rex came to the throne fltled with lhe zeal of a reformer. He con-
sidered that the greatest failure of his predecessors had been in
the field of law. For generations the legal system had known
nothing like a basic reform. Procedures of trial were cumbersome,
33
THE MORALITY OF LA W THE MORALITY THAT MAKES LAW POSSIBLE
the rules of law spoke in the archaic tongue of another age, justice labor, succeeded in preparing a fairly lengthy document. He was
was expensive, the judges were slovenly and sometimes corrupt. still not confident however, that he had fully overcome his pre
Rex was resolved to remedy all this and to make his name in vious defects. Accordingly, he annouoced to bis subjects that he
history as a great lawgiver. It was bis unhappy fate to fail in this had writteo out a code and would henceforth be governed by it
ambition. Indeed, he failed spectacularly, since not only did he in deciding cases but that for an indefinite future the contents of
not succeed in introducing the needed reforms, but he never even the code would remain an official state secret, known only to
succeeded in creating any law at all, good or bad. him and his scrivener. To Rex's surprise this sensible plan was
His first official act0 was, however, dramatic and propitious. deeply resented by bis subjects. They declared it was very un
Since he needed a cl�an slate on which to write, he announced pleasant to have one's case decided by rules when there was no
to bis subjects the immediate repeal of all existing law, of what way of knowiog what these rules were.
ever kind. He then se.t about drafting a new code. Unfortunately, Stunned by this rejection Rex undertook an eamest inventory
trained as a lonely prinèe, his education had been very defective. of his personal strengths and weaknesses. He decided that life
In particular he found himself incapable of making even the had taught him one clear lessen, oamely, that it is easier to decide
simp1est generalizations. Though not lacking in confidence when things with the aid of bindsight tb.an it is to attempt to foresee
it carne to deciding specific controversies, the effort to give articu and control the future. Not only did hind..sight make it easier to
late reasons for any conclusion strained bis capacities to the decide cases, but-and tliis was of supreme importance to Rex
breaking point. jt made it easier to give reasons. Deciding to capitalize on this
Becoming aware of bis limitations, Rex gave up the project insight, Rex hit on the following plan. At the begi.nning of eacb
of a code and announced to bis subjects that henceforth he calendar year he would decide all the controversies that had ariseo
42
would act as a judge in any disputes that might arise among them. among his subjects during the preceding year. Re would accom
In this way under the stimulus of a variety of cases he hoped pany J1is decisions with a full statement of reasons. Naturally, the
that bis latent powers of generalization might develop and, pro reasons thus given would be understood as not controlling deci
ceeding case by case, he would gradually work out a system of sions in future years, for that would be to defeat the wbole pur
rules that could be incorporated in a code. Unfortunately the de pose of the new arrangement, which was to gain the advaotages
fects in his education were more deep-seated than he had sup of hiodsight. Rex confidently announced the new plan to bis sub
posed. The venture failed completely. After he had handed down jects observing t,hat he was going to publish the full text of his
literally hundreds of decisions neither hè nor bis subjects could judgments with the rules applied by bim tbus meeting the cbief
detect in those decisions any pattern whatsoever. Such tentatives objection to the old plan. Rex s subjects received th:is announce
toward generalization as were to be found in bis opinions only ment in silence, then quietly explained through their leaders that
compounded the confusion, for they gave false leads to bis sub when they said they needed to know the rules, they meant they
jects and threw bis own meager powers of judgment off balance needed to know them in advance so they could act on them. Rex
in the decision of later cases. muttered something to the effect that they might have made that
After this fiasco Rex realized it was necessary to take a fresh point a little clearer, but said he would see what could be done.
start. Ris first move was to subscribe to a course of lessons in Rex now realized that there was no escape from a published
generalization. With his intellectual powers thus fortified, he re code declaring the rules to be applied in future disputes. Con
sumed the project of a code and, after many hours of solitary tinuing his lessons in generalization, Rex worked di1igently on a
34 35
THE MORALITY OF LAW THE MORALITY THAT MAKES LAW POSSIBLE
revised code, and finally announced that it would shortly be pub Leading citizens declared their intention to flout its provisions.
lished. Tuis announcement was received with universa! gratifica Someone discovered in an ancient author a passage that seemed
tion. The dismay of Rex's subjects was all the more intense, apt: "To command what cannot be done is not to make law· it
therefore, when his code became available and it was discovered is to unmake law, for a command that cannot be obeyed ser�es
that it was truly a masterpiece of obscurity. Legal experts who no end but confusion, fear and chaos." Soon this passage was
studied it declared that there was not a single sentence in it that being quoted in a hundred petitions to the king.
could _be understood either by an ordinary citizen or by a trained The code was again withdrawn and a staf! of experts charged
lawyer. IndignatioQpecame genera! and soon a picket appeared with the task of revision. Rex s instructions to the experts were
before the royal palace carrying a sign that read, "How can any that whenever they encountered a rule requiring an impossibility,
body follow a rule that nobody can understand?" it should be revised to make compliance possible. It turned out
The code was quickly withdrawn. Recognizing for the first that to accomplish this result every provision in the code had
time that he needed �istance, Rex put a staff of experts to work to be substantially rewritten. The final result was, however, a
on a revision. He instructed them to leave the substance un triumph of draftsmanship. It was clear, consistent with itself, and
touched, but to clarify the expression throughout. The resulting demanded nothing of the subject that did not lie easily within
code was a model of clarity, but as it was studied it became ap his powers. It was printed and distributed free of charge on every
parent that its new clarity had merely brought to light that it was street corner.
honeycombed with contradictions. It was reliably reported that However, before the effective date for the new code had ar
there was not a single provision in the code that was not nullified rived, it was discovered that so much time had been spent in
by another provision inconsistent with it. A picket again appeared successive revisions of Rex's original draft, that the substance of
the code had been seriously overtaken by events. Ever since Rex
43
before the royal residence carrying a sign that read, "This time
the king made himself clear-in both directions." assumed the throne there had been a suspension of ordinary
Once again the code was withdrawn for revision. By now, legal processes and this had bx:ought ábout important economie
however, Rex had lost his patience with his subjects and the nega and institutional changes within the country. Accommodation
tive attitude they seemed to adÓpt toward everything he tried to to these altered conditions required many changes of substance
do for them. He decided to teach them a lesson and put an end in the law. Accordingly as soon as the new code became legally
to their carping. He instructed bis experts to purge the code of effective, it was subjected to a daily stream of amendme�ts. Again
contradictions, but at the same time to stiffen drastically every popular discontent mounted; an anonymous pamphlet appeared
requirement contained in it and to add a long list of new crimes. on the streets carrying scurrilous cartoons of the king and a lead
Thus, where before the citizen summoned to the throne was given ing article with the title: "A law that changes every day is worse
ten days in which to report, in the revision the time was cut to ten than no law at all."
seconds. It was made a crime, punishable by ten years' imprison Within a short time this source of discontent began to cure it
ment, to cough, sneeze, hiccough, faint or fall down in the pres self as the pace of amendment gradually slackened. Before this had
ence of the king. It was made treason not to understand, believe occurred to any noticeable degree, however, Rex announced an
in, and correctly profess the doctrine of evolutionary, democratie important decision. Reflecting on the misadventures of bis reign,
redemption. he concluded that much of the trouble lay in bad advice he had
When the new code was published a near revolution resulted. receiv8d from experts. He accordingly declared he was reas-
36 37
suming the judicia! power in his own person. In this way he could carry in at least eight ways; there are in this enterprise, if you
directly control the application of the new code and insure his will, eight distinct routes to disaster. The first and most obvious
country against another crisis. He began to spend practically all lies in a failure to achieve rules at all, so that every issue must
of his time hearing and deciding cases arising under the new code. be decided on an ad hoc basis. The other routes are: (2) a failure
As the king proceeded with this task, it seemed to bring to a to publicize, or at least to make available to the affected party,
belated blossoming his long dormant powers of generalization. the rules he is expected to observe; (3) tl1e abuse of retroactive
Ris opinions began, indeed, to reveal a confident and almost legislation, which not only cannot itself guide action, but under
exuberant virtuosity ai5 he deftly distinguished bis own previous cuts the integrity of rules prospective in effect, since it puts them
, .• .. .J
decisions, exposed the principles on which he acted, and laid under the threat of retrospective change; (4) a failure to make
down guide lines for the disposition of future controversies. For rules understandable; (5) the enactment of contradictory rules
Rex's subjects a new,day seemed about to dawn when they could or (6) rules that require conduct beyond the powers of the af
finally conform their c'àiiduct to a coherent body of rules. fected party· (7) i.ntroducing such frequent changes in the rules
This hope was, however, soon shattered. As the bound volumes that the subject cannot orient his action by them; and, finally,
of Rex's judgments became available and were subjected to closer (8) a failure of congruence betweeo the rules as aonounced and.
study, his subjects were appalled to discover that there existed their actual administration.
no discernible relation between those judgments and the code A total failure in any one of these eight directions does not
they purported to apply. Insofar as it found expression in the simply resuJt in a bad system of law; it results in something tbat
actual disposition of controversies, the new code might just as is not properly called a legal system at all, except perhaps in the
well not have existed at all. Yet in virtually every one of his Pickwickian sense in wbicb a void contract can still be said to
44
decisions Rex declared and redeclared the code to be the basic be one kind of contract. Certainly tbere can be no rational ground
law of his kingdom. for asserting tbat a man can hàve a moral obligation to obey a
Leading citizens began to hold private meetings to discuss Iegal rule that does not exist or is kept secret from him, or tb.at
what measures, short of open reyolt, could be taken to get the carne into existence only after he had acted, or was unintelligible
king away from the bench and back on the throne. While these or was contraclicted by another rule of the same system, or com
discussions were going on Rex suddenly <lied, old before bis time manded the impossible, or cbanged every minute. It may not be
and deeply disillusioned with his subjects. impossible for a man to obey a rule that is clisregarded by those
The first act of his successor, Rex II, �as to announce that he charged with its administration, but at some point obedience be
was taking the powers of government away from the lawyers and comes futile-as futile, in fact as casting a vote that wi!J never be
placing them in the hands of psychiatrists and experts in public counted. As the sociologist Simmel has observed, there is a kind
relations. This way, he explained, people could be made happy of reciprocity between government and the citizen with respect
without rules. to the observance of rules.1 Government says to the citizen in
l. The Socîology of Georg Sîmme/ (1950), trans. Wolff; §4, "lnteraction

The Consequences of Failure in the Idea of 'Law,' "pp. 186-89; see also Chapter 4, "Suborclination under
a Principle " pp. 250-67. Simrnel's dlscussion is worthy of study by those
Rex's bungling career as legislator and judge illustrates that the concemed w.ith defining the conditions under which the ideal of "the rule
attempt to create and maintain a system of legal rules may mis- of Law" can be realized.
39
38
effect, "These are the rules we expect you to follow. If .you follow that of the voter who knows that the odds are against his ballot
them, you have our assurance that they are the rules that will be being counted at all, and that if it is counted, there is a good
applied to your conduct." When this bond of reciprocity is finally chance that it will be counted for the side against which he actual
and completely ruptured by government, nothing is left on which ly voted. A citizen in this predicament bas to decide for himself
t,J ground the citizen's duty to observe the rules. whether to stay with the system and cast his ballot as a kind of
The citizen's predicament becomes more difficult when, though symbolic act expressing the hope of a better day. So it was with
there is no total failure in any direction tbere is a general and the German citizen under Hitler faced with deciding whether
drastic deterioratioo in legality, such as occurred in Germany he had an obligation to obey such portions of the laws as the Nazi
under Hitler.2 A situation begins to develop, for example, in terror had left intact.
which though some laws are publisbed, others, including the most In situations like these there can be no simple principle by
important, are not. Though most laws are prospective in effect so which to test the citizen's obligation of fidelity to law, any more
free a use is made of retrospective legislation that no Jaw is im than there can be such a principle for testing bis right to engage
mune to change ex post facto if it suits the convenience of those in a genera! revolutiQn. One thing is, however, clear. A mere
in power. For the trial of crimina! cases concerned with loyalty respect for constituted authority must not be confused with fi
to the regime, special military tribunals are established and these delity to law. Rex's subjects, for example, remained faithful to
tribunals d:isregard, whenever it suits their convenience, the rules him as king throughout his long and inept reign. They were
that are supposed to control their decisions. Increasingly the not faithful to his law, for he never made any.
principal object of government seems to be, not that of giving
the citizen rules by which to sbape bis conduct, but to frighten
45
him into impotence. As such a situation develops, the problem
faced by the ciµzen is not so simple as that of a voter who knows
with certainty that his ballot will not be counted. It is more Iike
2. I have discussed some of the features of this deterioratioo in my

article, "Posîtivism and Fidelity 10 Law," 71 Harvard Law Review 630
648-57 (1958). Tbis article makes no attempt at a comprehensive surve;
of all the postwar judicia} decisions in Germany concerned with events
occu.rriog during the Hitler regime. $ome of the later decisions rested the
nullity of judgments ,reodered by the courts under Hitler oot on the ground
that the starutes applied were void, but on the ground that the Nazi judges
misioterpreted the statutes of their own government. See Pappe, • On the
Validity of Judicial Decisions in tbe Nazi Era," 23 Modern Law Review
260-74 (1960). Dr. Pappe makes more of tbis di.stinction tban seems to me
appropriate. After all, the meaning of a statute depends in part on accepted
modes of interpretation. Can it be said that the postwar German courts
gave full effect to Nazi laws wheo they interpreted them by their own
standards instead of the quite different standards current during the Nazi
regime? Moreover, with statutes of the kind involved, filled as they were
with vague phrases and unrestricted delegations of power, it secms a little
out of place co strain over questions of their proper interpretation.
40
46
Week 2
47
48
)-")BSU h-BXBTUIF6OJPOPG1SJNBSZ
BOE4FDPOEBSZ3VMFTh 4FMFDUJF
49
PRIMARY AND SECONDARY RULES 87
other secondary, and then the question whether we are con
fronted with a rule of morality or rudimentary law may not
be susceptible of an answer. But for the moment the possibil
ity of drawing the line between law and morals need not
detain us. What is important is that the insistence on im
portance or seriousness of social pressure behind the rules is the
primary factor determining whether they are thought of as
giving rise to obligations.
50
PRIMAR Y AND SECONDAR Y R ULES 8q
When a social
group has certain rules of conduct, this fa.et affords an oppor
tunity for many closely related yet different kinds of assertion;
for it is possible to be concerned with the rules, either merely
as an observer who does not himself accept them, or as a
member of the group which accepts and uses them as guides
to conduct. We may call these respectively the 'external' and
the 'internal points of view'. Statements made from the exter
nal point of view may themselves be of different kinds. For
the observer may, without accepting the rules himself, assert
that the group accepts the rules, and thus may from outside
refer to the way in which they are concerned with them from
the internal point of view. But whatever the rules are, whether
they are those of games, like chess or cricket, or moral or
legal rules, we can if we choose occupy the position of an
observer who does not even refer in this way to the internal
point of view of the group. Such an observer is content merely
to record the regularities of observable behaviour in which
conformity with the rules partly consists and those further
regularities, in the form of the hostile reaction, reproofs, or
punishments, with which deviations from the rules are met.
After a time the external observer may, on the basis of the
regularities observed, correlate deviation with hostile re
action, and be able to predict with a fair measure of success,
and to assess the chances that a deviation from the group's
normal behaviour will meet with hostile reaction or punish
ment. Such knowledge may not only reveal much about the
group, but might enable him to live among them without
unpleasant consequences which would attend one who at
tempted to do so without such knowledge.
lf, however, the observer really keeps austerely to this ex
treme external point of view and does not give any account
of the manner in which members of the group who accept the
rules view their own regular behaviour, his description of
their life cannot be in terms of rules at all, and so not in the
terms of the rule-dependent notions of obligation or duty.
Instead, it will be in terms of observable regularities of conduct,
predictions, probabilities, and signs. For such an observer,
51
go LAW AS THE UNION OF
deviations by a member of the group from normal conduct
will be a sign that hostile reaction is likely to follow, and
nothing more. His view will be like the view of one who,
having observed the working of a traffic signal in a busy
street for some time, limits himself to saying that when the
light turns red there is a high probability that the traffic will
stop. He treats the light merely as a natural sign that people
will behave in certain ways, as clouds are a sign that rain will
come. In so doing he will miss out a whole dimension of the
soçial life of those whom he is watching, since for them the
red light is not merely a sign that others will stop: they look
upon it as a signal for them to stop, and so a reason for stop
ping in conformity to rules which make stopping when the
light is red a standard of behaviour and an obligation. To
mention this is to bring into the account the way in which the
group regards its own behaviour. It is to refer to the internal
aspect of rules seen from their internal point of view.
The external point of view may very nearly reproduce the
way in which the rules function in the lives of certain mem
hers of the group, namely those who reject its rules and are
only concerned with them when and because they judge that
unpleasant consequences are likely to follow violation. Their
point of view will need for its expression, 'I was obliged to do
it', 'I am likely to suffer for it if ...', 'You will probably suffer
for it if ...', 'They will do that to you if ...'.B ut they will not
need forms of expression like 'I had an obligation' or 'You
have an obligation' for these are required only by those who
see their own and other persons' conduct from the internal
point of view. What the external point of view, which limits
itself to the observable regularities of behaviour, cannot re
produce is the way in which the rules function as rules in the
lives of those who normally are the majority of society.These
are the officials, lawyers, or private persons who use them, in
one situation after another, as guides to the conduct of social
life, as the basis for claims, demands, admissions, criticism,
or punishment, viz., in all the familiar transactions of life
according to rules. For them the violation of a rule is not
merely a basis for the prediction that a hostile reaction will
follow hut a reason for hostility.
At any given moment the life of any society which lives by
52
PRIMAR Y AND SECONDAR Y R ULES gr
rules, legal or not, is likely to consist in a tension between
those who, on the one hand, accept and voluntarily co-operate
in maintaining the rules, and so see their own and other
persons' behaviour in terms of the rules, and those who, on
the other hand, reject the rules and attend to them only from
the external point of view as a sign of possible punishment.
3 · THE ELEMENTS OF LAW

It is, of course, possible to imagine a society without a legis
lature, courts, or officials of any kind. lndeed, there are many
studies of primitive communities which not only claim that
this possibility is realized hut depict in detail the _ life of a
society where the only means of social control is that genera!
attitude of the group towards its own standard modes of
behaviour in terms of which we have characterized rules of
obligation. A social structure of this kind is often referred to
as one of 'custom'; hut we shall not use this term, because it
often implies that the customary rules are very old and sup
ported with less social pressure than other rules. To avoid
these implications we shall refer to such a social structure as
one of primary rules of obligation. If a society is to live by
such primary rules alone, there are certain conditions which,
granted a few of the most obvious truisms about human nature
and the world we live in, must clearly be satisfied. The first
of these conditions is that the rules must contain in some
form restrictions on the free use of violence, theft, and decep
tion to which human beings are tempted hut which they must,
in general, repress, if they are to coexist in close proximity to
each other. Such rules are in fact always found in the primi
tive societies of which we have knowledge, together with a
variety of others imposing on individuals various positive duties
to perform services or make contributions to the common life.
Secondly, though such a society may exhibit the tension,
53
92 LA W AS THE UNI ON OF
already described, between those who accept the rules and
those who reject the rules except where fear of social pressure
induces them to conform, it is plain that the latter cannot be
more than a minority, if so loosely organized a society of
persons, approximately equal in physical strength, is to en
dure: for otherwise those who reject the rules would have too
little social pressure to fear. This too is confirmed by what we
know of primitive communities where, though there are dis
sidents and malefactors, the majority live by the rules seen
from the internal point of view.
More important for our present purpose is the following
consideration. It is plain that only a small community closely
knit by ties of kinship, common sentiment, and belief, and
placed in a stable environment, could live successfully by
such a regime of unoflicial rules. In any other conditions such
a simple form of social control must prove defective and will
require supplementation in different ways. In the first place,
the rules by which the group lives will not form a system, hut
will simply be a set of separate standards, without any iden
tifying or common mark, except of course that they are the
rules which a particular group of human beings accepts. They
will in this respect resemble our own rules of etiquette. Hence
if doubts arise as to what the rules are or as to the precise
scope of some given rule, there will be no procedure for set
tling this doubt, either by reference to an authoritative text or
to an official whose declarations on this point are authorita
tive. For, plainly, such a procedure and the acknowledge
ment of either authoritative text or persons involve the
existence of rules of a type different from the rules of obliga
tion or duty which ex hypothesi are all that the group bas. This
defect in the simple social structure of primary rules we may
call its uncertainty.
A second defect is the statie character of the rules. The only
mode of change in the rules known to such a society will be
the slow process of growth, whereby courses of conduct once
thought optional become first habitual or usual, and then
obligatory, and the converse process of decay, when devia
tions, once severely dealt with, are first tolerated and then
pass unnoticed. There will be no means, in such a society, of
deliberately adapting the rules to changing circumstances,
54
either by eliminating old rules or introducing new ones: for,
again, the possibility of doing this presupposes the existence
of rules of a different type from the primary rules of obliga
tion by which alone the society lives. In an extreme case the
rules may be statie in a more drastic sense. This, though
never perhaps fully realized in any actual community, is worth
considering because the remedy for it is something very char
acteristic of law. In this extreme case, not only would there
be no way of deliberately changing the general rules, but the
obligations which arise under the rules in particular cases
could not be varied or modified by the deliberate choice of
any individual. Each individual would simply have fixed
obligations or duties to do or abstain from doing certain things.
It might indeed very often be the case that others would
benefit from the performance of these obligations; yet if there
are only primary rules of obligation they would have no power
to release those bound from performance or to transfer to
others the benefits which would accrue from performance.
For such operations of release or transfer create changes in
the initia} positions of individuals under the primary rules of
obligation, and for these operations to be possible there must
be rules of a sort different from the primary rules.
The third defect of this simple form of social life is the
inifficiency of the diffuse social pressure by which the rules are
maintained. Disputes as to whether an admitted rule has or
has not been violated will always occur and will, in any but
the smallest societies, continue interminably, if there is no
agency specially empowered to ascertain finally, and author
itatively, the fact of violation. Lack of such final and author
itative determinations is to be distinguished from another
weakness associated with it. This is the fact that punishments
for violations of the rules, and other forms of social pressure
involving physical effort or the use of force, are not adminis
tered by a special agency but are left to the individuals
affected or to the group at large. It is obvious that the waste of
time involved in the group's unorganized efforts to catch and
punish offenders, and the smouldering vendettas which may
result from self-help in the absence of an official monopoly of
'sanctions', may be serious. The history of law does, however,
strongly suggest that the lack of official agencies to determine
55
94 LAW AS THE UNI ON OF
authoritatively the fact of violation of the rules is a much
more serious defect; for many societies have remedies for this
defect long before the other.
The remedy for each of these three main <lefects in this
simplest form of social structtire consists in supplementing
the primary rules of obligation with secondary rules which are
rules of a different kind. The introduction of the remedy for
each defect might, in itself, be considered a step from the pre
legal into the legal world; since each remedy brings with it
many elements that permeate law: certainly all three rem
edies together are enough to convert the regime of primary
rules into what is indisputably a legal system. We shall con
sider in turn each of these remedies and show why law may
most illuminatingly be characterized as a union of primary
rules of obligation with such secondary rules. Before we do
this, however, the following genera! points should be noted.
Though the remedies consist in the introduction of rules which
are certainly different from each other, as well as from the
primary rules of obligation which they supplement, they have
important features in common and are connected in various
ways. Thus they may all be said to be on a different level
from the primary rules, for they are all about such rules; in the
sense that while primary rules are concerned with the actions
that individuals must or must not do, these secondary rules
are all concerned with the primary rules themselves. They
specify the ways in which the primary rules may be conclu
sively ascertained, introduced, eliminated, varied, and the fact
of their violation conclusively determined.
The simplest form of remedy for the uncertainty of the re
gime of primary rules is the introduction of what we shall call
a 'rule of recognition'. This will specify some feature or features
possession of which by a suggested rule is taken as a conclu
sive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts. The existence of
such a rule of recognition may take any of a huge variety of
forms, simple or complex. It may, as in the early law of many
societies, be no more than that an authoritative list or text of
the rules is to be found in a written document or carved on
some public monument. No doubt as a matter of history this
step from the pre-legal to the legal may be accomplished in
56
distinguishable stages, of which the first is the mere reduction
to writing of hitherto unwritten rules. This is not itself the
crucial step, though it is a very important one: what is crucial
is the acknowledgement of reference to the writing or inscrip
tion as authoritative, i.e. as the proper way of disposing of doubts
as to the existence of the rule. Where there is such an ac
knowledgement there is a very simple form of secondary rule:
a rule for conclusive identification of the primary rules of
obligation.
In a developed legal system the rules of recognition are of
course more complex; instead of identifying rules exclusively
by reference to a text or list they do so by reference to some
genera! characteristic possessed by the primary rules. This
may be the fact of their having been enacted by a specific
body, or their long customary practice, or their relation to
judicial decisions. Moreover, where more than one of such
general characteristics are treated as identifying criteria,
provision may be made for their possible conflict by their
arrangement in an order of superiority, as by the common
subordination of custom or precedent to statute, the latter
being a 'superior source' of law. Such complexity may make
the rules of recognition in a modern legal system seem very
different from the simple acceptance of an authoritative text:
yet even in this simplest form, such a rule brings with it many
elements distinctive of law. By providing an authoritative mark
it introduces, although in embryonic form, the idea of a legal
system: for the rules are now not just a discrete unconnected
set hut are, in a simp Ie way, unified. Further, in the simpIe
operation of identifying a given rule as possessing the re
quired feature of being an item on an authoritative list of
rules we have the germ of the idea of legal validity.
The remedy for the statie q uality of the regime of primary
rules consists in the introduction of what we shall call 'rules
of change'. The simplest form of such a rule is that which
empowers an individual or body of persons to introduce new
primary rules for the conduct of the life of the group, or of
some class within it, and to eliminate old rules. As we have
already argued in Chapter IV it is in terms of such a rule,
and not in terms of orders backed by threats, that the ideas
of legislative enactment and repeal are to be understood. Such
57
96 LA W AS THE UNION OF
rules of change may be very simple or very complex: the
powers conferred may be unrestricted or limited in various
ways: and the rules may, besides specifying the persons who
are to legislate, define in more or less rigid terms the proce
dure to be followed in legislation. Plainly, there will be a very
close connection between the rules of change and the rules of
recognition: for where the former exists the latter will neces
sarily incorporate a reference to legislation as an identifying
feature of the rules, though it need not refer to all the details
of procedure involved in legislation. U sually some official
certificate or official copy will, under the rules of recognition,
be taken as a sufficient proof of due enactment. Of course if
there is a social structure so simple that the only 'source of
law' is legislation, the rule of recognition will simply specify
enactment as the unique identifying mark or criterion of
validity of the rules. This will be the case for example in the
imaginary kingdom of Rex I depicted in Chapter IV: there
the rule of recognition would simply be that whatever Rex I
enacts is law.
We have already described in some detail the rules which
confer on individuals power to vary their initia! positions under
the primary rules. Without such private power-conferring rules
society would lack some of the chief amenities which law
confers upon it. For the operations which these rules make
possible are the making of wills, contracts, transfers of pro
perty, and many other voluntarily created structures of rights
and duties which typify life under law, though of course an
elementary form of power-conferring rule also underlies the
moral institution of a promise. The kinship of these rules with
the rules of change involved in the notion of legislation is
clear, and as recent theory such as Kelsen's has shown, many
of the features which puzzle us in the institutions of contract
or property are clarified by thinking of the operations of mak
ing a contract or transferring property as the exercise of limited
legislative powers by individuals.
The third supplement to the simple regime of primary rules,
intended to remedy the inefficiency of its diffused social pres
sure, consists of secondary rules empowering individuals to
make authoritative determinations of the question whether,
on a particular occasion, a primary rule has been broken.
58
PRIMARY AND SECONDAR Y R ULES 97
The minimal form of adjudication consists in such detcr
minations, and we shall call the secondary rules which confer
the power to make them 'rules of adjudication'. Besides
identifying the individuals who are to adjudicate, such rules
will also define the procedure to be followed. Like the other
secondary rules these are on a different level from the primary
rules: though they may be reinforced by further rules impos
ing duties on judges to adjudicate, they do not impose duties
hut confer judicia! powers and a special status on judicia! de
clarations about the breach of obligations. Again these rules,
like the other secondary rules, define a group of important
legal concepts: in this case the concepts of judge or court,
jurisdiction and judgment. Besides these resemblances to
the other secondary rules, rules of adjudication have intim
ate connections with them. lndeed, a system which has rules
of adjudication is necessarily also committed to a rule of
recognition of an elementary and imperfect sort. This is so
because, if courts are empowered to make authoritative
determinations of the fact that a rule has been broken, these
cannot avoid being taken as authoritative determinations of
what the rules are. So the rule which confers jurisdiction will
also be a rule of recognition, identifying the primary rules
through the judgments of the courts and these judgments will
become a 'source' of law. It is true that this form of rule of
recognition, inseparable from the minimum form of jurisdic
tion, will be very imperfect. Unlike an authoritative text or a
statute book, judgments may not be couched in genera! terms
and their use as authoritative guides to the rules depends on
a somewhat shaky inference from particular decisions, and
the reliability of this must fluctuate both with the skill of the
interpreter and the consistency of the judges.
It need hardly be said that in few legal systems are judicial
powers confined to authoritative determinations of the fact of
violation of the primary rules. Most systems have, after some
delay, seen the advantages of further centralization of social
pressure; and have partially prohibited the use of physical
punishments or violent self help by private individuals. ln
stead they have supplemented the primary rules of obligation
by further secondary rules, specifying or at least limiting the
penalties for violation, and have conferred upon judges, where
59
98 LAW AS THE UNION OF
they have ascertained the fact ofviolation, the exclusive power
to direct the application of penalties by other officials. These
secondary rules provide the centralized official 'sanctions' of
the system.
60
Hart:
I
61
FORMALISM AND RULE-SCEPTICISM 125
assumed that the child would regard him as an authority on

proper behaviour, and would watch him in order to learn
the way to behave. To approach further the legal use of
precedent, we must suppose that the father is conceived by
himself and others to subscribe to traditional standards of
behaviour and not to be introducing new ones.
In contrast with the indeterminacies of examples, the com

munication of genera! standards by explicit genera! forms of
language ('Every man must take off bis bat on entering a
church') seems clear, dependable, and certain. The features
to be taken as genera! guides to conduct are here identified in
words; they are verbally extricated, not left embedded with
others in a concrete example. In order to know what to do on
other occasions the child bas no longer to guess what is in
tended, or what will be approved; he is not left to speculate
as to the way in which bis conduct must resemble the exam
ple if it is to be right. Instead, he bas a verba! description
which he can use to pick out what he must do in future and
when he must do it. He bas only to recognize instances of
clear verbal terms, to 'subsume' particular facts under general
classificatory heads and draw a simple syllogistic conclusion.
62
126 FORMALISM AND RULE-SCEPTICISM
In all fields of experience,

not only that of rules, there is a limit, inherent in the nature
oflanguage, to the guidance which genera! language can pro
vide. There will indeed be plain cases constantly recurring
in similar contexts to which genera! expressions are clearly
applicable ('If anything is a vehicle a motor-car is one') hut
there will also be cases where it is not clear whether they
apply or not. ('Does "vehicle" used here include bicycles,
airplanes, roller skates?') The latter are fact-situations, con
tinually thrown up by nature or human invention, which
possess only some of the features ofthe plain cases hut others
which they lack. Canons of 'interpretation' cannot eliminate,
though they can diminish, these uncertainties; for these can
ons are themselves genera! rules for the use of language, and
make use ofgenera! terms which themselves require interpre
tation. They cannot, any more than other rules, provide for
their own interpretation. The plain case, where the genera!
terms seem to need no interpretation and where the recogni
tion ofinstances seems unproblematic or 'automatic', are only
the familiar ones, constantly recurring in similar contexts,
where there is genera! agreement in judgments as to the applic
ability of the classifying terms.
Genera! terms would be useless to us as a medium of com
munication unless there were such familiar, generally un
challenged cases. But the variants on the familiar also call for
63
FORMALISM AND R ULE-SCEPTICISM 127
classification under the general terms which at any g1ven

moment constitute part of our linguistic resources. Here
something in the nature of a crisis in communication is pre
cipitated: there are reasons both for and against our use of a
general term, and no firm convention or general agreement
dictates its use, or, on the other hand, its rejection by the
person concerned to classify. If in such cases doubts are to be
resolved, something in the nature of a choice between open
alternatives must be made by whoever is to resolve them.
At this point, the authoritative general language in which
a rule is expressed may guide only in an uncertain way much
as an authoritative example does. The sense that the lan
guage of the rule will enable us simply to pick out easily recog
nizable instances, at this point gives way; subsumption and
the drawing of a syllogistic conclusion no longer chàracterize
the nerve of the reasoning involved in determining what is
the right thing to do. Instead, the language of the rule seems
now only to mark out an authoritative example, namely that
constituted by the plain case. This may be used in much the
same way as a precedent, though the language of the rule will
limit the features demanding attention both more permanently
and more closely than precedent does. Faced with the question
whether the rule prohibiting the use of vehicles in the park is
applicable to some combination of circumstances in which
it appears indeterminate, all that the person called upon to
answer can do is to consider (as does one who makes use of
a precedent) whether the present case resembles the plain
case 'sufficiently' in 'relevant' respects. The discretion thus
left to him by language may be very wide; so that if he applies
the rule, the conclusion, even though it may not be arbitrary
or irrational, is in effect a choice. He chooses to add to a line
of cases a new case because of resemblances which can rea
sonably be defended as both legally relevant and sufficiently
close. In the case of legal rules, the criteria of relevance and
closeness of resemblance depend on many complex factors
running through the legal system and on the aims or purpose
which may be attributed to the rule. To characterize these
would be to characterize whatever is specific or peculiar in
legal reasoning.
Whichever device, precedent or legislation, is chosen for
64
the communication of standards of behaviour, these, however
smoothly they work over the great mass of ordinary cases,
will, at some point where their application is in question,
prove indeterminate; they will have what has been termed an
open texture. So far we have presented this, in the case of leg
islation, as a genera! feature of human language; uncertainty
at the borderline is the price to be paid for the use of genera!
classifying terms in any form of communication concerning
matters of fact. Natural languages like English are when so
used irreducibly open-textured. It is, however, important to
appreciate why, apart from this dependence on language as
it actually is, with its characteristics of open texture, we should
not cherish, even as an ideal, the conception of a rule so
detailed that the question whether it applied or not to a
particular case was always settled in advance, and never in
volved, at the point of actual application, a fresh choice be
tween open alternatives. Put shortly, the reason is that the
necessity for such choice is thrust upon us because we are
men, not gods. It is a feature of the human predicament (and
so of the legislative one) that we labour under two connected
handicaps whenever we seek to regulate, unambiguously and
in advance, some sphere of conduct by means of genera! stand
ards to be used without further official direction on particular
occasions. The first handicap is our relative ignorance of fact:
the second is our relative indeterminacy of aim. If the world
in which we live were characterized only by a finite number
of features, and these together with all the modes in which
they could combine were known to us, then provision could
be made in advance for every possibility. We could make
rules, the application of which to particular cases never called
for a further choice. Everything could be known, and for every
thing, since it could be known, something could be clone and
specified in advance by rule. This would be a world fit for
'mechanica!' jurisprudence.
Plainly this world is not our world; human legislators can
have no such knowledge of all the possible combinations of
circumstances which the future may bring. This inability to
anticipate brings with it a relative indeterminacy of aim. When
we are hold enough to frame some genera! rule of conduct
(e.g. a rule that no vehicle may be taken into the park), the
65
language used in this context fixes necessary conditions which

anything must satisfy if it is to be within its scope, and cer
tain clear examples of what is certainly within its scope may
be present to our minds. They are the paradigm, clear cases
(the motor-car, the bus, the motor-cycle); and our aim in
legislating is só far determinate because we have made a
certain choice. We have initially settled the question that peace
and quiet in the park is to be maintained at the cost, at any
rate, of the exclusion of these things. On the other hand, until
we have put the general aim of peace in the park into con
junction with those cases which we did not, or perhaps could
not, initially envisage (perhaps a toy motor-car electrically
propelled) our aim is, in this direction, indeterminate. We
have not settled, because we have not anticipated, the ques
tion which will be raised by the unenvisaged case when it
occurs: whether some degree of peace in the park is to be
sacrificed to, or defended against, those children whose
pleasure or interest it is to use these things. When the unenvis
aged case does arise, we confront the issues at stake and can
then settle the question by choosing between the competing
interests in the way which best satisfies us. In doing so we
shall have rendered more determinate our initia! aim, and
shall incidentally have settled a question as to the meaning,
for the purposes of this rule, of a genera! word.
Different legal systems, or the same system at different times,
may either ignore or acknowledge more or less explicitly such
a need for the further exercise of choice in the application
of genera! rules to particular cases. The vice known to legal
theory as formalism or conceptualism consists in an attitude
to verbally formulated rules which both seeks to disguise and
to minimize the need for such choice, once the genera! rule
has been laid down. One way of doing this is to freeze the
meaning of the rule so that its genera! terms must have the
same meaning in every case where its application is in ques
tion. To secure this we may fasten on certain features present
in the plain case and insist that these are both necessary and
sufficient to bring anything which has them within the scope
of the rule, whatever other features it may have or lack, and
whatever may be the social consequences of applying the rule
in this way. To do this is to secure a measure of certainty or
66
predictability at the cost of blindly prejudging what is to be
clone in a range of future cases, about whose composition we
are ignorant. We shall thus indeed succeed in settling in
advance, hut also in the <lark, issues which can only reason
ably be settled when they arise and are identified. We shall
be forced by this. technique to include in the scope of a rule
cases which we would wish to exclude in order to give effect
to reasonable social aims, and which the open-textured terms
of our language would have allowed us to exclude, had we
left them less rigidly defined. The rigidity of our classifications
will thus war with our aims in having or maintaining the
rule.
In fact all systems, in different ways, compromise between

two social needs: the need for certain rules which can, over
great areas of conduct, safely be applied by private individu
als to themselves without fresh official guidance or weighing
up of social issues, and the need to leave open, for later settle
ment by an informed, official choice, issues which can only
be properly appreciated and settled when they arise in a con
crete case. In some legal systems at some periods it may be
that too much is sacrificed to certainty, and that judicia! in
terpretation of statutes or of precedent is too formal and so
fails to respond to the similarities and differences between
cases which are visible only when they are considered in the
light of social aims. In other systems or at other periods it
may seem that too much is treated by courts as perennially
open or revisable in precedents, and too little respect paid to
such limits as legislative language, despite its open texture,
does after all provide. Legal theory has in this matter a cur
ious history; for it is apt either to ignore or to exaggerate the
indeterminacies of legal rules.
67
A technique is used where the sphere to be

controlled is such that it is impossible to identify a class of
specific actions to be uniformly clone or forborne and to make
them the subject of a simple rule, yet the range of circum
stances, though very varied, covers familiar features of
common experience. Here common judgments of what is
'reasonable' can be used by the law. This technique _leaves to
individuals, subject to correction by a court, the task of
weighing up and striking a reasonable balance between the
social claims which arise in various unanticipatable forms. In
this case they are required to conform to a variable standard
bifore it has been officially defined, and they may learn from
a court only ex post facto when they have violated it, what, in
terms of specific actions or forbearances, is the standard re
quired of them. Where the decisions of the court on such
matters are regarded as precedents, their specification of the
variable standard is very like the exercise of delegated rule
making power by an administrative body, though there are
also obvious differences.
68
Frank: LEGAL REALISM 47
Law and the Modern an unlawful monopoly. But I'll think the matter over. You
come back tomorrow and I'll tcy meanwhile to find some
way out."
CHAPTER V So, next day, the Joneses returned. And this time their
Mind lawyer said he thought be had discovered how to get the
LEGAL REALISM contract sustained: "You see, it's this way. In most courts,
except those of Ke-ntucky and of a few other states, an
agreement like this is perfectly good. But, unfortunately,
as things now stand, you 1 ll have to go into the Kentucky
We have talked much of the law. But what is "the law"? courts.
A complete definition would be impossible and even a "If we can manage to get our case tried in the Federal
working definition would exhaust the patience of the court, there's a fair chance that we'll get a different result,
reader, But it may not be amiss to inquire what, in a because I think the Federal court will follow the majority
rough sense, the law means to the average man of our rule and not the Kentucky rule. I'm not 1-ure of that, but
times when be consults his lawyer. it's worth trying.
The Jones family owned the Blue & Gray Taxi Com
pany, a corporation incorporated in Kentucky. That com
69
pany made a contract with the A. & B. Railroad Company,
also a Kentucky corporation,
f by which it was agreed that
the Blue & Gray Tax Company was to have the exclusive
privilege of soliciting taxi-cab business on and adjacent to
the railroad company's depot.
A .rival taxi-cab company� owned by the Williams fam
ily, the Purple Taxi Company, began to ignore this con�
tract; it solicited business and parked its taxi-cabs in places
assigned by the railroad company to the Blue & Gray
Company and sought in other ways to deprive the Blue &
Gray Company of the benefits conferred on it by the
agreement with the railroad.
The Jones family were angered; their profits derived
from the Blue & Gray stock, which they owned, were
threatened. They consulted their lawyer, a Louisville prae
titioner, and this, we may conjecture, is about what he told if your company
them: "I'm afraid your contract is not legally valid. I've becomes a Tennessee corporation, it will be considered as
examined several decisions of the highest court of Ken� if it were a citizen of Tennessee. Then your new Tennessee
tucky and they pretty clearly indicate that you can't get company can sue the other two in the Federal court, be
away with that kind of an agreement in this state. The cause the suit will be held to be one between citizens of
Kentucky court holds such a contract to be bad as creating different states. And that kind of suit, based on what we
48 LAW AND THE MODERN MIND LE GAL REALISM 49
lawyers call 'diversity of citizenship,' can be brought in certain just how those judges would line up on all the
the Federal court by a corporation which organized in questions involved. "Some new men on the bench, and
Tennessee against corporations which are citizens of an you never can tell about Holmes and Brandeis. They're
other State, Kentucky. And the Federal court, as I said, very erratic," was his comment.
ought to sustain your contract. " When the United States Supreme Court gave its deci
sion, it was found that six of the nine judges agreed with
counsel for the Joneses. Three justices (Holmes, Brandeis
and Stone ) were of the contrary opinion. But the majority
govems in the United States Supreme Court, and the
Joneses' prosperity was at last fum1y established.
Now what was "the law" for the Joneses, who owned
the Blue & Gray Company, and the Williamses, who
owned the Purple Company? The answer will depend on
the date of the question. If asked before the new Tennessee
company acquired the contract, it might have been said
that it was almost surely "the law'' that the Joneses would
70
lose; for any suit involving the validity of that contract
could then have been brought only in the Kentucky state
court and the prior decisions of that court seemed adverse
to such an agreement.
After the suggestion of the Joneses' lawyer was carried
As the Joneses' lawyer had hoped, the Federal court out and the new Tennessee corporation owned the con
held, against the protest of the Purple Company's lawyer, trac4 "the law" was more doubtful. Many lawyers would
:first that such a suit could be brought in the Federal court have agreed with the Joneses' lawyer that there was a good
and, second, that the contract was valid. Accordingly the chance that the Jones familv would be victorious if suit
court enjoined the Purple Company from interfering with were brought in the Federal �ourts. But probably an equal
the depot business of the Joneses' Blue & Gray Company. number would have disagreed: they would have said that
The Joneses were elated, for now their profits seemed once the formation of the new Tennessee company was a trick
more assured. used to get out of the Kentucky courts and into the Federal
But not for long. The other side appealed the case to court, a trick of which the Federal court wouJd not ap
the Federal Circuit Court of Appeals. And the Joneses' prove. Or that, regardless of that question, the Federal
lawyer was somewhat worried that that court might reverse court would follow the well-settled Kentucky rule as to the
the lower Federal court. But it didn't and the Joneses again invalidity of such contracts as creating unlawful monop
were happy. u 1 olies ( especially because the use of Kentucky real estate
Still the Purple Company persisted. It took the case to was involved) and that therefore the Federal court would
the Supreme Court of the United States. That Court con decide against the Joneses. r :n "The law/' at any time before
sists of nine judges. And the Jonesest lawyer couldn't be the decision of the United States Supreme Court, was in-
50 LAW AND THE MODERN MIND l..EGAL REALISM 51
1
deed u.nsettled. No one could know what the court would (b ) probable law, i.e.J a guess as to a specific future de
decide. Would it follow the Ke-ntucky cases? If so� the law cision.
was that no "rights" were conferred by the contract. Would Usually when a client consults his lawyer about "the
it refuse to follow the Kentucky cases? If so, rights were law/' his purpose is to ascertain not what courts have
conferred by the contract. To speak of settled law gove-rn actua lly decided in the past but what the courts will prob
ing that controversy� or of the fix.ed legal rights of those ably decide in the future. He asks, ''Have I a right, as a
parties, as antedating the decision of the Supreme Court, stockholder of the American Taffy Company of Indiana,
is mere verbiage: If two more judges on that bench had to look at the corporate books?" Or, "Do I have to pay an
agreed with Justices Holmes� Brandeis and Stone; the law inheritance tax to the State. of New York on bonds left me
and the rights of the parties would have been of a directly by my deceased wife, if our residence was in Ohio, but
opposite kind. the bonds, at the time of her death, were .in a safety deposit
After the decision, "the law" was fi.xed. There were no box in New York?" Or, "Is there a right of �pe.aceful'
other courts to which an appeal could be dire. cted. The picketing in a strike in the State of California?" Or, "If
judgment of the United States Supreme Court could not Jones sells me his Chicago shoe business and agrees not
be disturbed and the legal "rights'' of the Joneses and the to compete for ten years, will the agreeme.n t be binding?"
Wil1iamses were evedastin.gly established. The answers ( although they may run "There is such a.
71
We may now venture a rough definition of law from right," "The Jaw is that the property is not taxable," "Such
the point of view of the average man: For any particular picketing is unlawful," "The agreement is not legally bind
lay person, the law, with respect to a.ny particular set of ing" ) are in fact prophecies or predictions of ju dicial ac
facts, is a decision of a court with respect to those facts tion. 4. It is from this point of view that the practice of law
so far as that decision affects that particular person. Until has bee� aptlr -termed an art of pr�diction . [ 3 ]
a. court has passed on those facts no law on that subject
is yet in existence. Prior to such a decision, the only law
available is the opinion of lawyers as to the law relating
to that person and to those facts. Such opinion is not ns between the parties may in part still be open to question by other
actually law but only a guess as to what a court will de courts and therefore may continue to be the subject of g11esses.
4 The emphasis in this book on the conduct. of judges is admit
cide� 2
tedly artificial. Lawyers and their clients are vitally concerned with
Law, then, as to any given situation is either (a) actual the ways of a.II governmental offic.ials and with the reactions- of non-
law, i.e., a specific past decision, as to that situation/1 or official persons to the ways of judges and other officials. There is a
crying need in the training of lawyers for clear and unashamed
1 That is� it was unsettled whether Lbe Williamses had tb.e en recognition and study of all these phenomena as part of the legiti
ergy, patience and money 'to push a.a a�peal .. If not, then the deci ma te. business of la-wyers ..
sion of ·the lower Federal court was the actual settled law for the But one job at a time. Inasmuch as the major portion of a law
Jones and Williams families� yer·s time is today devoted to predicting or bringing about ded
a The United States Supreme Court has wittily been called the sions of judges., the law considered in this book is "court law.''
"court or oltimate coinjectu�• "Actual lawn and "probable Jaw'' here discussed mean �'actual or
a Th.at is, a past decision in a cue which has arisen between prob able court law!' This Umitatkm, while artificial, is perhaps the
specific persom in question as to the specific facts in question. Even more excusable because it roughly corresponds to the notion of the
past decision mes du� rights of the parties to the su_it only to a contemporary layman when con.s uiting his lawyer.
• ited exteDL ID olber words. what a court has a.ctun.llv decided Of course, anyone can define ''la"'..,, as be pleases. The word
THE JUDGING PROCESS 109
sion which will insure his client's winning the lawsuit. He
then assembles the facts in such a fashion that he can work
back from this result he desires to some major premise
CHAPTER XIl which he thinks the court will be willing to accept. The
precedents, roles, principles and sta:µdards to which he will
THE mDGING PROCESS AND THE call the court's attention constitute this premise.
JUDGE'S PERSONALITY While "the dominance of the conclusion" in the case of
the lawyer is clear, it is less so in the case of the judge. For
the respectable and traditional descriptions of the judicial.
judging process . admit no such backward-working expla
nation. lo theory, the judge begins with some rule or prin
ciple of law as his premise, applies this premise to the
facts, and thus arrives at his decision.
Now, since the judge is a human being and since no
As the word indicates, the judge in reaching a de human being In his nocmal thinking processes arrives at
cision is making a judgment. And if we would understand decisions ( except in dealing with a limited number of sim
what goes into the creating of that judgment, we must ple situations ) by the route of any such syllogistic reason
72
observe how ordinary men dealing with ordinary affairs ing, it is fair to assume that the judge, merely by putting
arrive at their judgments . on the judicial ermine, will not acquire so artificial a
The process of judging, so the psychologists tell us, method of reasoning. Judicial judgments, like other judg
seldom begins with a premise from which a conclusion is ments, doubtless, in most cases, are worked out backward
subsequently worked out. Judging begins rather the other from conclusions tentatively formulated . t 11
way around-with a conclusion more or less vaguely
formed; a man ordinarily starts with such a conclusion
and afterwards tries to find premises which will substan
tiate it. 1 If he cannot, to his satisfaction, find proper argu�
ments to link up his conclusion with premises which he
finds acceptable, he will, unless he is arbitrary or mad,
reject the conclusion and seek another.
In the case of the lawyer who is to present a case to a
court, the dominance in his thinking of the conclusion over
the premises is moderately obvious. He is a paitisan work
ing on behalf of his client. The conclusion is, therefore,
not a matter of choice except within narrow limits. He
must, that is if he is to be successful, begin with a conclu-
1 A convenient analogy is the technique of the &:uthor of a de
tective story.
THE JUDGING PROCESS 111
But the conception that judges work back from con
clusions to principles is so heretical that it seldom finds ex
pression. 2 Daily, judges, in connection with their decisions,
de]iver so-called opinions in which they purport to set
forth the bases of their conclusions. Yet you will study
these opinions in vain to discover anything remotely re
sem bling a statement of the actual judging process. They
are written in conformity with the ti.me-honored theory.
They picture the judge applying rules and principles to the
facts, that is, taking some rule or principle (usually derived
from opinions in . earlier cases ) as his major premise, em
ploying the facts of the case as the minor premise, and
then coming to his judgment by processes of pure reason
ing.
Now and again some judge} more clear-witted and out
spoken than his fellows, describes (when off the bench)
his methods in more homely terms. Recently Judge
73
Hutcheson essayed such an honest report of the judicial
process . He tells us that after canvassing all the available
material at his command and duly cogitating on it, he gives
his imagination play,
"and brooding over the cause, waits for the feeling, the hunch
-that intuitive flash of understanding that makes the jump
spark connection between question and decision and at the
point where the path is darkest for the judicial feet, sets its
light along the way. . . . In feeling or 'hunching' out his
decisions, the judge acts not differently from but precisely as
the lawyers do in working on their cases, with only this excep
tion, that the lawyer, in having a predetermined destination in
view,-to win the law-suit for his client-looks for aod regards
2 Years ngo the writer, just after being admitted to the bar, was
shocked wbcn advised by S. S. Gregory, an e,i;-president of the
American Dar Association-a man more than ordinarily aware o:f
legal realities--that "the way to win a case is to make the judge
want to decide in your favor and then, and then only, to cite
precedents which will justify such a determinatioo. You will almost
always find plenty of cases to cite in your favor." All successful
lawyers are more or less consciously aware of this technique. But
they seldom avow it-even to themselves.
112 LAW AND THE MODERN MIND
THE JUDGING PROCESS 1 13
only those hunches which keep bim in the p ath that he has
chosen , wbile the j udge , being merel y on his way with a roving What , then, are the hunch� p roducers'l What are the
commission to find the just solution, will follow his hunch stimuli which make a j udge feel that be should try to j us tify
wherever it leads him. . . . " one conclusion rather than another?
The rules and princi p les of law are one class of such
And Judge Hutcheson adds: stimull:·1 But there are man y others , concealed or unre
"I must p remise that I speak now of tbe j ud gm ent or decision , vealed , not freq uently considered in discussions o:f the
tlte solution itself, as o pposed to the ap olog ia for that decision ; character or nature of law. To the infrequent extent that
the decree , as opposed to the 1ogowachy, the effusion of the these other stimuli have been considered at all, they have
judge by which that decree is ex p lained or excused. . . . The been usually referred to as "the po l itical , economJc and
judge really decides by .feelin g a.o.d not by judgment, by moral p rej udices" of the j udge. 0 A moment's reflection
hunching and not by ratiocination , such ratioci nation app ear
ing only in the o pinion. The vital motivatin g impulse for the
decision is an intuitive sense of what is righ t or wrong io the
particular case ; and the astute j ud ge, havin g so decided , en
li.<1to; his eve ry faculty and belabors bis la ggard mind, not
only to j us tify that intuition to himself, bot to make it p ass
muster with his critics." Accordin g ly, he p asses io review all
74
of the rules, p rjnci pJes, leg al categories, and concep ts "which
he may find useful, directl y or b y an analogy , so as to select
from them those wbjch in his opfoion wiU j ustify his desired
yesult."
We may acce p t tl1is as an a pp roximately correct de
scrip tion:i of how all judges do their thinkin g . But see the
conseq uences. If the law consists of the decisions of the
j udges and if those decisions are based on the j udge's
hunches , then the way in which the j udge gets his hunches
is the ke y to the judicial p cocess. Whatever produces the
jud ge's hunches makes the law.
8 Which conflnns what was said above, Cha pter lll, about j udi
cial "rationalizations.'' See Hutcheson , 1 'The Judgm ent lnh1itive:
The Function of the 'Huoch' in Judicial Decisions , " 14 Cornell
Law Qu iirterly, 274.
A centur y ago a great American jud ge, Chancellor Keat , in a
personal Jetter explained b.i:I method of arrivin g at a decision. He
first mo.de himself "master of the facts." Then ( he wrote ) "I saw
where j ustice la y, and the moral sense decided the court half the
tirne ; I then sat down to search the nuthorities. . . . I mi ght once
in a while be emba rrassed by a techn ical rule , but 1 almost afway.,
fou11d principles suited to my vie w of tire case . . . ," Cf. p. 302.
1 14 LAW AND THE MODERN MIND THE JUDGI NG PROCESS 1 15
would, indeed, induce any open-minded person to admit are operating constantly. So the judge's sympathies and
that factors of such character must be operating in the antipath ies are likely to be active with respect to the per�
mind of the judge. sons of the witness, the attorneys and the parties to the
But are not those categories-political, economic and suit. His own past may have created plus or minus reac
moral biases-too gross, too crude, too wide? Since judges tions to women, or blonde women, or men with beards,
are not a distinct race and since their judging processes or Southerners; or ltalians, or Englishmen, or plumbers,
must be substantially of like kind with those of other men, or ministers, oc college graduates, or Democrats. A certain
an analysis of the way in which judges reach their con twang or cough or gesture m ay start up memories pa inful
clusions will be aided by answering the question, What or pleasant in the main. Those memories of the judge,
are. the hidden factors in the inferences and opinions of wJlile he is listening to a wHness with such a twang or
ordinary men? The answer surely is that those factors are cough. or gesture, may affect the judge's initial hearing of,
multitudinous and complicated, depending often on pe or subsequent recollection of, what the witness said, or the
culiarly individual traits of the persons whose inferences weight or credibility which the judge will attach to the wit
and opinions are to be explained. These uniquely indi ness's testimony.a
vidual factors often are more important causes of judg
ments than anything which could be described as political,
economic, or moral biases. E 4 J
75
In the first place, all other biases express themselves in
connection with, and as modified by, these idiosyncratic
biases. A man's political or economic prejudices are fre
quently cut across by his affection for or animosity to some
particular individual or group, due to some unique experi
ence he has had ; or a racial antagonism which he enter
tains may be deflected in a particular case by a desire to
be admired by some one who is devoid of such antago
nism.
Second (and in the case of the judge more important) , 6 Judges, we are advised, are far more likely to differ among
is the consideration that in learning the facts with reference themselves on "questions of fact" than oa "questio11S of law":
to which one forms an opinion, and often long before the "In my experience in the conference room of the Sopreme Court
of lhe United States, which consists of niDe judges, C have been
time when a hunch arises with reference to the situation as surprised to find how readily those judges come to an agreement
a whole, these more minute and distinctly personal biases upon questions of law, and how often they disagree in regard to
questions of fact . . . " said Mr. Justice Miller.
eAert that influence only by influencing the judges. . . . Current "We have before us several cases where our decisions turn en�
mores . . . are ! biogs about which there is room for coosiderable tirely upon the evidence and I am aware bow much more likely
difference of opinion and . . . \vhen it is a question of their wdt judges are to hold different opinions in such cases than where legal
i ng themselves into law, the opinioo which. prevails is Lhe judg�• questions are at issue," said another judge.
opinion." See Cardozo, "The Na ture of the Judicial Process," 174 : "The same evidence which to one may be convincing, to another
"In every court there are Likely to be as many estimntes of the may seem absurd," said Judge Pitney. Many judges have declared
'Zeitgeist' as there are judges on its bench." See also Gray, "The that sharply contested questions of fact are usually more difficult
Nature and Sources of Law," Chapter XII. to solve than so-called questions of law.
118 LAW AND TUB MODERN MIND THE JUDGING PROCESS 1 19
so that long befo re be has come to the point in the case

where he must decide what is right or wrong, j ust or un
just, with reference to the Cacts of the case as a whole, the
trial judge bas been engaged in malring numerous judg
;ments or infe rence s as the testimony dri bbles iu . c 7 1 His
beliefs as to what was said by the witnesses and with what
truthfulness the w i tnesses said it, will determ ine what he
believes to be the "facts of the case:' If his final decision
is based u pon a h u nch and that hunch is a fu nction of the
"facts," then of course wba t, as a fallible witness of what
went on in his co u rtroom, he be l ieves to be the "facts, "
wm often be of contro lling importa oce . So that the judge's
in nume cable unique traits, dispositions and habits often
get in their work in shaping his decisions .no t only in his
dete nnin ation of wbat be thin ks fair or just with reference
It is, then, a 1egal com monplace that a witness cannot to a given se t of facts, but in the ve ry processes by wh ich
76
mechanically reproduce the facts. but is reporting his judg he becomes convinced wh at those facts arc.
ment of the facts and may err: in the making of this judg The peculiar traits ., disposi t ion , biases and habits of the
ment. particular judge will, the n ; ofte n determine wbat he de
Strangely enougb 1 it has been little observed that, while cides to be the l'aw . In this respect judges do not di ffe r
the witness is in this sense a judge, the judge, in a like
h from other mortals: "In eve ry case of actu al thinking,"
sense , is a witne-ss. He is a witness of wat is occurring in
says F. C. S. Sch,i l ler, "the whole of a man 's perso nality
bis- courtroom. He must determine wbat are the facts of
enters into and colors it fo evecy part. " To know the
the case from what he sees and bears; that is, from the
words and gestures and other conduct of the witnesses. judge's hunch-pro ducers which make the law we must
And like those who are tes tifying before him, tbe judge's for lhe purpose of finally rencbing his conclusion� us to the facts,
determination of the facts is no mechanical aet. 8 If the what is frequent ly a '1ol11minous body of tes timony. For many
witnesses are subject to lapses of memory or imaginative yea rs the judge has been able lO avail himsel f of the devices of
reconstruction of events, in the same manner the judge is stenography and typewriting so that, after the close of the case, he
can, a(tcr a fasbfon, rehearse what has occurred, tbrougl1 reading
subject to defects in his apprehension of the testimony;9
at his leisure the typewritten state ment. This statement, however,
8 In a case in Indiana a new trial was granted upon proof that om.its l hoso important focts sucb as the demeanor o( the witne.'I.S
the eyesight of one of the jurors was so defective that be was un and the like, to which we referred above. And if lhe judge was in
able to distinguish the faces of the witnesses. We may e)l:pect that attentive. during cl1e giving of 11ny of the testimony , the mere words
some day the courts will ISkewise hold that a judge, be.-'l rlng a case on paper will not ndequnteJy make up for his ina ttention. It may
without a ju ry. cannot give a fair trial if he fs so near-sighted tbat well be that the cou rts will some day adopt a receol mechanical
he is unable to observe the ex;pression , deportment an� demeanor mnovation and that we sbaU have ''rafkirig movies" of trials which
of the witnesses. wil l make posstbJe an almos t complete reproduction of the trial so
o It is no easy task for the judge to bring together in his mind, that the jadgc can consider- it at his leisure.
1 20 LAW AND THB MODERN MIND
know thoroughly that compJicated congeries we loosely

call the judge's personality. £ 8 1
If the personality of the judge is the pivotal factor in

law administration, then law may vary with the personality
of the judge who happens to pass upon any given case.
How much variation there is, as we pass from judge to
judge, is not, as matters now stand, discoverable, because
of the method of reporting cases and the verbal contriv
ances used by the judges which conceal judicial dishar
mony. We have little statistical material iri this field. For
the most part, we must fall back on the impressions of
lawyers, impressions of the kind which do not often find
their way into print.
77
MECHANISTIC LAW 1 41
consider more acutely whether bis tentative conclusion is
wise, both with respect to the case before him and with
respect to possible implications foe future cases. 1 2
Bot it is surely mistaken to deem law merely the equiva
n
le t of ntles and principles. The lawyer who is not mod
erately alive to the fact of the limited part that rules play
is of little service to his clients. The judge wbo docs not
learn how to manipulate these abstractions will become
like that physician, described by Mill, "who preferred that
patients should die by rule rather tbao live contrary to it."
The number of cases which should be disposed of by rou
tine application of rules is limited. To apply rules me
chanically usually signifies laziness, or callousness to the
peculiar factors presented by the controversy.
Viewed from any angle, the rules and principles do not
constitute law. They may be aids to the judge .in ten
tatively testing or formulating conclusions; they may be
78
What then is the part played by legal rules and prin
ciples? We have seen that one of their chief uses is to positive factors in bending his mind towards wise or un
enable the judges to give formal justifications-rationaliza wise solutions of the problem before him. They may be the
tions-o.f the conclusions at which they otherwise arrive .11 formal clothes in which he d resses up his thoogbts. But
they do not and cannot completely control bis mental
From that point of view these formulas are devices for operations and it is therefore unfortunate that either he or
concealing rather than disclosing what the law is. At their the lawyers interested in his decision should accept them
worst they hamper the clear thinking of the judges, com as the full equivalent of that decision. If the judge so be
pelling them to shove their thoughts into traditional forms, lieves, h is thinking wiJI be the less effective. If the lawyers
thus impeding spontaneity and the quick running of ideas; so believe, their opinions on questions of law (their guesses
they often tempt the lazy judge away from tbe proper task as to future decisions) will be unnecessarily inaccurate.
of creative thinking to the easier work of finding platitudes It is sometimes asserted that to deny that law consists of
that will serve in the place of robust cerebration, rules is to deny the existence of legal rules. That is specious
At their best, when properly employed, they have un reasoning. To deny that a cow consists of grass is not to
deniable value. The conscientious judge, having tentatively deny the reality of grass or that the cow eats it. So while
arrived at a conclusion, can check up to see whether such 1 2 Here, in fact, is where formal logic performs its p.roper task.
a conclusion, without unfair distortion of the facts, can As Balfour says, "It never aids the work of thought, it only acts
be linked with the generalized points of view theretofore as its uuditor and accountant-general." Schiller states that "to put
acceptable. If none such are discoverable, he is forced to an argument in syllogistic form is to strip it bare for logical inspec
tion. We can then see where it.s we,1k points must lie if it bas any,
10 For a further discussion of legal realism, see Appendix II. and consider whether lbcrc is reason to believe that it is actually
11 Cf. Cardozo, "The Nature of the Judicial Process.'' 167-176. (i.e. materially) weak at these points. We thereby team where and
for what the argument should be tested further."
1 42 LAW AND THE MODERN MIND
rules are not the only factor in the making of law,
i.e. de
cisions, that is not to say there are no rules .
79
Where, then, is the hope for com
plete uniformity, certainty, continuity in law? It is gone
except to the extent that the personalities of all judges will
be substantially alike, to the extent that the judges will all
have substantially identical mental and emotional habits.
And here we come to a cu rious conclusion: it is perhaps
just possible that we co uld get stereotyped results from our
judges by picking stereotyped men for the judicial office.
If we were to eJect or appoint to the bench the most
narrow-minded and bigoted members of the community,
selected for their adherence to certain relatively fi x:ed and
simple prejudices, willing to be and rema in ignorant of
those niceties of difference between individuals the appre-
1 45
MECHANISTIC LAW
y this means that in
hension of which makes for justice, an.d insensitive to the ut the relevant fac ts. Not infr equentl ll as to
o he stresses ( to himself as we
rate of social cbange�we then might have stability in law. WJi ting his opinion ts which are
read the opinion.) tho se fac
There is tittle hope of such stability , however, if our judges those who will cds, he uncon
are the more enlightened, sensitive, inteUigent members of elev ant to his conclusion-in other wo
r ich, in combin ation with tbe
the community, for then there will be small likelihood that sciously selects those facts wh make
considers to be pertinent, will
all judges will react identically to a given. set of circum rule s of law which he 16
ge, eager to give a dec ision
stances or will be obtuse to the recognition of unique facts ''logical" bis decisio n. A jud , but un
se of wh at is fair
in particular legal controversies. In a deeper sense, how wh ich will squ are with his sen of ten view
tional rules, will
ever, uniformity of point of view among judges is likely will ing to bre ak with the tradi 1
y tha t the 'facts" reported by
to increase to the extent that judges are the more enligh t� the evidence in such a wa
ditional rules , will jus tify the
ened, the more quick to detect and hold in check their own him , com bined with tho se tra
.
prejudices, the mote alive to the fact that rules aad prece result which be announces
dents are not their masters but merely agencies . to be
utilized in the interest of doing justice. The outward sem
blance of certainty may diminish but the conviction that
justice will be done will be more certain when decisions
are rendered by such judges as Holmes, Cardozo, Hutche.
80
son, Lehman and Cuthbert Pound. 1 "
"No rational man/' to quote Edmund Burke again,
uever did govern himself by abstractions and universals.
The major (premise ) makes a pompous figure in the bat.,.
tle, but the victory depends upon the little minor of cir
cumstances . '' Even that wise statement is perhaps oversim
plified, for it implies that, although decisions are governed
rather by one's beliefs about the facts than by abstract
rules, yet the act of deciding can be divided into two parts,
the determination of the facts and the determination of
what rules are to be applied to those facts. But these two
parts of judging are usually not separated, but intertwined.
Generally, it is only after a man makes up his mind i that
he attempts, and then artificially, to separate these two op
erations.
This must be true of the judge as of other men . It is
sometimes said that part of the judge's function is to pick
15 That awareness by judges of the law's inherent uncertainty and
the conscious use of discretion in individualizing controversies will.
curiously e.nougb, augment legal certainty, so far as possible, see
Appendix n and below, at the end of Part One, Chapter XIV.
discreti.on, individual ize abstract rules,

· a ll 'the 'Process be concealed •O r disclosed?
and everv law¥er knows it, that those judges
�t swayed by the ''perverting
emotto.na,t natures,'J or most dishonest)
are often the very Judges who use -most meticulously the
language of compelling mechanical logic, who elaborately
- about ,hemselves the p1�etense of msrelJ .d'fscov·ering
1ing out existing rules, who sedulously av·oid any
,na·ica:t·tons that they indivi,iualize cases� If every judi
cial opinion contained a clear exposition of all the actual
grounds of the decision, the tyrants, the bigots and the dis...
81
honest men on the bench would Jose their disguises and
become known for what they are ..
It is time that we gave up the n1
and evasion :are necessary to legal
law we shall better achieve our ends if lawyers and judges
remain half-ignorant, not on1y of these ends, but of the
means of achieving them ..
No > the pretense that judges are without the power to
exercise an jmmense amount of discretion and to individu-
alize controversies, does not relieve us of those evils which
fie so!t from the abuse of that judicial power. _On the con
.i t increases 'the evils, . The honest, well-trained judge
1
mpletest pois.sible knowledge of the character of
bjs powers and of his own prejudices and weaknesses is
the best guaranty of justice. Efforts to eliminate the per
sonality of the judge are doomed to failure. The correct
course is to recognize the necessary existence of this per
sonal element and to act accordingly.
82
II
HART
83
rule-scepticism
84
with tolerable regularity what the law requires of them, but
they look upon it as a legal standard of conduct, refer to it in
criticizing others, or in justifying demands, and in admitting
criticism and demands made by others. In using legal rules
in this normative way they no doubt assume that the courts
and other officials will continue to decide and behave in cer
tain regular and hence predictable ways, in accordance with
the rules of the system; but it is surely an observable fact of
social life that individuals do not confine themselves to the
external point of view, recording and predicting the decisions
of courts or the probable incidence of sanctions. lnstead they
continuously express in normative terms their shared accept
ance of the law as a guide to conduct.
legal rules function as such in social life: they are used as rules
not as descriptions of habits or predictions. No doubt they
are rules with an open texture and at the points where the
texture is open, individuals can only predict how courts will
decide and adjust their behaviour accordingly.
Rule-scepticism has a serious claim on our attention, but
only as a theory of the function of rules in judicia! decision.
In this form, while conceding all the objections to which we
have drawn attention, it amounts to the contention that, so
far as the courts are concerned, there is nothing to circum
scribe the area of open texture: so that it is false, if not sense
less, to regard judges as themselves subiect to rules or 'bound'
to decide cases as they do.
85
Thus the fact that the rules, which

judges claim bind them in deciding a case, have an open
texture, or have exceptions not exhaustively specifiable in
advance, and the fact that deviation from the rules will not
draw down on the judge a physical sanction are often used to
establish the sceptic's case. These facts are stressed to show
that 'rules are important so far as they help you to predict
what judges will do. That is all their importance except as
pretty playthings. '
1
To argue in this way is to ignore what rules actually are in

any sphere of real life. It suggests that we· are faced with the
dilemma: 'Either rules are what they would be in the formal
ist' s heaven and they bind as fetters bind; or there are no
rules, only predictable decisions or patterns of behaviour.'
Vet surely this is a false dilemma. We promise to visit a
friend the next day. When the day comes it turns out that
keeping the promise would involve neglecting someone dan
gerously ill. The fact that this is accepted as an adequate
reason for not keeping the promise surely does not mean that
there is no rule requiring promises to be kept, only a certain
regularity in keeping them. It does not follow from the fact
that such rules have exceptions incapable of exhaustive state
ment, that in every situation we are left to our discretion and
are never bound to keep a promise. A rule that ends with the
word 'unless ...' is still a rule.
86
This is not to say that pretence or 'window dressing' is not

possible and sometimes successful. Tests for whether a person
has merely pretended ex post facto that he acted on a rule are,
like all empirica! tests, inherently fallible but they are not
inveterately so. It is possible that, in a given society, judges
might always first reach their decisions intuitively or 'by
hunches', and then merely choose from a catalogue of legal
rules one which, they pretended, resembled the case in hand;
they might then claim that this was the rule which they
regardéd as requiring their decision, although nothing else
87

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R. Dworkin, Taking Rights Seriously, Londen: Duckworth 1977, hoofdstuk 2 (selectie)
The Model of Rules I
[…]
2. POSITIVISM
Positivism has a few central and organizing propositions as its skeleton, and though not every
philosopher who is called a positivist would subscribe to these in the way I present them, they do
define the general position I want to examine. These key tenets may be stated as follows
(a) The law of a community is a set of special rules used by the community directly or indirectly
for the purpose of determining which behavior will be punished or coerced by the public power.
These special rules can be identified and distinguished by specific criteria, by tests having to do not
with their content but with their pedigree or the manner in which they were adopted or developed.
These tests of pedigree can be used to distinguish valid legal rules from spurious legal rules (rules
which lawyers and litigants wrongly argue are rules of law) and also from other sorts of social rules
(generally lumped together as ‘moral rules’) that the community follows but does not enforce through
public power.
(b) The set of these valid legal rules is exhaustive of ‘the law’, so that if someone's case is not
clearly covered by such a rule (because there is none that seems appropriate, or those that seem
appropriate are vague, or for some other reason) then that case cannot be decided by ‘applying the
law.’ It must be decided by some official, like a judge, ‘exercising his discretion,’ which means
reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal
rule or supplementing an old one.
(c) To say that someone has a ‘legal obligation’ is to say that his case falls under a valid legal rule
that requires him to do or to forbear from doing something. (To say he has a legal right, or has a legal
power of some sort, or a legal privilege or immunity, is to assert, in a shorthand way, that others have
actual or hypothetical legal obligations to act or not to act in certain ways touching him.) In the
absence of such a valid legal rule there is no legal obligation; it follows that when the judge decides
an issue by exercising his discretion, he is not enforcing a legal right as to that issue.
This is only the skeleton of positivism. The flesh is arranged differently by different positivists,
and some even tinker with the bones. Different versions differ chiefly in their description of the
fundamental test of pedigree a rule must meet to count as a rule of law.
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H. L. A. Hart's version of positivism is more complex than Austin's, in two ways. First, he
recognizes, as Austin did not, that rules are of different logical kinds. (Hart distinguishes two kinds,
which be calls ‘primary’ and ‘secondary’ rules). Second, he rejects Austin's theory that a rule is a kind
of command, and substitutes a more elaborate general analysis of what rules are. We must pause over
each of these points, and then note how they merge in Hart's concept of law.
Hart's distinction between primary and secondary rules is of great importance. 1 Primary rules are
those that grant rights or impose obligations upon members of the community. The rules of the
criminal law that forbid us to rob, murder or drive too fast are good examples of primary rules.
Secondary rules are those that stipulate how, and by whom, such primary rules may be formed,
recognized, modified or extinguished. The rules that stipulate how Congress is composed, and how it
enacts legislation, are examples of secondary rules. Rules about forming contracts and executing wills
are also secondary rules because they stipulate how very particular rules governing particular legal
obligations (i.e., the terms of a contract or the provisions of a will) come into existence and are
changed.
So Hart offers a general theory of rules that does not make their authority depend upon the
physical power of their authors. If we examine the way different rules come into being, he tells us,
and attend to the distinction between primary and secondary rules, we see that there are two possible
sources of a rule's authority 2:
(a) A rule may become binding upon a group of people because that group through its practices
accepts the rule as a standard for its conduct. It is not enough that the group simply conforms to a
pattern of behavior: even though most Englishmen may go to the movies on Saturday evening, they
have not accepted a rule requiring that they do so. A practice constitutes the acceptance of a rule only
when those who follow the practice regard the rule as binding, and recognize the rule as a reason or
justification for their own behavior and as a reason for criticizing the behavior of others who do not
obey it.
(b) A rule may also become binding in quite a different way, namely by being enacted in
conformity with some secondary rule that stipulates that rules so enacted shall be binding. If the
constitution of a club stipulates, for example, that by-laws may be adopted by a majority of the
members, then particular by-laws so voted are binding upon all the members, not because of any
practice of acceptance of these particular by-laws, but because the constitution says so. We use the
concept of validity in this connection: rules binding because they have been created in a manner
stipulated by some secondary rule are called ‘valid’ rules.
Thus we can record Hart's fundamental distinction this way: a rule may be binding (a) because it is
accepted or (b) because it is valid.
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Hart's concept of law is a construction of these various distinctions. 3 Primitive communities have
only primary rules, and these are binding entirely because of practices of acceptance. Such
communities cannot be said to have ‘law,’ because there is no way to distinguish a set of legal rules
from amongst other social rules, as the first tenet of positivism requires. But when a particular
community has developed a fundamental secondary rule that stipulates how legal rules are to be
identified, the idea of a distinct set of legal rules, and thus of law, is born.
Hart calls such a fundamental secondary rule a ‘rule of recognition’. The rule of recognition of a
given community may be relatively simple (‘What the king enacts is law’) or it may be very complex
(the United States Constitution, with all its difficulties of interpretation, may be considered a single
rule of recognition). The demonstration that a particular rule is valid may therefore require tracing a
complicated chain of validity back from that particular rule ultimately to the fundamental rule. Thus a
parking ordinance of the city of New Haven is valid because it is adopted by a city council, pursuant
to the procedures and within the competence specified by the municipal law adopted by the state of
Connecticut, in conformity with the procedures and within the competence specified by the
constitution of the state of Connecticut, which was in turn adopted consistently with the requirements
of the United States Constitution.
Of course, a rule of recognition cannot itself be valid, because by hypothesis it is ultimate, and so
cannot meet tests stipulated by a more fundamental rule. The rule of recognition is the sole rule in a
legal system whose binding force depends upon its acceptance. If we wish to know what rule of
recognition a particular community has adopted or follows, we must observe how its citizens, and
particularly its officials, behave. We must observe what ultimate arguments they accept as showing the
validity of a particular rule, and what ultimate arguments they use to criticize other officials or
institutions. We can apply no mechanical test, but there is no danger of our confusing the rule of
recognition of a community with its rules of morality. The rule of recognition is identified by the fact
that its province is the operation of the governmental apparatus of legislatures, courts, agencies,
policemen, and the rest.
3. RULES, PRINCIPLES, AND POLICIES
I want to make a general attack on positivism, and I shall use H. L. A. Hart's version as a target, when
a particular target is needed. My strategy will be organized around the fact that when lawyers reason
or dispute about legal rights and obligations, particularly in those hard cases when our problems with
these concepts seem most acute, they make use of standards that do not function as rules, but operate
differently as principles, policies, and other sorts of standards. Positivism, I shall argue, is a model of
and for a system of rules, and its central notion of a single fundamental test for law forces us to miss
the important roles of these standards that are not rules.
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I just spoke of ‘principles, policies, and other sorts of standards’. Most often I shall use the term
‘principle’ generically, to refer to the whole set of these standards other than rules; […] My
immediate purpose […] is to distinguish principles in the generic sense from rules, and I shall start by
collecting some examples of the former. The examples I offer are chosen haphazardly; almost any
case in a law school casebook would provide examples that would serve as well. In 1889 a New York
court, in the famous case of Riggs v. Palmer 4, had to decide whether an heir named in the will of
his grandfather could inherit under that will, even though he had murdered his grandfather to do so.
The court began its reasoning with this admission: It is quite true that statutes regulating the making,
proof and effect of wills, and the devolution of property, if literally construed, and if their force and
effect can in no way and under no circumstances be controlled or modified, give this property to the
murderer. 5 But the court continued to note that àll laws as well as all contracts may be controlled in
their operation and effect by general, fundamental maxims of the common law. No one shall be
permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon
his own iniquity, or to acquire property by his own crime. 6 The murderer did not receive his inheritance.
In 1960, a New Jersey court was faced, in Henningsen v. Bloomfield Motors, Inc.7 with the important
question of whether (or how much) an automobile manufacturer may limit his liability in case the
automobile is defective. Henningsen had bought a car, and signed a contract which said that the
manufacturer's liability for defects was limited to ‘making good’ defective parts - ‘this warranty being
expressly in lieu of all other warranties, obligations or liabilities.’ Henningsen argued that, at least in the
circumstances of his case, the manufacturer ought not to be protected by this limitation, and ought to be
liable for the medical and other expenses of persons injured in a crash. He was not able to point to any
statute, or to any established rule of law, that prevented the manufacturer from standing on the
contract. The court nevertheless agreed with Henningsen. At various points in the court's argument the
following appeals to standards are made: (a) [W]e must keep in mind the general principle that, in the
absence of fraud, one who does not choose to read a contract before signing it cannot later relieve
himself of its burdens. 8 (b) Ìn applying that principle, the basic tenet of freedom of competent parties
to contract is a factor of importance. 9 (c) `Freedom of contract is not such an immutable doctrine as to
admit of no qualification in the area in which we are concerned. 10 (d) Ìn a society such as ours, where
the automobile is a common and necessary adjunct of daily life, and where its use is so fraught with
danger to the driver, passengers and the public, the manufacturer is under a special obligation in
connection with the construction, promotion and sale of his cars. Consequently, the courts must
examine purchase agreements closely to see if consumer and public interests are treated fairly. 11 (e) `
"[I]s there any principle which is more familiar or more firmly embedded in the history of Anglo-
American law than the basic doctrine that the courts will not permit themselves to be used as
instruments of inequity and injustice? 12 (f) ‘ “More specifically the courts generally refuse to lend
themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the
economic necessities of other . . . .” ’ 13 […]
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The standards set out in these quotations are not the sort we think of as legal rules. They seem very
different from propositions like ‘The maximum legal speed on the turnpike is sixty miles an hour' or
‘A will is invalid unless signed by three witnesses’. They are different because they are legal
principles rather than legal rules.
The difference between legal principles and legal rules is a logical distinction. Both sets of
standards point to particular decisions about legal obligation in particular circumstances, but they
differ in the character of the direction they give. Rules are applicable in an all or nothing fashion. If
the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies
must be accepted, or it is not, in which case it contributes nothing to the decision.
This all-or-nothing is seen most plainly if we look at the way rules operate, not in law, but in some
enterprise they dominate - a game, for example. In baseball a rule provides that if the batter has had
three strikes, he is out. An official cannot consistently acknowledge that this is an accurate statement
of a baseball rule, and decide that a batter who has had three strikes is not out. Of course, a rule may
have exceptions (the batter who has taken three strikes is not out if the catcher drops the third strike).
However, an accurate statement of the rule would take this exception into account, and any that did not
would be incomplete. If the list of exceptions is very large, it would be too clumsy to repeat them each
time the rule is cited; there is, however, no reason in theory why they could not all be added on, and the
more that are, the more accurate is the statement of the rule.
If we take baseball rules as a model, we find that rules of law, like the rule that a will is invalid
unless signed by three witnesses, fit the model well. If the requirement of three witnesses is a valid legal
rule, then it cannot be that a will has been signed by only two witnesses and is valid. The rule might
have exceptions, but if it does then it is inaccurate and incomplete to state the rule so simply, without
enumerating the exceptions. In theory, at least, the exceptions could all be listed, and the more of them
that are, the more complete is the statement of the rule.
But this is not the way the sample principles in the quotations operate. Even those which look most
like rules do not set out legal consequences that follow automatically when the conditions provided are
met. We say that our law respects the principle that no man may profit from his own wrong, but we do
not mean that the law never permits a man to profit from wrongs he commits. In fact, people often
profit, perfectly legally, from their legal wrongs. The most notorious case is adverse possession - if I
trespass on your land long enough, some day I will gain a right to cross your land whenever I please.
There are many less dramatic examples. If a man leaves one job, breaking a contract, to take a much
higher paying job, he may have to pay damages to his first employer, but he is usually entitled to keep
his new salary. If a man jumps bail and crosses state lines to make a brilliant investment in another state,
he may be sent back to jail, but he will keep his profits.
We do not treat these - and countless other counter-instances that can easily be imagined - as
showing that the principle about profiting from one's wrongs is not a principle of our legal system, or
that it is incomplete and needs qualifying exceptions. We do not treat counterinstances as exceptions (at
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least not exceptions in the way in which a catcher's dropping the third strike is an exception) because we
could not hope to capture these counter-instances simply by a more extended statement of the principle.
They are not, even in theory, subject to enumeration, because we would have to include not only these
cases (like adverse possession) in which some institution has already provided that profit can be gained
through a wrong, but also those numberless imaginary cases in which we know in advance that the
principle would not hold. Listing some of these might sharpen our sense of the principle's weight (I
shall mention chat dimension in a moment), but it would not make for a more accurate or complete
statement of the principle.
A principle like ‘No man may profit from his own wrong’ does not even purport to set out
conditions that make its application necessary. Rather, it states a reason that argues in one direction,
but does not necessitate a particular decision. If a man has or is about to receive something, as a direct
result of something illegal he did to get it, then that is a reason which the law will take into account in
deciding whether he should keep it. There may be other principles or policies arguing in the other
direction - a policy of securing title, for example, or a principle limiting punishment to what the
legislature has stipulated. If so, our principle may not prevail, but that does not mean that it is not a
principle of our legal system, because in the next case, when these contravening considerations are
absent or less weighty, the principle may be decisive. All that is meant, when we say that a particular
principle is a principle of our law, is that the principle is one which officials must take into account, if
it is relevant, as a consideration inclining in one direction or another.
The logical distinction between rules and principles appears more clearly when we consider
principles that do not even look like rules. Consider the proposition, set out under ‘ (d) ’ in the
excerpts from the Henningsen opinion, that ‘the manufacturer is under a special obligation in
connection with the construction, promotion and sale of his cars’. This does not even purport to define
the specific duties such a special obligation entails, or to tell us what rights automobile consumers
acquire as a result. It merely states - and this is an essential link in the Henningsen argument - that
automobile manufacturers must be held to higher standards than other manufacturers, and are less
entitled to rely on the competing principle of freedom of contract. It does not mean that they may
never rely on that principle, or that courts may rewrite automobile purchase contracts at will; it means
only that if a particular clause seems unfair or burdensome, courts have less reason to enforce the
clause than if it were for the purchase of neckties. The ‘special obligation’ counts in favor, but does
not in itself necessitate, a decision refusing to enforce the terms of an automobile purchase contract.
This first difference between rules and principles entails another. Principles have a dimension that
rules do not - the dimension of weight or importance. When principles intersect (the policy of
protecting automobile consumers intersecting with principles of freedom of contract, for example),
one who must resolve the conflict has to take into account the relative weight of each. This cannot be,
of course, an exact measurement, and the judgment that a particular principle or policy is more
important than another will often be a controversial one. Nevertheless, it is an integral part of the
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concept of a principle that it has this dimension, that it makes sense to ask how important or how
weighty it is.
Rules do not have this dimension. We can speak of rules as being functionally important or
unimportant (the baseball rule that three strikes are out is more important than the rule that runners
may advance on a balk, because the game would be much more changed with the first rule altered than
the second). In this sense, one legal rule may be more important than another because it has a greater or
more important role in regulating behavior. But we cannot say that one rule is more important than
another within the system of rules, so that when two rules conflict one supersedes the other by virtue of
its greater weight.
If two rules conflict, one of them cannot be a valid rule. The decision as to which is valid, and which
must be abandoned or recast, must be made by appealing to considerations beyond the rules themselves.
A legal system might regulate such conflicts by other rules, which prefer the rule enacted by the higher
authority, or the rule enacted later, or the more specific rule, or something of that sort. A legal system
may also prefer the rule supported by the more important principles. (Our own legal system uses both of
these techniques.)
It is not always clear from the form of a standard whether it is a rule or a principle. ‘A will is invalid
unless signed by three witnesses’ is not very different in form from ‘A man may not profit from his own
wrong’, but one who knows something of American law knows that he must take the first as stating a
rule and the second as stating a principle. In many cases the distinction is difficult to make - it may not
have been settled how the standard should operate, and this issue may itself be a focus of controversy.
The first amendment to the United States Constitution contains the provision that Congress shall not
abridge freedom of speech. Is this a rule, so that if a particular law does abridge freedom of speech, it
follows that it is unconstitutional? Those who claim that the first amendment is ‘an absolute’ say that it
must be taken in this way, that is, as a rule. Or does it merely state a principle, so that when an abridge-
ment of speech is discovered, it is unconstitutional unless the context presents some other policy or
principle which in the circumstances is weighty enough to permit the abridgement? That is the position
of those who argue for what is called the ‘clear and present danger’ test or some other form of
‘balancing’.
Sometimes a rule and a principle can play much the same role, and the difference between them is
almost a matter of form alone. The first section of the Sherman Act states that every contract in restraint
of trade shall be void. The Supreme Court had to make the decision whether this provision should be
treated as a rule in its own terms (striking down every contract ‘which restrains trade’, which almost any
contract does) or as a principle, providing a reason for striking down a contract in the absence of
effective contrary policies. The Court construed the provision as a rule, but treated that rule as
containing the word ‘unreasonable’, and as prohibiting only ‘unreasonable’ restraints of trade. 14 This
allowed the provision to function logically as a rule (whenever a court finds that the restraint is
‘unreasonable’ it is bound to hold the contract invalid) and substantially as a principle (a court must
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take into account a variety of other principles and policies in determining whether a particular
restraint in particular economic circumstances is ‘unreasonable’).
Words like ‘reasonable’, ‘negligent’, ‘unjust’, and ‘significant’ often perform just this function.
Each of these terms makes the application of the rule which contains it depend to some extent upon
principles or policies lying beyond the rule, and in this way makes that rule itself more like a
principle. But they do not quite turn the rule into a principle, because even the least confining of these
terms restricts the kind of other principles and policies on which the rule depends. If we are bound by
a rule that says that ‘unreasonable’ contracts are void, or that grossly ‘unfair’ contracts will not be
enforced, much more judgment is required than if the quoted terms were omitted. But suppose a case
in which some consideration of policy or principle suggests that a contract should be enforced even
though its restraint is not reasonable, or even though it is grossly unfair. Enforcing these contracts
would be forbidden by our rules, and thus permitted only if these rules were abandoned or modified.
If we were dealing, however, not with a rule but with a policy against enforcing unreasonable
contracts, or a principle that unfair contracts ought not to be enforced, the contracts could be enforced
without alteration of the law.
4. PRINCIPLES AND THE CONCEPT OF LAW

Once we identify legal principles as separate sorts of standards, different from legal rules, we are
suddenly aware of them all around us. Law teachers teach them, law books cite them, legal historians
celebrate them. But they seem most energetically at work, carrying most weight, in difficult lawsuits
like Riggs and Henningsen. In cases like these, principles play an essential part in arguments
supporting judgments about particular legal rights and obligations. After the case is decided, we may
say that the case stands for a particular rule (e.g., the rule that one who murders is not eligible to take
under the will of his victim). But the rule does not exist before the case is decided; the court cites
principles as its justification for adopting and applying a new rule. In Riggs, the court cited the
principle that no man may profit from his own wrong as a background standard against which to read
the statute of wills and in this way justified a new interpretation of that statute. In Henningsen, the
court cited a variety of intersecting principles and policies as authority for a new rule respecting
manufacturers' liability for automobile defects.
An analysis of the concept of legal obligation must therefore account for the important role of
principles in reaching particular decisions of law. There are two very different tacks we might take:
(a) We might treat legal principles the way we treat legal rules and say that some principles are
binding as law and must be taken into account by judges and lawyers who make decisions of legal
obligation. If we took this tack, we should say that in the United States, at least, the ‘law’ includes
principles as well as rules.
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(b) We might, on the other hand, deny that principles can be binding the way some rules are. We
would say, instead, that in cases like Riggs or Henningsen the judge reaches beyond the rules that he is
bound to apply (reaches, that is, beyond the ‘law’) for extra-legal principles he is free to follow if he
wishes.
[…] The first tack treats principles as binding upon judges, so that they are wrong not to apply the
principles when they are pertinent. The second tack treats principles as summaries of what most
judges ‘make it a principle’ to do when forced to go beyond the standards that bind them. The choice
between these approaches will affect, perhaps even determine, the answer we can give to the question
whether the judge in a hard case like Riggs or Henningsen is attempting to enforce pre-existing
legal rights and obligations. If we take the first tack, we are still free to argue that because such judges
are applying binding legal standards they are enforcing legal rights and obligations. But if we take the
second, we are out of court on that issue, and we must acknowledge that the murderer's family in
Riggs and the manufacturer in Henningsen were deprived of their property by an act of judicial
discretion applied ex post facto. This may not shock many readers - the notion of judicial discretion
has percolated through the legal community - but it does illustrate one of the most nettlesome of the
puzzles that drive philosophers to worry about legal obligation. If taking property away in cases like
these cannot be justified by appealing to an established obligation, another justification must be
found, and nothing satisfactory has yet been supplied.
In my skeleton diagram of positivism, previously set out, I listed the doctrine of judicial discretion
as the second tenet. Positivists hold that when a case is not covered by a clear rule, a judge must
exercise his discretion to decide that case by what amounts to a fresh piece of legislation. There may be
an important connection between this doctrine and the question of which of the two approaches to legal
principles we must take. We shall therefore want to ask whether the doctrine is correct, and whether it
implies the second approach, as it seems on its face to do. En route to these issues, however, we shall
have to polish our understanding of the concept of discretion. I shall try to show how certain confusions
about that concept and in particular a failure to discriminate different senses in which it is used, account
for the popularity of the doctrine of discretion. I shall argue that in the sense in which the doctrine does
have a bearing on our treatment of principles, it is entirely unsupported by the arguments the positivists
use to defend it.
5. DISCRETION
[…]
A positivist might argue that principles cannot be binding or obligatory. That would be a mistake. It
is always a question, of course, whether any particular principle is in fact binding upon some legal
official. But there is nothing in the logical character of a principle that renders it incapable of binding
him. Suppose that the judge in Henningsen had failed to take any account of the principle that
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automobile manufacturers have a special obligation to their consumers, or the principle that the courts
seek to protect those whose bargaining position is weak, but had simply decided for the defendant by
citing the principle of freedom of contract without more. His critics would not have been content to
point out that he had not taken account of considerations that other judges have been attending to for
some time. Most would have said that it was his duty to take the measure of these principles and that the
plaintiff was entitled to have him do so. We mean no more, when we say that a rule is binding upon a
judge, than that he must follow it if it applies, and that if he does not he will on that account have made a
mistake.
It will not do to say that in a case like Henningsen the court is only ‘morally’ obligated to take
particular principles into account, or that it is ‘institutionally’ obligated, or obligated as a matter of
judicial ‘craft’, or something of that sort. The question will still remain why this type of obligation
(whatever we call it) is different from the obligation that rules impose upon judges, and why it entitles
us to say that principles and policies are not part of the law but are merely extra-legal standards ‘courts
characteristically use’. […]
A positivist might argue that even though some principles are binding, in the sense that the judge
must take them into account, they cannot determine a particular result. This is a harder argument to
assess because it is not clear what it means for a standard to ‘determine’ a result. Perhaps it means that
the standard dictates the result whenever it applies so that nothing else counts. If so, then it is certainly
true that the individual principles do not determine results, but that is only another way of saying that
principles are not rules. Only rules dictate results, come what may. When a contrary result has been
reached, the rule has been abandoned or changed. Principles do not work that way; they incline a
decision one way, though not conclusively, and they survive intact when they do not prevail. This seems
no reason for concluding that judges who must reckon with principles have discretion because a set of
principles can dictate a result. If a judge believes that principles he is bound to recognize point in one
direction and that principles pointing in the other direction, if any, are not of equal weight, then he must
decide accordingly, just as he must follow what he believes to be a binding rule. He may, of course, be
wrong in his assessment of the principles, but he may also be wrong in his judgment that the rule is
binding.
A positivist might argue that principles cannot count as law because their authority, and even more
so their weight, are congenitally controversial. It is true that generally we cannot demonstrate the
authority or weight of a particular principle as we can sometimes demonstrate the validity of a rule by
locating it in an act of Congress or in the opinion of an authoritative court. Instead, we make a case
for a principle, and for its weight, by appealing to an amalgam of practice and other principles in
which the implications of legislative and judicial history figure along with appeals to community
practices and understandings. There is no litmus paper for testing the soundness of such a case - it is a
matter of judgment, and reasonable men may disagree. […]
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Of course, if the positivists are right in another of their doctrines - the theory that in each legal
system there is an ultimate test for binding law like Professor Hart's rule of recognition - it follows
that principles are not binding law. But the incompatibility of principles with the positivists' theory
can hardly be taken as an argument that principles must be treated any particular way. That begs the
question; we are interested in the status of principles because we want to evaluate the positivists'
model. The positivist cannot defend his theory of a rule of recognition by fiat; if principles are not
amenable to a test he must show some other reason why they cannot count as law. Since principles
seem to play a role in arguments about legal obligation (witness, again, Riggs and Henningsen), a
model that provides for that role has some initial advantage over one that excludes it, and the latter
cannot properly be inveighed in its own support.
These are the most obvious of the arguments a positivist might use for the doctrine of discretion in
the strong sense, and for the second approach to principles. I shall mention one strong counter-
argument against that doctrine and in favor of the first approach. Unless at least some principles are
acknowledged to be binding upon judges, requiring them as a set to reach particular decisions, then
no rules, or very few rules, can be said to be binding upon them either.
In most American jurisdictions, and now in England also, the higher courts not infrequently
reject established rules. Common law rules - those developed by earlier court decisions - are
sometimes overruled directly, and sometimes radically altered by further development. Statutory
rules are subjected to interpretation and reinterpretation, sometimes even when the result is not to
carry out what is called the ‘legislative intent.’ 15 If courts had discretion to change established rules,
then these rules would of course not be binding upon them, and so would not be law on the
positivists' model. The positivist must therefore argue that there are standards, themselves binding
upon judges, that determine when a judge may overrule or alter an established rule, and when he
may not.
When, then, is a judge permitted to change an existing rule of law? Principles figure in the
answer in two ways. First, it is necessary, though not sufficient, that the judge find that the change
would advance some principle, which principle thus justifies the change. In Riggs the change (a
new interpretation of the statute of wills) was justified by the principle that no man should profit
from his own wrong; in Henningsen the previously recognized rules about automobile
manufacturers' liability were altered on the basis of the principles I quoted from the opinion of the
court.
But not any principle will do to justify a change, or no rule would ever be safe. There must be
some principles that count and others that do not, and there must be some principles that count for
more than others. It could not depend on the judge's own preferences amongst a sea of respectable
extra-legal standards, any one in principle eligible, because if that were the case we could not say
that any rules were binding. We could always imagine a judge whose preferences amongst extra-
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legal standards were such as would justify a shift or radical reinterpretation of even the most
entrenched rule.
Second, any judge who proposes to change existing doctrine must take account of some
important standards that argue against departures from established doctrine, and these standards are
also for the most part principles. They include the doctrine of ‘legislative supremacy’, a set of
principles that require the courts to pay a qualified deference to the acts of the legislature. They also
include the doctrine of precedent, Another set of principles reflecting the equities and efficiencies
of consistency. The doctrines of legislative supremacy and precedent incline toward the status quo,
each within its sphere, but they do not command it. judges are not free, however, to pick and choose
amongst the principles and policies that make up these doctrines - if they were, again, no rule could be
said to be binding. […]
6. THE RULE OF RECOGNITION
This discussion was provoked by our two competing accounts of legal principles. We have been
exploring the second account, which the positivists seem to adopt through their doctrine of judicial
discretion, and we have discovered grave difficulties. It is time to return to the fork in the road. What if
we adopt the first approach? What would the consequences of this be for the skeletal structure of
positivism? Of course we should have to drop the second tenet, the doctrine of judicial discretion (or, in
the alternative, to make plain that the doctrine is to be read merely to say that judges must often exercise
judgment). Would we also have to abandon or modify the first tenet, the proposition that law is
distinguished by tests of the sort that can be set out in a master rule like Professor Hart's rule of
recognition? If principles of the Riggs and Henningsen sort are to count as law, and we are
nevertheless to preserve the notion of a master rule for law, then we must be able to deploy some test
that all (and only) the principles that do count as law meet. Let us begin with the test Hart suggests for
identifying valid rules of law, to see whether these can be made to work for principles as well. make out
our case, and the more support we found, the more weight we could claim for the principle.
Most rules of law, according to Hart, are valid because some competent institution enacted
them. Some were created by a legislature, in the form of statutory enactments. Others were created by
judges who formulated them to decide particular cases, and thus established them as precedents for
the future. But this test of pedigree will not work for the Riggs and Henningsen principles. The
origin of these as legal principles lies not in a particular decision of some legislature or court, but in a
sense of appropriateness developed in the profession and the public over time. Their continued power
depends upon this sense of appropriateness being sustained. If it no longer seemed unfair to allow
people to profit by their wrongs, or fair to place special burdens upon oligopolies that manufacture
potentially dangerous machines, these principles would no longer play much of a role in new cases,
100
even if they had never been overruled or repealed. (Indeed, it hardly makes sense to speak of prin-
ciples like these as being ‘overruled' or ‘repealed’. When they decline they are eroded, not torpedoed.)
True, if we were challenged to back up our claim that some principle is a principle of law, we
would mention any prior cases in which that principle was cited, or figured in the argument. We
would also mention any statute that seemed to exemplify that principle (even better if the principle
was cited in the preamble of the statute, or in the committee reports or other legislative documents
that accompanied it). Unless we could find some such institutional support, we would probably fail to
make out our case, and the more support we found, the more weight we could claim for the principle.
Yet we could not devise any formula for testing how much and what kind of institutional support is
necessary to make a principle a legal principle, still less to fix its weight at a particular order of
magnitude. We argue for a particular principle by grappling with a whole set of shifting, developing
and interacting standards (themselves principles rather than rules) about institutional responsibility,
statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to
contemporary moral practices, and hosts of other such standards. We could not bolt all of these
together into a single ‘rule’, even a complex one, and if we could the result would bear little relation
to Hart's picture of a rule of recognition, which is the picture of a fairly stable master rule specifying
‘some feature or features possession of which by a suggested rule is taken as a conclusive affirmative
indication that it is a rule.16
Moreover, the techniques we apply in arguing for another principle do not stand (as Hart's rule
of recognition is designed to) on an entirely different level from the principles they support. Hart's sharp
distinction between acceptance and validity does not hold. If we are arguing for the principle that a man
should not profit from his own wrong, we could cite the acts of courts and legislatures that exemplify it,
but this speaks as much to the principle's acceptance as its validity. (It seems odd to speak of a principle
as being valid at all, perhaps because validity is an all-or-nothing concept, appropriate for rules, but
inconsistent with a principle's dimension of weight.) If we are asked (as we might well be) to defend the
particular doctrine of precedent, or the particular technique of statutory interpretation, that we used in
this argument, we should certainly cite the practice of others in using that doctrine or technique. But we
should also cite other general principles that we believe support that practice, and this introduces a note
of validity into the chord of acceptance. We might argue, for example, that the use we make of earlier
cases and statutes is supported by a particular analysis of the point of the practice of legislation or the
doctrine of precedent, or by the principles of democratic theory, or by a particular position on the proper
division of authority between national and local institutions, or something else of that sort. Nor is this
path of support a one-way street leading to some ultimate principle resting on acceptance alone. Our
principles of legislation, precedent, democracy, or federalism might be challenged too; and if they were
we should argue for them, not only in terms of practice, but in terms of each other and in terms of the
implications of trends of judicial and legislative decisions, even though this last would involve appealing
101
to those same doctrines of interpretation we justified through the principles we are now trying to
support. At this level of abstraction, in other words, principles rather hang together than link together.
So even though principles draw support from the official acts of legal institutions, they do not have a
simple or direct enough connection with these acts to frame that connection in terms of criteria specified
by some ultimate master rule of recognition. [...]
So we cannot adapt Hart's version of positivism by modifying his rule of recognition to embrace
principles. No tests of pedigree, relating principles to acts of legislation, can be formulated, nor can
his concept of customary law, itself an exception to the first tenet of positivism, be made to serve
without abandoning that tenet altogether. […]
I conclude that if we treat principles as law we must reject the positivists' first tenet, that the law of a
community is distinguished from other social standards by some test in the form of a master rule. We
have already decided that we must then abandon the second tenet - the doctrine of judicial discretion -
or clarify it into triviality. What of the third tenet, the positivists' theory of legal obligation?
This theory holds that a legal obligation exists when (and only when) an established rule of law
imposes such an obligation. It follows from this that in a hard case - when no such established rule can
be found - there is no legal obligation until the judge creates a new rule for the future. The judge may
apply that new rule to the parties in the case, but this is ex post facto legislation, not the enforcement of
an existing obligation.
The positivists' doctrine of discretion (in the strong sense) required this view of legal obligation,
because if a judge has discretion there can be no legal right or obligation - no entitlement - that he must
enforce. Once we abandon that doctrine, however, and treat principles as law, we raise the possibility
that a legal obligation might be imposed by a constellation of principles as well as by an established
rule. We might want to say that a legal obligation exists whenever the case supporting such an
obligation, in terms of binding legal principles of different sorts, is stronger than the case against it.
Of course, many questions would have to be answered before we could accept that view of
legal obligation. If there is no rule of recognition, no test for law in that sense, how do we decide
which principles are to count, and how much, in making such a case? How do we decide whether one
case is better than another? If legal obligation rests on an undemonstrable judgment of that sort, how
can it provide a justification for a judicial decision that one party had a legal obligation? Does this
view of obligation square with the way lawyers, judges and laymen speak, and is it consistent with
our attitudes about moral obligation? Does this analysis help us to deal with the classical
jurisprudential puzzles about the nature of law?
These questions must be faced, but even the questions promise more than positivism provides.
Positivism, on its own thesis, stops short of just those puzzling, hard cases that send us to look for
theories of law. When we read these cases, the positivist remits us to a doctrine of discretion that leads
nowhere and tells nothing. His picture of law as a system of rules has exercised a tenacious hold on our
102
imagination, perhaps through its very simplicity. If we shake ourselves loose from this model of rules,
we may be able to build a model truer to the complexity and sophistication of our own practices.
1
See H.L.A. Hart, The Concept of Law, 89-96 (1961). 2 Id. at 79-88.
2
Id. at 97.
3
Id. passim, particularly ch. 6.
4
115 N.Y. 506, 22 N.E. 188 (1889)
5
Id. at 509, 22 N.E. at 189.
6
Id. at 511, 22 N.E. at ago.
7
32 N.J. 358, 161 A.2d 69 (1960).
8
Id. at 386, 161 A.-2d at 84.
92
Id
10
Id. at 388, 161 A.2d at 86.
11
Id. at 387, 161 A.2d at 85.
12
Id. at 389, 161 A.2d at 86 (quoting Frankfurter, J., in United States v. Bethlehem Steel, 315 U.S.
289, 326 (1942]).
13
Id.
14
Standard Oil v. United States, 221 U.S. I, 6o (1911); United States v. American Tobacco Co., 221 U.S.106,
180 (1911).
15
See Wellington and Albert, `Statutory Interpretation and the Political Process Comment on Sinclair v.
Atkinson', 72 Yale L. J. 1547 (1963).
16
H.L.A. Hart, The Concept of Law 92 (1961).
103
104
Week 3
105
106
Justice as Fairness
the rights secured by justice are not subject to political bargaining or to
Rawls:
the calculus of social interests. The only thing that permits us to acqui-
esce in an erroneous theory is the lack of a better one; analogously, an
A Theory of Justice
injustice is tolerable only when it is necessary to avoid an even greater
injustice. Being first virtues of human activities, truth and justice are
uncompromising.
These propositions seem to express our intuitive conviction of the
primacy of justice. No doubt they are expressed too strongly. In any event
I wish to inquire whether these contentions or others similar to them are
sound, and if so how they can be accounted for. To this end it is necessary
to work out a theory of justice in the light of which these assertions can
be interpreted and assessed. I shall begin by considering the role of the
principles of justice. Let us assume, to fix ideas, that a society is a more
or less self-sufficient association of persons who in their relations to one
another recognize certain rules of conduct as binding and who for the
most part act in accordance with them. Suppose further that these rules
specify a system of cooperation designed to advance the good of those
taking part in it. Then, although a society is a cooperative venture for
mutual advantage, it is typically marked by a conflict as well as by an
identity of interests. There is an identity of interests since social coopera-
tion makes possible a better life for all than any would have if each were
to live solely by his own efforts. There is a conflict of interests since
persons are not indifferent as to how the greater benefits produced by
their collaboration are distributed, for in order to pursue their ends they
each prefer a larger to a lesser share. A set of principles is required for
choosing among the various social arrangements which determine this
division of advantages and for underwriting an agreement on the proper
distributive shares. These principles are the principles of social justice:
they provide a way of assigning rights and duties in the basic institutions
of society and they define the appropriate distribution of the benefits and
burdens of social cooperation.
Now let us say that a society is well-ordered when it is not only
designed to advance the good of its members but when it is also effec-
tively regulated by a public conception of justice. That is, it is a society in
which (1) everyone accepts and knows that the others accept the same
principles of justice, and (2) the basic social institutions generally satisfy
and are generally known to satisfy these principles. In this case while
men may put forth excessive demands on one another, they nevertheless
acknowledge a common point of view from which their claims may be
adjudicated. If men’s inclination to self-interest makes their vigilance
107
1. The Role of Justice
against one another necessary, their public sense of justice makes their
secure association together possible. Among individuals with disparate
aims and purposes a shared conception of justice establishes the bonds of
civic friendship; the general desire for justice limits the pursuit of other
ends. One may think of a public conception of justice as constituting the
fundamental charter of a well-ordered human association.
Existing societies are of course seldom well-ordered in this sense, for
what is just and unjust is usually in dispute. Men disagree about which
principles should define the basic terms of their association. Yet we may
still say, despite this disagreement, that they each have a conception of
justice. That is, they understand the need for, and they are prepared to
affirm, a characteristic set of principles for assigning basic rights and
duties and for determining what they take to be the proper distribution of
the benefits and burdens of social cooperation. Thus it seems natural to
think of the concept of justice as distinct from the various conceptions of
justice and as being specified by the role which these different sets of
principles, these different conceptions, have in common.1 Those who hold
different conceptions of justice can, then, still agree that institutions are
just when no arbitrary distinctions are made between persons in the
assigning of basic rights and duties and when the rules determine a proper
balance between competing claims to the advantages of social life. Men
can agree to this description of just institutions since the notions of an
arbitrary distinction and of a proper balance, which are included in the
concept of justice, are left open for each to interpret according to the
principles of justice that he accepts. These principles single out which
similarities and differences among persons are relevant in determining
rights and duties and they specify which division of advantages is appro-
priate. Clearly this distinction between the concept and the various con-
ceptions of justice settles no important questions. It simply helps to
identify the role of the principles of social justice.
1. Here I follow H. L. A. Hart, The Concept of Law (Oxford, The Clarendon Press, 1961), pp. 155–
159.
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Justice as Fairness
2. THE SUBJECT OF JUSTICE

2. The Subject of Justice
Many different kinds of things are said to be just and unjust: not only
laws, institutions, and social systems, but also particular actions of many
kinds, including decisions, judgments, and imputations. We also call the
attitudes and dispositions of persons, and persons themselves, just and
unjust. Our topic, however, is that of social justice. For us the primary
subject of justice is the basic structure of society, or more exactly, the way
in which the major social institutions distribute fundamental rights and
duties and determine the division of advantages from social cooperation.
By major institutions I understand the political constitution and the prin-
cipal economic and social arrangements. Thus the legal protection of
freedom of thought and liberty of conscience, competitive markets, pri-
vate property in the means of production, and the monogamous family
are examples of major social institutions. Taken together as one scheme,
the major institutions define men’s rights and duties and influence their
life prospects, what they can expect to be and how well they can hope to
109
2. The Subject of Justice
do. The basic structure is the primary subject of justice because its effects
are so profound and present from the start. The intuitive notion here is
that this structure contains various social positions and that men born into
different positions have different expectations of life determined, in part,
by the political system as well as by economic and social circumstances.
In this way the institutions of society favor certain starting places over
others. These are especially deep inequalities. Not only are they perva-
sive, but they affect men’s initial chances in life; yet they cannot possibly
be justified by an appeal to the notions of merit or desert. It is these
inequalities, presumably inevitable in the basic structure of any society, to
which the principles of social justice must in the first instance apply.
These principles, then, regulate the choice of a political constitution and
the main elements of the economic and social system. The justice of a
social scheme depends essentially on how fundamental rights and duties
are assigned and on the economic opportunities and social conditions in
the various sectors of society.
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Justice as Fairness
3. THE MAIN IDEA OF THE THEORY OF JUSTICE

My aim is to present a conception of justice which generalizes and carries
to a higher level of abstraction the familiar theory of the social contract as
found, say, in Locke, Rousseau, and Kant.4 In order to do this we are not
to think of the original contract as one to enter a particular society or to
set up a particular form of government. Rather, the guiding idea is that the
principles of justice for the basic structure of society are the object of the
original agreement. They are the principles that free and rational persons
concerned to further their own interests would accept in an initial position
of equality as defining the fundamental terms of their association. These
principles are to regulate all further agreements; they specify the kinds of
social cooperation that can be entered into and the forms of government
that can be established. This way of regarding the principles of justice I
shall call justice as fairness.
Thus we are to imagine that those who engage in social cooperation
choose together, in one joint act, the principles which are to assign basic
rights and duties and to determine the division of social benefits. Men are
to decide in advance how they are to regulate their claims against one
another and what is to be the foundation charter of their society. Just as
each person must decide by rational reflection what constitutes his good,
4. As the text suggests, I shall regard Locke’s Second Treatise of Government, Rousseau’s The
Social Contract, and Kant’s ethical works beginning with The Foundations of the Metaphysics of
Morals as definitive of the contract tradition. For all of its greatness, Hobbes’s Leviathan raises
special problems. A general historical survey is provided by J. W. Gough, The Social Contract, 2nd
ed. (Oxford, The Clarendon Press, 1957), and Otto Gierke, Natural Law and the Theory of Society,
trans. with an introduction by Ernest Barker (Cambridge, The University Press, 1934). A presentation
of the contract view as primarily an ethical theory is to be found in G. R. Grice, The Grounds of
Moral Judgment (Cambridge, The University Press, 1967). See also §19, note 30.
10
111
3. The Main Idea of the Theory
that is, the system of ends which it is rational for him to pursue, so a
group of persons must decide once and for all what is to count among
them as just and unjust. The choice which rational men would make in
this hypothetical situation of equal liberty, assuming for the present that
this choice problem has a solution, determines the principles of justice.
In justice as fairness the original position of equality corresponds to
the state of nature in the traditional theory of the social contract. This
original position is not, of course, thought of as an actual historical state
of affairs, much less as a primitive condition of culture. It is understood
as a purely hypothetical situation characterized so as to lead to a certain
conception of justice.5 Among the essential features of this situation is
that no one knows his place in society, his class position or social status,
nor does any one know his fortune in the distribution of natural assets and
abilities, his intelligence, strength, and the like. I shall even assume that
the parties do not know their conceptions of the good or their special
psychological propensities. The principles of justice are chosen behind a
veil of ignorance. This ensures that no one is advantaged or disadvan-
taged in the choice of principles by the outcome of natural chance or the
contingency of social circumstances. Since all are similarly situated and
no one is able to design principles to favor his particular condition, the
principles of justice are the result of a fair agreement or bargain. For
given the circumstances of the original position, the symmetry of every-
one’s relations to each other, this initial situation is fair between individu-
als as moral persons, that is, as rational beings with their own ends and
capable, I shall assume, of a sense of justice. The original position is, one
might say, the appropriate initial status quo, and thus the fundamental
agreements reached in it are fair. This explains the propriety of the name
“justice as fairness”: it conveys the idea that the principles of justice are
agreed to in an initial situation that is fair. The name does not mean that
the concepts of justice and fairness are the same, any more than the
phrase “poetry as metaphor” means that the concepts of poetry and meta-
phor are the same.
Justice as fairness begins, as I have said, with one of the most general
of all choices which persons might make together, namely, with the
5. Kant is clear that the original agreement is hypothetical. See The Metaphysics of Morals, pt. I
(Rechtslehre), especially §§47, 52; and pt. II of the essay “Concerning the Common Saying: This
May Be True in Theory but It Does Not Apply in Practice,” in Kant’s Political Writings, ed. Hans
Reiss and trans. by H. B. Nisbet (Cambridge, The University Press, 1970), pp. 73–87. See Georges
Vlachos, La Pensée politique de Kant (Paris, Presses Universitaires de France, 1962), pp. 326–335;
and J. G. Murphy, Kant: The Philosophy of Right (London, Macmillan, 1970), pp. 109–112, 133–
136, for a further discussion.
11
112
Justice as Fairness
choice of the first principles of a conception of justice which is to regulate

all subsequent criticism and reform of institutions. Then, having chosen a
conception of justice, we can suppose that they are to choose a constitu-
tion and a legislature to enact laws, and so on, all in accordance with the
principles of justice initially agreed upon. Our social situation is just if it
is such that by this sequence of hypothetical agreements we would have
contracted into the general system of rules which defines it. Moreover,
assuming that the original position does determine a set of principles (that
is, that a particular conception of justice would be chosen), it will then be
true that whenever social institutions satisfy these principles those en-
gaged in them can say to one another that they are cooperating on terms
to which they would agree if they were free and equal persons whose
relations with respect to one another were fair. They could all view their
arrangements as meeting the stipulations which they would acknowledge
in an initial situation that embodies widely accepted and reasonable con-
straints on the choice of principles. The general recognition of this fact
would provide the basis for a public acceptance of the corresponding
principles of justice. No society can, of course, be a scheme of coopera-
tion which men enter voluntarily in a literal sense; each person finds
himself placed at birth in some particular position in some particular
society, and the nature of this position materially affects his life pros-
pects. Yet a society satisfying the principles of justice as fairness comes
as close as a society can to being a voluntary scheme, for it meets the
principles which free and equal persons would assent to under circum-
stances that are fair. In this sense its members are autonomous and the
obligations they recognize self-imposed.
One feature of justice as fairness is to think of the parties in the initial
situation as rational and mutually disinterested. This does not mean that
the parties are egoists, that is, individuals with only certain kinds of
interests, say in wealth, prestige, and domination. But they are conceived
as not taking an interest in one another’s interests. They are to presume
that even their spiritual aims may be opposed, in the way that the aims of
those of different religions may be opposed. Moreover, the concept of
rationality must be interpreted as far as possible in the narrow sense,
standard in economic theory, of taking the most effective means to given
ends. I shall modify this concept to some extent, as explained later (§25),
but one must try to avoid introducing into it any controversial ethical
elements. The initial situation must be characterized by stipulations that
are widely accepted.
In working out the conception of justice as fairness one main task
12
113
3. The Main Idea of the Theory
clearly is to determine which principles of justice would be chosen in the

original position. To do this we must describe this situation in some detail
and formulate with care the problem of choice which it presents. These
matters I shall take up in the immediately succeeding chapters. It may be
observed, however, that once the principles of justice are thought of as
arising from an original agreement in a situation of equality, it is an open
question whether the principle of utility would be acknowledged. Off-
hand it hardly seems likely that persons who view themselves as equals,
entitled to press their claims upon one another, would agree to a principle
which may require lesser life prospects for some simply for the sake of a
greater sum of advantages enjoyed by others. Since each desires to pro-
tect his interests, his capacity to advance his conception of the good, no
one has a reason to acquiesce in an enduring loss for himself in order to
bring about a greater net balance of satisfaction. In the absence of strong
and lasting benevolent impulses, a rational man would not accept a basic
structure merely because it maximized the algebraic sum of advantages
irrespective of its permanent effects on his own basic rights and interests.
Thus it seems that the principle of utility is incompatible with the concep-
tion of social cooperation among equals for mutual advantage. It appears
to be inconsistent with the idea of reciprocity implicit in the notion of a
well-ordered society. Or, at any rate, so I shall argue.
I shall maintain instead that the persons in the initial situation would
choose two rather different principles: the first requires equality in the
assignment of basic rights and duties, while the second holds that social
and economic inequalities, for example inequalities of wealth and author-
ity, are just only if they result in compensating benefits for everyone, and
in particular for the least advantaged members of society. These princi-
ples rule out justifying institutions on the grounds that the hardships of
some are offset by a greater good in the aggregate. It may be expedient
but it is not just that some should have less in order that others may
prosper. But there is no injustice in the greater benefits earned by a few
provided that the situation of persons not so fortunate is thereby im-
proved. The intuitive idea is that since everyone’s well-being depends
upon a scheme of cooperation without which no one could have a satis-
factory life, the division of advantages should be such as to draw forth the
willing cooperation of everyone taking part in it, including those less well
situated. The two principles mentioned seem to be a fair basis on which
those better endowed, or more fortunate in their social position, neither of
which we can be said to deserve, could expect the willing cooperation of
others when some workable scheme is a necessary condition of the wel-
13
114
Justice as Fairness
fare of all.6 Once we decide to look for a conception of justice that

prevents the use of the accidents of natural endowment and the contin-
gencies of social circumstance as counters in a quest for political and
economic advantage, we are led to these principles. They express the
result of leaving aside those aspects of the social world that seem arbi-
trary from a moral point of view.
The problem of the choice of principles, however, is extremely dif-
ficult. I do not expect the answer I shall suggest to be convincing to
everyone. It is, therefore, worth noting from the outset that justice as
fairness, like other contract views, consists of two parts: (1) an interpreta-
tion of the initial situation and of the problem of choice posed there, and
(2) a set of principles which, it is argued, would be agreed to. One may
accept the first part of the theory (or some variant thereof), but not the
other, and conversely. The concept of the initial contractual situation may
seem reasonable although the particular principles proposed are rejected.
To be sure, I want to maintain that the most appropriate conception of this
situation does lead to principles of justice contrary to utilitarianism and
perfectionism, and therefore that the contract doctrine provides an alter-
native to these views. Still, one may dispute this contention even though
one grants that the contractarian method is a useful way of studying
ethical theories and of setting forth their underlying assumptions.
6. For the formulation of this intuitive idea I am indebted to Allan Gibbard.
14
115
4. The Original Position
ciples adopted. The aim is to rule out those principles that it would be
rational to propose for acceptance, however little the chance of success,
only if one knew certain things that are irrelevant from the standpoint of
justice. For example, if a man knew that he was wealthy, he might find it
rational to advance the principle that various taxes for welfare measures
be counted unjust; if he knew that he was poor, he would most likely
propose the contrary principle. To represent the desired restrictions one
imagines a situation in which everyone is deprived of this sort of informa-
tion. One excludes the knowledge of those contingencies which sets men
at odds and allows them to be guided by their prejudices. In this manner
the veil of ignorance is arrived at in a natural way. This concept should
cause no difficulty if we keep in mind the constraints on arguments that it
is meant to express. At any time we can enter the original position, so to
speak, simply by following a certain procedure, namely, by arguing for
principles of justice in accordance with these restrictions.
It seems reasonable to suppose that the parties in the original position
are equal. That is, all have the same rights in the procedure for choosing
principles; each can make proposals, submit reasons for their acceptance,
and so on. Obviously the purpose of these conditions is to represent
equality between human beings as moral persons, as creatures having a
conception of their good and capable of a sense of justice. The basis of
equality is taken to be similarity in these two respects. Systems of ends
are not ranked in value; and each man is presumed to have the requisite
ability to understand and to act upon whatever principles are adopted.
Together with the veil of ignorance, these conditions define the principles
of justice as those which rational persons concerned to advance their
interests would consent to as equals when none are known to be advan-
taged or disadvantaged by social and natural contingencies.
There is, however, another side to justifying a particular description of
the original position. This is to see if the principles which would be
chosen match our considered convictions of justice or extend them in an
acceptable way. We can note whether applying these principles would
lead us to make the same judgments about the basic structure of society
which we now make intuitively and in which we have the greatest con-
fidence; or whether, in cases where our present judgments are in doubt
and given with hesitation, these principles offer a resolution which we
can affirm on reflection. There are questions which we feel sure must be
answered in a certain way. For example, we are confident that religious
intolerance and racial discrimination are unjust. We think that we have
examined these things with care and have reached what we believe is an
17
116
Justice as Fairness
impartial judgment not likely to be distorted by an excessive attention to

our own interests. These convictions are provisional fixed points which
we presume any conception of justice must fit. But we have much less
assurance as to what is the correct distribution of wealth and authority.
Here we may be looking for a way to remove our doubts. We can check
an interpretation of the initial situation, then, by the capacity of its princi-
ples to accommodate our firmest convictions and to provide guidance
where guidance is needed.
18
117
11. Two Principles of Justice
The first statement of the two principles reads as follows.

First: each person is to have an equal right to the most extensive
scheme of equal basic liberties compatible with a similar scheme of
liberties for others.
Second: social and economic inequalities are to be arranged so that
they are both (a) reasonably expected to be to everyone’s advantage,
and (b) attached to positions and offices open to all.
These principles primarily apply, as I have said, to the basic structure

of society and govern the assignment of rights and duties and regulate the
distribution of social and economic advantages. . Now it is essential to
observe that the basic liber-ties are given by a list of such liberties.
Important among these arepolitical liberty (the right to vote and to hold
public office) and freedomof speech and assembly; liberty of conscience
and freedom of thought;freedom of the person, which includes freedom
from psychological op-pression and physical assault and dismemberment
(integrity of the per-son); the right to hold personal property and freedom
from arbitrary arrestand seizure as defined by the concept of the rule of
law. These libertiesare to be equal by the first principle.
The second principle applies, in the first approximation, to the
distribution of income and wealth and to the design of organizations that
make use of differences in authority and responsibility. While the
distribution of wealth and income need not be equal, it must be to
everyone’s advan-tage, and at the same time, positions of authority and
responsibility mustbe accessible to all. One applies the second principle
by holding positions open, and then, subject to this constraint, arranges
social and economicinequalities so that everyone benefits.
These principles are to be arranged in a serial order with the first
principle prior to the second. This ordering means that infringements of
53
118
The Principles of Justice
the basic equal liberties protected by the first principle cannot be justi-
fied, or compensated for, by greater social and economic advantages.
These liberties have a central range of application within which they can
be limited and compromised only when they conflict with other basic
liberties. Since they may be limited when they clash with one another,
none of these liberties is absolute; but however they are adjusted to form
one system, this system is to be the same for all. It is difficult, and
perhaps impossible, to give a complete specification of these liberties
independently from the particular circumstances—social, economic, and
technological—of a given society. The hypothesis is that the general form
of such a list could be devised with sufficient exactness to sustain this
conception of justice. Of course, liberties not on the list, for example, the
right to own certain kinds of property (e.g., means of production) and
freedom of contract as understood by the doctrine of laissez-faire are not
basic; and so they are not protected by the priority of the first principle.
Finally, in regard to the second principle, the distribution of wealth and
income, and positions of authority and responsibility, are to be consistent
with both the basic liberties and equality of opportunity.
The two principles are rather specific in their content, and their accep-
tance rests on certain assumptions that I must eventually try to explain
and justify. For the present, it should be observed that these principles are
a special case of a more general conception of justice that can be ex-
pressed as follows.
All social values—liberty and opportunity, income and wealth, and the
social bases of self-respect—are to be distributed equally unless an
unequal distribution of any, or all, of these values is to everyone’s
advantage.
Injustice, then, is simply inequalities that are not to the benefit of all. Of
course, this conception is extremely vague and requires interpretation.
As a first step, suppose that the basic structure of society distributes
certain primary goods, that is, things that every rational man is presumed
to want. These goods normally have a use whatever a person’s rational
plan of life. For simplicity, assume that the chief primary goods at the
disposition of society are rights, liberties, and opportunities, and income
and wealth. (Later on in Part Three the primary good of self-respect has a
central place.) These are the social primary goods. Other primary goods
such as health and vigor, intelligence and imagination, are natural goods;
although their possession is influenced by the basic structure, they are not
so directly under its control. Imagine, then, a hypothetical initial arrange-
54
119
11. Two Principles of Justice
ment in which all the social primary goods are equally distributed: every-
one has similar rights and duties, and income and wealth are evenly
shared. This state of affairs provides a benchmark for judging improve-
ments. If certain inequalities of wealth and differences in authority would
make everyone better off than in this hypothetical starting situation, then
they accord with the general conception.
Now it is possible, at least theoretically, that by giving up some of their
fundamental liberties men are sufficiently compensated by the resulting
social and economic gains. The general conception of justice imposes no
restrictions on what sort of inequalities are permissible; it only requires
that everyone’s position be improved. We need not suppose anything so
drastic as consenting to a condition of slavery. Imagine instead that peo-
ple seem willing to forego certain political rights when the economic
returns are significant. It is this kind of exchange which the two principles
rule out; being arranged in serial order they do not permit exchanges
between basic liberties and economic and social gains except under ex-
tenuating circumstances (§§26, 39).
55
120
The Original Position
24. THE VEIL OF IGNORANCE

24. The Veil of Ignorance
The idea of the original position is to set up a fair procedure so that any
principles agreed to will be just. The aim is to use the notion of pure
procedural justice as a basis of theory. Somehow we must nullify the
effects of specific contingencies which put men at odds and tempt them to
exploit social and natural circumstances to their own advantage. Now in
order to do this I assume that the parties are situated behind a veil of
ignorance. They do not know how the various alternatives will affect their
own particular case and they are obliged to evaluate principles solely on
the basis of general considerations.11
It is assumed, then, that the parties do not know certain kinds of
particular facts. First of all, no one knows his place in society, his class
position or social status; nor does he know his fortune in the distribution
of natural assets and abilities, his intelligence and strength, and the like.
Nor, again, does anyone know his conception of the good, the particulars
of his rational plan of life, or even the special features of his psychology
such as his aversion to risk or liability to optimism or pessimism. More
than this, I assume that the parties do not know the particular circum-
stances of their own society. That is, they do not know its economic or
political situation, or the level of civilization and culture it has been able
to achieve. The persons in the original position have no information as to
which generation they belong. These broader restrictions on knowledge
are appropriate in part because questions of social justice arise between
generations as well as within them, for example, the question of the
appropriate rate of capital saving and of the conservation of natural re-
11. The veil of ignorance is so natural a condition that something like it must have occurred to
many. The formulation in the text is implicit, I believe, in Kant’s doctrine of the categorical impera-
tive, both in the way this procedural criterion is defined and the use Kant makes of it. Thus when Kant
tells us to test our maxim by considering what would be the case were it a universal law of nature, he
must suppose that we do not know our place within this imagined system of nature. See, for example,
his discussion of the topic of practical judgment in The Critique of Practical Reason, Academy
Edition, vol. 5, pp. 68–72. A similar restriction on information is found in J. C. Harsanyi, “Cardinal
Utility in Welfare Economics and in the Theory of Risk-taking,” Journal of Political Economy, vol.
61 (1953). However, other aspects of Harsanyi’s view are quite different, and he uses the restriction
to develop a utilitarian theory. See the last paragraph of §27.
118
121
24. The Veil of Ignorance
sources and the environment of nature. There is also, theoretically any-

way, the question of a reasonable genetic policy. In these cases too, in
order to carry through the idea of the original position, the parties must
not know the contingencies that set them in opposition. They must choose
principles the consequences of which they are prepared to live with what-
ever generation they turn out to belong to.
As far as possible, then, the only particular facts which the parties
know is that their society is subject to the circumstances of justice and
whatever this implies. It is taken for granted, however, that they know the
general facts about human society. They understand political affairs and
the principles of economic theory; they know the basis of social organiza-
tion and the laws of human psychology. Indeed, the parties are presumed
to know whatever general facts affect the choice of the principles of
justice. There are no limitations on general information, that is, on gen-
eral laws and theories, since conceptions of justice must be adjusted to
the characteristics of the systems of social cooperation which they are to
regulate, and there is no reason to rule out these facts.
119
122
26. THE REASONING LEADING TO THE TWO

PRINCIPLES OF JUSTICE
Now consider the point of view of anyone in the original position.

There is no way for him to win special advantages for himself. Nor, on
the other hand, are there grounds for his acquiescing in special disadvan-
tages. Since it is not reasonable for him to expect more than an equal
share in the division of social primary goods, and since it is not rational
for him to agree to less, the sensible thing is to acknowledge as the first
step a principle of justice requiring an equal distribution. Indeed, this
principle is so obvious given the symmetry of the parties that it would
occur to everyone immediately. Thus the parties start with a principle
requiring equal basic liberties for all, as well as fair equality of opportu-
nity and equal division of income and wealth.
But even holding firm to the priority of the basic liberties and fair
equality of opportunity, there is no reason why this initial acknowledg-
ment should be final. Society should take into account economic effi-
ciency and the requirements of organization and technology. If there are
inequalities in income and wealth, and differences in authority and de-
17. For a similar view, see B. A. O. Williams, “The Idea of Equality,” Philosophy, Politics, and
Society, Second Series, ed. Peter Laslett and W. G. Runciman (Oxford, Basil Blackwell, 1962),
p. 113.
130
123
26. The Reasoning for the Two Principles
grees of responsibility, that work to make everyone better off in compari-

son with the benchmark of equality, why not permit them? One might
think that ideally individuals should want to serve one another. But since
the parties are assumed to be mutually disinterested, their acceptance of
these economic and institutional inequalities is only the recognition of the
relations of opposition in which men stand in the circumstances of jus-
tice. They have no grounds for complaining of one another’s motives.
Thus the parties would object to these differences only if they would be
dejected by the bare knowledge or perception that others are better situ-
ated; but I suppose that they decide as if they are not moved by envy.
Thus the basic structure should allow these inequalities so long as these
improve everyone’s situation, including that of the least advantaged, pro-
vided that they are consistent with equal liberty and fair opportunity.
Because the parties start from an equal division of all social primary
goods, those who benefit least have, so to speak, a veto. Thus we arrive at
the difference principle. Taking equality as the basis of comparison, those
who have gained more must do so on terms that are justifiable to those
who have gained the least.
By some such reasoning, then, the parties might arrive at the two
principles of justice in serial order. I shall not try to justify this ordering
here, but the following remarks may convey the intuitive idea. I assume
that the parties view themselves as free persons who have fundamental
aims and interests in the name of which they think it legitimate for them
to make claims on one another concerning the design of the basic struc-
ture of society. The religious interest is a familiar historical example; the
interest in the integrity of the person is another. In the original position
the parties do not know what particular forms these interests take; but
they do assume that they have such interests and that the basic liberties
necessary for their protection are guaranteed by the first principle. Since
they must secure these interests, they rank the first principle prior to the
second. The case for the two principles can be strengthened by spelling
124
The priority of liberty means that whenever the basic liberties can be
effectively established, a lesser or an unequal liberty cannot be exchanged
for an improvement in economic well-being. It is only when social cir-
cumstances do not allow the effective establishment of these basic rights
that one can concede their limitation; and even then these restrictions can
be granted only to the extent that they are necessary to prepare the way
for the time when they are no longer justified. The denial of the equal
liberties can be defended only when it is essential to change the condi-
tions of civilization so that in due course these liberties can be enjoyed.
Thus in adopting the serial order of the two principles, the parties are
assuming that the conditions of their society, whatever they are, admit the
effective realization of the equal liberties. Or that if they do not, circum-
stances are nevertheless sufficiently favorable so that the priority of the
first principle points out the most urgent changes and identifies the pre-
ferred path to the social state in which all the basic liberties can be fully
instituted. The complete realization of the two principles in serial order is
the long-run tendency of this ordering, at least under reasonably fortunate
conditions.
It seems from these remarks that the two principles are at least a
plausible conception of justice. The question, though, is how one is to
argue for them more systematically. Now there are several things to do.
One can work out their consequences for institutions and note their impli-
cations for fundamental social policy. In this way they are tested by a
comparison with our considered judgments of justice. Part II is devoted to
this. But one can also try to find arguments in their favor that are decisive
from the standpoint of the original position. In order to see how this
might be done, it is useful as a heuristic device to think of the two
principles as the maximin solution to the problem of social justice. There
is a relation between the two principles and the maximin rule for choice
under uncertainty.18 This is evident from the fact that the two principles
18. An accessible discussion of this and other rules of choice under uncertainty can be found in
W. J. Baumol, Economic Theory and Operations Analysis, 2nd ed. (Englewood Cliffs, N.J., Prentice-
132
125
26. The Reasoning for the Two Principles
are those a person would choose for the design of a society in which his
enemy is to assign him his place. The maximin rule tells us to rank
alternatives by their worst possible outcomes: we are to adopt the alterna-
tive the worst outcome of which is superior to the worst outcomes of the
others.19
Hall Inc., 1965), ch. 24. Baumol gives a geometric interpretation of these rules, including the diagram
used in §13 to illustrate the difference principle. See pp. 558–562. See also R. D. Luce and Howard
Raiffa, Games and Decisions (New York, John Wiley and Sons, Inc., 1957), ch. XIII, for a fuller
account.
19. Consider the gain-and-loss table below. It represents the gains and losses for a situation which
is not a game of strategy. There is no one playing against the person making the decision; instead he
is faced with several possible circumstances which may or may not obtain. Which circumstances
happen to exist does not depend upon what the person choosing decides or whether he announces his
moves in advance. The numbers in the table are monetary values (in hundreds of dollars) in compari-
son with some initial situation. The gain (g) depends upon the individual’s decision (d) and the
circumstances (c). Thus g ⫽ f (d, c). Assuming that there are three possible decisions and three
possible circumstances, we might have this gain-and-loss table.
Circumstances
Decisions c1 c2 c3
d1 –7 8 12
d2 –8 7 14
d3 –5 6 8
The maximin rule requires that we make the third decision. For in this case the worst that can
happen is that one gains five hundred dollars, which is better than the worst for the other actions. If
we adopt one of these we may lose either eight or seven hundred dollars. Thus, the choice of d3
maximizes f (d,c) for that value of c, which for a given d, minimizes f. The term “maximin” means
the maximum minimorum; and the rule directs our attention to the worst that can happen under any
proposed course of action, and to decide in the light of that.
133
126
The Principles of Justice
17. THE TENDENCY TO EQUALITY

17. The Tendency to Equality
I wish to conclude this discussion of the two principles by explaining the

sense in which they express an egalitarian conception of justice. Also I
should like to forestall the objection to the principle of fair opportunity
that it leads to a meritocratic society. In order to prepare the way for
doing this, I note several aspects of the conception of justice that I have
set out.
First we may observe that the difference principle gives some weight
to the considerations singled out by the principle of redress. This is the
principle that undeserved inequalities call for redress; and since inequali-
ties of birth and natural endowment are undeserved, these inequalities are
to be somehow compensated for.17 Thus the principle holds that in order
to treat all persons equally, to provide genuine equality of opportunity,
society must give more attention to those with fewer native assets and to
those born into the less favorable social positions. The idea is to redress
the bias of contingencies in the direction of equality. In pursuit of this
principle greater resources might be spent on the education of the less
rather than the more intelligent, at least over a certain time of life, say the
earlier years of school.
17. See Herbert Spiegelberg, “A Defense of Human Equality,” Philosophical Review, vol. 53
(1944), pp. 101, 113–123; and D. D. Raphael, “Justice and Liberty,” Proceedings of the Aristotelian
Society, vol. 51 (1950–1951), pp. 187f.
18. See, for example, Spiegelberg, pp. 120f.
86
127
Those who have been favored by nature, whoever they are, may gain
from their good fortune only on terms that improve the situation of
those who have lost out. The naturally advantaged are not to gain
merely because they are more gifted, but only to cover the costs of
training and education and for using their endowments in ways that
help the less fortunate as well. No one deserves his greater natural
capacity nor merits a more favorable starting place in society. But, of
course, this is no reason to ignore, much less to eliminate these
distinctions. Instead, the basic structure can be arranged so that these
contingencies work for the good of the least fortunate. Thus we are led
to the difference principle if we wish to set up the social system so
that no one gains or loses from his arbitrary place in the distribution of
natural assets or his initial position in society without giving or receiving
compensating advantages in return.
In view of these remarks we may reject the contention that the
ordering of institutions is always defective because the distribution of
natural talents and the contingencies of social circumstance are unjust,
and this injustice must inevitably carry over to human arrangements.
Occasionallythis reflection is offered as an excuse for ignoring injustice,
as if therefusal to acquiesce in injustice is on a par with being unable to
acceptdeath. The natural distribution is neither just nor unjust; nor is it
unjust that persons are born into society at some particular position.
These are simply natural facts. What is just and unjust is the way that
institutions deal with these facts. Aristocratic and caste societies are
unjust because they make these contingencies the ascriptive basis for
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87
128
Thus it is incorrect that individuals with greater natural endowments

and the superior character that has made their development possible have
a right to a cooperative scheme that enables them to obtain even further
benefits in ways that do not contribute to the advantages of others. We do
not deserve our place in the distribution of native endowments, any more
than we deserve our initial starting place in society. That we deserve the
superior character that enables us to make the effort to cultivate our
abilities is also problematic; for such character depends in good part upon
fortunate family and social circumstances in early life for which we can
claim no credit. The notion of desert does not apply here. To be sure, the
more advantaged have a right to their natural assets, as does everyone
else; this right is covered by the first principle under the basic liberty
protecting the integrity of the person. And so the more advantaged are
entitled to whatever they can acquire in accordance with the rules of a
fair system of social cooperation. Our problem is how this scheme, the
basic structure of society, is to be designed. From a suitably general
standpoint, the difference principle appears acceptable to both the more
advantagedand the less advantaged individual. Of course, none of this is
strictlyspeaking an argument for the principle, since in a contract theory
argu-ments are made from the point of view of the original position. But
theseintuitive considerations help to clarify the principle and the sense in
which it is egalitarian.
89
129
130
Mills: CHAPTER 8
Rawls on Race/Race in Rawls

All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
L et us now turn to the work of John Rawls, which has been mentioned
repeatedly and critically throughout the book but has not yet been
engaged with in detail. As pointed out earlier, Rawls’s A Theory of Justice is
widely credited with having revived post–World War II Anglo-American
political philosophy, and, with his other four books, is routinely judged to
constitute the most important body of work in that field.1 Indeed, with the
collapse of Second World and Third World socialist ideologico-political
alternatives, liberalism in one form or another has become globally hege-
monic, so that for many commentators, the qualifiers “postwar” and “Anglo-
American” should just be dropped. Thus the blurb on the jacket of The
Cambridge Companion to Rawls simply asserts without qualification: “John
Rawls is the most significant and influential political and moral philosopher
of the 20th century.”2
Yet for those interested in issues of racial justice, philosophers of color
in particular, Rawls’s work and the secondary literature it has generated has
long been deeply frustrating, producing a weird feeling of incongruity and
dissonance.3 Here is a huge body of work focused on questions of social
justice—seemingly the natural place to look for guidance on normative
issues related to race—which has nothing to say about racial injustice, the
distinctive injustice of the modern world.4
What explains this systematic omission? Any elementary sociology of
belief would tell us that the demography of the profession (overwhelmingly
white) will itself be an obvious major causal factor, group membership in
Copyright 2017. Oxford University Press.
the privileged race tendentially producing certain distinctive interests

(uninterests), priorities (marginalities), and concerns (indifferences). But
apart from this major extra-ideational factor, I suggest, as indicated in previ-
ous chapters, that there is a key internal conceptual factor as well: Rawls’s
131
( 140 ) Black Rights/White Wrongs
methodological decision to focus in A Theory of Justice on “ideal theory”—

the reconstruction of what a perfectly just society would look like. If this
might have seemed reasonable enough when first propounded—after
all, what’s wrong with striving for the asymptotic realization of perfect
justice?—it is, I propose, because of a crucial ambiguity: “ideally just” as
meaning a society without any previous history of injustice and “ideally
just” as meaning a society with an unjust history that has now been com-
pletely corrected for. Rawls really means the former, not the latter. But the
difference between the two will obviously make a significant difference to
the recommendations respectively appropriate in the two sets of cases. Pre-
emptive precautions to prevent injustices entering the “basic structure” of a
society are not the same as rectificatory measures aimed at correcting them
once they have already entered. Prevention generally differs from cure.
Insofar as Rawls’s focus is on the former, his prophylactic recommenda-
tions will be of limited if any use when it comes to remediation. Thus by
a simple conceptual stipulation, the theoretical problems raised of how to
adjudicate the redressing of past injustices are immediately shunted aside.
In particular, the manifestly non-ideal record of our country on race can now
be ignored, since such matters fall into an area of dikailogical territory not
covered by the mandate of the program. As Thomas Nagel observes in two
of the few sentences referring to race (and elliptically and non-specifically
at that) in the Cambridge Companion:
Affirmative action … is probably best understood in Rawlsian terms as an attempt at

corrective justice—an attempt to rectify the residual consequences of a particularly gross
violation in the past of the first principle of equal rights and liberties. Affirmative action
therefore does not form a part of what Rawls would call “strict compliance theory” or
ideal theory, which is what the two principles of justice are supposed to describe.5
In contrast, my 1997 book, The Racial Contract, was explicitly and self-
describedly a work in non-ideal theory.6 I sought to show there that—
insofar as the contractarian tradition has descriptive pretensions (“contract”
as a way of thinking about the creation of society)—the modern “contract”
is better thought of as an exclusionary agreement among whites to create
racial polities rather than as a modeling of the origin of colorless, egalitar-
ian, and inclusive socio-political systems. Since Rawls’s updating of the con-
tract is purely normative and hypothetical, however, a thought-experiment
for generating judgments about justice rather than a historical account, it
might seem that my challenge, even if successful, is irrelevant, doubly miss-
ing the mark. The contract for Rawls is not meant to be descriptive in the
first place, and in the second place, as just emphasized, his normative proj-
ect is confined to the realm of ideal theory. But my claim would be that
132
141
R AW L S O N R AC E / R AC E I N R AW L S ( 141 )
this twofold displacement in fact constitutes a double evasion and that the
ghost of the ostensibly repudiated factual dimension of contractarianism
continues to haunt the normative account, as manifested precisely in this
silence on racial justice.7 A mystified and idealized story of the creation of
the modern world, which denies the centrality of racial subordination to its
genesis, makes the achievement of corrective racial justice a less pressing
matter, if it is seen as necessary at all, for contemporary white ethicists and
political philosophers.
In this chapter, I will both document what (little) Rawls does say about
race (“Rawls on Race”), and attempt, from a critical philosophy of race per-
spective (“Race in Rawls”), to bring out what I see as the larger significance
of these silences. For me, in other words, they are not contingent but are
structurally related to the architecture of what I characterized at the start of
the book as “racial liberalism.” Even now, in a putatively post-racist epoch, a
conceptual apparatus inherited from a period of de jure white racial domi-
nation continues in numerous ways—in conjunction with white racial
privilege—to shape and orient (occident?) the work of white liberals.
RAWLS ON RACE: THE TEXTUAL RECORD
For this exercise, I will look at Rawls’s five major books: A Theory of Justice
(1971/1999), Political Liberalism (1993/1996), the Collected Papers
(1999), The Law of Peoples (1999), and Justice as Fairness: A Restatement
(2001). (For ease of reference, I will cite page numbers here in the main
text rather than in the endnotes.) The two edited volumes of Rawls’s
lectures—Lectures on the History of Moral Philosophy (2000) and Lectures
on the History of Political Philosophy (2007)—provide expositions of the
thought of central figures in Western moral and political theory rather
than discussions of justice, so they are less appropriate sources for us.8 But
it makes no difference since in any case they manifest the same pattern of
silence. Nowhere in either of these books does Rawls discuss the racial
views of, for example, Locke, Hume, Kant, Hegel, Mill, or their relation to
European colonialism.
A Theory of Justice
Race is not initially listed (see, e.g., Rawls 1999, 11, 118) as one of the
features you do not know about yourself behind the veil of ignorance
(nor is sex, as Susan Moller Okin has famously pointed out).9 However,
Rawls does explicitly condemn racism. He declares “we are confident that
133
religious intolerance and racial discrimination are unjust” (17), and that
no one behind the veil of ignorance would “put forward the principle that
basic rights should depend on the color of one’s skin or the texture of one’s
hair” (129). Similarly, he says: “From the standpoint of persons similarly
situated in an initial situation which is fair, the principles of explicit racist
doctrines are not only unjust. They are irrational. For this reason we could
say that they are not moral conceptions at all, but simply means of suppres-
sion” (129–30).
Rawls seems to regard race as natural. Thus at one point he refers to “fixed
natural characteristics” that “cannot be changed,” and asserts: “Distinctions
based on sex are of this type, and so are those depending upon race and
culture” (84–85). He considers the possibility of a society whose basic
structure allocates “unequal basic rights” according to these “starting places
in the basic structure” (84–85). However, he says such “racial and ethnic
inequalities” “are seldom, if ever, to the advantage of the less favored,” and so
would be ruled out by the difference principle (99). Later he states: “There
is no race or recognized group of human beings that lacks this attribute [the
capacity for moral personality]” (443).
These are the only overt references I can find to race in the 538 pages of
A Theory of Justice. He does talk about slavery at various places (e.g., 135,
137, 218, 286), but the first two references just raise the abstract possibility
of “slavery and serfdom” as a traditional objection to utilitarianism, while
the second two are explicitly to the non-racial slavery of antiquity rather
than American racial slavery. Chapter 53, “The Duty to Comply with an
Unjust Law,” does talk about “permanent minorities that have suffered
from injustice for many years” (312), while chapter 57, “The Justification
of Civil Disobedience,” refers to “subjected minorities” (330) and to situa-
tions when “certain minorities are denied the right to vote or to hold office,
or to own property and to move from place to place” (327). But race is not
explicitly mentioned. Finally, it should be noted that neither “race” nor “rac-
ism” appears in the index, though there are brief textual mentions, as cited
above, while such topics as “segregation,” “Jim Crow,” and “white suprem-
acy” appear neither in the index nor anywhere in the text.
134
RAWL S ON RACE/RACE IN RAWL S ( 145 )
Justice as Fairness: A Restatement
Finally, this 2001 book—edited by Erin Kelly, and unfinished because of

Rawls’s ill health before his 2002 death—originated in Rawls’s lectures
updating and restating his final position on “justice as fairness.”
As before, Rawls now lists “race and ethnic group” as information pro-
hibited to the parties in the original position (15), says that “we view a
democratic society as a political society that excludes … a caste, slave, or
a racist one” (21), and emphasizes that “fixed status ascribed by birth, or
by gender or race, is particularly odious” (131). He refers to Lincoln’s con-
demnation of slavery (29) and repeats the point that conceptions of the
good “requiring the repression or degradation of certain persons on, say,
racial, or ethnic, or perfectionist grounds—for example, slavery in ancient
Athens or in the antebellum South”—would be ruled out (154). In a dis-
cussion of the application of the difference principle, he emphasizes that
the “least advantaged are never identifiable as men or women, say, or as
whites or blacks, or Indians or British,” since the term is “not a rigid desig-
nator” picking out the same individuals across all possible worlds (59n26;
see also 69–71). A footnote on public reason says of Political Liberalism’s
position that “the inclusive view [of public reason] allowed comprehensive
doctrines to be introduced only in nonideal circumstances, as illustrated by
slavery in the antebellum South and the civil rights movement in the 1960s
and later” (90n12).
135
However, the most detailed and illuminating passage on race (not merely
in this book, but in his entire body of work) is the following:
We have seen that the two principles of justice apply to citizens as identified by their
indexes of primary goods. It is natural to ask: Why are distinctions of race and gender
not explicitly included among the three contingencies noted earlier (§16)? [In this ear-
lier section, Rawls had listed “three kinds of contingencies” that affect “inequalities in
citizens’ life-prospects”: social class, native endowments and opportunities to develop
them, good or ill fortune.] How can one ignore such historical facts as slavery (in the
antebellum South) … ? The answer is that we are mainly concerned with ideal the-
ory: the account of the well-ordered society of justice as fairness. (64–65)
So it is his focus on ideal theory that justifies the exclusion of race, since
racial justice is a matter of non-ideal theory. However, Rawls continues:
Nevertheless, sometimes other positions must be taken into account. Suppose, for exam-
ple, that certain fixed natural characteristics are used as grounds for assigning unequal
basic rights, or allowing some persons only lesser opportunities; then such inequalities
will single out relevant positions. Those characteristics cannot be changed, and so the
positions they specify are points of view from which the basic structure must be judged.
Distinctions based on gender and race are of this kind. Thus if men, say, have greater
basic rights or greater opportunities than women, these inequalities can be justified only
if they are to the advantage of women and acceptable from their point of view. Similarly
for unequal basic rights and opportunities founded on race (Theory, §16: 85). It appears
that historically these inequalities have arisen from inequalities in political power and
control of economic resources. They are not now, and it would seem never have been, to
the advantage of women or less favored races. (65–66)
Finally, he summarizes:
To conclude: when used in a certain way, distinctions of gender and race give rise to
further relevant positions to which a special form of the difference principle applies
(Theory, §16: 85). We hope that in a well-ordered society under favorable conditions,
with the equal basic liberties and fair equality of opportunity secured, gender and race
would not specify relevant points of view. Theory takes up only two questions of partial
compliance (or nonideal) theory… . The serious problems arising from existing discrimi-
nation and distinctions based on gender and race are not on its agenda [my emphasis], which
is to present certain principles of justice and then to check them against only a few of the
classical problems of political justice as these would be settled within ideal theory. This is
indeed an omission in Theory; but an omission is not as such a fault, either in that work’s
agenda or in its conception of justice. Whether fault there be depends on how well that
conception articulates the political values necessary to deal with these questions. Justice
136
as fairness, and other liberal conceptions like it, would certainly be seriously defective
should they lack the resources to articulate the political values essential to justify the
legal and social institutions needed to secure the equality of women and minorities. (66)
In the end, then—a few years before his death—Rawls does concede that
A Theory of Justice’s silence on race is an omission. But he insists that the
principles he articulated there can be adapted and utilized to address racial
injustice, even if he himself did not so use them.
RACE IN RAWLS: A CRITICAL OVERVIEW
With the actual textual record established, I now want to turn to its evalua-
tion. As emphasized at the start, I am seeking to make a point deeper than
the fact of simple omission. My claim is that the ignoring of race in Rawls’s
work is structural and symptomatic of white political philosophy in general.
Rawls’s Silences
To begin with the obvious: one would get the impression just from a super-
ficial skimming of the texts that Rawls does not have much to say about
race, and this is amply confirmed, an impression that is not at all mislead-
ing but—as finally conceded by Rawls himself—quite accurate. The five
books canvassed above total about 2,000 pages; if all the sentences that
mentioned race were to be collected together, I doubt that they would add
up to half a dozen pages. Moreover, there is a significant degree of duplica-
tion, not just because of chapter overlap between texts but because Rawls
is repeating the same points. Eliminating repetition would make the page
count even lower. In some cases, the points being made are really general,
as when race is coupled with gender; in some cases they are relegated to
footnotes; in no case are they ever central to his discourse. Race, racism,
and racial oppression are marginal to Rawls’s thought. Merely consulting
the indexes of these five books would be enough to establish this truth.
Indeed, if a single textual (non-)reference could be chosen to summarize
and epitomize Rawls’s lack of concern about race it is the following star-
tling fact: nowhere in these 2,000 pages on justice penned over five decades
by the American philosopher most celebrated for his work on social jus-
tice is the most important American postwar measure of corrective racial
justice—affirmative action—even mentioned. It is not merely that the
concept is not discussed—even the term itself never appears!11 Such is the
whiteness of Rawls’s dikailogical world.
137
And this prescriptive albinism is, as earlier emphasized, complemented

by a similarly bleached-out factual picture and corresponding descriptive/
explanatory conceptual framework. It is not just a matter of what Rawls does
not say—the omissions—but of how what he does say is conceptualized—
the tendentious conceptual commissions. Rawls condemns racism and
racial discrimination, of course, and (eventually) lists race as something
you do not know about yourself behind the veil. But even (by now) respect-
able concepts like institutional racism never appear in his work, let alone
white supremacy as a global concept. The marginalization of race in both his
explicit normative theory and his (usually more tacit) underlying descrip-
tive theory sanitizes the actual history of the modern world and obfuscates
the centrality of white racial domination to its making. No one reading
this work by an American would be able to guess, in historian George
Fredrickson’s judgment of thirty-five years ago, that “the phrase ‘white
supremacy’ applies with particular force to the historical experience of two
nations—South Africa and the United States,” since
more than the other multi-racial societies resulting from the “expansion of Europe”
that took place between the sixteenth century and the twentieth, South Africa and the
United States … have manifested over long periods of time a tendency to push the prin-
ciple of differentiation by race to its logical outcome—a kind of Herrenvolk society in
which people of color … are treated as permanent aliens or outsiders.12
So the historic reality is that race—white racial privilege and nonwhite

racial subordination—has been foundational to the actual “basic structure”
of the United States. How theoretically useful is it then going to be in the
philosophical investigation of social justice to start from a raceless ideal so
remote from this reality?
Moreover, his broader global perspective—pertinent both for his
discussion of international issues in The Law of Peoples and for what
becomes his key reference group of “modern democratic societies”—is
similarly idealized. As pointed out above, there is no sense in his discus-
sion of global matters (the natural place for it) of imperialism as a cen-
tral reality shaping the history of the modern world, leaving a legacy of
racial genocide and subordination. The Jewish Holocaust is represented,
in keeping with conventional Western wisdom and amnesia, as unique,
a “demonic” event13 of “manic evil,”14 linked to the history of Christian
anti- Semitism,15 but with no apparent continuity with the West’s own
racist history in the nonwhite world. Thus he speaks of our “now know-
ing” (but apparently not knowing before) “that human society admits
this demonic possibility,” and in reviewing comparable evils can appar-
ently only think of the Inquisition and the 1572 Catholic massacre of the
138
Huguenots as examples. A book like David Stannard’s American Holocaust,

on the Spanish genocide of Native Americans, is beyond the horizon of
Rawls’s comprehension.16 Indeed, it is surely significant, as I pointed out
in chapter 3, that although the black civil rights struggle is (eventually)
mentioned, Native Americans are completely absent from every page of
these five books. American slavery is, in the later work, condemned as an
evil and its legacy episodically cited, but the killing and expropriation of
indigenous peoples is never referred to. And in a sense, how could it be?
Facing up to the origins of the United States (and not just the United
States) as a white settler state established through invasion and conquest17
would explode the foundations of a conceptual framework predicated on
treating society as “a cooperative venture for mutual advantage.” But—if
this is too embarrassingly close to home, too thoroughly disintegrative of
the entire framework of assumptions, to be mentioned—there is also no
reference to any of the other epochal crimes of the Western colonial pow-
ers, such as the holocaust in the Belgian Congo at the start of the twen-
tieth century which, as Adam Hochschild suggests, may well have been
responsible for the deaths of ten million people.18 The European “outlaw
states” apparently do not include England, since its global empire—the
successful (not merely attempted) “subjection of much of the world to
its will”—was not being established on European soil.19 Nor does the
Atlantic slave trade as an international institution, with its death toll in
the millions, appear anywhere in these five books, though most of the
Western European powers were involved in it.20
The fact is—unthinkable as it may be within Rawls’s framework of
assumptions—that in a sense all the Western European nations (and their
offshoots, such as the United States) were “outlaw states” jointly involved
in a criminal enterprise on a planetary scale. The cosmopolitan “Society of
Peoples” Rawls seeks will have to be established in a world fundamentally
shaped by what was, in effect, the Western conquest of the “peoples” of the
rest of the globe. As Paul Keal points out in his European Conquest and the
Rights of Indigenous Peoples, “international society was itself a society of
empires,” and “the expansion of the European society of states to an inter-
national society global in scope entailed the progressive dispossession and
subordination of non-European peoples” who were “progressively concep-
tualized in ways that dehumanized them,” so that “ ‘the West’ bears a col-
lective responsibility for historic injustices” of “the loss of life, land, culture
and rights”:21
The expansion of international society cannot be separated from dispossession, geno-

cide and the destruction of cultural identity… . To the extent that [these states] were
founded on genocide and dispossession they are morally flawed states and the moral
139
foundations of the international society that is constituted by them is also called into
question.22
Or as Mark Cocker writes more bluntly:
Europe’s encounter with and treatment of the world’s tribal peoples is … in essence
… the story of how a handful of small … nation-states at the western extremity of
Eurasia embarked on a mission of territorial conquest. And how in little more than
400 years they had brought within their political orbit most of the diverse peoples
across five continents. It is … a tragedy of staggering proportions, involving the
deaths of many millions of victims and the complete extinction of numerous distinct
peoples. In fact, when viewed as a single process the European consumption of tribal
society could be said to represent the greatest, most persistent act of human destruc-
tiveness ever recorded.23
Rawls’s failure to cite any of these facts and his corresponding deployment
of obfuscatory and apologist categories—all too typical of white politi-
cal theorists even today, let alone of his generation—are thus an abdica-
tion of both moral and theoretical responsibility, producing a grotesquely
sanitized and Eurocentric picture of the history of the last few hundred
years, one from which race, racial conquest, and racial atrocity have been
whitewashed out.
Rawls’s Eurocentrism
Let me now turn specifically to Eurocentrism. That his political philosophy

is Eurocentric may seem so trivially and obviously true as to be not even
worth mentioning; after all, we are dealing with Western political philoso-
phy, and social contract theory is itself a Western invention. But my point
is a deeper one—that even granted these origins, there were conceptual
and theoretical moves open to him to extend the scope of the traditional
apparatus to address the issues cited above that he refused to make. The
Eurocentrism is not the (relatively) innocent one of genealogy (which does
not necessarily foreclose subversive creative development) but a systematic
ignoring of the experience of the nonwhite political subject, ubiquitously
manifest in the “whiteness” of Rawls’s perspectives on time and space, his
tacit conceptions of the populations he is speaking about and to, and his
assumptions about how best to frame their narrative. Rawls’s conception
is multiply Eurocentric. It is not merely that he focuses on Europe, but that
he also focuses on Europeans and the problems and issues that affect the
white population, and not—in his native United States—the problems
140
of blacks and Native Americans. (The former, as we have seen, eventually

make a belated appearance, but the latter remain invisible in his writing till
his death.) Moreover, he does so within a (sanitized) European concep-
tual apparatus, ethnically cleansed of its actual discursive history of ethnic
cleansing. (And this, to repeat, is why though Rawls’s contract is hypotheti-
cal and normative rather than descriptive, the factual critique is still rele-
vant, since the factual picture presupposed shapes the orientation of the
normative inquiry and the concepts deemed appropriate for it.)
For Rawls, the pivotal political periodization is determined by the origin
of political liberalism in “the Reformation and its aftermath, with the long
controversies over religious toleration in the sixteenth and seventeenth
centuries.”24 Internationally, the crucial date for him is the 1648 Peace of
Westphalia that supposedly established the beginnings of the international
system. It does not occur to him that 1492 might have more resonance for
the non-European world, the date eventually leading to the joint European
domination of the planet—the international racial system, or global white
supremacy—and the complementary development of a racialized liberal-
ism with one set of rules for whites and another for nonwhites.25 Within
the United States itself, of course, it is the European population that is his
focus, albeit in the displaced, abstract, and (ostensibly) general form typi-
cal of philosophy in general and social contract theory in particular. One
need only ask for whom the contractarian founding as a consensual event
is supposed to be an illuminating normative starting point to see that the
audience Rawls is tacitly presupposing for his work is really white settler-
dom and their descendants. Only for this population could it not be ludi-
crously inapposite to represent society as actually (not merely ideally)
being “a cooperative venture for mutual advantage,” as Rawls suggests we
do in Theory. Native Americans did not “agree” to be killed and to end up
losing 98 percent of their land through “conquest by law”26 any more than
captured Africans “agreed” to be enslaved. Domination and coercion of the
nonwhite population are the founding moments for the American (and not
just the American) polity, not democratic inclusion and consent.
To ignore this basic, framework-establishing, political agenda-setting
reality means that from the very beginning, whether overtly acknowledged
or not, one is really addressing oneself to the white population. Nor, as
I have tried to demonstrate, is it an adequate reply to say that we are deal-
ing with normative matters and with ideal theory, so that these admitted
(though they are not usually admitted) and unhappy truths, deplorable as
they may be, need not detain us. Insofar as the overarching metaphor of
the contract paradigmatically models consent (rather than coercion), inso-
far as the normative agenda is the mapping of an ideal ideal (rather than
how ideally to rectify the non-ideal), it means that we are already located on
141
152
the conceptual terrain (with its accompanying normative priorities) of the

racially privileged population rather than that of their victims.
Indeed, the Eurocentrism is manifest not merely in the evasive idealiza-
tions but even in the main domestic and international “non-ideal” issues
with which Rawls chooses to deal. Domestically, his famous “difference
principle,” which puts him on the left of the liberal spectrum, is supposed
to address the problems of the worst-off in a constrained market society, or
“property-owning democracy,” as he would later put it. But it does not offer
guidance on dealing with the specific d emands o f t he racially o ppressed
(Native peoples’ land claims, affirmative action). Rather, it is inspired by
the long tradition of European social democracy and really focused on the
white working class. But in taking class as the main axis of social disad-
vantage, Rawls is importing a European socio-political framework that is
applicable without modification in the United States only through ignoring
the nonwhite population and their distinctive experience of systemic racial
subordination. He is treating a white settler state as if it were merely a trans-
plant on different soil of a European society. In this respect, he is very much
part of a long-standing American political tradition that, as Rogers Smith
has pointed out, follows Alexis de Tocqueville, Gunnar Myrdal, and Louis
Hartz in conceptualizing the United States as a liberal democracy free of
the caste hierarchies of the Old World, a triumph of intellectual evasion
achieved by utilizing orthodox class categories imported across the Atlantic
and ignoring the emergence in the New World of a new kind of ascriptive
social hierarchy: race.27
As various political theorists, including myself, have argued, the distinc-
tive feature of New World polities is precisely the centrality of race to their
makeup, because, of course, they were founded as white settler states and
racial slave states. So to marginalize race in your apparatus means that from
the very start your intellectual framework is going to be inadequate for com-
prehending their workings and prescribing justice for them. Rawls came of
intellectual age in the pre-decolonization 1940s, with white Western domi-
nation of the world taken for granted; he is transparently a product of this
political mindset, as revealed by his characterization in the 1996 Political
Liberalism introduction of “race and ethnicity” as “new” political ques-
tions.28 Don’t white and black abolitionism and native peoples’ struggles
against white encroachment go back centuries? Aren’t they appropriately
to be thought of as “political?” But not, of course, from the perspective of a
political theory that takes the European and Euro-American experience as
normative, as demarcating the proper boundaries of the field.
142
Finally, Rawls’s argument is also problematic because of the tenden-

tious way it defines the “Western” tradition (again, his Eurocentrism at
work). Rawls forgets—or perhaps, more likely, never knew—that there
is a long intellectual countertradition of those subordinated by the West
contesting its racial oppression. In some cases, for example, in the anti-
colonial theory of Asia and Africa, one can try to partition it from the
West. But, to cite only the most obvious example, this cannot be done
for African Americans, ineluctably “Western,” and the long history of
143
155
African American political thought, whether in terms of black national-

ism and Pan-Africanism, or black liberalism and black Marxism, needs
to be seen as an oppositional element within this tradition, both shaped
by and reacting against it.33 In the work of David Walker, Martin Delany,
Frederick Douglass, Ida B. Wells, W. E. B. Du Bois, Martin Luther King
Jr., Malcolm X, and many others, we have a political tradition for which
race and the battle for racial justice have been crucial, whether in terms
of abolitionism, anti-Jim Crow, anti-imperialism, or anti-segregation. But
apart from some ritualistic genuflection at King’s name, Rawls ignores all
of this work. In effect, Rawls defines the West so that the West is white
and the political problems of the West are limited to the political prob-
lems of its white members.
144
Week 4
145
146
lMPERIALlSM DECLINE OF NATION-STATE; END OF RIGHTS OF MAN 29]
290
Beyond this, there was another implication of which the framers of the
declaration were only half aware. The proclamation of human rights was
a lso meant to be a much-needed protection in the new era where individuals
we�e n o longer secure in the esta tes to wh ich they were bom or sure of
the1r equah_ ty before God as Christians. In ot her words, in t he new secu
larized and emancipated society, men were no longer sure of these social
and human rights which u nt il then had been outside the politica! order and
gu�r�nteed not by government and constitution, but by social, spiritual, and
rehg1�u� forces. Therefore throughout the nineteenth century, the consensus
of opm1on was that human rights had to be invoked whenever individuals
needed protection against the new sovereignty of the state and the new
arbitrariness of society.
Since the Rights of Man were proclaimed t o be "inalienable," irreducible
to and undeducible from other rights or laws, no authority was invoked for
their establishment; M an himself was their source as well as their ultimate
goal. No special law, moreover, was deemed necessary t o proleet them be
cause �Il l�ws were supposed to rest upon them. Man appeared as the only
�overe1gn m ma tters of l aw as the people was proclaimed the only sovereign
m m atters of government. The people's sovereignty ( different from that of
the prince) was not proclaimed by the grace of God but in the name of
Man, so that it seemed only n atura! that the "inalienable" rights of m an
would find their guarantee and become an inalienable p art of the right of
the people to sovereign self-govemment.
In other _words, man had hardly appeared as a completely emancipated,
147
completely 1solated being who carried his dignity within himself without ref
erence to some larger encompassing order, when he disappeared again i nto
a member of a people. From the beg inning the par adox involved in the dec
l aration of inaliena ble human rights was that it reckoned with an "abstract"
human being who seemed to ex is t nowhere, for even sava ges lived in some
kind of a social order. If a tribal or ot her "backward" c ommunity did not
enj oy human rights, it was obviously because as a whole it had not yet
reached that stage of civilization, the stage of popular and national sov
ereignty, but w a� oppressed by foreign or native despots. The whole ques
ti_ on 0f human nghts, therefore, was quickly and inextricably blended with
11: The Perplexities of the Rights of Man the q1.1estion of national emancipation; only the emancipated sovereignty
of the people, of one's own people, seemed t o be able to insure them. As
THE DECLAltATION of the Rights of Man at the end of the eighteenth century mankind, since the French Revolution, was conceived in the image of a
was a turning point in history. l t mea nt nothing more nor less tha? that family of nations, it gradually became self-evident that the people, and not
from then on Man and not God's command or the customs of h1story, the individual, was the image of man.
should be the sour�e o f Law. Independen t of the privileges which history The full implication of this identification of the rights of man with the
had bestowed upon certain s trata o f society or certain nati ons, the declara rights of peoples in the European nation-state system carne to light only
tio n indic ated man's emancipat ion from a ll tutelage and announced that he when a growi ng number of people and peoples suddenly appeared whose
had now come of age. elementary rights were as little safeguarded by the ordina ry functioning of
n ation-states in the middle of Europe as they would have been in the heart
when there is no longer a Jewish question; but since Je� s form � uch a high per�ent· of Africa. The Rights of Man, after a ll, had been defined as "inalienable"
.
age of the refugees, the refugee question will be � uch s� mphfied ( Kabermann, Das
. because they were supposed to be independent of all governments; but it
internationale Flüchtlingsproblem," m Ze,tschr,ft Jur Po/11,k, Bd. 29, Heft 3, 1939).
292 IMPERlALISM
DECLINE OF NATJON-STATE; END OF RIGHTS OF MAN 293
tumcd out th at th e moment human beings lacked their own government and a _nd _ indifference of the powers th at be for any attempt of the marginal so
had to fall back upon their minimum rights, no authority was left to p_rotect c1et1es to �nforce h uman rights in any elementary or genera! sense.
them and no institution was willing to guarantee them. Or when, as m the T �e failure of all responsible persons to meet the calamity of an ever
case of the minorities an international body arrogated to itself a nongovem gi:owm g body of �ople forced to live outside the scope of all tangible law
mental authority, its 'failure was apparent even before its measures w ere w!th the proclamatJon of a new bil! of rights was certainly not due to ill
fully realized ; not only were the governments more or less openly _ op�s_ed wil!. Never before had the Rights of Man, solemnly proclaimed by the
to this encroachment on their sovereignty, but the concerned nattonaht_1es Fre_nc� and the American revolutions as the new fundament for civilized
themselves did not recognize a nonnational guarantee, mistrusted everyth1�g soc1ett�s, been a practical politica! issue. During the nineteenth century
which was not clear-cut support of their "national" (as opP?sed t? their
mere "linguistic, religious, and ethnic") righ ts, _and prefer��d �1ther:, hke the �ese nghts h ad been invoked in a rather perfunctory way to defend indi�
Germans or Hungarians, to turn to t�e prot�ctton o� th_e na�1on�l �other v1d �als_ again�t the increasing power of the state and to �itigate the new
country, or, Iike the Jews, to some �md of mterter�1tor�a_I sohdanty. social m ?ecunt y c�used by the industrial revo1ution. Then the meaning of
The stateless people were as convmced as the mmont1es that loss of �a human nghts acqmred a new con_n?tation: they became the standard slogan
tional rights was identical with loss of human rights, that the _forrr�er m of the pr?tectors of the underpnvileged, a kind of additional law, a right
evitably entailed the Jatter. The more they w ere ex�lud�d from n�ht m _any of except1on necessary for those who had nothing better to fall back upon.
form the more they tended to look for a reintegratJon mto a nat1onal, mto The_ reason �hy the concept of human rights was treated as a sort of
their'own national community. The Russian refugees were only the first to ste�hild by nmeteenth-century politica! thought and why no Jiberal or
insist on their nationality and to defend themselves fu�iously against atte!°pts rad1cal party in the t"".entieth century, even when an urgent need for en
to Iump them together with other stateless �ople. Smce them, not a �mgle forcement . of hu1:1�n _nghts arose, saw fit to include them in its program
group of refugees or Displaced Persons ha� failed to develop a fierce, violent seems o_ bv1ous: c1vil nghts-that is the varying rights of citizens in different
group consciousness and to clamor for ngh ts as-and only as-Poles or countnes-were s �pposed to embody and spell out in the form of tangible
Jews or Germans, etc. !aws the eternal �1ghts ?f Man, w�ich b_ y themselves were supposed to be
. .
Even worse was that all societies formed for the prot ection of the R1ghts mdepende�t of c1t1ze_n?h1p and nat1onahty. All human beings were citizens
of Man, all attempts to arrive at a new _ bill o! h�man _ rights we�� sponsore� �f some kmd of pohtJcal community; if the laws of their country did not
hve up to th � de_ma�ds of the R !gh ts of �an, they were expected to change
148
by marginal figures-by a few international JUnsts without po)1tJcal �xpen
ence or professional philanthropists supported by th e uncerta1_n sentJme�ts �em, by l_ egislation m democratie countnes or through revolutionary action
of professional idealists. The groups they formed, the declarat !�ns they 1s m despotJsms.
sued showed an uncanny similarity in language and compos1t1on to that Th � Rights o� Man, supposedly inalienable, proved to be unenforceable
of s�ieties for the prevention of cruelty to animals. No stat es�an, no po even m countnes whose constitutions were based upon them-whenever
litica! figure of any importance could possibly take them. senously; and people_ appe�red who were no Jonger citizens of any sovereign state. To this
none of the liberal or radical parties in Europe thought 1t . necessary to fact, d1sturbmg enough in itself, one must add the confusion created by the
incorporate into their program a new declaration of human nghts. Ne1ther many recent attempts to frame a new bill of hum.an rights, which have
d emonstrated that no one seems able to define with any assurance what these
before nor after the second World War have the victims thei:iselves ev�r
invoked these fundamental rights, which were so evidently demed them, m genera! human rights, as distinguish ed from the rights of citizens, really are.
their many attempts to find a way out of the barbed-_ w_ire labyrinth into �hi�h Alth�mgh . every?ne seems to agree that the plight of these people consists
events had driven them. On the contrary, the v1ctims shared the d1sdam �rec1sely m the1r loss of th e Rights of Man, no one seems to know which
nghts they lost when they lost these human rights.
7 _The first loss which the rightless suffered was the loss of their homes and
• Pathetic instances of this exclusive confidence in national rights were . the _ co�
sent. before the second World War, of nearly 75 per cent of the German mmonty m
_ �1s �eant the loss o� the entire social texture into which they were bo� and
the ltalian Tyrol to leave their homes and resettle in Germ�ny, the voluntary repatna m wh�ch �hey estabhshed for themselves a distinct place in the world. This
tion of a German island in Slovenia which had been there s1�ce _the fourtee_nth century ca_Iam1�y 1s fa� f �o!° unprecedented; in the long memory of history, forced
or immediately after the close of the war, the unanimous rei ecu on by. Jew1sh refugees
in' an Italian DP camp of an offer of mass naturalization by the Itahan government. m1grat1ons of 1�d1v1duals or whole groups of people for politica! or economie
In the face of the experience of European peoples between the two wars, 11 would � reasons look hke everyday occurrences. What is unprecedented is not the
a serious mistake to interpret this behavior simply as another example of _fanau c
_ loss of a home but the impossi?ility of finding a new one. Suddenly, there
nationalist sentiment; these people no Jonger feit sure of their elementary _nghts tf
these were not protected by a government to which they belonged by b1rth. See �as no place on earth where m1grants could go without the severest restric
Eugene M. Kulisher, op. cit. t1ons, no country where they_ would � assimilated, no territory where they
could found a new commumty of their own. This, moreover, had next to
294 IMPERIALISM
DECLINE OF NATION-STATE; END or RIGHTS OF MAN 295
nothing to do with any material problem of overpopul ation ; it was a prob
lem not of space but of politica! organization. Nob?dY had been a�are that !on ger, as the persecuted had been throughout history, a Jiability and an
mankind, for so lon g a t ime considered under the i ma ge of a f am 1Iy of na
image of shame for the persecutors ; that they were n ot considered and
tions, had reached the stage where whoever w as throw n out of one of th�se hard ly pretended t o �e active enemies (the few thousand Soviet citizens who
tightly organized closed communities found himself throw n out of the family yoluntarily le_ ft Sovie� Ru�sia after the second World War and found asylum
of nations altogethe r.48 m dem ?C:atic count nes d1? more damage to the prestige of the Soviet Union
than m ilhons of ref ugees m the twen ti es w?o belon ged to the wrong cla ss ),
The second loss which the rightless suffered was the loss of government
protection, and this did not _ imply j us_t the . loss of l_e gal st�tus in their own, ?ut tha t they were and a pp_ea red t? be noth mg but hum an bein gs whose very
but in all countries. Tre at1es of re c1proc 1ty and mte_rnat1onal a gr_e�ments
mnocence-from eve ry pomt of v1_ew, and especially that of the persecuting
have woven a web aroun d the earth that makes it poss1bl e for the c1t1zen of government-was their greatest m 1sfortune. I nnocence, in the sense of com
every country to tak e h is le gal s!� tus witb him no m �tter :vhere ?e goe s ( so
plete Jack of responsibili ty, was the mark of their rightlessne ss as it was the
seal of their l oss o f politica! st atu s.
that, for instance, a Germa n c1t 1zen u nder the Nazi regime m1ght not be
able to enter a mixed ma rria ge abroad bec ause of t h e Nure�berg laws). . Only in a ppearance therefore do the needs for a reinforcement of human
Yet whoever is no Jon ger caught in it finds him self out of le gahty altog�t?er nghts touch u �n the f ?te of the au then tic politica! refugee. Politica! r ef
(th�s durin g the Jast war stateless people were invariably in a. wor se pos1t 1on ugees, _ of necess1 �y �ew m nu �ber,. still enjoy th e ri ght t o asylum i n many
than enemy aliens wh o were still indirectly protected by their governmen ts co �ntnes, an d th1s nght acts, m an mformal way, as a genuine substitute for
through internat ional a greements).
national law.
By itself the loss of government pr otection is no m ?re un prece dented than One of the surprising aspe�ts of o�r experience with statel ess people who
the loss of a home. Civilized countries did offer the nght of asylum to those benefi� le gally f rom comm1ttmg a cnme has been the fact that i t seems to
who, for politica! reasons , had been persecuted b� their govern_me�ts, and be eas1er to de�rive a comple tely innocent person of legality t han someone
this practice, thou gh never officially incorporated mto any c?nst1tut 1on, has
who has comm !tted an offense. Anatole France's famous quip, "If J a m
functioned well enou gh throu ghout the nineteenth and eve� m our cen tury. accused of steahng_ the tow �rs of �otre Dame, I can only flee the country,"
The trouble arose when it a ppeared that the new cate gones of persecuted has ass_umed a hor�1bl e _ reali ty. J unsts are so used to thi nking of law in terms
were far too numerous to be handled by an unofficial pract\ce destine d. for of pu msh�ent, wh 1ch 1 �deed al ways deprives us of certain rights, that they
149
exceptional cases. Moreover, the majo rit y cou!� hardly q�a)ify for th� �•ght �ay find 1t eyen J?Ore d1ffi cu�t than the Jayman to recognize that the de priva
of asylum, which implicitly presu pposed poht 1cal o r rehg1ous conv1ct 10 ns
ti �n of legahty, 1.e., of all nghts, no Jonger has a connection with specific
which were not outlawed in the country of re fu ge. The n ew refugees were cnmes.
persecuted n ot because of what they had done or thou ght, but because of This �ituation illustrates the many perplexities inherent in the concept of
what they unchan geably were-born into the_ wrong kind of race �r t he human n�hts . No �atte r h ow they have once been defined (life, Iiberty, an d
wron g kind of class or drafted by the wron g kmd of government (as m the the pursmt of ha�pmess, accord !ng to the American formula, or as equality
case of the Spanish R epublica n Army).40
before . the l aw, hberty, protect1on of property, a nd national sovereignty,
The more the number of rightless people increased, the grea_ter became acco_rdmg to the Fr�nch �; no matter �ow one may attempt to improve an
the temptation to pay less attention to the dee ds of the persec�t mg govern �mb1guous �ormula_ tion hke the pursu1t of happiness, or a n antiquated one
ments than to the status of the persecuted. And the first glanng fact was hke 1:1n quahfied nght to property; the real situation of those whom the
that these people, though persecuted under some politica! pretext, were no t�entieth �e.ntury has d riven outside the pale of the Jaw s hows that t hese are
i:1_ghts o� c1t1zens wh ose loss does not ent ail absolute rightlessne ss. The sol
48 The few chances for reintegration open to the new migrants were most_ly based dier durmg the ��r is de p�ived of his right to life, the crimina! of bis right
on their nationality: Spanish refugees, for instance, were welcomed to a certam extent
in Mexico. The Vnited States, in the early twenties, adopted a qu_ota system accordmg to fr�edom , all c1t1zens durmg an eme rgency of their right to the pu rsuit of
to which each nationality already represented in the country rece1ve �, so to speak, the ha ppmess, but �obody would ever claim that in any of these instance s a
right to receive a number of former countrymen proport1onate to 1ts numencal part loss of human nghts h as take� place. These rights, on the ether hand, can
in the total population.
4 . . . � granted (though h ardly enJoyed) even under conditions of fundamental
0 How dangerous it can be to be innocent from the point of view of t�e perse
cuting government, became very clear when, dunng the last war, the American gov
nghtlessness.
ernment offered asylum to all those German refugees who were. threatened by the The calami �y of the r !ghtless is not that they are deprive d of Iife, Jiberty,
extradition paragraph in the German-French Arm1st1ce. 1:he cond1t1on was, of_ course, an? !he pursu1t of ha ppmess, or of equality before the law and freedom of
that the applicant could prove that he had done someth1ng against the Nazi _regime. opm10n-:--�orm ulas wh1ch were d esigned to solve problems within given
The proportion of refugees from Germany who were able to fulfill th1s con�11Jon was commum �1es�but _ that the y no l onger belong to any community wha tso
very small, and they, strangely enough, were not the people who were most m <langer.
e ver. The1r phgh t 1 s not that they are not e qual before the Ja w, but that n o
IMPERIALISM DECLINE OF NATION-STATE; END OF RIGHTS OF MAN 297
296
y wan�s even _
opinions)_ _and a right to belong to some kind of organized community, only
law exists for them; not th at th ey are oppressed but th at nobod
to oppress the m . Only in t h e last s tage of a rather lengt h y process is_ their �hen milhons of people emerged who had lost and could not regain t hese
uperfluous," 1f no nghts because of t h e new global politica! situation. The trouble is that this
right to live threatened; only if t h ey remain pei:fectly "� calamity arose not from any Jack of civilization, backwardness, or mere
body can be found to "claim " the m , may the1r hves � _ m <langer. Even the
by first depnv mg them of all legal tyranny, but, on t he contrary, t hat it could not be repaired, because there
Nazis started their extermination of Jews was no Jonger any "uncivilized" spot on earth, because whether we Iike it
s econd-c las s citizen sh ip) and cutting t hem o� from t h e
status (the status of
tration camps; or no� we have re_ally started to live in One World. Only with a completely
world of the living by herding t hem into ghettos and concen
chambe rs into motio n t h ey had carefu lly test�d orgamzed humamty could t he loss of h ome and politica! status become
and before t hey set the gas would claim identical with expulsion from humanity altogether.
coun � ry
the ground and found out to their satisfaction that no
condit ion of compl ete ng h tlessne ss was Before this, what we must call a "human righ t" today would have been
these people. The point is that a thought of as a genera! ch aracteristic of the human condition wh ich no
t h e rig h t to live wa s c h allenge d. .
created before tyrant could take aw_ay. lts loss entails the loss of the relevance of speech
to t h e nght of _
The samc is true even to an ironical extent with regard e of h uman ( and man, smce Anstotle, has been defined as a being commanding t h e
ic h i s s ometim e s consid ered to be the very essenc
freedom wh la power of speech and thought), and the loss of all human relationship (and
those outsid e t he p � le of the_ � may have
rights. There is no question t h at _ man, again s ince Aristotle, h as been thought of as the "politica! anima!,"
more freedo m of movem ent than a lawful ly 1mpn soned cnmmal or t h �t
of de�oc�atic t h at is one who by definition Jives in a community), the loss, in oth er words,
they enjoy more freedom of opinion i� the intern�ent camps ent1on
1sm, not to m m a of some of th e most essential characteristics of human life. This was to a
countries th an t h ey would in any ordma ry despot
0 al s afety- being fe ? by some s ta�e certain extent t he plight of slaves, whom Aristotle therefore did not count
totalitarian country." But neither physic among h uman beings. Slavery's fundamental offense against human righ ts
s m !he_ leas� the1r
or private welfare agency-nor freedom of opinion c�ange was not that it took liberty away (wh ich can happen in many other situa
prolon gat10n of t h eir hves 1s _due
fundamental situation of righ tless ness. The
rig h t, for no law exis �s w h ich cou ) d force t�e nat1ons t!o?�), but tha� it excluded a certain category of people even from the pos
to charity and not to
ey h ave 1t at all, g1ves t h em s1b1hty of fightmg for freedom-a fight possible under tyranny, and even
to feed them; t heir freedom of movement, 1f t h a
even the jailed crimin a! enjoys as �atter of �nder the desperat� condition_s of modern terror (but not under any condi
no right to residence wh ich
m , for nothm g they tio�s of concentration-camp hfe). Slavery's crime against humanity did not
150
course; and their freedom of opinion is a fool's freedo be_gm when one people defeated and enslaved its enemies (though of course
think matters anyhow . . t h1s was bad enough), but wh en slavery became an institution in which
at1on of �uman
These last points are crucial. The fundamental depnv
above all in t h e dep � ivation of m he some men were "bom" free and oth ers slave, when it was forgotten t hat it
rights is manifested first and
s
. a place h1! g
effect1 ve. Somet ? was man who had deprived h is fellow-men of freedom, and wh en the sanc
world which makes opinions significant and act1on tion for the crime was attributed to nature. Yet in the ligh t of recent events
ich are rights of c1t
much more fundamental t han freedom and justice, wh it is possible to say that even slaves still belonged to some sort of human
wh ich one is bom
izens is at stake when belonging to the community into
Jonger a matter of course and not belong ing no Jonger a matt�r of c�m �unity; their labor �as needed, used, and exploited, and this kept them
isnd
or w h en one is placed in a s ituatio n where , unles s he comm1ts a w1thm the pale of h umamty. To be a slave was after all to have a distinctive
choice,
he does or d ?Cs not character, a place_ in society-more than the abstract nakedness of being
crime, h is treatment by others does not depend on wh at
ity, and nothin g else, i s the situation of people depnved of human and nothmg but human. Not t h e loss of specific rights, then, but
do. Tuis extrem
m, but of the the loss of a community willing and able to guarantee any rights whatsoever
human rights. They are deprived, not of th e right to freedo
to think whatev er t h ey please , b�t of t he has be�n the calamity which has befallen ever-increasing numbers of people'.
right to action; not of the right
e s in some cases, injustic e s in mo st, blessmgs �nd Man, _1t turns_ out, can los� all so-cal�ed . Rights of Man without Iosing his
right to opinion. Privileg essential quahty as man, h1s human d1gmty. Only the loss of a polity itself
any relation
doom are meted out to them according to accident and without expels him from humanity.
wh atsoever to what they do, did, or may do.
(and t h at Th e right that corresponds to t h is loss and th at was never even men
We became aware of the existence of a right to have rights
s
by one' actions and tione� among the human rights cannot be expressed in t h e categories of
means to live in a framework wh ere one is judged the e1gh teenth century because t h ey presume th at righ ts spring immediately
00
Even under the conditions of totalitarian terror, concentration camps sometimes from t he "nature" of man-whereby it makes relatively Iittle difference
have been the only place where certain remnants of freedom of thought and d1scuss1on wh ether this nature is visualized in terms of the natura! law or in terms of
still existed. See David Rousset, Les Jours de Notre Mort, Pans, 1947, passim, for a being created in th e image of God, whether it concerns "natura!" riohts or
freedom of discussion in Buchenwald. and Anton Ciliga, The R11.1·siu11 Enigma, London, divine commands. The decisive factor is that these rights and the human
1940, p. 200, about "isles of liberty," "the freedom of mind" that reigned in some of
the Sovict places of detcntion. dignity they bestow should remain valid and real even if only a single human
IMPERIALISM DECLINE OF NATION-STATE; END OF RIGHTS OF MAN 299
298
ality and sho�ld be justified by_ t he_ �ret�xt that right is equivalent to being good or useful
being existed on earth; they are independent of human plur
is expelle d fro m t h e h um an community. for the whole m d 1s tmclion to i ts parts. (Hitler's motto that "Right is what
remain valid even if a human being
e Righ ts o f Man we r e p r oclai med fo r t he fir st ti me, they we re is good fo � the G erman people" is o nly the vulgarized form of a conception
When th ?f law wh 1ch can be found e verywhere an d which in p rac tice will remain
s which histo ry
regarded as being independent of history and the p rivile ge
d cert ain s tr a t a o f s ocie t y. T h e n e w ind epende nce co nstit uted me ffe�tu ?I only so long as o lder traditions that are s till e ffective in the
had accorde
From the beginning, t his new dignity c onst1t t1ons prevent thi s .) A c o ncep tion of Iaw which identifies what is
the newly discovered d ignity o f man.
_ �
ous na tu re. Hi s torica) rights were re placed by natu ral nght w1th the notion of what is good for-for the individual, or the family,
was of a rather arubigu or the people, or th e largest number-becomes ine vitable once the absolute
assumed t hat
rights, "nature" took the place of history, and it was tacitly
hi st ory to the essenc e of m an. T he v er y I angu age an � transce�dent meas �rements of re ligion or the I aw of nature have lost
nature was less alien than
s well as o f th e Déclar ation des Droits the r autho nty. And th 1s pr edicament is by no means solve d if the unit to
!
of the Declarat ion o f Independence a
"given wi th birth," "s e lf- e vi d en t truths"-im wh1ch _ t he "good for" apJ?li�s is as large as m ankind itself. For it is quite
de l'Homme-"inalienable," conce1 vable, and ev n w1th m t_he realm o f practical poli tica) possibilities,
ld be subj ect to 7
plies the belief in a kind of human "nature" whic h wou
that o f t he individ u al an d fro m which rights and th t one fine d �y a h 1ghly orgamzed and mechanized h um anity will c onclude
�
the same Iaws of growth as
qualified to judge qu1te de'!1ocrat1cally-namely �y i:najority decision-that for humanity as
Iaws could be deduced . Today we are perhaps better
ent it has shown a whole 1t would be bet_ter to hqu1date certain parts thereof. Here, in the
exactly what this human "nature" a mounts to; in any ev
o r ev e n s u s pected by West _ y, we are c�mfronted with one of the oldest per
pro�I 7ms of fa �t �al real1t
us potentialities that were neither recognized n
whi c h fo r more t han t h ree t ho us�nd ye ars have plex11Jes of poht1cal . p�1losophy, wh1ch could remain undetected only so
ern philosophy and religion,
u t it is not only the, as 1t w er e, h uman long- as _ a stab!e Ch nstJan theology provided the framework for all poli tica!
defined and redefined this "nature." B
me qu e sti onable t o �s . Ever s ince m�n l�arned and philosoph1cal problems, but wh ic h long ago caused Plato to say: "Not
aspect of nature that has beco
er it to s u c h an- ex t ent th at t h e destruct 1on o f all orgamc hfe o n man, but a god, m ust be the m easure of all things."
to mast
ha s be come conceivable and tec hnically
earth with man-made instruments
rom tur
These facts �nd refl ections offer what seems an ironical, bitter, and be
possible, he has been alienat ed f na e. Ever s ince a �eeper knowled ge
1stence of natural
lated confirmatJon of the famous arguments with which Edmund Burke
of natura! processes instilled serious doubts about t he ex
s s s
opposed the French _Revolut!on's Declaration of the Rights of Man. They
laws at all, nature itself bas a ssum e d a ini ter a pe ct . How sh ould one be
151
apparently knows appe�r to buttress h_ 1s assertion that human rights were an "abstraction,''
able to deduce laws and rights from a universe which
e c t o
that 1t was _much w1�er I? rely �n a� "�ntailed inheritance" of rights which
neither the one nor th other a eg ry? one �r�nsm1ts to one s �hildre hke hfe 1tself, and to claim one's rights to be
mancipated f rom . �,
Man of the twentieth century has become ju st as e
s rom s
the n �ht s of an Enghshman rather than the inalienable rights of man. M
nature as eigh te en th-cen tury m an wa f hi t ory. History and natu re have
he essence of man �cc ��dmg t o Bur_ ke, the rights which we enjoy sp ring "from within the na
become equally alien to us, namely, in the sense that t t 1on, so that n e1t he r nat ura) law, nor d ivine command, nor any c oncept of
be com p r eh e n ded in terms o f ei ther . c ate go . On t�e o ther
ry .
can no Jonger m ankmd s uch as R obespierre's "human race," "the sovereign of the ear th,"
tian termmolo gy,
hand, humanity, which for the eighteenth century, m Kan are needed as a source of law.52
scapable fact.
was no more than a regulative idea, has today become an ine
has in eff ec t a ss u me d the role T �e pragmatic so�ndness of Burke's concept seems to be beyond doubt in
This new situation, in which "humanity"
sto u d me t his co ntext that the light of our �amfold exp eriences. �ot only did loss of national rights in
formerly ascribed to na t ure o r hi ry, wo l an in .
ual to belong to h� all mstances enta1l the loss of human nghts ; the restoration of human rights,
the right to have rights, or the right of every individ as the recent example of the State of I srael proves, bas been achieved so
te e d by hu m anity its elf. I _t i s b� no means �ert�m
manity, should be guaran
te nli oned humam tanan far only_ through the re�toration or the establishment of national rights. The
whether this is possible. For, contrary to t he best-m
s m r s rom
of hu an ight f international o r co �ce pt10n of h uman nghts, based upon the assumed existence of a h uman
attempts to obtain new declaratio n
t o s s ou d de st d t hat t his ide a transc end� the present
be mg _as s�ch! broke down at the ver y moment when those who professed
ganiza i n , it h l be un r oo
o pe rates in terms o f rec1procal �gree
to beh eve m 1t were for the first time confronted with people who had in
sphere of international Jaw which still
t e so re
a d�ed lost all oth er qualities and specific relationships--except that they were
ments and t r eati es be we n ve ign states ; and, for the lime bemg,
t io n s d oe s n ot exi s t. F urt h ermor e, this d ilemma stJ!l h uman. The w?rld found nothing sacred in the abstr a ct nakedness of
sphere that is above t he na bemg h uman. And m view of objective politica) conditi ons, it is hard to say
nt of a "worl� �?V•
would by no means be eliminated by the establishme how the concepts of man upon which human rights are based-that he is
er n m ent i s in deed wit h in the realm o f poss1b1hty,
ernment." Such a world gov
e may s u sp ect that in re ali t y i t m ight differ co nsidera? IY from _the ver "' Edmund Burke, Ref/ections 011 the Revo/111io11 in France 1790, edited by E. J.
but on Payne, Everyman's Library.
c n� es agamst hu
sion promoted by idealistic-minded �rganizati ons. 1:he 02
Robespierre, Speeches, 1927. Speech of April 24, 1793.
, which hav e b ec o m e a s pe c1 alty of totahta nan r e gimes , can always
man rights
300 IMPERIALISM
DECLINE OF NATION-STATE; END OF .IUGHTS OF MAN 30]
created in the image of God (in the American formula), or that he i s the
representative of mankind, or that he harbors within himself the sacred d e world it bas produced , the more at home men feel within the human artifice
-th� more they will rcsent cverything they have not produccd, everything
mands of natura! law (in the French formula )-could have helped to find t�at 1s m�rely and mysteriously given thcm. The human being who bas lost
a solution to the problem.
h1s place m a community, bis politica! status in the struggle of bis time and
The survivors of the extermination camps, the inmates of concentratlon t� e l egal pers�nality which makes bis actions and part of bis destiny a ' con
and internment camps, and even the compa ratively happy stateless people s1stcn_1 whole, 1s left with those qualities which usually can become articulate
could see without Burke's a rguments that the abstract nakedness of bemg only 1_n the sphere of private life and must remain unqualified, mere exist
nothing but human was their greatest danger. Becaus_ e of it �hey were re en�e 1� a ll matt�rs of p�blic concern. This mere existence, that is, all that
garded as savages and, afraid that they mig�t end by �mg cons1?�red �asts, wh1ch 1� mystenously g1ven us by birth and which includes the shape of
they insisted on their nationality, !he la�t s1g_n of theu �ormer �1t1ze_nsh1p, as our bod1es an� the talents of our minds, can be adequately dealt with only
their only remaining and reco�mzed �1e w1th humam�y. TheJT d1st'.ust of by t� e unpred1ctable h azards of friendship and s ympa thy, or b y the great
natura!, their preference for nat1onal, nghts comes prec1sely from the1r real and mcalculable !ra�e of lov7, which say� with Augustine, ''Voio ut sis (1
ization that natura! rights are granted even to savages. Burke h�d already want you to be), without bemg able to g1ve any particular reason for such
feared that natura! "inalienable" rights would confirm only the "nght of the supreme and unsurpassable affirmation.
naked savage," 53 and therefore reduce civilized nations to the status of s av Since the Greeks, we have known that highly developed politica) Jife
agery. Because only savages have nothing more to fall ?ack �po� than the b re�ds a de ep-roo�ed suspicion of this priva te s phere, a deep r esentment
mjnimum fact of their human origin, people ding to the1r nat1�nahty all the agams � the ?1sturbm? mira cle contained in the fact that each of us is made
more desperately when they have los! the rig�ts �nd prot�ctw_n th�t suc� a� he 1s-smgle, umque, unchangeabl e. This whole sphere of the merely
nationality once gave them . Only the1r past w1th 1ts "e�t_a1_ led mhentance g1ven, r�legated to private lifc in civilized society, is a permane nt threat to
seems to a ttest to the fact that they still belong to the c1VJhze d W?rld.
the public s p_here , becaus� the public sphere is as consistently based on the
If a human being loses his politica! status, he should, accordmg to the law of equahty as the private sphere is based on the l aw of universa! dif
implications of the inborn and inalicnable rights of man, com� und er ex�ctly ference _and di�erentia �ion. Equality, in contrast to all that i s involved in
the situation for which the decla ra tions of such genera! nghts prov1ded.
mere e �1s_tenc �, 1s not g1ven us, hut 1s th e result of human organization inso
152
Actually the opposite is the case. 1� see ms th�t a m�n who is nothing but a far as 1t 1s gu1ded by the principl e of justice . We are not bom equal; we
man has lost the very qualities wh1ch mak e 1t poss1ble fo� �ther people _to become equal as members of a group on the strength of our de cision to
treat him as a fellow-man. This is one of the reasons why 1t 1s far more d 1f guarante e ourselves mutually equal rights.
ficult to destroy the legal personality of a criminal, that is of a man who has Our politic�l li_fe rests on the assumption that we can produce equality
taken upon himself the responsibility for an act _whose consequences now through orga nization, because man can act in and change and build a com
determine bis fate, than of a man who has been d1sallowed all common hu-
mon world , together with his equals and only with bis equals . The dark
man responsibilities . . . . background _of mere givenness, the background formed by our unchange
Burke's arguments therefore gain an added s1gmficance 1f we look only
at the genera) human condition of those who h�ve been forced _ o ut o_ f all �bl� and umque �ature, . bre ak s into the politica] scene as the alien which
m 1_ 1� all t� obv1o�s d1tference reminds us of the limit ations of human
politica) communities. Regardless of treatment, independent of hbert1es or ac1tv1ty-wh1�h are 1dentical wi_t� the limitat�on. s of human equality. The
oppression, justice or injustice, they have lost all those parts of the world reason why h1ghly dev�loped poht1cal commumtJ es, such as the ancient city
and all those as pects of human existence which are the result of our co�mo_n states or modern natJon-states, so often insist on cthnic homogeneity is
l abor the outcome of the human artifice. If the tragedy of savage tnbes 1s that �hey hope to eliminate as far as possible those natura! and always pres
that they inhabit an unchanged nature which the� c �nn_ot master, yet u �n
ent d1tferences and differentiations which by themselves arouse dumb hatred
whose abundance or frugality they depend for the1r hvehhood, that t?ey hve mistrust, and discrimination because they indicate all too clearly thos;
and die without leaving a ny trace, without having contributed a nythm� to a
spheres where men cannot act and change at will, i.e., the Jimitations of the
common world, then these rightless people are indeed . thrown back mto a human artifice. The "ali en" is a frightening symbol of th e fact of difference
peculiar state of nature. Certainly they are not barbanans; S?me of th�m,
indeed, belong to the most educated st'.at� of their respectlve countnes; as such, of individuality as such, and indicates those realms in which man
nevertheless in a world that has almost hqu1dated savagery, they appear as cannot change and cannot act and in which, therefore , he bas a distinct
the fir st sign's of a possible regress ion from civilization.
tendency _io destroy. If a Negro in a white community is considered a Negro
The more highly developed a civilization, the more accomphshed the an� noth1 �g �lse, h � loses along with bis right to equality that freedom of
63
actJon wh1ch 1s spec1fically human; all bis deeds are now explained as "nec
Introduction by Payne to Burke, op. cit. essary" consequences of s ome "N egro" qualities ; he bas become some speci-
302 IMPERIALISM
men of an animal species, called man. Much the same thing happens to
those who have lost all distinctive politica} qualities and have become human
beings and nothing else. No doubt, wherever public life and its law of
equality are completely victorious, wherever a civilization succeeds in elim
inating or reducing to a minimum the dark background of difference, it
wiJJ end in complete petrifaction and be punished, so to speak, for having
forgotten that man is only the master, not the creator of the world.
The great <langer arising from the existence of people forced to live out
side the common world is that they are thrown back, in the midst of civil
ization, on their natural givenness, on their mere differentiation. They lack
that tremendous equalizing of differences which comes from being citizens
of some commonwealth and yet, since they are no Jonger allowed to par
take in the human artifice, they begin to belong to the human race in
much the same way as animals belong to a specific animal species. The par
adox involved in the loss of human rights is that such loss coincides with
the instant when a person becomes a human being in general-without a
profession, without a citizenship, without an opinion, without a deed by
which to identify and specify himself--and different in genera), representing
nothing but his own absolutely unique individuality which, deprived of
expression within and action upon a common world, loses all significance.
The danger in the existence of such people is twofold: first and more
obviously, their ever-increasing numbers threaten our politica) life, our
human artifice, the world which is the result of our common and co-ordi
nated effort in much the same, perhaps even more terrifying, way as the
153
wild elements of nature once threatened the existence of man-made cities
and countrysides. Deadly <langer to any civilization is no Jonger Jikely to
come from without. Nature bas been mastered and no barbarians threaten to
destroy what they cannot understand, as the Mongolians threatened Europe
for centuries. Even the emergence of totalitarian governments is a phe
nomenon within, not outside, our civilization. The danger is that a global,
universally interrelated civilization may produce barbarians from its own
rnidst by forcing millions of people into conditions which, despite all ap
pearances, are the conditions of savages.54
•• This modern expulsion from humanity has much more radical consequences than
the ancien! and medieval custom of outlawry. Outlawry, certainly the "most fearful
fate which primitive law could inflict," placing the life of the outlawed person at the
mercy of anyone he met, disappeared with the establishment of an effective system of
law enforcement and was finally replaced by extradition treaties between the nations.
It had been primarily a substitute for a police force, designed to compel criminals to
surrender.
The early Middle Ages seem to have been quite conscious of the danger involved
in "civil death." Excommunication in the late Roman Empire meant ecclesiastical
death but left a person who had lost his membership in the church full freedom in
all othcr respects. Ecclcsiastical and civil death became identical only in the Mero
vingian era, and there excommunication "in genera! practice [was] limited to tempo
rary withdrawal or suspension of the rights of membership which might be regained."
See the articles "Outlawry" and "Excommunication" in the Encyclopedia of Social
Sciences. Also the article "Friedlosigkeit" in the Schweizer Lexikon.
154
Stanford Law Review
Volume 71 June 2019
ARTICLE
Migration as Decolonization
E. Tendayi Achiume*
Abstract. International migration is a defining problem of our time, and central to this
problem are the ethical intuitions that dominate thinking on migration and its
governance. This Article challenges existing approaches to one particularly contentious
form of international migration, as an important first step toward a novel and more
ethical way of approaching problems of the movement of people across national borders.
The prevailing doctrine of state sovereignty under international law today is that it entails
the right to exclude nonnationals, with only limited exceptions. Whatever the scope of
these exceptions, so-called economic migrants—those whose movement is motivated
primarily by a desire for a better life—are typically beyond them. Whereas international
refugee law and international human rights law impose restrictions on states’ right to
exclude nonnationals whose lives are endangered by the risk of certain forms of
persecution in their countries of origin, no similar protections exist for economic
migrants. International legal theorists have not fundamentally challenged this
formulation of state sovereignty, which justifies the assertion of a largely unfettered right
to exclude economic migrants.
* Assistant Professor of Law, UCLA School of Law. I would like to thank the following
individuals for their valuable insights on earlier drafts: Amna Akbar, José Alvarez, Asli
Bâli, Laurie Benton, Gabriella Blum, Devon Carbado, Justin Desautels-Stein, Laurel
Fletcher, Gabriel Greenberg, Oona Hathaway, Loren Landau, Itamar Mann, Emmanuel
Mauleón, Jon Michaels, Saira Mohamed, Hiroshi Motomura, Sam Moyn, K-Sue Park,
Matiangai Sirleaf, and Olúfẹ́mi O. Táíwò. Just as instrumental were participants in the
following workshops: the American Society of International Law’s Migration Law
Interest Group Bellagio Workshop (especially Jaya Ramji-Nogales and Peter Spiro for
creating an intellectual environment conducive to radical reimagining), the Berkeley
International and Comparative Law Colloquium, the Duke and Stanford Culp
Colloquium, the Southern California International Law Scholars Workshop, the UCLA
Political Sociology and the Global South Working Group, the UCLA Law School
Summer Faculty Colloquium, the UCLA Law School Junior Faculty Colloquium, the
Spring 2018 UCLA Advanced Critical Race Theory Seminar, the Vanderbilt International
Legal Studies Program Works-in-Progress Roundtable, the Women in International Law
Workshop, and the Yale-Stanford-Harvard Junior Faculty Forum. I thank the following
individuals for outstanding research assistance and fruitful intellectual provocation:
Rebecca Fordon, Erin French, Zachary Heinselman, Marc Jacome, Kabita Parajuli, and the
stellar UCLA Law reference librarian team. And finally, I am grateful to the Hellman
Fellows Fund at UCLA for its research support. All mistakes are my own.
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To be clear, the normative claims of this Article are not utopian. This
Article takes as its starting point the current distribution of power within the
international order, which is a result of European colonialism and its legacy.
It is not primarily concerned with an ideal theory of collective self-
determination and its relationship to territorial and political borders.41 It is
concerned instead with what justice demands of First World-Third World
relations where sovereignty and the right to exclude are concerned, in light of
the European colonial project and its enduring legacy. It identifies Third
World migration to the First World as an entitlement of neocolonial imperial
membership on grounds of political equality,42 even while cognizant of the
myriad ways in which migration can be consistent in fact with the continued
subordination of Third World persons and peoples.43
39. See Loren B. Landau, A Chronotope of Containment Development: Europe’s Migrant Crisis
and Africa’s Reterritorialisation, 51 ANTIPODE 169, 170, 172-76 (2019).
40. See infra Parts II-III.
41. With respect to decolonization, it is not the argument of this Article that Third World
migration is the silver bullet or even the most efficacious means for redressing
neocolonial subordination. It is instead that migration, insofar as it is a means of formal
political inclusion, is an entitlement borne by Third World persons by virtue of their
de facto status as co-sovereigns with their First World counterparts. It is a requisite, if
not a guarantor, of political equality.
42. As I elaborate in more detail below, this is a corrective distributive justice argument.
In a different project, I make the distinction though a related argument for migration
(territorial admission and political inclusion) as colonial reparations.
43. It is in this sense that the theory advanced here is “non-ideal”: “It does not seek to give
an ideal-style account of how the world should be, and it need not necessarily be
interpreted as giving an account of how the world should ideally proceed from its
present non-ideal state.” See DANIEL BUTT, RECTIFYING INTERNATIONAL INJUSTICE:
PRINCIPLES OF COMPENSATION AND RESTITUTION BETWEEN NATIONS 6-7 (2009).
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In addition to its sovereignty as interconnection claim, this Article also

makes a number of other significant conceptual contributions. If colonialism
initiated inequitable global interconnection, decolonization could be conceived
of not as independence but as more equitable interconnection. Insofar as the First
and Third Worlds remain bound, for those who are subordinated in this
relationship, equality or decolonization may entail shifting power within the
relationship, not outside of or beyond it. Indeed, such a reconceptualization is
urgent as long as global interdependence and interconnection remain a fact.44
I argue for a related and equally important reconceptualization of decolo-
nization. In international law and legal theory, decolonization is a process for
political collectives: Individuals are neither the subjects nor the objects of
decolonization; nation-states are. My argument, however, is that the political
equality claims that nation-state decolonization is designed to vindicate may
have to be pursued through alternative means, including through individual
rather than purely structural approaches. Given the failure of formal
independence to undo colonial subordination, for some Third World persons,
so-called economic migration may enact a process that enhances individual
self-determination within neocolonial empire, irrespective of its implications
for the collective self-determination of Third World nation-states.
This personal pursuit of enhanced self-determination (which asserts
political equality with First World citizens) is thus decolonial; it is migration as
decolonization. In this way, this Article centers acts of resistance or opposition
by those who occupy subordinate positions within imperial formations, and
explores the ethical (and legal) entailments of these acts once they are reframed
as acts responsive to deep-seated political inequality. The aim is not to offer a
tidy, ideal theory of how decolonization can be achieved for all peoples
everywhere. Rather, it is to reframe migration—even unauthorized Third
World migration—as one compelling means of asserting individual agency
over political horizons, and to argue for the formal recognition in the law of
this expression of agency.45
44. Decolonization becomes not about severing connections, but about the renegotiation
or the rearranging of the nature of the connections and the allocation of power in
extant relationships. This conception of equality or antisubordination through more
equitable interdependence was arguably at the center of the political theory of a
number of prominent anticolonial figures, including Amílcar Cabral, Aimé Césaire,
and Léopold Sédar Senghor. See, e.g., AMILCAR CABRAL, Message to the People of Portugal,
in REVOLUTION IN GUINEA: AN AFRICAN PEOPLE’S STRUGGLE 123 (Richard Handyside ed.
& trans., 1969) (calling for unity between the Bissau-Guinean and Portuguese peoples
following decolonization); FREDERICK COOPER, CITIZENSHIP BETWEEN EMPIRE AND
NATION: REMAKING FRANCE AND FRENCH AFRICA, 1945-1960, at 1-25 (2014); GARY
WILDER, FREEDOM TIME: NEGRITUDE, DECOLONIZATION, AND THE FUTURE OF THE
WORLD 2-16 (2015).
45. Note that my primary concern is substantive equality and the well-being of persons
and peoples, rather than the equality of nation-states. This Article does not seek to
footnote continued on next page
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In addition to the normative and conceptual contributions of this Article,

it also has potential sociological implications. Recovering colonial history
and foregrounding colonial legacy point to a different explanation and
understanding of Third World migration. This migration is not merely
economically responsive but is politically responsive as well.46
I. The Territorial Sovereign Nation-State and Its Right to Exclude

Political Strangers
This Part introduces the territorial sovereign nation-state as the primary
vehicle for the collective self-determination of peoples according to prevailing
international legal doctrine and dominant political theory. It also introduces
the right to exclude political strangers or nonnationals in international law,
and outlines the prevailing political theory arguments used today to defend
this right as an incident of nation-state sovereignty. It then reviews how this
right operates in practice, especially in the context of encounters between
Third World migrants and First World nation-states.
<>
See, e.g., Marie-Laurence Flahaux & Hein de Haas, African Migration: Trends, Patterns,
Drivers, COMP. MIGRATION STUD. 4-5 (Jan. 22, 2016), https://perma.cc/M9S9-YRMM
(noting that “colonial occupation and concomitant practices of the slave trade and the
systematic use of forced labour and recruitment have in many ways shaped
contempo-rary migration patterns within and from [Africa],” and that “[w]e can see
migration as afunction of people’s aspirations and capabilities to migrate”).

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B. The Right to Exclude in Practice

Although every state in the international system formally retains full
discretion to admit or exclude economic migrants, reality diverges from this
principle in nonarbitrary ways. Not all states are equally capable of exercising
this discretion. The control First World states have over their borders is by no
means perfect, but it far surpasses that of their Third World counterparts.74
First World states can and often do enforce their borders to exclude economic
and other migrants, especially from the Third World, often through
immigration restriction agreements with Third World states (and former
Second World states).75

See Landau, supra note 39, at 173-76 (comparing the European Union’s response to
African migrants with African permeability of borders).
Consider the permeability of Lebanon’s borders to Syrian refugees and other
involuntary migrants relative to the far more impermeable borders of Western

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The other side of states’ differential capacity to exclude is the differential

freedom of movement that persons enjoy depending on whether they are
citizens of the First or Third World. Freedom of movement exhibits structural
dynamics related to the ones just discussed: First World citizens have far
greater capacity for lawful international mobility relative to their Third
World counterparts, even setting aside questions of personal financial means.
One’s nationality determines the range of one’s freedom of movement in a way
that completely belies claims that assert or imply that all persons are equally
without the right of freedom of international movement in our global order.76
This is because of the robust web of multilateral and bilateral visa agreements
that privilege First World passport holders and preauthorize their movement
across the globe.77 In a global ranking of passports according to the extent of
entitlements to visa-free travel, First World countries dominate the top and
Third World countries dominate the bottom.78 Freedom of movement is, in
effect, politically determined and racially differentiated.79 For many, place of
birth alone determines whether or not the act of crossing national borders will
be a matter of life and death. And because of the persisting racial demographics
that distinguish the First World from the Third—demographics that are, in
significant part, a product of passports, national borders, and other successful
institutions that partially originated as technologies of racialized exclusion80—
most whites enjoy dramatically greater rights to freedom of international
European states to the same. See E. Tendayi Achiume, Syria, Cost-Sharing, and
the Responsibility to Protect Refugees, 100 MINN. L. REV. 687, 688-89 (2015). This
relative impermeability of First World borders is currently achieved using Eastern
European states, Turkey, and North African states. See E. Tendayi Achiume, Governing
Xenophobia, 51 VAND. J. TRANSNAT’L L. 333, 374-90 (2018).
76. The focus here is how nationality impacts international mobility, but the political
economy of international mobility implicates other variables, including class, religion,
race, and gender.
77. See Steffen Mau, Mobility Citizenship, Inequality, and the Liberal State: The Case of Visa
Policies, 4 INT’L POL. SOC. 339, 348-49 (2010) (concluding, from an analysis of the visa
regimes of 193 countries, that “the freedom of movement people enjoy depends greatly
on their being citizens of rich democracies”); Eric Neumayer, Unequal Access to Foreign
Spaces: How States Use Visa Restrictions to Regulate Mobility in a Globalized World, 31
TRANSACTIONS INST. BRIT. GEOGRAPHERS 72, 73, 81 (2006).
78. See Global Passport Power Rank 2019, PASSPORT INDEX, https://perma.cc/WXA7-Q5YV
(archived Apr. 28, 2019).
79. See Mau, supra note 77, at 349 (“Looking at the data, it becomes apparent that . . . most
countries with either black or Islamic majorities are exempted from visa-free travel on
a large scale.”).
80. See infra Parts II.B, III.B.
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movement (by which I mean travel across borders) than most nonwhites. 81
The reality is that the mortal cost of international mobility is largely
a nonwhite problem.
Further still, among Third World citizens, political and economic elites
have differential access to permission to move, quite apart from the resources
necessary to effect physical passage across borders. Due to prohibitively
expensive and complex visa application processes, politically and economically
marginal Third World citizens—including many who are likely to consider
economic migration—are foreclosed from even seeking permission to move
legally across borders.82 They simply cannot afford to do so. They are not only
the most excludable category of persons, but they inhabit the status of excluded
even without or before any attempt to seek admission and inclusion in the
First World. The heightened excludability of Third World citizens relative to
their First World counterparts makes the argument for Third World migrant
nonexcludability that follows in Part III below all the more important.
<>
81. My claim here rests on a logical inference: If most First World citizens are white and
most Third World citizens are nonwhite, and if First World citizenship confers
greater international mobility than Third Word citizenship, it follows that most
whites enjoy greater freedom of movement than most nonwhites. There is more work
to be done by scholars of international law to theorize the relationship between
whiteness and international mobility privilege in light of ethnographic studies such as
one by Max Andrucki, who documented the ease of white South African mobility and
migration to the United Kingdom (relative to nonwhite South Africans), on account of
descent privileges in British immigration law. See Max J. Andrucki, The Visa Whiteness
Machine: Transnational Motility in Post-Apartheid South Africa, 10 ETHNICITIES 358, 363-64
(2010).
82. See id. at 363; see also, e.g., Simone Bertoli & Jesús Fernández-Huertas Moraga, The Effect
of Visa Policies on International Migration Flows, IFO DICE REP., Spring 2018, at 38,
https://perma.cc/T257-NLYH (reviewing a study finding that visa restrictions
discouraged the migration of low-skilled, poorer migrants to countries in the
Organisation for Economic Co-operation and Development more than it did the
migrations of high-skilled, richer migrants); JR Thorpe, Why Are the Only “Acceptable”
Immigrants the Rich Ones?, BUSTLE (Feb. 24, 2017), https://perma.cc/B87U-K4UH.
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II. What Political Strangers?

The boundaries of the most salient political communities do not coincide
with national territorial borders. Many nation-states are far from being the
discrete autonomous political communities international law insists they are.
Instead, they are politically interconnected in messy, complex ways
determined significantly by historical imperial projects and their legacies, and
this interconnection has implications for the law of international migration.
This Part supports the claim that Third World peoples were brutally initiated
into First World political communities under European colonialism and
remain within these communities today.88 To do so, this Part relies on the
work of scholars across a number of disciplines who have deepened the
understanding of the historical and continuing influence of colonialism, and
the normative and legal implications of this influence.
A. Colonial Imperialism
Much has been written about the brutality and horror that Europeans
visited upon the peoples they colonized,89 and there are a number of different
88. The historical analysis in this Part focuses on the history of British and French colonial
empires in Africa and Asia during the nineteenth and twentieth centuries, with a much
greater emphasis on the British. At one time, the British Empire spanned a quarter of
the earth’s land surface, and in 1901, almost 3 million natives of the United Kingdom
were globally dispersed outside of the metropole, living the project of colonial empire.
See HARPER & CONSTANTINE, supra note 28, at 3. Also in that year, over 43 million
people inhabited “Britain’s African possessions.” Id. at 111.
Many other European nations—such as Belgium, Portugal, Spain, Germany, and the
Netherlands—headed colonial empires, but the specifics of these empires and their
legacies are not addressed in any detail in this Article, nor are they necessary for
assessment of its general theoretical and conceptual claims. Similarly, I do not exhaust
all forms of European colonialism: I do not consider, for example, “Soviet colonialism”
(communist domination in central and eastern Europe). See Luwam Dirar, Rethinking
the Concept of Colonialism in Bandung and Its African Union Aftermath, in BANDUNG,
GLOBAL HISTORY, AND INTERNATIONAL LAW: CRITICAL PASTS AND PENDING FUTURES
355, 355-58 (Luis Eslava et al. eds., 2017).
89. See Ypi, supra note 26, at 162 (“Burning native settlements, torturing innocents,
slaughtering children, enslaving entire populations, exploiting the soil and natural
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ways to conceptualize the various harms of colonialism.90 This Article focuses

on colonialism as a political process characterized by a specific harm, much
along the same lines as Lea Ypi, who has argued that “the wrong of colonialism
consists in the creation and upholding of a political association that denies its
members equal and reciprocal terms of cooperation.”91 Colonialism pursues
political interconnection predicated on the subordination of certain members
of the association it creates, and grants colonizers “certain prerogatives” and
permission to deny the same to the colonized.92 Colonialism creates and
embodies “morally objectionable political relations,” and in this way is closely
related to other configurations such as the oppression of minorities and
apartheid.93 The work of Immanuel Kant has ironically been instrumental to
some of the leading political theory on this conceptualization of colonial
harm.94 Ypi’s analysis of Kant’s philosophy notes Kant’s argument that the
pursuit of political associations is governed by “norms of equal treatment and
reciprocity.”95 As Ypi notes, Kant’s critique of colonialism included “its
violation of standards of equality and reciprocity in setting up common
political relations, and the consequent departure from a particular ideal of
economic, social, and political association.”96 Ypi observes that in treaties and
negotiations that formalized colonial occupation, colonizers deployed coercion
resources available to them, and discriminating on grounds of ethnicity and race are
only some of the most familiar horrors associated with [colonialism].”).
90. One is to emphasize the territorial violations that attend colonialism, including the
infringement of indigenous rights to jurisdiction, control and use of territorial
resources, and the movement of peoples and goods within a given territory.
See generally Lea Ypi, Territorial Rights and Exclusion, 8 PHIL. COMPASS 241 (2013).
91. Ypi, supra note 26, at 158. Daniel Butt has explained that although colonial domination
has taken many forms, it generally involved (1) “the denial of self-determination, and
the imposition of rule rooted in a separate political jurisdiction”; (2) “an attempt to
impose the colonial power’s culture and customs onto the colonized, whether as a
result of a belief in the racial and/or cultural superiority of the colonizing power . . .
or as a mechanism for establishing and consolidating political control”; and (3) “the
exploitation of colonized peoples.” Butt, supra note 26, at 893.
92. See Ypi, supra note 26, at 167.
93. See id. at 163.
94. The irony arises in light of the fact that Kant’s theoretical work defended the racial
inferiority and political subordination of nonwhites, who, he argued, were “physically
[and] mentally unfit” for global migration. See Pauline Kleingeld, Kant’s Second Thoughts
on Race, 57 PHIL. Q. 573, 581 (2007). For a literature review and overview of Kant’s racial
and racist theory, see generally id. (arguing that Kant rejected these views in his later
work). Kleingeld argues that Kant ultimately adopted a racial egalitarianism which
calls for a grant of “full juridical status to nonwhites” and which is “irreconcilable
with his earlier defence of slavery.” Id. at 586. As an example, Kant’s “concept of
cosmopolitan right . . . prohibits the colonial conquest of foreign lands.” Id.
95. Ypi, supra note 26, at 173.
96. Id. at 174.
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and manipulation—and took advantage of conceptual ambiguity in, for

example, the meaning of property and sovereignty—to consolidate their rule.97
In their pursuit of political association with the colonized, colonizers violated
the principle that the formation and maintenance of political associations can
only occur “through the establishment of political institutions that allow
people to relate to each other as equals, guaranteeing that their voice will be
heard and that their claims will be equally taken into account when decisions
affecting both are made.”98 The resulting association—colonial empire—
structurally and by design exploited colonized peoples for the benefit of
colonizers.
The aim of European colonial expansion was the economic and political
edification of metropolitan nation-states and their citizens. During the colonial
era, metropolitan political and economic well-being nontrivially (though of
course not exclusively) relied on colonial labor and extraction, in significant
part condoned by the European international law in force at the time.99 This
reliance may have been existential for European colonial nations, but even if it
was not, it certainly shaped these nations qua nations and contributed
materially to their political and economic well-being. For example, even
“[d]eep into the twentieth century, many of the territories incorporated into
the [British] overseas empire were locked into providing primary products for
the [United Kingdom] and by extension world markets.”100 As I have noted
elsewhere, “[i]nternational and bilateral law among European nations, and
agreements involving European private corporations, played an important
role in securing the colonial advantage: the economic and political dominance of
97. See id. at 180-82.

98. Id. at 174-75; see also id. (describing the basis of “Kant’s cosmopolitan critique of
colonialism”). Ypi’s interpretation of Kant’s theory posits: “[W]hen territorially distinct
collective agents first make contact with each other, they have a duty (a) to not treat
each other with hostility, (b) to communicate respecting criteria of equality and
reciprocity, and (c) to set up a political association that reflects such criteria in the rules
it generates.” Id. at 176. To be clear, no part of the argument here rests on the condition
that preexisting non-European political communities were formed and governed on
morally impeccable bases. Whether or not those preexisting political communities had
unethical dimensions is irrelevant for the present analysis, because the harm of
colonialism resides in the terms of the formation of those communities with the
colonists. Cf. id. at 185 (“The unilaterality of these actions remains the same regardless
of whether the agent one is trying to associate with is free from internal constraint or
governed in a paternalistic way.”).
99. Consider, for example, that by 1880, South Africa’s Kimberley mines produced 95% of
the world’s diamonds and by 1900, its Rand mines produced a quarter of the world’s
gold. See HARPER & CONSTANTINE, supra note 28, at 136. See generally WALTER RODNEY,
HOW EUROPE UNDERDEVELOPED AFRICA 205-23 (1972) (providing a careful study of how
colonial exploitation of Africa served European capitalist development).
100. HARPER & CONSTANTINE, supra note 28, at 149.
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colonial powers at the expense of colonies.”101 Colonial advantage was

legitimized and achieved in no small part through sovereignty doctrine in
international law at the time.
Antony Anghie has made the compelling case that as a nineteenth-century
international legal doctrine, sovereignty “was constituted through
colonialism.”102 This doctrine developed in a nineteenth-century positivist
jurisprudence that denigrated non-Europeans and legitimized their extreme
and even violent subordination by Europeans, on the basis that the former
lacked the requisite sovereignty possessed by European political communi-
ties—sovereignty that would have mandated equality in dealings with non-
Europeans.103 Legal sovereignty was only a feature of members of internation-
al society, which was comprised of civilized states.104 International legal
doctrine designated non-Europeans uncivilized and lacking in the cultural
determinants of membership in international society, thereby largely ejecting
them from the international legal framework within which European nations
were then able to politically and territorially occupy non-Europeans.105
Although civilization was presented as a cultural standard, it was decidedly
racial: No amount of cultural similarity or assimilation would overcome the
hurdle of nonwhiteness that was an implicit and explicit condition of legal
sovereignty during the colonial era.106 Anghie carefully shows, then, that state
sovereignty—in many ways the organizing principle of international law—
was, at this crucial stage in the evolution of modern international law, a
racialized and culturally specified institution dispensed by Europeans on their
own terms and largely denied to non-Europeans.107 At the turn of the
nineteenth century, sovereignty for Europeans represented “an assertion of
101. Achiume, supra note 26, at 144.

102. See ANGHIE, supra note 26, at 38.
103. See id. at 32-114. Although Europeans conceded that some non-Europeans might possess
“‘personal’ sovereignties,” comparable with feudal societies of medieval Europe, this
was not the same as the territorial sovereignty that could be claimed and projected by
European nations and which gave them superior rights to non-Europeans. See ANDREW
FITZMAURICE, SOVEREIGNTY, PROPERTY AND EMPIRE, 1500-2000, at 7, 16 (2014).
104. See ANGHIE, supra note 26, at 52-56.
105. Anghie notes that there were processes by which non-Europeans “could be brought
within the realm of international law,” and these were encompassed by four
“[d]octrines of assimilation,” which included treatymaking and even colonization itself.
See id. at 67. Membership in international society required so-called uncivilized peoples
to “adopt[] Western forms of political organization.” See id. at 86-87. Through the
doctrine of recognition—according to which new states came into being only when
their existence was recognized by established states—European states determined
which non-European political communities could be sovereign and to what extent.
See id. at 100.
106. See id. at 100-04.
107. See id. at 100-03.
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power and authority, a means by which a people may preserve and assert their
distinctive culture.”108 At the same time, “[s]overeignty for the non-European
world [wa]s alienation and subordination rather than empowerment.”109
Colonial migration was crucial to establishing and maintaining colonial
advantage. The movement of people was required to project metropolitan
political power and establish colonial empire. As mentioned earlier, the
European colonial project involved the emigration of about 62 million
Europeans to colonies across the world between the nineteenth century and
the first half of the twentieth century alone. 110 Some colonial migrants were
traders, others were settlers, and many moved in search of a better life; some
were wholly or partially sponsored by metropolitan authorities who viewed
colonial emigration as beneficial to the economic well-being of the
metropoles.111 These European migrants were the original economic migrants,
and when they traveled out to the non-European world they traversed it and
appropriated it by relying on the same justifications First World states now
use to militarize their borders against today’s economic migrants.
<>
Id. at 104.

Id. at 105.
See Miège, supra note 27, at 81 (noting that at least 42 million Europeans migrated
during the nineteenth century, and about 20 million migrated during the first half of
the twentieth century).
See HARPER & CONSTANTINE, supra note 28, at 5-6.
<">
RANDALL HANSEN, CITIZENSHIP AND IMMIGRATION IN POST-WAR BRITAIN:

THE INSTITUTIONAL ORIGINS OF A MULTICULTURAL NATION 39 (2000).
113. HARPER & CONSTANTINE, supra note 28, at 7; see also id. at 125 (noting that colonial
migration achieved widespread dispossession, and in many places “native people were
dispossessed of their land in a climate of ‘endemic and brutal violence’” (quoting
JOHN M. MACKENZIE, THE SCOTS IN SOUTH AFRICA: ETHNICITY, IDENTITY, GENDER AND
RACE, 1772-1914, at 48 (2007))).
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B. Neocolonial Imperialism
Decolonization—as a process and as an outcome—is the subject of a large,
interdisciplinary literature, which unsurprisingly includes differing and even
competing conceptions of what the word does or should mean.123 As a legal and
political project, decolonization was largely framed as the pursuit of political
equality for colonized peoples—their capacity to self-determine—through the
achievement of nation-state independence.124 This was by no means the only
salient conception of decolonization, and a number of notable anticolonialists
proposed differing approaches that pursued more equitable interdependence
within colonial empire, as opposed to equality through independence.125 That
said, the dominant conception of what decolonization would entail was
ultimately the pursuit of political equality specifically through independent,
autonomous Third World nation-states recognized as equal to those of the
First World.
For the Third World, formal decolonization conferred a seat at the table of
international lawmaking within the United Nations, and in principle, a chance
to reform international law to eliminate colonial advantage and inequity.
If sovereignty was to be good for anything, it was as a means of asserting

For an illustrative volume considering different meanings of and perspectives on
decolonization in history, see THE DECOLONIZATION READER (James D. Le Sueur ed.,
2003).
For example, the Declaration on the Granting of Independence to Colonial Countries
and Peoples, adopted by the United Nations General Assembly in 1960, frames
sovereign independence in these terms. See G.A. Res. 1514 (XV), supra note 66.
See supra note 44 and accompanying text.
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fairness in the international regime governing ostensibly equal nation-states.

Third World Approaches to International Law (TWAIL) scholars have
analyzed efforts of Third World nations to achieve a New International
Economic Order (NIEO) in the 1970s as arguably the high point of the nations’
attempts to create more equitable international law.126 Initiatives such as the
NIEO were spurred in large part by the desire of Third World states to gain
control of their economies and economic destinies after it became clear that
without doing so, the formal sovereignty they were accorded at independence
would not be enough for these states truly to self-determine in the deeper
political sense.127 Formal political equality was thus contested as farcical if
unaccompanied by meaningful economic control by newly independent states.
The NIEO and similar initiatives were unsuccessful.128 Concomitantly, an
expansive interdisciplinary literature supports the assessment that the legacy
of colonialism persists in a manner that continues to deny Third World
peoples the exceedingly more robust sovereignty enjoyed by their First World
counterparts.129 Formal decolonization is viewed as having shifted colonial
empire to neocolonial empire.130
126. See, e.g., Antony Anghie & B.S. Chimni, Third World Approaches to International Law and
Individual Responsibility in Internal Conflicts, 2 CHINESE J. INT’L L. 77, 81-82 (2003). For an
overview of the NIEO and a recent assessment of the NIEO in light of contemporary
global governance debates, see Nils Gilman, The New International Economic Order:
A Reintroduction, 6 HUMANITY 1 (2015). Other touchstone initiatives aimed at using the
nation-state system to rewrite colonial advantage out of international law have
included the 1955 Bandung Conference. See Luis Eslava et al., The Spirit of Bandung,
in BANDUNG, GLOBAL HISTORY, AND INTERNATIONAL LAW, supra note 88, at 3, 17-22.
127. See ANGHIE, supra note 26, at 211 (noting that the premise of Permanent Sovereignty
over Natural Resources (a core demand of the NIEO) “was closely tied to the concept
of self-determination, which in itself suggests the close links between political
sovereignty and economic sovereignty”); Antony Anghie, The Evolution of International
Law: Colonial and Postcolonial Realities, 27 THIRD WORLD Q. 739, 748 (2006) [hereinafter
Anghie, Evolution of International Law] (“[The NIEO] initiative was especially important,
as the new states realised that political sovereignty would be meaningless without
corresponding economic independence.”). The Spring 2015 issue of Humanity provides
an illuminating exploration of the history of the NIEO. See, e.g., Gilman, supra note 126.
128. See ANGHIE, supra note 26, at 211-44 (describing how the emergence of a “transnational
law of international contracts,” among other developments, thwarted the aims of the
NIEO).
129. See generally ANGHIE, supra note 26 (testing the colonial history, foundations, and
functioning of sovereignty doctrine); PAHUJA, supra note 35 (analyzing the role
international law and international economic institutions play in maintaining Third
World, colonial-era subordination, including through the development frame).
For a prior international law and international relations study of the failures of
decolonization, see SIBA N’ZATIOULA GROVOGUI, SOVEREIGNS, QUASI SOVEREIGNS AND
AFRICANS: RACE AND SELF-DETERMINATION IN INTERNATIONAL LAW (1996).
130. See GROVOGUI, supra note 129, at 2 (“[T]he process of decolonization transferred
rudimentary political powers to the formerly colonized, but it did not transform
the structures of domination—that is, the institutional and cultural contexts of
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A premise of this Article’s argument, then, is that the present era is defined
by neocolonial imperialism, even if formal colonial imperialism has been
outlawed.131 Imperialism may be defined as the practice of empire: the
projection of political and economic power beyond the territorial borders of
the power-wielding political community.132 Imperialism of different kinds has
arguably structured human relations for centuries.133 The term “neocolonial
imperialism” distinguishes the unique form of imperialism that results from
the legacy, and continues the logic, of formal European colonialism from other
forms of imperialism that contemporaneously exist alongside it.134
Colonialism should be understood here as “a particular model of political
organization, typified by settler and exploitation colonies, and is best seen as
Western hegemony in the global international order on the one hand, and African
marginalization within it on the other.”).
131. In one of his articulations of neocolonial subordination, Frantz Fanon captures the
essence of the relations with which this Article is concerned. See FRANTZ FANON, First
Truths on the Colonial Problem, in TOWARD THE AFRICAN REVOLUTION: POLITICAL ESSAYS
120, 120-24 (Haakon Chevalier trans., Grove Press 1967) (1964). But see MICHAEL HARDT
& ANTONIO NEGRI, EMPIRE, at xii-xiii (4th prtg. 2001) (arguing that the era of neocoloni-
alism and territorialized sovereignty has been superseded by a new global, entirely
deterritorialized form of sovereignty: “Empire”).
132. For a history of the concept of empire as entailing the projection of power beyond state
boundaries, see FITZMAURICE, supra note 103, at 17-19. Different theoretical engage-
ments have emphasized different dimensions of the projection of economic, political,
and cultural power in the theorization of empire. Michael Doyle has defined empire as
“a system of interaction between two political entities, one of which, the dominant
metropole, exerts political control over the internal and external policy—the effective
sovereignty—of the other, the subordinate periphery.” MICHAEL W. DOYLE, EMPIRES 12
(1986). For Doyle, this must be distinguished from cases where a “hegemonic power . . .
controls much . . . of the external, but little . . . of the internal, policy of other states.”
See id. (emphasis omitted). In the early twentieth century, Marxists foregrounded
European imperialism as an economic project that “corresponded to a particular stage
in the development of capitalism.” See Marks, supra note 36, at 451. Notwithstanding
its political dimensions, then, imperialism for Marxists referred to “a distinctive
economic system, a key facet of which is the penetration and control of markets
abroad.” See id. Regarding the political and economic dimensions of imperialism,
postcolonial theorists have argued that imperialism is a cultural system as well and that
European imperialism imbued ideas of race, sex, civilization, property, law, and so on.
See id. at 452.
133. See Marks, supra note 36, at 450.
134. An example of imperial relations that exist alongside neocolonial imperialism involves
China’s increasing economic and political dominance. These imperial relations benefit
from neocolonial structures and processes but are nonetheless distinct, and as a result
deserve independent analysis of what justice within that imperial relationship would
entail. See, e.g., Ching Kwan Lee, The Spectre of Global China, NEW LEFT REV., Sept.-Oct.
2014, at 29 (explaining how changes in global capital mean that foreign economic
domination in Zambia today cannot fully be explained through the forces I attribute to
First World neocolonial processes, including because of the distinct operation of
Chinese capital).
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one specific instance of imperialism, understood as the domination of a

territory by a separate metropole.”135 Neocolonialism, then, is a subsequent and
distinguishable instance, which nonetheless retains the geopolitical terrain of
colonial imperialism and colonial advantage. Neocolonial empire spans the
territories of the First and Third Worlds, and is characterized by legal,
political, and economic relations and institutions whose logic structurally
perpetuates neocolonial advantage. Some of these relations and institutions are
multilateral, others are bilateral, and others are purely domestic or
intranational. What follows is an abbreviated review of the forces that keep
the Third World connected to the First in a relationship dominated by First
World nation-states and their interests.
In 1965, Kwame Nkrumah, the anticolonialist who led Ghana to inde-
pendence, defined neocolonialism as follows: “The essence of neo-colonialism
is that the State which is subject to it is, in theory, independent and has all the
outward trappings of international sovereignty. In reality its economic
system and thus its political policy is directed from outside.”136 At stake in
neocolonial empire is power: “A State in the grip of neo-colonialism is not
master of its own destiny.”137 Instead, external control by neocolonial forces
operates through a range of economic and financial regimes which Nkrumah
argued effect neocolonial domination, including global commodity prices
and exploitative aid through the International Monetary Fund (IMF), the
World Bank, and related institutions.138 These economic and financial
regimes impose direct and indirect political constraints: They impose
restrictions on fiscal and other domestic policies with consequences from
health care to mining, and they restrict the field of political agency by
controlling the economic means of the former colonial power.139
Nkrumah was quick to point out that former Western European colonial
nation-states were not the only beneficiaries and purveyors of neocolonialism.
The United States, for example, was “the very citadel” of neocolonial empire,
through not only its economic force but also its political oppression of colonial
peoples from South Vietnam to the Congo (Leopoldville).140 Furthermore,
135. Butt, supra note 26, at 892.

136. KWAME NKRUMAH, NEO-COLONIALISM: THE LAST STAGE OF IMPERIALISM, at ix (1965).
137. Id. at x; see also id. at xv (“In the first place, the rulers of neo-colonial States derive their
authority to govern, not from the will of the people, but from the support which they
obtain from their neo-colonialist masters.”).
138. See id. at 239-43.
139. See generally GROVOGUI, supra note 129, at 196-200 (explaining some of the negative
consequences that resulted from trying to universalize international law); PAHUJA,
supra note 35, at 1-9 (describing changes in international law from the perspective of
the Third World).
140. See NKRUMAH, supra note 136, at 239-41.
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Nkrumah noted that neocolonial control was also exercised by consortia of

private and public financial actors, as was the case with the Congo. 141 Others
also theorized the strategies and mechanisms pursued even in the era of
decolonization, through which colonial logics of subordination would later be
preserved in neocolonial empire. An important example is Walter Rodney’s
seminal How Europe Underdeveloped Africa, in which he considers the legacies of
British, French, Portuguese, and other colonial empires.142 Rodney’s account
explains how colonial powers—which, more significantly, were capitalist
powers—formed relationships of exploitation that did not terminate with
formal decolonization.143 The work of scholars such as Anghie and Sundhya
Pahuja has taken the next step of offering compelling international legal
theories of neocolonial empire.144
Today, international law repudiates colonialism, but colonialism remains
essential to sustaining the political and economic dominance of the First
World.145 Modern international law—including the United Nations Charter
itself—preserves colonial advantage for colonizing powers even as it professes
the formal political independence of former colonies and the equality of all
sovereign states, including these former colonies.146 This preservation is
evident in international legal doctrines that prevented reparation or
141. See id. at 239-51.

142. See generally RODNEY, supra note 99, at 173-80 (analyzing European colonial
exploitation of Africa, including during the period of decolonization).
143. Rodney and (to a lesser extent) Nkrumah both advance economic theories of
neocolonialism or its antecedents rooted in a critique of imperialism as the final stage
of capitalism. Historian Thomas Benjamin has put Nkrumah’s economic theory in the
Marxian tradition, see Thomas Benjamin, Neocolonialism, in ENCYCLOPEDIA OF
WESTERN COLONIALISM SINCE 1450, at 831, 834 (Thomas Benjamin ed., 2007), whereas
Rodney would fall more in the dependency theory tradition under Benjamin’s
classification. My own theory of neocolonial empire is far more abstract, and rests on
no single or detailed economic explanation for the functioning of the neocolonial
interconnection it posits. In other words, while I concur with Nkrumah and Rodney in
their basic claim of the existence of neocolonial relations, the level of abstraction at
which I am conceptualizing neocolonial empire does not require me to commit to any
of the specific economic theories they argue explain those relations.
144. See ANGHIE, supra note 26, at 3-4 (arguing that state sovereignty as theorized in
international law is a racialized and culturally specified institution that perpetuates
colonial subordination); PAHUJA, supra note 35, at 1-5 (describing the role international
law and international economic institutions play in maintaining Third World,
colonial-era subordination, including through the development frame).
145. See ANGHIE, supra note 26, at 245-72 (describing how globalization has been
accompanied by contemporary international law—including international human
rights law—and international institutions that maintain Third World subordination);
Achiume, supra note 26, at 145; Anghie, Evolution of International Law, supra note 127,
at 748-49.
146. See ANGHIE, supra note 26, at 196-98.
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remediation of systematic colonial exploitation of Third World national

resources.147 Chief among these neocolonial international legal doctrines is
sovereignty doctrine itself. Formal decolonization may have extended formal
sovereignty and equality of status to former colonial territories, but closer
scrutiny shows that this Third World sovereignty remains only quasi-
sovereignty.148
<>
See id. at 196-244.

See id. at 235-44; see also GROVOGUI, supra note 129, at 16.
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III. Revisiting the Right to Exclude

This Part argues that the existence of neocolonial empire (if accepted) has
serious implications for how the right of nation-states to exclude should be
understood, where the First and Third Worlds are concerned. The argument
proceeds as follows. First and Third World peoples are de facto co-sovereigns
of neocolonial empire. In other words, within the political association that is
neocolonial empire, First and Third World persons are co-sovereign, each
with an equal right to a say in their collective self-determination. The First
World nation-state, by virtue of its beneficiary status within neocolonial
empire and the effectiveness of its sovereignty (secured in part through Third
World subordination), has no more right to exclude Third World persons
from its institutions of equal political membership than it has over its de jure
citizens.
A. De Facto Co-Sovereigns and the Right to Exclude
Under domestic and international law, citizens and noncitizens are not
considered political equals. As discussed above, the leading justifications for
this inequality have to do with the collective self-determination interests of the
notes 52-55.
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political community demarcated by the territorial nation-state.162 A Zambian

is not politically equal with a Briton because the law sorts the former into a
different political community or “self” (Zambia) for the purposes of reaping the
benefits of collective self-determination. The problem with this approach is
that the borders that demarcate many communities of de facto political equals
extend far beyond the national territorial borders that confer de jure political
equality on citizens of the same state.
As outlined in Part II above, Third World exploitation remains a feature of
neocolonial empire and continues to fuel First World prosperity.163 Within
neocolonial empire, First and Third World persons should be seen as co-
sovereign, with equal entitlement to direct the effective collective vehicles of
self-determination within the empire. If one concedes that all human beings
are equally entitled to self-determine, and if one accepts the general structure
of neocolonial empire articulated above, then Arash Abizadeh’s work supports
the normative basis for this claim164:
The democratic ideal of collective self-rule is grounded in the notion that
securing the conditions of individuals’ autonomy and standing as equals intrinsi-
cally requires that they be the joint authors of the terms governing the political
power to which they are subject. That one’s interests in general are affected by
others does not itself negate self-rule or autonomy and equal standing, but being
unilaterally subject to a coercive and symbolic political power, without any say
over the terms of its exercise, does. . . . [D]emocratic self-rule means that the
exercise of political power conforms to the collective will of those subjected to it,
and . . . the scope-condition of democratic legitimacy is that all those subject to the
exercise of political power have a right of democratic say.165
162. See supra Part I.A.

163. See supra Part II.B.
164. I use “democracy” here in the meaning emphasized by Abizadeh: “an attempt to
legitimize the collective and political exercise of power, on terms respecting the
equality and freedom of those over whom power is exercised, via participatory
political practices of expression, contestation, discursive justification, and decision-
making.” Abizadeh, supra note 52, at 880. One might focus attention, as some others
have, on an ideal theory of political community boundary formation from the
perspective of those committed either to democratic self-rule or to national self-
determination. Abizadeh engages in such an analysis and compellingly argues that, in
principle, only an unbounded conception of the demos “can yield a coherent theory of
democratic legitimacy.” See id. at 868. To be clear, I do not pursue an ideal theory of
democratically legitimate borders in this Article. Rather, I am more narrowly
interested in the democratic legitimacy of boundaries between the Third World and
the First World, in light of the history and legacy of European colonialism.
165. Id. at 878. Subjection occurs through coercion, either through “direct physical force,
invigilation via agents authorized to use physical force, and threats of punitive harm,”
or through “coercively undergirded symbolic processes of socialization and identity
formation.” Id.
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The claim is thus that historical and continuing Third World subjection to
and exploitation by the First World meets the requisite threshold of coercion
and coercively undergirded processes necessary to render Third World peoples
part of a shared demos with their First World counterparts, holding an equal
stake in its direction.166 This move extraterritorializes the demos beyond
nation-state borders such that its boundaries are contiguous with those of
neocolonial empire.
First and Third World persons, then, should be seen as de facto political
equals, sharing the mantle of the collective “self,” each with an equal say in the
effective collective vehicles of self-determination presiding over the field of
neocolonial empire. These vehicles are largely First World nation-states;
international and domestic laws that exclude Third World voices from these
vehicles are therefore unethical, as they undermine political equality. Rather
than being political strangers to First World nation-states, Third World
persons are, in effect, political insiders, and for this reason, First World nation-
states have no right to exclude Third World persons.
Before elaborating on the possible legal implications of this co-sovereignty
argument, it is important to highlight neocolonial imperialism’s implications
for the liberal nationalist tradition that is central to sustaining the existing
approach to national political and territorial borders. Recall that for liberal
nationalists or communitarians, the collective sovereign “self” is the nation—
a prior and culturally specified community, today again increasingly defined in
ethno-nationalist terms.167
There is a strong argument to be made that Third World peoples are
culturally co-nationals with First World peoples, also on account of
colonialism. For example, political theorists Sara Amighetti and Alasia Nuti
have argued that “the colonial experience created so strong a relation that the
transformations and fusions it initiated in national identities” are “mutually
constituted over time.”168 They argue that given the “particularly strong and
special” cultural relationship between colonial powers and their former
colonies, “postcolonial migrants are already part of the ‘self’ that determines
the ex-colonizing nation, because they are essential contributors to its
identity.”169 This gives them a right to migrate to the specific former colonial
166. To be clear, Abizadeh’s argument focuses on the common subjection that is produced
by border demarcation itself. See Arash Abizadeh, Closed Borders, Human Rights, and
Democratic Legitimation, in DRIVEN FROM HOME: PROTECTING THE RIGHTS OF FORCED
MIGRANTS 147, 159-61 (David Hollenbach ed., 2010). I focus instead on the implications
of common subjection through neocolonialism to argue that Third World peoples
have claims to First World nation-state membership.
167. See supra Part I.A.
168. See Amighetti & Nuti, supra note 56, at 548.
169. Id. at 552.
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nation-state whose national identity they have co-constituted. In this way,

Amighetti and Nuti argue that former colonial nations bear an obligation to
admit postcolonial migrants, and that postcolonial migrants have a
corresponding right to enter their territories.170
However, even if one takes the view that the nation is a prepolitical
cultural community that grounds the legitimacy of the sovereign state and also
marks its boundaries,171 certain practices of the resulting nation-state can
expand the bounds of that political community in ways that give certain
groups or individuals political entitlements, questions of cultural difference
notwithstanding. In other words, even if the set of cultural distinctions
between, for example, Zimbabwean and British citizens is said to place the two
groups in separate cultural nations, I argue that there are supervening de facto
political ties between the two groups that deserve formal legal recognition in
order to do justice by both Zimbabwean and British citizens’ rights to
membership in a collective that politically self-determines.
To reiterate, if First World national sovereignty and its political and
economic benefits remain significantly predicated on Third World
subordination and exploitation, keeping First and Third World peoples bound
in neocolonial empire, and if Third World peoples remain subjected by and to
First World nation-states (often with Third World state complicity), this
relationship gives Third World persons a valid claim to membership in First
World nation-states. At the very least, First World nation-states have no more
right to exclude Third World persons than they do their own citizens. The
next Subpart explores the implications of this claim for contemporary so-
called economic migration from the Third World to the First.
170. See id. at 560. I find Amighetti and Nuti’s arguments largely compelling, and I view my
project as complementary, supplying political and economic arguments where theirs
are predominantly cultural. There is a significant literature theorizing the economic
and political injustice of colonialism as well as persisting relations of economic and
political domination. However, I am not aware of any legal scholarship that takes the
next step to articulate a theory of sovereignty that calls for Third World migrant
inclusion on the basis of historical and continuing political and economic relations.
I am also not aware of legal scholarship that characterizes Third World migration,
conceptually or sociologically, as decolonial.
171. See, e.g., Abizadeh, supra note 52, at 869. Abizadeh attributes this position to Johann
Gottlieb Fichte, whom he summarizes on the natural bounds of the state in the cultural
nation bound by language: “The fact of shared nationality is supposed to legitimize
political power because the linguistic-cultural nation makes possible, and is the locus
for, freedom in its highest form; and the nation is the locus for freedom in part
precisely because it is (supposedly) prepolitical.” Id.
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B. The Right to Admission and Inclusion: Migration as Decolonization

I argued in the previous Subpart that because of the political features of
neocolonialism, First World states have no right to exclude Third World
persons. I turn now to a related claim: that Third World persons are entitled to
First World inclusion.
For many Third World peoples, their nation-states have failed to deliver
on the promises that animated anticolonial movements. Neocolonialism has
been a significant factor in their continued suffering, and Third World elites,
including and especially government officials, have secured their own interests
while pursuing social and economic policies that have benefitted foreign
powers at the expense of most Third World citizens.172 For Third World
persons whose capacity to self-determine is diminished by neocolonialism,
I propose that the closest they can get to what decolonization promises (self-
determination) may entail something quite different than what is asserted by
conventional international law accounts, if one takes as given the continuity
and resilience of neocolonialism.173 Once the enduring colonial legacy of global
economic and political interdependence is brought to the fore, political
equality for Third World persons may be more fruitfully pursued by seeking
politically and economically equitable relations within what so far remains a
relationship of enduring subordination.174 In other words, for some in the
Third World, decolonization as a strategy for self-determination is more
realistically pursued as reformation, rather than severance, of the relationship
of dependence.
172. Notably, just as colonial subordination did before it, neocolonialism has brought with
it ample facility and opportunity for Third World elites to benefit at the expense of the
Third World peoples they preside over. See, e.g., B.S. Chimni, Capitalism, Imperialism,
and International Law in the Twenty-First Century, 14 OR. REV. INT’L L. 17, 19 (2012)
(arguing that a “transnational capitalist class” that includes Third World elites profits
from global capitalist imperialism—which includes some systems of neocolonial
interconnection as I have defined it—“at the expense of the subaltern classes in both the
First and Third Worlds”); Rajagopal, supra note 12, at 10-11 (describing how Third
World elites, relying on similar concepts and values that originated under colonial
rule, have oppressed and dispossessed the majorities under their rule).
173. An assumption underlying the arguments that follow is that the arrangement of the
international order defined by the doctrine of nation-state sovereignty in its current
form offers no plausible means for achieving true decolonization.
174. It is my view that, nothing short of an apocalyptic disaster is likely to disrupt the levels
of global interconnection and interdependence enjoyed today. Notwithstanding the
resurgence of nationalist, xenophobic discourses around the world, the global capitalist
order remains unshaken and dependent on global interconnection. Consider a recent
United Nations projection that 82% of the expected population growth through 2050 in
high-income countries will be due to international migration. See POPULATION DIV.,
UNITED NATIONS DEP’T OF ECON. & SOC. AFFAIRS, ESA/P/WP.241, WORLD POPULATION
PROSPECTS: THE 2015 REVISION; KEY FINDINGS AND ADVANCE TABLES 6 (2015),
https://perma.cc/3ZSX-2JPC.
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Whereas decolonization is typically considered a practice of political

collectives (the nation-state in particular), this Article proposes that in light of
how badly this arrangement continues to fail Third World peoples, Third
World persons can take actions that we should understand as decolonial. These
are actions that are responsive to the conditions of neocolonial subordination—
actions that should be recast as attempted decolonization at a personal level.
Colonialism and neocolonialism are best understood as structural harms, and I
have highlighted above that achieving political equality or decolonization
would require structural change. The point is that where the necessary
structural change is not forthcoming, action can be taken by individuals
disadvantaged by the status quo that can increase their individual capacities to
self-determine, and this personal pursuit to enforce political equality should be
viewed as a matter of corrective distributive justice.
For some Third World persons, at least one available means of pursuing
political equality and asserting sovereignty (the capacity to self-determine)—
together, decolonization—may very well be migration. By migration, I mean the
act of leaving one’s place of birth and moving across national borders in
pursuit of greater capacity to self-determine through territorial admission and
political inclusion. This migration may be temporary or indefinite, depending
on the circumstances and desires of the persons involved, and entails territorial
and political incorporation into the destination nation-state. Legal migration
from the Third World to the First forms part of this picture. When, say, a
Zambian or Indian student chooses to pursue study or employment in Europe
in pursuit of a better life than she believes possible in her country of
nationality, and where what makes Europe “better” and her country “worse” is
a product of neocolonial advantage, her authorized admission and inclusion in
Europe should count as decolonial in the individual terms advocated here.
However, the most urgent implication of this thesis concerns unauthorized
Third World migration, especially by politically and economically marginal
persons who today either perish on their journeys or do make it to First World
states but are then perceived and treated as “illegal immigrants” and as
excludable political strangers.175 The thesis supplies an alternative lens for
assessing the claims to admission and inclusion of Third World migrants who
violate existing laws to settle in First World territories, and whose
motivation—the desire for a better life—is itself the product of a calculus
structured by persisting neocolonial advantage. For the Zimbabwean Third
World migrant whose territorial presence is unauthorized by the British
175. I view this as the most urgent implication, since unauthorized migrants today
experience some of the worst forms of human rights violations under the existing,
unethical migration governance regimes. Rethinking the foundations of the law that
sustain these violations is a priority because of the severe and disparate toll of the status
quo on unauthorized migrants.
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government, the migration as decolonization thesis casts her as a de facto co-

sovereign relative to de jure British citizens, and also attributes to her a right to
de jure recognition, admission, and inclusion. My thesis casts First World
immigration policies that prohibit admission and inclusion of Third World
migrants as unethical.
I argue that Third World persons are entitled to a form of First World
citizenship as a matter of corrective, distributive justice.176 I emphasize
citizenship here as primarily remedial rather than fully reparatory.177 The
176. See infra notes 200-04 and accompanying text.

177. Granting First World citizenship to Third World migrants would recognize their co-
sovereign status and correct an unethical set of power relations by redistributing the
power to achieve greater prospects of equality. There is a corrective justice dimension
to this, in the sense that redistribution is made necessary by a historical wrong and its
continuing, present-day legacy. See Linda Bosniak, Wrongs, Rights and Regularization,
3 MORAL PHIL. & POL. 187, 214 (2016) (discussing the need for more rectificatory
theories of immigration justice). I view this enterprise as related to the enterprise of
theorizing colonial reparations, but nonetheless distinct.
Claims for colonial reparations are grounded in the desire for comprehensive justice
for colonialism and its legacy. See, e.g., 10-Point Reparation Plan, CARICOM REPARATIONS
COMMISSION, https://perma.cc/T4UV-5MNS (archived May 4, 2019) (outlining a
comprehensive vision of reparations for slavery and colonialism). In international law,
states are required to “make full reparation” for “internationally wrongful act[s]”; this
reparation entails “restitution, compensation and satisfaction, either singly or in
combination.” See Int’l Law Comm’n, Rep. on the Work of Its Fifty-Third Session, U.N.
Doc. A/56/10, at 91, 95 (2001). The International Law Commission defines restitution as
“re-establish[ing] the situation which existed before the wrongful act was committed,
provided and to the extent that restitution: (a) is not materially impossible; [and]
(b) does not involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation.” Id. at 96. Where restitution is inappropriate or
insufficient, compensation covers “any financially assessable damage including loss of
profits.” Id. at 98. And finally, satisfaction “may consist in an acknowledgment of the
breach, an expression of regret, a formal apology or another appropriate modality.”
Id. at 105.
I do not argue here that migration is a just entitlement of Third World peoples
because it would achieve the restitution, compensation, and satisfaction purposes of
reparations in international legal doctrine. My present interest is primarily in the
ethical obligations we should associate with a particular set of power relations
(neocolonialism), though I recognize that arguments for colonial reparations could
include claims to First World admission and inclusion, and this reparations argument
is one I am presently developing. Daniel Butt, for example, has articulated the
foundation of the colonial reparations argument as the following:
Insofar as historic colonial empires subjected peoples to political control, it may be thought
that colonial subjects became members of a larger political entity, and so were entitled to a fair
share of this entity’s social production—a share which was denied to them at the point of
institutional decoupling during decolonization.
Butt, supra note 26, at 896. He explains that this continuing injustice provides a basis for
contemporary colonial reparations arguments. See id. at 894-96.
Viewed in the reparations frame, citizenship for those Third World persons who
choose to migrate to the First World in search of a better life becomes one avenue for
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conception of citizenship at work is functional, and one such theory offered by

Ayelet Shachar and Ran Hirschl is illuminating. They have argued that
citizenship can be understood as conferring the right to exclude on the one
hand and the right not to be excluded on the other. With respect to the right to
exclude, citizenship plays a gatekeeping role, “determining who shall be granted
full membership in the polity still remains an important prerogative of the
state.”178 As such, citizenship law demarcates insiders and outsiders.179
Citizenship also performs a different function—it plays an opportunity-
enhancing role.180 In this mode it effects the right not to be excluded: “[T]he
right not to be excluded means that as members of the political community,
individuals are seen as equal partners in the common enterprise of governing
the commonweal. They stand in a special interpersonal relation to each other;
they are co-owners or partners in a shared political community.”181 The right
not to be excluded also imposes on joint owners or partners a duty “to consult
with one another, providing each a secured and inalienable ‘voice.’”182 The
ability to have a say in the collective governance of one’s political community
is an important part of what citizenship confers.183
colonial reparations. For a reparations theory of asylum based in human rights, see
James Souter, Towards a Theory of Asylum as Reparation for Past Injustice, 62 POL. STUD.
326 (2014). For examples of scholarship on colonial and slavery reparations,
see Catherine Lu, Colonialism as Structural Injustice: Historical Responsibility and
Contemporary Redress, 19 J. POL. PHIL. 261 (2011); Mari J. Matsuda, Looking to the Bottom:
Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 325-26, 362-97
(1987); and Ali A. Mazrui, Global Africa: From Abolitionists to Reparationists, AFR. STUD.
REV., Dec. 1994, at 1.
See Ayelet Shachar & Ran Hirschl, Citizenship as Inherited Property, 35 POL. THEORY 253,
260 (2007).
See id. at 259-67.
See id. at 267.
Id. at 264 (footnote omitted).
See id. (referencing the concept of “voice” as articulated by Albert Hirschman (citing
ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS,
ORGANIZATIONS, AND STATES (1970))).
See id. at 267.
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Although my political argument relies on a distributive justice claim, it is

distinct from the cosmopolitan distributive justice claims for open borders
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or other institutions of global justice.201 Linda Bosniak has noted that

immigration theory has tended to be dominated by metaphysical distributive
justice claims, with much less attention paid to rectificatory justice.202 My
arguments are less metaphysical, anchored instead in a historically contingent
account of border justice.203 History plays a scoping function: It helps identify
the scope or bounds of the political community (neocolonial empire) and how
power is constituted within it (unfairly). History also plays a related
identification function: It supplies important information about the identity of
the peoples bound up in the political community. The theory advanced here is
thus both corrective and distributive.204
One question that arises is whether this decolonial migration right is
reciprocal. In other words, does the co-sovereignty between First and Third
World nations entail an equal entitlement on the part of First World citizens
to Third World nation-state membership? Does a British citizen have
reciprocal rights to Zimbabwean admission and inclusion? The answer to this
question depends on one crucial factor: whether the migration at issue is
responsive to, or seeks to counter, neocolonial subordination. This matters
because, as argued above, migration as decolonization is at its core a corrective
distributive justice argument. Thus, if: (1) a First World citizen occupies the
political and economic margins of the First World as a result of colonial or
neocolonial domination exerted by a Third World nation-state (this is a very
big if ); (2) the First World citizen chooses to resist this subordination through
membership in a Third World nation-state; and (3) such membership at least in
principle offers a potential corrective benefit, then that First World citizen
201. See, e.g., Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48, 62-66 (1992).
Pogge takes the moral cosmopolitan view that “every human being has a global stature
as an ultimate unit of moral concern” and discusses the institutional distributive justice
implications of this view. See id. at 49. My arguments, on the other hand, are decidedly
communitarian, and the distributive justice obligations I focus on arise from the
specific relationships instantiated by neocolonial empire. My arguments are distinct
from cosmopolitan arguments and respond to different questions. Cosmopolitanists
seek an ideal theory of borders (among other things) as they apply to all human beings,
whereas I am concerned with what justice requires where a particular historical
context and political identity obtains. For an overview of the fundamental tenets
and main variants of cosmopolitanism, see Simon Caney, International Distributive
Justice, in THE COSMOPOLITANISM READER 134, 134-35 (Garrett Wallace Brown & David
Held eds., 2010).
202. Bosniak, supra note 177, at 215-19.
203. Like Bosniak, “I embrace . . . a politically contextual, rather than metaphysical,
understanding of the source of political norms.” See id. at 218.
204. A colonial reparations theory of migration governance (as opposed to the
decolonization theory motivated here) would also need to account for distributive and
corrective justice considerations. Olúfẹ́mi Táíwò has termed such a hybrid approach a
“constructive view of reparations.” See Olúfẹ́mi O. Táíwò, Reconsidering Reparations
1-3 (2018) (unpublished manuscript) (emphasis omitted) (on file with author).
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would have a valid migration as decolonization claim. But the current reality
of neocolonial empire makes it unlikely that the first condition would
regularly, or ever, be met.205
Additionally, not all Third World persons are equally eligible to make
valid affirmative claims of migration as decolonization. Not all movement by
Third World persons to the First World is the sort of economic migration that
must underlie or characterize decolonial migration: responsiveness to
neocolonial subordination and diminished sovereignty. Consequently, Third
World political and economic elites may not have claims to decolonial
migration entitlements notwithstanding their membership within the
neocolonial empire and their national designation to the Third World. One
example might be someone similarly situated to Robert Mugabe, the former
President of Zimbabwe. In postcolonial Zimbabwe, Mugabe derived significant
personal benefit from the subordinating forces of neocolonial empire,
amassing great wealth and power notwithstanding his frequent outspokenness
about the perils of neocolonialism.206 Under the corrective distributive justice
205. However, the postcolonial relationship between Portugal and Angola allows us to
imagine a scenario in which these types of circumstances might occur. Angola was
colonized by the Portuguese (and briefly and partially by the Dutch), and it played a
central role in the Portuguese colonial empire, supplying slave labor as well as natural
resources. See Mariana P. Candido, African Freedom Suits and Portuguese Vassal Status:
Legal Mechanisms for Fighting Enslavement in Benguela, Angola, 1800-1830, 32 SLAVERY &
ABOLITION 447, 449-51 (2011).
Today, independent Angola is a rapidly growing economy and exerts its economic and
political influence on Portugal—so much so that a Portuguese commentator has
described the relationship between the two in the following way: “Portugal, which was
the colonizing country, has become colonized by Angolan investment.” See Paul Ames,
Portugal Is Becoming an Angolan Financial Colony, POLITICO (updated Apr. 28, 2015,
3:40 PM CET) (quoting Celso Filipe, Deputy Dir., Jornal de Negócios), https://perma.cc
/7T5U-ZRVW. Angolan elites benefit from this inverted relationship: “Well-off
Angolan families are now the only people who can afford to shop on the [Portuguese]
capital’s upmarket Avenida da Liberdade. They are investing in luxury apartments at
Cascais, a fashionable seaside resort [in Portugal], and buying up companies hastily
privatised by the authorities.” Claire Gatinois, Portugal Indebted to Angola After Economic
Reversal of Fortune, GUARDIAN (June 3, 2014, 5:04 AM EDT), https://perma.cc/JK7F
-2GLK. It is not inconceivable that Angolan interconnection with Portugal, insofar as
it marginalizes and subordinates Portuguese citizens, may lead to movement by these
citizens to Angola in pursuit of a better life. In a world where Angola’s relationship
with Portugal assumed neocolonial features with Angola as the neometropole, such a
relationship would, in principle, confer migration as decolonization claims on
marginal Portuguese citizens in search of a better life in Angola.
206. See Achiume, supra note 159, at 133 (noting Mugabe’s outspokenness on the perils of
neocolonialism); Ian Cobain, Robert Mugabe’s Vast Wealth Exposed by Lavish Homes and
Decadent Ways, GUARDIAN (Nov. 17, 2017, 12:00 AM EST), https://perma.cc/6U5C
-XSR5 (describing Mugabe’s extraordinary wealth); Rob Wile, Robert Mugabe
Accumulated Riches as Zimbabwe Crumbled. Here’s What We Know About His Money,
MONEY (updated Nov. 21, 2017, 11:51 AM ET), https://perma.cc/2QUB-8VUH (same).
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argument made here, he would have diminished claims, if any, to First World
citizenship, because there was nothing subordinate about his position within
the neocolonial empire that would make First World citizenship an
appropriate distributive justice mechanism.207
So far, I have made the general argument for why First World nation-
states have no right to exclude Third World migrants. I now introduce
additional specificity as to what this general argument means in terms of
individual First World nation-states and the identity of Third World migrants
to whom they owe obligations of admission and inclusion. One might ask, for
example, whether the United Kingdom only has an obligation to admit and
include citizens of former British colonies, or whether it also has similar
obligations to citizens of former French and Dutch colonies. And what about
the former British dominions that achieved independence and are today First
World settler-colonial nation-states themselves—Canada, Australia, New
Zealand, and even the United States? Does the United States, for example, have
no right to exclude Zambian nationals? And, for that matter, what about non-
First World imperial powers such as China and Japan? Do they also hold
obligations of admission and inclusion to Third World migrants?
All of these questions share the same analytical core and must be resolved
by returning to the normative basis of the argument for the lack of a right to
exclude. The normative bases I have foregrounded are the corrective
distributive justice considerations that attach to co-sovereigns bound in
neocolonial empire. Questions like those above are essentially probative of
what historical and contemporary facts of interconnection are sufficient to
achieve the threshold of co-sovereign status.208 I propose the following
heuristic: For any given First World Country X, the nature of its decolonial
admission and inclusion obligations to Third World migrants from Country Y
depends on the extent of exploitative benefit or advantage Country X derives
from neocolonial empire and the extent of subordination or disadvantage that
a given migrant endures by virtue of being a national of Country Y. 209 Already
it should be clear that even among those who accept my ethical arguments as a
207. From a purely reparations-oriented perspective, however, the analysis might be

different. As a leader of Zimbabwe’s anticolonial struggle who directly experienced the
myriad harms of colonial subordination, insofar as the migration as reparations
argument was sustained on the bases of colonial wrongs experienced by Mugabe that
have not been repaired, migration-related claims may still be available to him.
208. Recall that history is probative of political identity and helps excavate the
contemporary bounds of neocolonial empire and the nature of contemporary
distribution of benefit within it.
209. Importantly, and by definition, all First World and Third World countries are part of
neocolonial empire, and the decolonial claims articulated here may only be levied by
members of this empire.
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matter of principle, there may be marked differences in what the implications

will be for specific countries, depending on beliefs about the status and role of
those countries in neocolonial empire.
The narrow (and in my opinion, incorrect) view likely to enjoy the easiest
consensus is a one-to-one obligation, whereby former colonial powers owe
obligations only to citizens of their respective former colonies. I call this the
bilateral account. This would mean, for example, that a Zimbabwean or a
Zambian only has a claim to admission and inclusion in the United Kingdom,
and can make no such claims with respect to any other former colonial power
(such as France), because only the United Kingdom formally colonized her
country of nationality. Such a view would be premised on the belief that
neocolonial interconnection and subordination is a bilateral affair, creating
ethical obligations that are confined to the formal, original authors of
colonialism and the specific Third World peoples those colonizers officially
incorporated (for the purposes of exploitation) into their empires.
While First World nation-states have no right to exclude citizens of their
own former colonies, the nature of neocolonial empire and interconnection
points to a much more expansive conception of the identity of those who can
make the political equality demands that obviate right-to-exclude claims.
Instead, the United Kingdom should be seen as neocolonially connected to, and
in a relationship of domination over, Third World citizens of nation-states
formerly colonized by its European counterparts in ways that produce co-
sovereign relations even among peoples the British did not themselves
colonize.210 The same is true for every other former colonial power.
The justification for this more expansive multilateral account is that the
creation and maintenance of neocolonial empire is fundamentally achieved as a
joint enterprise among First World nation-states, and benefit or advantage
accrues structurally to First World nation-states as a collective in ways that
belie the narrow, bilateral account of interconnection and ensuing
obligations.211 As discussed above, multilateral institutions are dominated by
First World states and that advantage erodes the persuasiveness of the bilateral
account.212 Even if Zambians owe the details of their colonial domination and
its legacy more to the United Kingdom than to France, Zambia’s enduring
210. My argument is that the United Kingdom is sufficiently interconnected to France’s

former colonial subjects so as not to have a right to exclude them. The United Kingdom
may well be more interconnected to its own former colonial subjects than to those of
France, but I posit that its connection to former French colonial citizens nonetheless
meets the requisite threshold of interconnection for co-sovereign relations.
211. For an argument that theorizes colonialism as a structural injustice that triggers joint
and international responsibility, in addition to national liability that may be assessed
vis-à-vis any given colonial power, see Lu, supra note 177, at 269.
212. See supra Part II.
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neocolonial quasi-sovereignty arguably has more to do with the colonial logics

embedded in multilateral institutions—and in international law, especially
sovereignty doctrine—that accrue benefits to First World states as a collective.
Put crudely, the power and benefit France enjoys within the World Bank and
the IMF213 and any other institution that sustains neocolonial empire and
Third World subordination, as well as France’s status as an effective sovereign
nation, warrant French decolonial obligations vis-à-vis Zambians even though
France never itself colonized Zambia.
<>
France is one of eight countries that enjoy direct representation within these
institutions. See Ngaire Woods, Unelected Government: Making the IMF and the World
Bank More Accountable, BROOKINGS REV., Spring 2003, at 9, 10. France has used both
financial institutions to serve its national interests. See BRUNO CHARBONNEAU, FRANCE
AND THE NEW IMPERIALISM: SECURITY POLICY IN SUB-SAHARAN AFRICA 75 (2008).
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The focus of this Article is decolonial migration, but decolonial migration

is arguably an instantiation of a more general theory I refer to as de-imperial
migration. De-imperial migration is any form of migration that is responsive to
DEV. ECON. 224, 237-38 (2006) (finding that World Bank policy favors U.S. national
interests). The U.S. influence over the IMF is similarly strong. See, e.g., Axel Dreher &
Nathan M. Jensen, Independent Actor or Agent?: An Empirical Analysis of the Impact of U.S.
Interests on International Monetary Fund Conditions, 50 J.L. & ECON. 105, 121 (2007)
(finding that U.S. allies receive IMF loans with fewer conditions than nonallies);
Thomas Oatley & Jason Yackee, American Interests and IMF Lending, 41 INT’L POL. 415,
425-26 (2004) (finding that the United States influences loan conditionality in the
global South).
224. Colonialism and capitalism are, of course, related in important ways, and each is
understood better in light of the other. My analysis has nevertheless privileged
colonialism and its political commitments, even though a different, fruitful analysis
could privilege the political economy of capitalism to unearth the de-imperial rather
than decolonial obligations and ethics that attach to this form of imperial intercon-
nection. B.S. Chimni has argued, for example, that “neocolonialism has been succeeded
by [the age] of global imperialism,” in which “universalizing capitalism penetrates and
integrates national economies more deeply, imposing serious constraints on the
possibility of a Third World state pursuing an independent path of development.”
Chimni, supra note 153, at 36; see also Chimni, supra note 172, at 28-32 (elaborating on
global capitalist imperialism). Global capitalist imperial interconnection likely
generates de-imperial migration ethics not fully captured by my decolonial analysis.
225. Consider, for example, U.S. imperial domination in Central America, which arguably
warrants centering of a different politics, anchored in what Jason Colby has described
as U.S. “corporate colonialism” in the region. See JASON M. COLBY, THE BUSINESS OF
EMPIRE: UNITED FRUIT, RACE, AND U.S. EXPANSION IN CENTRAL AMERICA 13 (2011).
Along similar lines, consider that Cold War interventionism or Latin American settler
colonialism might generate different, if related, analyses to those explored in this
Article.
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informal imperial subordination and that offers a means of countering that

subordination through individual (rather than structural) means of enhancing
political equality.
Within neocolonial empire, the constraints are so extreme as to produce
quasi-sovereignty for subordinate member states, and the interconnection so
thorough as to create conditions of co-sovereignty among all individuals
subject to it. Not all informal empire will exhibit these dynamics, but informal
empire may always ground corrective distributive justice claims with
implications for migration governance. One such implication is that a country
such as China, which I would argue does not have decolonial migration
obligations to Third World migrants, may nonetheless have de-imperial
migration obligations toward them that are beyond the scope of this Article.226
Neocolonial empire with its particular genealogy and colonial-era logic does
not capture the dynamics of imperial interconnection that attach to China. It is
beyond the scope of this Article to elaborate fully a general theory of de-
imperial migration, but this is an urgent direction for international migration
legal theory, introduced here with neocolonial empire as the example.
C. Rethinking Sovereignty, Self-Determination, and Decolonization

The point of this Article’s migration as decolonization thesis is not to
argue for global open borders per se, or even for any specific arrangement of
political and territorial borders that can be stipulated on an a priori basis.227
It seeks to do something rather different, though its arguments may
nonetheless have prescriptive implications. The purpose of this Subpart is to
summarize the key claims and contributions presented above.
To recapitulate, the first yield of the migration as decolonization thesis is a
reconceptualization of the ethical and legal implications of persisting
226. Recall that I reserve “Third World” for those places and peoples subjugated by the
European colonial project. China engaged in its own colonial projects and arguably has
decolonial obligations to those still subordinate on account of Chinese colonialism, but
because neocolonial empire does not accrue advantage to China nearly to the extent it
does First World states, China is not responsible for decolonial claims generally.
It may, however, be responsible for de-imperial claims by subordinate persons within
China’s expanding, informal empire, including in the Third World. For a careful study
of Sino-African relations, including Chinese investment in Africa, see generally CHING
KWAN LEE, THE SPECTER OF GLOBAL CHINA: POLITICS, LABOR, AND FOREIGN INVESTMENT
IN AFRICA (2017).
227. It is conceivable, however, that contemporaneous, imperial overlap across the earth’s
surface generates de-imperial migration obligations that push national borders closer
to the “open” end of the spectrum, resulting in a composite of “open-ish” borders by
virtue of accretion of de-imperial obligations.
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neocolonial subordination as mandating the admission and inclusion of so-

called economic migrants from the Third World, in opposition to the
dominant justification for their at-will exclusion. This reconceptualization is
powered by an even more fundamental move, which results from the new
approach to sovereignty advocated above and which builds on the immense
contributions of other Third World sovereignty scholars. It supplants the
extant international legal logic of formally independent, autonomous nation-
states, each with a right to exclude nonnationals as a matter of existential
priority, with the logic and ethics of imperial interconnection (specifically
neocolonial interconnection). The migration as decolonization thesis posits
imperial interconnection and the extraterritorial co-sovereignty relations it
entails as the baseline from which Third World migration to the First World
must be assessed and negotiated. What is vital here is that First and Third
World peoples, as co-sovereigns, bear an equal right and stake in First World
national borders.
When the inclusion claims of Third World migrants are underwritten by
their interests in political self-determination, these claims have hefty ethical
force as levelled against the beneficiaries of neocolonial advantages. The
unauthorized movement of Third World migrants across international
borders, as they reject the partial sovereignty of Third World nation-states,
should be understood to enact an important step in a process that offers the
individual her best chance at self-determination absent real decolonization.
What is widely condemned and reviled as unauthorized economic migration
when undertaken by Third World migrants should instead be understood as
radical political action of Third World persons seeking to formalize their
status as co-sovereigns of the First World through citizenship.
This Article thus frames decolonial migration as a high form of political
agency, which is in part about realizing (in the “making real” sense) and
fulfilling individual autonomy—and doing so through decisions about how one
relates to the political communities or collective self-determination vehicles on
which individual self-determination rests.228 In addition to the individual
autonomy dimensions of migration, migration itself is a powerful technology
for creating, consolidating and reforming political community. Colonial
228. As Sherally Munshi has urged, “[w]e might begin by recognizing that migration itself is
always a political act, an act of self-determination, and an expression of individual
freedom.” Sherally Munshi, Immigration, Imperialism, and the Legacies of Indian Exclusion,
28 YALE J.L. & HUMAN. 51, 78 (2016). To be clear, the agency of Third World migrants
who risk death to cross borders is severely constrained, and my characterization does
not seek to trivialize the coercive forces that underlie this extreme risk-taking, even
where imminent death or persecution are not at play.
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migration was an exercise of such political agency, so it is no surprise that

European international law and political theory defended it. But just as
migration creates and consolidates political community, it also destroys,
distorts, and threatens it. Colonial migration did so to the Third World,229 and
some might say that contemporary Third World migration threatens to have
such effects on First World nation-states. The aim of this Article is to establish
that to the extent Third World migrants are seen as a threat to First World
nation-states, they are more properly understood as only truly threatening the
continuing and illegitimate First World subordination of Third World
peoples, with whom they share the neocolonial empire that remains in effect
today. The centrality of human mobility to the shaping and reshaping of the
borders of political community partially explains the striking efforts that
nation-state governments exert in managing mobility and perceptions of
mobility. But this special feature of human mobility arguably also means that
its exercise, when pursued with the possibility of achieving greater equality
among members of shared political communities, is fundamentally important
and deserving of legal protection.
The policy payoff of this theoretical move would be its elaboration of
changes to existing international migration regimes and national borders that
would advance political equality for Third World persons, especially those
whose marginality drives them to migrate in pursuit of enhanced self-
determination. As mentioned in the Introduction, an example of a context
where such reform is urgent is migration policy involving the African Union
and the European Union. At present, the right to exclude purportedly means
that European and African nation-state collaboration to contain Africans in
Africa is ethically sound. From the perspective of neocolonial interconnection,
this containment is revealed as an intervention that reinforces the subordinate
political and economic status of marginal Third World citizens who have just
as much claim to First World nation-state inclusion as do the citizens of those
countries. The salience of neocolonial subordination demands that both
Europeans and Africans have an equal say in the prospect and terms of
European nation-state border closures with respect to Africans, as reflected in
multilateral and bilateral treaties. Negotiations should be as among co-
sovereigns, and the migration policies agreed to must legally protect decolonial
migration. This means that rather than repatriating African economic
migrants attempting to reach Europe (the current approach), African and
229. See supra Part II.A.
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European nation-states should be collaborating to find ways to facilitate

migration that enhance the political equality of Africans.230
The second yield is to center migrants and the political equality ambitions
of their movement as capable of suggesting more ethical, and perhaps more
sustainable, contours of territorial and political borders. In other words,
contrary to an a priori stipulation of an open-borders regime between the First
and Third Worlds, the call is to look to the agents, impetus, and patterns of
decolonial migration as vital sources of information about border regime
institutional design. Third World migrants—including unauthorized economic
migrants—emerge as a vital new “epistemological source.”231 As Mari Matsuda
has powerfully argued in a different context: “The method of looking to the
bottom can lead to concepts of law radically different from those generated at
the top.”232
There is reason to believe that what we might consider a “decolonizing
consciousness” forms part of the ethical calculus unauthorized migrants use to
make sense of their migration to the First World. An ethnographic study by
geographer Dominic Pasura describes Zimbabwean migrants in the United
Kingdom sheds light on this calculus. This study explores Zimbabweans’
explications of the motivation and justification for their legal and illegal
presence in the United Kingdom in terms of the British colonization of
Zimbabwe.233 The narratives of two of the study participants (both
230. Although my analysis above highlights the remedial potential of citizenship, for
persons drawn to international migration as a decolonial strategy, visas may be an
appropriate institutional form of political inclusion. Whereas citizenship is the first-
prize institution for those seeking formal political and legal inclusion in a given
nation-state, visas that grant “access to the goods of membership” in a nation-state with
effective sovereignty can also be seen to perform a decolonial function. See Ayelet
Shachar, Children of a Lesser State: Sustaining Global Inequality Through Citizenship Laws,
in NOMOS XLIV: CHILD, FAMILY, AND STATE 345, 381 (Stephen Macedo & Iris Marion
Young eds., 2003).
231. See Matsuda, supra note 177, at 325. Critical race theory scholar Mari Matsuda
has argued that those who have direct experience with racial and other forms of
oppression are essential to the production of knowledge intended to advance the
emancipation of those groups. See id. at 324 (“Looking to the bottom—adopting the
perspective of those who have seen and felt the falsity of the liberal promise—can assist
critical scholars in the task of fathoming the phenomenology of law and defining the
elements of justice.”). This penetrating insight precisely captures one of the important
lessons generated by the migration as decolonization thesis: Migrants themselves, and
especially those who move without authorization, represent an important source of
knowledge regarding the benchmark for justice in immigration and what a legal
arrangement faithful to that benchmark would look like.
232. Id. at 326.
233. See Dominic Pasura, Competing Meanings of the Diaspora: The Case of Zimbabweans in
Britain, 36 J. ETHNIC & MIGRATION STUD. 1445, 1448-52 (2010).
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Zimbabweans living in the United Kingdom) make the point poignantly. One
participant, Mthokhozisi, recalled:
One day I went to central London. On my way back I saw a white person lying on
the floor in an alley close to some shops. I . . . .asked, “Why are you sleeping on the
floor?” The white person shouted at me saying, “Why are you here in England?
Why don’t you go back to your country?” I replied him, “To my country, where?”
And the white person said, “Where you come from.” But I said to him, “I have
come to England to take back the money you stole from my country. You know
what, in my country where I come from we used to herd cattle in open trenches
[mines] and when I asked my father who dug those trenches I was told it was a
white man. The white man dug the trenches looking for money. And I have come
here in search of that money. Handiti makambodyavo kumba kwedu nhasi todyavo
kwenyu [As you once ate in our house now it is our turn to eat in your house].234
Another, Matthew, observed:
This country [the United Kingdom] takes responsibility why we are here. It’s
because of colonialism. The British people oppressed us; they took our land and
made us live on infertile land. We were made captives in our own land . . . . People
grew up under oppression and it became even worse when we attained our
independence as our economic situation deteriorated. It’s our turn to come to this
country. God is making an equation that somebody who used to gain might also,
even though not suffering, serve somebody.235
Pasura argues that the concept of “reverse colonization”—a term deployed
by at least one of his study participants—enhances understanding of
Zimbabwean migration patterns to the United Kingdom.236 His study finds an
explicit framing of economic migration as a moral assertion of agency that
seeks to counteract colonialism and its legacy.237 What Pasura and the
234. Id. at 1449 (second and third alterations in original).

235. Id.
236. See id. at 1448-49. Pasura quotes a Zimbabwean study participant identified as Prosper:
When white people came to Zimbabwe they didn’t come to learn from us, they didn’t learn
anything from us. We are here, and I can tell you 90 per cent of the people, in fact I would say
99 per cent whom you meet, most of them are economic migrants, they are here to get what
they can get, it’s reverse colonization . . . . The only thing that I think is different is that
when white people came to Zimbabwe they weren’t doing menial jobs but with a lot of
Zimbabweans who are doing menial jobs.
Id.
237. See id. at 1450. Pasura explains:
As [one study participant] puts it, “I dislike the term economic refugee because the British were
the first economic refugees in Zimbabwe”. Hence, there is an awareness among respondents
that Britain, as a former colonial power, has a moral duty to [Zimbabwean migrants], at the
very least to treat them fairly in their efforts to participate in the labour market without being
stereotyped.
Id.
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Zimbabwean migrants in his study conceptualize as “reverse colonization” is, as

I have argued, better conceptualized as decolonization. It is migration responsive
to the unfinished business of the European colonial project, and it seeks to
counter the persisting subordinating effects of this project.238 Insofar as the
presence of these migrants in the United Kingdom is the product of colonial
and neocolonial constraints on their ability to self-determine—to realize their
vision of the good life—the “decolonizing consciousness” they express suggests
that the thesis of this Article operates as a viable sociological claim or theory, in
addition to being a normative proposition.239
Some might argue, motivated by a pragmatic concern, that any moves
toward a less restrictive First World immigration policy for Third World
persons must be weighed against the risk that this shift would result in endless
droves of Third World persons migrating to the First World in numbers that
would pose an existential threat to First World nation-states.240 Of course, the
impact that across-the-board loosening of First World border restrictions (as
opposed to the more patchwork approach that results from one or a handful of
such countries loosening border restrictions) would have on the volume and
nature of Third World migration is difficult to predict. That said, there is good
reason to believe that a systematic loosening of border restrictions would not
result in the feared inundation. Not all, or even most, Third World persons
view international migration as the path to their vision of a better life, and the
vast majority have strong territorial connections to the parts of the Third
238. “Reverse colonization” (where “reverse” is used as an adjective) risks implying the
initiation of a new, separate colonial process. Instead, I would argue that the migration
of Zimbabweans interviewed in the aforementioned study is better understood as an
attempt to undo rather than initiate anew.
239. This Article makes no claims of proving this viability but instead takes the position
that there is reason to take seriously an exploration of its viability. The work of socio-
legal U.S. immigration scholar Emily Ryo offers an example of a successful and careful
empirical exploration of a related phenomenon. See Emily Ryo, Deciding to Cross:
Norms and Economics of Unauthorized Migration, 78 AM. SOC. REV. 574, 593 (2013)
(“Understanding unauthorized migrants as moral agents capable of responding to and
resisting perceived inequities underlying U.S. immigration policy may have significant
implications for investigating not only their migration decisions, but also their
behavior and incorporation patterns once they enter the United States.”).
240. To be clear, this floodgates concern has no per se bearing on the ethical implications of
co-sovereignty, although it may be a concern that arguably will inform which attempts
for complying with these ethical implications are viable. In other words, the floodgates
cannot negate or diminish the Third World migrant’s claims to admission and
inclusion, but might influence the specific institutional recognition of these claims.
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World in which they reside.241 The fact is, notwithstanding popular

misconceptions in the West, most Third World citizens—even those who
reside in politically and economically subordinate nation-states—have no
interest in permanently relocating to the First World.242 Furthermore,
scholars of Third World migration to the First World have proffered
empirical support for the claim that restrictive immigration policy actually
discourages the return of Third World migrants to their countries of origin,
suggesting that fewer restrictions might result in more circular migration
patterns as opposed to an increase in permanent or long-term migration.243
More to the point, the work of transnationalist migration scholars
illustrates concretely what lessons might be gained from “looking to the
bottom” in the international migration context. Some ethnographers of
migration have argued that a closer look at how migrants and immigrants
actually live their lives recommends revising common conceptions of the
relationships they form with receiving countries and the ones they sever with
countries of origin.244 These scholars have advocated the purchase of the
theory of transnationalism—“processes by which immigrants forge and sustain
multi-stranded social relations that link together their societies of origin and
241. For example, a recent poll found that only 31% of sub-Saharan Africans expressed a
desire to migrate, comparable to the rates for Europeans outside of the European
Union (27%) and within the European Union (21%). See Neli Esipova et al., Number of
Potential Migrants Worldwide Tops 700 Million, GALLUP (June 8, 2017), https://perma.cc
/RFD2-VEE3.
242. See id. (noting that even in sub-Saharan Africa, which had the highest percentage of
adults wishing to migrate, such individuals comprised only 31% of the population).
243. See Douglas S. Massey & Karen A. Pren, Unintended Consequences of US Immigration
Policy: Explaining the Post-1965 Surge from Latin America, 38 POPULATION & DEV. REV. 1,
21-24 (2012) (arguing that disruption in circular migration was an unintended
consequence of restrictive immigration reform in the United States); Douglas S. Massey
et al., Why Border Enforcement Backfired, 121 AM. J. SOC. 1557, 1588 (2016) (finding that
enhanced U.S. border enforcement led to reduced, potentially to zero, circular
migration across the Mexican border). For an early review of twentieth-century
studies on return migration and the varied motivations of migrants returning to their
countries of origin, see George Gmelch, Return Migration, 9 ANN. REV. ANTHROPOLOGY
135 (1980). For a more recent review of theories and studies of return migration, see
Jean-Pierre Cassarino, Theorising Return Migration: The Conceptual Approach to Return
Migrants Revisited, 6 INT’L J. MULTICULTURAL SOCIETIES 253 (2004).
244. See, e.g., LINDA BASCH ET AL., NATIONS UNBOUND: TRANSNATIONAL PROJECTS,
POSTCOLONIAL PREDICAMENTS, AND DETERRITORIALIZED NATION-STATES 8-10 (1994); see
also id. at 3-4 (“The word ‘immigrant’ evokes images of permanent rupture, of the
abandonment of old patterns of life and the painful learning of a new culture and often
a new language. . . . Today, immigrants develop networks, activities, patterns of living,
and ideologies that span their home and the host society.” (citation omitted)).
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settlement”—while “emphasiz[ing] that many immigrants today build social

fields that cross geographic, cultural, and political borders.”245 Transmigrants,
as they are termed,
operate in the national arena of both their country of origin and country (or
countries) of settlement, [and] they develop new spheres of experience and new
fields of social relations. In their daily activities transmigrants connect nation-
states and then live in a world shaped by the interconnections that they them-
selves have forged.246
Contemporary and historical migration patterns between the First and
Third Worlds reflect the deep interconnection that results in Third World
persons who live transnational lives across the neocolonial empire.247 And to
the extent that restrictive immigration policy has an impact on this
transnational way of living, there is empirical evidence that it not only chills
movement from the Third to the First World, but also chills movement in the
reverse direction—the movement of Third World persons who are able to
reach and enter the First World.248 Studying decolonial migration patterns,
then, might lead us to migration regimes and national border policies that are a
better sociological (and normative) fit for transnational interconnection.
Conclusion
This Article proposes a novel and radical break from prevailing theories
and doctrine in the international law of migration. First and Third World
peoples are not political strangers. They are quite the opposite: Due to
neocolonial interconnection, First and Third World peoples are bound in a
relationship of co-sovereignty that makes Third World peoples political
insiders to First World nation-states. Corrective distributive justice
considerations give Third World migrants entitlements to national admission
and inclusion in the First World. Where Third World migration is responsive
to neocolonial subordination, it should be understood as decolonial insofar as it
enhances political equality, even if only as a formal matter. The migration as
decolonization thesis foregrounds the political agency of migrants, and
presents neocolonial interconnection and subordination as the baseline from
which the ethics of immigration restrictions should be assessed, and from
245. Id. at 7.
246. Id. at 8.
247. See Amparo González-Ferrer et al., Distance, Transnational Arrangements, and Return
Decisions of Senegalese, Ghanaian, and Congolese Migrants, 48 INT’L MIGRATION REV. 939,
961 (2014).
248. See id. at 961-64.
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which these restrictions should be negotiated. First World nation-states have

no right to exclude Third World peoples, and creating a world that reflects this
fact requires a complete reimagining of national borders and the institutions of
political inclusion.
The area of international law that serves as the original motivation for and
focus of this Article is migration. But the heart of this Article’s claims rests on a
reconceptualization of sovereignty more broadly. Given that sovereignty
doctrine lies at the foundation of international law, asserting interconnection
and interdependence as the new logic of this doctrine must have implications
for the entire field of international law, not simply the subset relating to
migration. It is beyond the scope of this Article to explore what “sovereignty as
interconnection” means for international humanitarian law, international
trade, or any other subfield of international law. What is possible, and has been
attempted here, is an initial argument for what stands to be gained from a
reconstruction of sovereignty as interconnection, as a first and important step
in a much larger project.
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Week 5
195
196
l
How Will We Be
Remembered?
Let us begin with a story1 :
Once upon a time, there was a generation that confronted

great challenges and survived them. It struggled through
a time of global financial collapse; defeated a frightening,
destructive, and evil enemy; and ostensibly made the world
safer for freedom and democracy for generations to come.
197
This generation inherited a mess, but cleaned it up and passed
on a better world to the future. It earned the moniker, "the
most splendid generation."
The most splendid generation was succeeded by another gen

eration, "the bloopers." This generation had a reputation in its
youth for grand visions and moral seriousness ("peace, love,
and understanding"); however, when it actually came to hold
the reins of power, it became consumed by the pleasures of
the moment, and self-aggrandizement ("sex, drugs, and real
ity TV"). It paid scant attention to the concerns of the future,
and indulged in whatever activities it could that brought soft
comforts and profit in the short term, regardless of the long
term consequences. The bloopers deregulated financial mar
kets, leaving the world vulnerable to a Great Depression-like
crash; they provoked an international arms race and allowed
the proliferation of weapons of mass destruction, making
future wars more likely and more destructive; they polluted
4 I DEBATING CLIMATE ETHICS HOW WILL WE BE REMEMBERED? I 5
the natural environment with wild abandon, undermining It does not have to be this way. We are late, and drag
the future integrity of the world's climate system and food ging our feet. We have already taken greater risks than can
supply; and so on. In short, the blooper generation lived fast plausibly be justified. However, there is still time, espe
and loose, caring little whether others suffered greatly and cially to head off the worst. If we can wake up to what we
died young as a result. are doing and engage in meaningful action, we may still
redeem ourselves. We can become the greenest generation
As things turned out, succeeding generations really did suffer
yet. Given the scale of the challenge, that could make us the
serious harms (global financial collapses, horrific wars, envi
ronmental catastrophes, widespread famine, etc). Like the greatest generation of all. 3
most splendid generation, they were left to clean up a mess.
Notes
This story has ethical import. The bloopers are a profligate
generation. They squander the hard work of their pre 1. I thank audiences at the Ameri�an Philosophical Association
(Pacific Division), University of Graz, University of Leeds,
decessors, and inflict serious harms on their successors.
University of Oregon, University of Victoria, and University
Moreover, they do this mostly for the sake of cheap plea of Washington. For comments, I am grateful to Richard
sures, and the comforts of easy living. Such a generation Arneson, Michael Blake, Nir Eyal, Augustin Fragniere, Ben
would receive harsh criticism from both the future and the Gardiner, Avrum Hiller, Alex Lenferna, Marion Hourdequin,
198
past, and this criticism would be well deserved. They fail to Lukas Meyer, Jay Odenbaugh, David Schlosberg, Dustin
Schmidt, Ted Toadvine, and Allen Thompson. I also thank
discharge their intergenerational responsibilities. Too much
Dustin Schmidt and Alex Lenferna for their excellent assis
goes wrong on their watch, and much of it is self-inflicted. tance with referencing and copyediting. I am especially
Sadly, the story has contemporary relevance. Many of indebted to Kit Wellman, for all he is, and for steering this
us alive now, and especially those in the richer nations, are project home.
,, .
at risk of being remembered as members of a profligate 2. Stephen M. Gardiner, "Are We the Scum of the Earth? m
Ethical Adaptation to Climate Change, eds. Allen Thompson
generation-one that was recklessly wasteful, distracted,
and Jeremy Bendik-Keymer (Boston: MIT Press, 2012),
and self-absorbed. Moreover, our failures seem likely to be 241-260.
regarded especially harshly by the future, as they threaten 3. This prologue draws on Stephen M. Gardiner. A Perfect Moral
to occur on a grand scale. The most serious involve an Storm (Oxford: Oxford University Press, 2011), chapter 4.
explosion in environmental degradation, with profound
implications for all: globally, intergenerationally, and across
species. If we do not address this issue, we may end up
being remembered not just as a profligate generation, but
as "the scum of the Earth," the generation that stood by as
the world burned. 2
16 / DEBATING CLIMATE
ETHICS BETRAYING THE FUTURE / 17
and theoretical dimensions. Each

is serious in its own right. Vv-'1 or what Garrett Hardin calls a "tragedy of the commons." 14 ,.., �
However, their interaction also .
helps to exacerbate a lurking '
Weisbach and his colleagues also endorse th1s approach. 15 >..._,,,,,,,
problem of moral corruption that
may be of greater practi- Later I will argue that the standard model is a dangerous h< }' ,,l.. ·,
cal importance than any one storm .!
considered in isolation. misdiagnosis that threatens good policy. However, first let us
explain it. The relevance of the prisoner's dilemma scenario J
is easiest to show by focusing on a paradigm case: overpol-
2 . 3 THE GLOBAL STORM lution. Suppose that a number of distinct agents are trying
to decide whether or not to engage in a polluting activity.
In the policy world, the climate challenge is usually under Assume for the moment that each is concerned only with
stood in 2Patia), an es ecially geo olitical, tE:!ms. its own interests, narrowly construed, and that the situa-
tion can characterized as follows:
2.3.1 The Basic Global Storm
(PDl) It is collectively rational to cooperate and restrict over
We can make sense of this by focusing on three important all pollution: each agent prefers the outcome pro
characteristics. -e first is the spatial dispersion of causes duced by everyone restricting its individual pollution
over the outcome produced by no one doing so.
and effects. Climate change is a truly global phenomen
�
199
Emissions of greenhouse gases from any geographical loca (PD2) It is individually rational not to restrict one's own
tion on the Earth's surface enter the atmosphere and then pollution: when each agent has the power to decide
whether or not it will restrict its pollution, each (ratio
play a role in affecting climate globally. Hence, their effects
nally) prefers not to do so, whatever the others do.
are not realized solely at their source, either individual or
geographical, but rather are dispersed across all regions of Agents in such a situation find themselves in a paradoxical
the Earth. position. On the one hand, given (PDl), they understand
� The second characteristic is fragmentation of agen:EJ that it would be better for everyone if every agent coop
Climate change is not caused by a single agent, but by a
erated; but, on the other hand, given (PD2), they also all
vast number of individuals and institutions (including eco
prefer to defect. Paradoxically, then, if all individual agents
nomic, political, and social institutions) not fully unified by
act rationally in terms of their own interests, then they col
any comprehensive structure of agency. This poses a chal
lectively undermine those interests.
lenge to humanity's ability to respond.
[For current purposes, assume that a tragedy of the
In the spatial dimension, fragmentation of agency is
commons is roughly a prisoner's dilemma involving a com
usually understood as arising out of the shape of the current
mon resource. 16\This �as become the st�ndard analytical
global system, dominated by nation states, and in terms of
model for unaerstanding large-scale environmental prob
the familiar theoretical model of the prisoner's dilemma,
lems, and climate change is no exception. Typically, the
18 I DEBATING CLIMATE ETHICS BETRAYING THE FUTURE I 19
reasoning goes as follows. Conceive of climate change as an if the parties benefit from a wider context of interaction;
international problem where the relevant parties are indi and this appears to be the case with climate, since countries
vidual countries, who represent the interests of their popu cooperate on a number of broader issues, such as trade and
lations in perpetuity. Then (PDl) and (PD2) appear to hold. security. )
Individual states accept that allowing climate change to con (unf�rtunately, this brings us to the third chara1=teristic
tinue unabated is bad for them, that cooperation is needed of the basic global storm, institutional inadequacy. e�ual
to address it, and that it would be in their interests for all means for resolving commons problems under favorable
to cooperate (i.e., (PDl)). However, each state also believes conditions is for the parties to agree to change the existing
that when it comes to making its own decisions about incentive structure by introducing a system of enforceable
what to do, it is better not to cooperate, since this choice s�ns.�Hardin memorably labels this "mutual coercion,
is better on strategic grounds (i.e., (PD2)). Specifically, on mutually agreed upon.")18 Such a system transforms the
the one hand, if others cooperate, it is better to defect, decision situation by foreclosing the option of free riding,
since then one can receive the benefits of cooperation (i.e., so that the collectively rational action also becomes indi
meaningful reductions in overall climate risk) without hav vidually rational. Theoretically, then, matters seem simple.
ing to pay any of the costs; however, on the other hand, if Nevertheless, in practice the need for enforceable sanctions
others fail to cooperate, it is also better not to cooperate, poses a challenge at the global level because of the limits of
200
since otherwise one would pay costs without receiving the our current, largely national, institutions, and the lack of
benefits (e.g., since meaningful reductions require coopera an effective system of global governance. In essence, global
tion). Unfortunate1¥ this pattern of reasoning leads to a regulation of greenhouse gas emissions seems required,
paradoxical result; if each country reasons in the same way, including a reliable enforcement mechanism; however, the
no one cooperates, and each ends up worse off by its own current global system-or lack of it-renders this difficult,
lights than they would if all cooperated. This result is aptly if not impossible.
termed a tragedy: the problem seems self-inflicted and the e standard (spatial) analysis thus suggests that the
behavior self-destruct� main thing needed to address climate change is an effective
(µ climate change is a normal tragedy of the commons, system of global governaru:�Jat least for this issue). This is
this is challenging, but also encourag� Given (PDl), a tall order; still, there is a sense in which it remains good
there is a sense in which each country should be motivated news. In principle at least, it ought to be possible to moti
to find a way out of the paradox, so that all can secure the vate countries to establish such a regime, since they should
better, cooperative outcome. Moreover, in the real world, recognize that it is in their best interests to eliminate free
commons problems are often resolvable under certain cir riding and so make genuine cooperation the rational strat
cumstances, and climate change seems to fit these desid egy at the individual (i.e., national) as well as collective (i.e.,
erata.171n particular, commons problems are often resolved global) level.
2.3.2 Exacel1f>}:ting Factors societies evolve. In short, climate action is likely to raise
serious, and perhaps uncomfortable, questions about who
lAlas, other features of the climate case make the necessary we are and what we want to be.19 Among other things,
global agreement more difficult, and so exacerbate the basic this suggests a status quo bias in the face of uncertainty.
global storm Contemplating change is often uncomfortable; facing
The first is uncertainty about the precise magnitude and fundamental change may be unrrrving, even distressing.
distribution of climate impacts. Lack of trustworthy data Since the social ramifications of action appear to be large,
about national costs and benefits casts doubt on the truth perspicuous, and concrete, but those of inaction appear
of (PDl): the claim that each country prefers the outcome uncertain, elusive and indeterminate, it is easy to see why
produced by everyone restricting pollution. Perhaps, some uncertainty might exacerbate social inertia.20 If we already
wonder, we might be better off with at least some climate dread doing something, even weak reasons not to can seem
change. More importantly, some (e.g., the United States) especially tempting.
might ask whether they will at least be relatively better off The third feature of climate change that exacerbates
under climate change than others (e.g., Bangladesh), and so the global storm is skewed vu?n_��gQ.i]ities.Climate change
might get away with paying less to avoid the costs of clean interacts in unfortunate w;ys with the present global
ing up. (Such considerations are emphasized by the Chicago power struct� For one thing, responsibility for his
201
lawyers, and fundamental to their analysis.) torical and current emissions lies predominantly with the
In other contexts, uncertainty might not be so impor richer, more powerful nations, and the poor nations are
tant. However, the second exacerbating feature of the cl" badly situated to hold them accountable. For another, the
mate problem is its deep_ root_ti!! !_!ie l!ifrastructure o�ny limited evidence on regional impacts suggests that poorer
current civilizatio�s. Carbon dioxide emissions are pre nations are most vulnerable to the worst. Finally, recogniz
dominate y brought about by the burning of fossil fuels for ing and acting on climate creates a moral risk for the richer
energy, and this energy supports most existing economies. nations. Implicitly, it embodies an acknowledgement that
Given that deep cuts are needed over time, such actions are there are international norms of ethics and responsibility,
likely to have profound implications for the basic economic and reinforces the idea that international cooperation on
organization of developed countries and the aspirations of issues involving such norms is both possible and necessary.
others. One implication is that those with vested interests Hence, it may encourage attention to other moral defects
in the continuation of the current system-e.g., many of of the current global system, such as global poverty, human
those with substantial political and economic power-will rights violations, economic injustice, the legacy of colonial
resist such action. Another is that, unless ready substitutes ism, and so on. If richer nations are not ready to engage on
are found, substantial mitigation can be expected to have such topics, this gives them further reason to avoid serious
considerable repercussions for how humans live and how climate action.
24 j DEBATING CLIMATE ETHICS BETRAYING THE FUTURE j 25
2.4 THE INTERGENERATIONAL STORM emissions. Achieving goals such as restoring or retaining a
familiar climate requires advance planning.
/The spatial characteristics of the global storm (dispe Second, climate change is significantly backloa<jed: the
rsion
of causes and effects, fragmentation of agency, and insti full effects of previous emissions have yet to be realized.
tutional inadequacy) can also be seen from a te
al For example, according to the IPCC, by 2000, in addition
perspect� to the then-observed rise in global average temperature of
0.6 °C, we had already effectively committed the planet to at
2.4.1 The Basic Intergenerational Storm least another 0.6 °C by 2100. 24 Similarly, some say that the
collapse of the West Antarctic Ice Sheet is now inevitable
Consider first the temporal dispersion of causes and effects. and irreversible, although the process will take many centu
(Human-induced climate change is a severely lagged phe ries to play out. We have not yet seen all that we have done.
nomenon. This is partly because some of the basic mech Third, the flip side of backloading is that climate change
anisms set in motion by the greenhouse effect-'-such as is also substantia)Jy deferred: the full effects of ongoing
sea-level rise-take a very long time to be fully realized, emissions will;-ot be realized until well into the future. Our
and partly because, once emitted, molecules of the most choices will continue to have profound effects long after we
important anthropogenic greenhouse gas, carbon dioxide, are gone.
202
spend a surprisingly long time in the atmosphere where Temporal dispersion creates a number of problems.
they continue to have climatic effects� \First, resilience implies that delays in action have seri
Let us dwell for a moment on the second factor. In its ous repercussions for our ability to manage the proble�
1 early reports, the IPCC reported that the average time spent rsecond, backloading brings on serious epistemic difficul
by a molecule of carbon dioxide in the atmosphere is in the ties, especially for normal political act� For instance,
region of five to two hundred years. 22 This estimate is long it makes it hard to grasp the connection between causes
enough to suggest a serious lagging effect; nevertheless, it and effects, and this may undermine the motivation to
obscures the significant percentage that remains for much act; backloading also suggests that by the time we realize
longer. The latest IPCC report highlights that, depending that things are bad, we may already be locked in to suffer7
on how much is produced, "about 15%-40% of CO emit- ing much more change, undermining the ability to respond.
ted until 2100 will remain in the atmosphere longer than a <Third, substantial deferral calls into question the ability of
thousand years," and 10%-25% after 10,000 years.23 standard institutions to address the problem For instance,
\Temporal lagging has at least three important impli democratic political institutions have relat�ly short time
cations. First, climate change is resilient, in the sense of horizons-the next election cycle, a politician's political
not being easily countered or reversed. For instance, the career-making it doubtful whether they have the where
process cannot be quickly undone simply by reducing new withal to deal with temporally distant impacts. Even more
seriously, substantial deferral is likely to undermine the

will to act. This is because there is fi:i'incentive problem: the
bad effects of our current emission's are likely to fall, or fall
disproportionately, on future generations, whereas the
benefits of emissions accrue largely to the present.)
The incentive problem is especially dangerous given
the second feature of the intergenerational storm: tempo
ral fragmentation of agency. Those with power and those
affected are spread across a very long period of time. This
threatens to bring on a new kind of collective action prob
lem: a tx!:anny of the conte:r,,nporary. 25 To illustrate it, let us
first Jettison the st�dard ass�mption (e.g., in the tragedy
of the commons analysis) that governments reliably repre
sent the interests of both their present and future citizens.
For instance, suppose instead that they are biased towards
the shorter-term concerns of the current generation. Then
203
since the benefits of carbon emissions are felt primarily by
current people (in the form of cheap energy), whereas the
costs (in the form of the risk of severe climate change) are
substantially deferred to future generations, the current
generation faces a temptation to "live large" and pass the
bill on to the future. Worse, the temptation is iterated. As
each new generation gains the power to decide whether or
not to act, it has the same opportunity to pass the buck.
If multiple generations succumb to this temptation, we
might expect an accumulation of effects in the future, rap
idly increasing the risks of severe or catastrophic impacts.
Iteration breeds escalation.
\Note that, as with the tragedy of the commons, although
the most obvious driver of a tyranny of the contemporary
is each generation ruthlessly pursuing its own self-interest
(narrowly defined), tyranny can arise for other reasons. For
BETRAYING THE FUTURE I 31 32 I DEBATING CLIMATE ETHICS
an ethical public policy: it constitutes a shadow solution to

climate change.
{on the other hand, if, as I have suggested, the main
driver of the tyranny of the contemporary is institutional
inadequacy, the necessary new institutions might radically
change the shape of the global collective action, rendering it
much less tr�gic( For instance, institutions that successfully
embody strong intergenerational concern will presumably
see climate change as a serious threat, and so not even be
tempted to defect from robust action. Consequently, their
existence would radically transform the spatial dimension
of climate policy.
204
2.4.3 Revisiting the Global Storm
Gterestingly, the tyranny of the contempor ry analysis of

�
the intergenerational storm further undermines the stan
dard (tragedy of the commons) account of the global stor .
� the one hand, if generational ruthlessness domi
nates, the global collective action problem of most inter
est to existing institutions might be that of finding ways
for the current generation in powerful nations to cooper
ate in passing costs onto the fut�This "problem"-h�w
to facilitate a tyranny of the contemporary-looks easier
to resolve than a standard tragedy of the commons (e.g.,
governments committed to intergenerational buck-passing
may have no reason to defect). Yet solving it is not a task for
BETRAYING THE FUTURE I 37
(The fourth storm is theoretical: we are extremely ill equipped

to deal with many problems characteristic of the long-term
future In my view, even our best theories-whether eco
nomic, political, or moral-struggle to address basic issues
205
such as intergenerational equity, contingent persons, non
human animals and natureJ. Climate change involves all
these and more. Given this, humanity appears to be charg-
ing into an area where we are theoretically inept, in the
(nonpejorative) sense of being unsuited for (e.g., poorly
adapted to), or lacking the basic skills and competence to
complete, the task.
the specific norms that should govern those institutions.

Qn my view, the theoretical storm also afflicts major Though this situation is starting to change as theoretical
theories in moral and political philosophy, such as attention shifts (after twenty-five years of waiting), there
utilitarianism, Rawlsian liberalism, human rights theory, is still a very long way to go.
libertarianism, virtue ethics, and so �I conceive of such Of course, none of this implies that ethics has nothing
theories as major research programs that evolve over time to offer even in these early days. As we wait for suitably
(rather than, say, as sets of propositions). Whatever their robust theories-whether economic, political, or moral-
other merits, in their current forms these research to emerge, moral and political philosophy can be useful in
programs appear to lack the resources needed to deal with guiding an ethics of the transition. For instance, concepts
problems like climate change. Moreover, it seems likely that such as justice can put limits on how we should think about
in evolving to meet them, they will be substantially, and the problem, even if those limits are not yet fully articu- (
perhaps radically, transformed.35 lated. (As Amartya Sen once put it, sometimes "it is bet
ter to be vaguely right than precisely wrong.") They are also
seeds from which fuller theories (including more ideal the
ories) can grow, and their historical development in other
Omportantly, I am not claiming that in principle such contexts can provide meaningful guidelines. Nevertheless,
206
theories have nothing to sav'on the contrary, at a super we should admit from the outset that we are not there yet,
ficial level, it is relatively easy for the standard research and much work remains to be done. Sometimes an �hies of
programs to assert that their favored values are relevant to the transition must take on the task of guiding us forward
climate change and license condemnation of political iner even when we are not sure precisely where to go.
tia. Severe and catastrophic forms of climate change pose
a big enough threat that it is plausible to claim that most
important values (e.g., happiness, human rights, freedom, 2. 7 MORAL CORRUPTION
property rights, etc.) are threatened. Surely, then, propo
nents of such values will think that something should be {orie reason that an ethics of the transition is urgently
done. Nevertheless, in my view the more important ques needed is that the convergence of the four storms creates
tions are, how precisely to understand the threat, and what a further threatJ this · e_to_t e wa � thinluilid talk
should be done to address it. On such topics, the standard -about clima� chan E;.Jaced with the temptations of the
research programs seem curiously oblivious, complacent, global, intergenerational and ecological storms, and the
opaque, even evasive. In particular, so far they have offered cover provided by the theoretical storm, it is easy for our
little guidance on the central question of the kinds of reasoning to become distorted and perverted. Public dis
institutions that are needed to confront the problem, and course in particular is under threat. 36 As �bert S�uelson
puts it in another intergenerational context, "There's a seems bizarre; amid the temptations of the perfect moral
quiet clamor for hyp ocrisy and deception; and pragmatic storm, it is sadly predictable.40
politicians respond with...schemes that seem to promise The second illustration involves selective attention.
something for nothing. Please, spare us the truth." 37 Given i
Since climate change involves a complex convergence of
this, there is a role for "defensive ethics" that combats such problemsl tis easy to engage in manipulative or self-deceptive
tendencies. behavior by applying one's attention only to some consider
Corruption of the ways in which we think and talk can ations that make the situation difficult. At the level of prac
be facilitated in a number of ways, including distraction, tical politics, such strategies are all too familiar. However,
complacency, unreasonable doubt, selective attention, delu selective attention strategies may also manifest themselves
sion, pandering, false witness, and hyp ocrisy. Merely list in the theoretical realm\For instance, consider this unpleas
ing such strategies is probably sufficient to make my main ant thought. Perhaps the dominance of the tragedy of the
point. (Close observers of climate politics will recognize commons model (and the global storm approach more gen
many of them.) So, here let me offer just two ill_ustr-a-tions. erally) is not due to mere obliviousness to the tyranny of the
-
The first concerns unreasonable d ht. At the time of contempor�, but is instead encouraged by its background
writing, the basic science underlying concern about cli presence@ter all, the curren.t generation may find it highly
mate change is the subject of a widespread, enduring and advantageous to draw attention toward various geopoliti
207
strengthening consensus that has been repeatedly stressed cal issues that tend to problematize action, and away from
in international reports, and endorsed by the national issues of intergenerational ethics, which demand]!) From
academies of major nations. 38 Nevertheless,F the politi this point of vie the standard tragedy of the commons
cal and broader public realms, the level of doubt, distrust, accoun\ fits the bill nicely. I essentially assumes away the
and even outright hostility to this consensus has, if any critical intergenerational dimension, by taking the rele
thing, increased as scientific understanding has develop� vant actors to be nation-states who represent the interests
It is often (rightly) said that this is partly due to campaigns of their citizens in perpetuity. In. addition, by focusing on
of disinformation, and a widespread misunderstanding countries and not generations, it suggests that failures to
within the media and broader public of the role of legiti act count as self-infl.icted and self-destructive harms, rather
mate skepticism within science.3�1 it is surprising that than injustices we inflict on future peopl,y
we are quite so vulnerable to such influences, to the extent 0e problem of moral corruptio also reveals a broader
that the collective response has been to allow a huge sense in which climate change may be a perfect moral storm.
increase in emissions even as the mainstream science has �s complexity)may turn out to be perfectly convenient for
solidifi�Indeed, one could be forgiven for thinking that us, the current generation, and i�deed for each successor
the more evidence we get, the more we demand, and the generation as it comes to power. Jit rovides each genera
more reckless our behavior becomes. In the abstract, this tion with the cover under which it can seem to be taking
42 I DEBATING CLIMATE ETHICS
BETRAYING THE FUTURE I 43
the issue seriously-by negotiating weak global accords

that lack substance, for example, and then heralding them
as great achievements41 -when really it is simply exploit
ing its temporal position. oreover, all of this can occur
without the guilty generation actually having to acknowl
edge that this is what it is doing. By avoiding overtly selfish
behavior, an earlier generation can take advantage of the
future without the unpleasantness of admitting it-either
to others, or, perhaps more importantly, to itself.
208
Singer: a changing world 9
One Atmosphere
A New Era for Ethics and Political Theory
Implicit in the term "globalization" rather than the older "in

ternationalization" is the idea chat we are moving beyond the
era of growing ties between states and are beginning to contem
plate something more than the existing conception of state sov
ereignty. But chis change needs co be reflected in all levels of our
thought, especially in our thinking about ethics and our political
theory.
To see how much our thinking about ethics needs to change,
consider the work that, better than any other, represents late
twentieth-century thinking on justice in the liberal American
establishment: John Rawls's A 1heory of justice. When I read
it, shortly after its publication in 1971, I was astonished that a
book with chat tide, nearly 600 pages long, could utterly fail to
discuss the injustice of the extremes of wealth and poverty that
exist between societies. Rawls's method is to seek the nature of
justice by asking what principles people would choose if they
were choosing in conditions that prevented them from know
ing what position they themselves would occupy. That is, they
must choose without knowing whether they themselves would
be rich or poor, a member of the dominant ethnic majority or
of an ethnic minority, a religious believer or an atheist, highly
skilled or unskilled, and so on. If we were to apply this method
globally rather than for a given society it would immediately
be obvious that one fact about which those making the choice
should be ignorant is whether they are citizens of a rich country
such as the United States or of a poor country such as Haiti.
In setting up his original position, however, Rawls simply as
sumes that the people making the choice all belong to the same
209
10 a changing world
society and are choosing principles to achieve justice within their

society. Hence when he argues that people choosing under the
conditions he prescribes would choose a principle that, subject
to constraints intended to protect equal liberty and fair equality
of opportunity, seeks to improve the position of the worst-off,
he limits the conception of worst-off to those within one's own
society. If he accepted that to choose justly, people must also be
ignorant of their citizenship, his theory would become a forceful
argument for improving the prospects of the worst-off people in
the world. But in the most influential work on justice written
in twentieth-century America, this question never even arises. 15
Rawls addressed it, late in his life, in a short book, The Law of
Peoples, and I shall say something later about what he says there.
His approach, however, remains firmly based on the idea that
the unit for deciding what is just remains something like today's
nation-state.
Rawls's model is that of an international order, not a global
order. Most political theorists today still make that assumption,
but there is now a growing minority who take a global perspec
tive. Yael Tamir, who, having served in the Israeli parliament
and as a government minister, cannot be dismissed as a mere
academic remote from political reality, has called for political
theorists to dare to ask the fundamental question: "Should the
unity and autonomy of the sovereign state be retained, or should
the state be transcended for some purposes and divided for oth
ers?"16 Political theorists are now asking that question. As David
Held and Pietro Maffettone point out in their preface to a col
lection of essays by leading scholars working on global political
theory, the acceleration of globalization since the 1980s funda
mentally challenges the idea that normative political ideas can be
confined to the internal life of states. Their volume is evidence
that political theory is responding to this challenge and chang
ing its nature as it does so.17
210
one atmosphere 17
1999, and the developing countries, given a ten-year period of

grace, achieved the same goal in time for the 25th anniversary of
the treaty in 2012.
Getting ri d of CFCs turned out to be just the opening act:
the main event is cl imate change. Not to bel ittle the pioneering
achievement of those who brought about the Montreal Protocol,
but the problem they faced was not so difficult, for CFCs can
2 one atmosphere be replaced i n all their uses at relatively little cost, and the solu
tion to the problem is simply to stop producing them. Climate
change is a very different matter.
The sci entific evidence that human activities are changing the
climate of our planet has been studied by a working group of
the Intergovernmental Panel on Climate Change, an interna
tional sci entific body establ ished to provide policy makers with
The Problem / an authoritative view of climate change and its causes. The group
211
There can be no clearer il lustration of the released its Fifth Assessment Report in 2014, building on earlier
need for human be
ings to act globally than the issues raised by reports and incorporating new evidence accumulated over the
the impact of hu
man activity on our atmosphere. That we five years s ince the previous report. The report is the work of
all share the same
planet came to our attention in a particularly more than 800 authors. The section on the physical science basis
press ing way in the
1970s, when scientists discovered that the of climate change alone is over 2,000 pages long and draws on
use of chlorofluoro
carbons (CFCs) threatened the ozone layer 9,200 peer-reviewed scientific publications . Like any scientific
shielding the surface
of our planet from the ful l force of the s un's document it is open to criticism from other scientists, but it
ultraviolet radiation.
Damage to that protective shield would cau reflects a broad consens us of leading scientific opinion and is by
s e cancer rates to ris e
s harply and coul d have othe far the most authoritative view available on what is happening
r effects, for example, on the growth
of al gae. The threat to people living in the wor to our climate.
l d's southernmos t
cities was especially acute, since a large ho The Fifth Assessment Report finds that the evidence is un
l e in the ozone was
found to be opening up each year over Anta equivocal that, s ince the 1950s , the atmosphere and oceans have
rctica. In the l ong
term, the entire ozone shield was imperiled warmed, glaciers have shrunk, the Greenland and Antarctic ice
. Once the science
was accepted, concerted international actio sheets have been los ing mass , Arctic s ea i ce is di minishi ng, and
n followed relatively
rapi dl y with the s igning of the Montreal Prot sea l evels are rising at an increasingl y rapid rate. At the earth's
ocol in 1987. The
developed countries phased out virtually surface, each of the past three decades has been successively
all use of CFCs by
warmer than any preceding decade since 1850.1
16
24
25
one atmosphere
one atmosphere
dustrialized economies based on energy from fossil fuels and

subsi sti ng on diets that demand a vastly i ncreased global herd
of methane-produci ng cattle, is far more all-encompassing than
anything our ancestors could achieve, extending beyond species
extinction to defore station, dese rtification, pollution in the most
remote regions of the planet, ozone depletion, oce an acidifica

tion, and cli mate ch ange . He nce the suggestion, first made i n
the 1980s by the biologist Eugene Stoermer, that we are living in
a new epoch, the Anthropocene. The i dea has slowly caught on,
and at the time of writing a formal proposal to declare this ne w
epoch in our pl anet's history is unde r revie w by the Internati onal
Ethics for the Anthropocene Commi ssion on Stratigraphy, the authoritative scientific body
that makes such decisions. 9
i
Our current_geologcal e
poch is, i at the time of writing, still of All of this forces us to think differentl y about our ethics. Our
fici�lly known as the Holocene. It
began u,700 years ago, and moral attitudes were formed in circumstances in which the at
212
dunng almost all of this period earth'
s systems have been unusu mosphere and oce ans seemed so limitless that we took it for
all stable. One thing that has not
� been at all stable during this granted that they were able to absorb our wastes without notice
penod, howe ver, i s the human pop
ulation and its impact. At the able ill conse quences. Under such ci rcumstances, responsibilities
beginning of the Holocene there m
ay have been about six
mil and harms were generally vi sible and well defined. If someone
lion humans, mostly hunter-gathe
rers. In thinking about these hit someone else , it was clear w ho had done what and why it was
earlie r h umans, we sh
ould not be deceived by the myth wrong. Now the twi n problems of the ozone hole and cli mate
of noble
savages living in perfect harmony w
ith their environme nts.
Even change have revealed bizarre ne w ways of harming people. Be fore
those small , low-tech societies wer
e able to transform the
flora CFCs were phased out you could, by spraying deodorant at your
and fauna of the regions the y inh
abited-one has onl y to look armpit in your Ne w York apartment, be contributing to skin
at the way i n which the first hum
ans to reach Australia about cancer de aths many years later in Punta Arenas, Chile. Today,
40,000 years ago brought about
the extinction of the mega by driving your car you could be rele asing carbon dioxide that is
fauna they found there, and the
n by firestick farming caused part of a causal chain leading to lethal floods in Bangladesh .
the original forests to be replaced by
fire-resi stant eucalypts. In Does this me an it i s wrong to drive a car unnecessarily or, for
much more recent times, the arrival
of the Maori in Ne w Zea that matter, to eat bee f, since cattle emit such large quantities of
l and was s on followe
_ � d by the extinction of the moa,
a giant methane ? To live an ethical life, is it essential that we minimize
flightless bird. But the impact of
the more than seven billion our carbon footprint by, for e xample, installing solar panels on
pe ople now present on the earth,
many of them living in in- our roof, avoiding meat, and w henever possible riding a bike or
26 one atmosphere
one atmosphere 27
taking public transport rather than driving a car? By doing these

things we minimize the harm we are causing to others, and that
is commendable. We are also setting an example to others-and
if enough of us do it, to our leaders-about our willingness to
live sustainably. So these are good things to do, but we should
not fool ourselves into believing that the problem of climate
change can be solved by individual actions of this kind. There
need to be changes on a larger scale, including changes in how
we generate electricity, power our vehicles, and produce the
foods we eat. For these changes to occur, the price of carbon will
213
have to be increased to reflect the true cost of emitting it-as
economists would say, to internalize the costs that are currently
externalities, which means they are imposed on others who are
not part of tl::_e transactions between us and the power company,
the gas station, or the supermarket. We will need all of the major
greenhouse gas-emitting countries, present and future, to agree
to reduce their emissions drastically enough to avoid disaster.
Our overriding obligation, as individuals, is therefore to be ac
tivist citizens and to do our best to persuade our government to
come together with other governments and find a global solu
tion to a global problem.
one atmosphere 33
ity of the sink to dispose of our wastes seems so limitless that no

one worries about the difference. As long as that situation con
tinues, it is reasonable to believe that, in putting waste down the
sink, we are leaving "enough and as good" for others because no
What Is an Equitable Distribution?
matter how much we put down it, others can also put as much
as they want, without the sink overflowing. This phrase "enough
A sense of fairness appears to be universal among human beings, and as good" comes from John Locke's justification of private
although conceptions of what is fair in particular situations vary property in his Second Treatise on Civil Government, published in
across cultures and times. In political philosophy it is common r690. In that work Locke says, "The earth and all that is therein
to follow Robert Nozick in distinguishing between "historical" is given to men for the support and comfort of their being." The
principles and "time-slice" principles.18 A historical principle is earth and its contents "belong to mankind in common." How,
one that says, We can't decide, merely by looking at the present then, can there be private property? Because our labor is our
situation, whether a given distribution of goods is just or unjust. own, and hence when we mix our own labor with the land and
We must also ask how the situation came about; we must know its products we make them our own. But why does mixing my
its history. Are the parties entitled, by an originally justifiable labor with the common property of all humankind mean that
acquisition and a chain of legitimate transfers, to the holdings I have gained property in what belongs to all humankind rather
214
they now have? If so, the present distribution is just. If not, rec than lost property in my own labor? It has this effect, Locke says,
tification or compensation will be needed to produce a just dis as long as the appropriation of what is held in common does not
tribution. In contrast, a time-slice principle looks at the existing prevent there being "enough and as good left in common for
distribution at a particular moment and asks if that distribution others." 19 Locke's justification of the acquisition of private prop
satisfies some principles of fairness, irrespective of any preced erty is the classic historical account of how property can be legit
ing sequence of events. I shall look at both of these approaches imately acquired, and it has served as the starting point for many
in turn. more recent discussions. Its significance here is that, if it is valid
A Historical Principle: "The Polluter Pays,"
and the sink is or appears to be of limitless capacity, it would
or "You Broke It, You Fix It"
justify allowing everyone to put what he or she wants down the
sink, even if some put much more than others down it.
Imagine that we live in a village in which we all put our wastes Now imagine that conditions change, so that the sink's ca
down a giant sink. No one quite knows what happens to the pacity to carry away our wastes is used to the full, and there is
wastes after they go down the sink, but since they disappear already some unpleasant seepage that seems to be the result of
and have no adverse impact on anyone, no one worries about the sink being used too much. This seepage causes occasional
it. Some people consume a lot and so have a lot of waste, while problems. W hen the weather is warm it smells. A nearby water
others, with more limited means, have barely any, but the capac- hole where our children swim now has algae blooms that make
34 one atmosphere one atmosphere 35
it unusable. Several respected figures in the village warn that un Therefore, Locke suggests, even the landless laborer is better off
less usage of the sink is cut down, all the village water supplies because of the private, though unequal, appropriation of the
will be polluted. At this point, when we continue to throw our common asset and hence should consent to it. The factual basis
usual wastes down the sink we are no longer leaving "enough of Locke's comparison between English laborers and American
and as good" for others, and hence our right to unchecked waste Indians is evidently dubious, as is its failure to consider other,
disposal becomes questionable. For the sink belongs to us all in more equitable ways of ensuring that the land is used prod�c
common, and by using it without restriction now, we are depriv tively. But even if the argument worked for the landless English
ing others of their right to use the sink in the same way without laborer, we cannot defend the private appropriation of the global
bringing about results none of us want. We have an example of sink in the same way. The landless laborer who no longer has the
the well-known "tragedy of the commons."20 The use of the sink opportunity to have a share of what was formerly owned in co�
is a limited resource that needs to be shared in some equitable mon should not complain, Locke seems to think, because he 1s
way. But hoo/? A problem of distributive justice has arisen. better off than he would have been if private property in land
Think of the atmosphere as a giant global sink into which had not been recognized. The parallel argument to this in rela
we can pour pur waste gases. Then once we have used up the tion to the use of the global sink would be that even the world's
capacity of the atmosphere to absorb our gases without harmful poorest people have benefited from the increased pr�ducti�ity
215
consequences, it becomes impossible to justify our usage of this that has come from the use of the global sink by the mdustnal
asset by the claim that we are leaving "enough and as good" for ized countries. But the argument does not work because many
others. The atmosphere's capacity to absorb our gases has be of the world's poorest people, whose shares of the atmosphere's
come a finite resource on which various parties have competing capacity have been appropriated by the industrialized countries,
claims. The problem is to allocate those claims justly. are not able to partake in the benefits of this increased produc
Are there any other arguments that justify taking something tivity in the industrialized countries-they cannot afford to buy
that has, for all of human history, belonged to human beings its products-and if shifting rainfall patterns leave them unable
in common and turning it into private property? Locke has a to grow their crops or rising sea levels inundate their farmlands
further argument-one that is arguably inconsistent with his or cyclones destroy their homes, they will be much worse off
first argument-defending the continued unequal distribution than they would otherwise have been.
of property even when there is no longer "enough and as good"
for others. Comparing the situation of American Indians, where
there is no private ownership of land and hence the land is not
cultivated, with that of England, where some landowners hold
vast estates and many laborers have no land at all, he claims that
"a king of a large and fruitful territory there [i.e., in America]
feeds, lodges, and is clad worse than a day laborer in England." 21
fair share of the finite capacity of the global atmospheric sink.

In fact, just the contrary is true. Their arguments imply that this
appropriation of a resource once common to all humankind is
not justifiable. And since the wealth of the developed countries is
inextricably tied to their prodigious use of fossil fuels (a use that
began more than two hundred years ago and continues today) it
is a small step from here to the conclusion that the present global
distribution of wealth is the result of the wrongful expropriation
by a small fraction of the world's population of a resource that
belongs to all human beings in common.
For those whose principles of justice focus on historical pro
cesses, a wrongful expropriation is grounds for rectification
or compensation. What sort of rectification or compensation
should take place in this situation?
One advantage of sharing a house with someone whose hair
216
is different in color or length from your own is that when a
clump of hair blocks the bath outlet, it's easy to tell whose hair
it is. "Get your own hair out of the tub" is a fair and reasonable
household rule, and if the blockage is too far down the pipe for
anyone but a plumber to reach, then it would also seem fair and
reasonable (if a little too mucky) to settle the plumber's bill by
dividing it up proportionately to the amount of hair from each
person that has built up over the period that people have been
using the tub and has caused the present blockage.
Carbon dioxide in the atmosphere is harder to see than hair
in the bathtub, and it lasts longer. Much of the carbon emitted
a century ago is still in the atmosphere, contributing to climate
change, and unless we develop some new technology for remov
ing it, about a quarter of what we emit today will still be warm
ing the planet a thousand years from now. 24
Developing states, including China, India, and Brazil, have
advanced a view of fairness in relation to climate change that
closely resembles the view that the bill for the plumber should in respect of cumulative emissions that occurred before govern
be divided up in proportion to the contribution that people have ments could reasonably be expected to have known that these
made to blocking the sink. Those countries that industrialized emissions might harm people in other countries. At least since
earlier and still use energy more intensely than countries that are 1990, however, when the Intergovernmental Panel on Climate
still developing have done most to cause the problem of climate Change published its first report, solid evidence about the haz
change. If the developed countries had, since the preindustrial ards associated with emissions has existed, and in 1992 the de
era, emitted greenhouse gases at the same per capita levels as the veloped countries themselves (including the United States under
developing countries, we would not be facing an urgent need to President George H. W Bush) agreed, at the Earth Summit, to
reduce emissions. Instead we would have an ample window of reduce emissions so as to prevent dangerous anthropogenic cli
opportunity to do something before greenhouse gas levels in the mate change.25 To wipe the slate clean on what happened since
atmosphere reached a level sufficient to cause a problem. To put 1990 seems unduly favorable to the industrialized countries that
this argumel)t in terms a child could understand, as far as the have, despite that evidence, continued to emit a disproportion
atmosphere is concerned, the developed countries broke it. If ate share of greenhouse gases.
we believe that people should contribute to fixing something in A group of Chinese scientists led by Teng Fei from Tsinghua
proportion to their responsibility for breaking it, then the devel University has attempted to spell out the implications of the
217
oped countries owe it to the rest of the world to fix the problem historical view of responsibility in a way that focuses on the
with the atmosphere. unfairness of an unequal division of a common resource rather
The "you broke it, you fix it" view of fairness puts a heavy than on blaming the developed countries for moral turpitude.
burden on the developed countries. In their defense, it might They suggest that one understanding of fairness in greenhouse
be argued that at the time when the developed countries put gas emissions is equal per capita emissions over time. We can
most of their cumulative contributions of greenhouse gases calculate the total amount of greenhouse gases that could safely
into the atmosphere, they could not have known about the lim be emitted during the period 1850-2050 without risking the
its to the capacity of the atmosphere to absorb those gases. Al dangerous anthropogenic climate change that the parties to the
though the Swedish scientist Svante Arrhenius predicted as long Framework Convention agreed to avoid-that is, without global
ago as 1895 that increasing amounts of carbon dioxide in the warming exceeding 2°C over preindustrial levels. Think of this
atmosphere would cause the planet to warm, that view was not as the carbon budget-that is, the amount of carbon available
sufficiently well understood to justify taking strong action until for everyone in the world to spend. Then think of each person
the 1980s. It would therefore be fairer, it may be claimed, to on the planet during that period as entitled to spend an equal
make a fresh start now and set standards that look to the future share of that budget. Now consider these individuals as citizens
rather than to the past. of countries that have spent different amounts of the world's
There can be circumstances in which we are right to wipe carbon budget and have benefited from those expenditures.
the slate clean and start again. A case can be made for doing so Those countries that industrialized early, like the United States
and the European countries, especially in northern Europe, have let us assume that the still developing and recently developed
already used a large share of that budget. The average resident countries generously overlook the past. We would then need to
of the United States, for example, has used more than ten times look for a time-slice principle to decide how much each country
as much as the average resident of China. The cumulative emis should be allowed to emit. What would such a principle look
sions of the United States since 1850 amount to 30 percent of the like, and what would it require of the developed countries?
world's total cumulative emissions. If the United States and other
countries that industrialized early do not cut their emissions very An Equal Share for Everyone
soon and very sharply, it will be impossible for residents of devel alive
If we forget about the past, we can still ask why, of people
oping countries to emit amounts that are in any way comparable today, anyone should have a greater claim to part of the global
to those emitted by American residents-or at least impossible atmospheric sink than anyone else. The first and simplest re
for them to do so without a grave risk of climate change becom ne
sponse is chat there is no reason why anyone should. Everyo
ing danger9us. Because burning fossil fuels has been and largely atmosp here
has the same claim to common resources like the
still is a path to a high standard of living, this is unfair. 26 y
and so should have an equal share of it. This kind of equalit
This way of putting the argument from historical responsibil s,
seems fair, at least as a starting point for discussion, and perhap
ity does n;t imply that it was morally wrong for some countries it, as an end
if no good reasons can be found for moving from
218
to industrialize when they did or to use fossil fuels to provide the point as well.
energy they required. Rather, the claim is that those countries If we take this view, then we need to ask how much carbon
have, by taking more than their fair share of the global carbon dioxide or other greenhouse gases we can add to the atmosphere
budget, achieved a higher standard of living than developing we
and still avoid dangerous anthropogenic climate change. If
countries while at the same time preventing people in devel of
know that amount, then we can divide it by the population
oping countries from taking a similar path, one in which they al
che world to yield the amount chat each person would be
make use of cheap fossil fuels to improve their own standard of lowed to emit, and we could then in turn multiply this indi
living. Fairness in dividing up a common resource demands chat vidual allowance by the population of any country to obtain the
we take into account not only how much everyone is using now level for each country to emit, given equal per capita shares. To
but also how much everyone used in the past. decide upon the first of these figures, however, we need to make
two distinct judgments: What rise in global temperature is dan
Time-Slice Principles
gerous? And what degree of risk are we prepared to run that we
The argument for taking account of historical responsibility for will exceed that temperature rise?
emissions is strong, especially when put in terms of fairness rather The first of these questions, as we have seen, has been an
°
than blameworthiness. Nevertheless, in order to see whether swered by the 2 C limit, although with an acknowledgment in
there are widely held principles of justice that do not impose the Paris agreement that it is desirable to stay well below that
such stringent requirements on the long-developed countries, threshold and that efforts should be made to avoid exceeding
42
43
one atmosphere one atmosphere
1.5°C above preindustrial levels. In discussion of this question dioxide can be emitted if we accept a probability of greater than
the 1. 5°C limit was strongly advocated by small island states fac 33 percent, greater than 50 percent, or greater than 66 percent.
ing the inundation of large parts of their territory and by many Even the lowest risk scenario leaves a one in three chance that
of the 48 developing countries, mostly from sub-Saharan Africa. we will have a rise beyond 2°C, and hence climate change will
The lower limit has been opposed by all the major economies become dangerous. "Dangerous" here means we do not really
of the world, including the developed countries as well as In know what will happen. We cannot exclude that powerful feed
dia and China. They argue that to hold the temperature rise to back loops will make large sections of our planet uninhabitable.
1.5°C would be extraordinarily difficult-and costly-because it Once again, the reason the "Summary for Policymakers" does
would require not merely stabilizing the amount of carbon in not tell us what limit on emissions would be necessary to reduce
the atmosphere at present levels of around 400 parts per mil the risk to 10 percent or r percent or zero appears to be that no
lion (ppm), as it then was, but reducing it to 35oppm. 27 In Paris one thinks such a limit practicable. Think about this for a mo
the developed countries did more to show that they were listen ment. If you are crazy enough to play Russian roulette in the
ing to the proponents of the 1.5°C limit but would not commit traditional way-loading a single bullet into the cylinder of a
themselves ,E_o it. The reasons for that refusal were political rather revolver that can carry six bullets, spinning the cylinder, putting
than scientific. Most of those negotiating at climate change con the muzzle to your head, and pulling the trigger-you are tak
ferences think it is simply unrealistic to aim for a lower target.
219
ing a one in six chance of killing yourself. Compare that with
The challenge of holding the rise in temperature to 2° C will be the Fifth Assessment Report, a document issued by the world's
difficult enough. most authoritative intergovernmental body considering climate
One reason for the uncertainty about what is a safe limit is change, written by the world's leading experts in sciences related
that global warming can trigger feedback loops that bring about co climate change, and vetted by representatives of the govern
more warming. For example, less ice in the arctic ocean means ments that have signed the Framework Convention, and what
that less of the sun's warmth is reflected back and more is ab does its "Summary for Policymakers" offer us? Nothing better
sorbed by the ocean. More thawing of the Siberian permafrost than running a one in three risk of climate change getting com
will release more methane, a potent greenhouse gas. There could pletely out of control. Do we really want to load the cylinder of
also be negative feedback loops that slow warming. Our knowl our six-chamber revolver with not one but two bullets before we
edge is incomplete, and so even if we specify a level of carbon put the muzzle to the head of our planet?
in the atmosphere that we believe will not take warming above If reducing the risk to 33 percent is the best we can hope for,
2° C, we could be wrong. Another factor determining the accept then the Fifth Assessment Report tells us we must limit cumula
able level of carbon in the atmosphere is therefore the degree tive emissions since r86r to 790 gigatons of carbon, which is
of probability we are willing to settle for that the temperature equivalent to 2,900 gigatons of carbon dioxide (GtCO/ Of
rise will stay below 2°C. The IPCC's Fifth Assessment Report, in that total, r,890 GtCO2 had already been emitted by 2orr, leav
its "Summary for Policymakers," calculates how much carbon ing only r,010 GtCO2 to be emitted.28 Given that emissions in
2orn (including greenhouse gases like methane and nitrous ox land use, especially forest clearance, contribute more than half of
ide) were the equivalent of 49 GtCO2 and rising, we can assume all emissions. China's per capita emissions are 7 tons, and Brazil's
that by the end of 2015 no more than 9rn GtCO can be emitted and Mexico's both just below 6. In contrast, India and Pakistan
2
in coming decades. If the world continues on its present course, have per capita emissions of only 1.9 tons, Ethiopia 1.7, Uganda
we have no more than 18 years before emissions have to be cut to 30
and Burkina Faso 1.3, and Bangladesh just 1.
zero; but it isn't going to be possible to cut emissions to zero by On these figures, the equal per capita share view of equality
2033. Optimistically, some scientists believe that alternative en is only a little less demanding for the affluent industrial coun
ergy sources and new technologies may develop rapidly enough tries than the historical responsibility view. To avoid exceeding
to get to zero emissions by 2050. We also have to be optimistic its share, Australia would have to cut its emissions by 85 percent
enough to assume that the livestock industry will either vanish or and the United States and Canada by 80 percent, while Ger
discover how to stop ruminants like cattle and sheep from belch many, the United Kingdom, and the European Union would
ing and fartjng methane, because a report by the United Nations need to reduce emissions to below half of their present levels.
Food and Agriculture Organization shows that the livestock in China would have to make sizable cuts too. This is not, it is
dustry makes a larger contribution to global warming than the important to understand, a target to be reached by some distant
entire transport sector-all the cars, trucks, buses, trains, ships, future date: it is what emissions would have to average up to
and planes c:ombined.29 Let's assume, nevertheless, that we do 2050, if that is the date we have chosen as the time when it is
220
have until 2050 to get to zero emissions. That would mean we reasonable to hope that new technologies will enable us to cease
can emit 9rn GtCO2 over the next 35 years, or 26 GtCO each
2
adding carbon dioxide to the atmosphere.
year, and still have a 66 percent chance of avoiding dangerous We can therefore also calculate in how many years, at present
anthropogenic climate change. If we take the world's population rates of emission, a country will use up its share of the green
as seven billion and divide the 26 GtCO equally among them, house gases that it can, under the equal per capita share prin
2
that gives each of them an annual allowance of 3.7 tons of CO ciple, emit up to 2050. All we have to do is multiply the fair
2
eqmv. alent. share (3.7 tons) by 35 (the number of years remaining to 2050)
Now compare actual per capita emissions for some key coun and divide by the present rate of emissions. If the United States
tries. Small Persian Gulf states top the list, with Kuwait at 64 tons continues with business as usual, that will happen in 2022, less
and Qatar at 43. Outside that region, Australia's per capita emis than seven years away, and for Australia even sooner, in 2020.
sions are among the highest, at almost 27 tons. The United States The European Union will exhaust its allocation in 2030. On the
and Canada produce more than 20 tons of carbon dioxide per other hand, India and Pakistan could almost double their per
person per year. Russia emits almost 15 tons per capita, Germany capita emissions without exceeding their share, and Bangladesh
just over IO, the United Kingdom 9.3, and the European Union could more than treble its emissions.
as a whole, across its 28 member states, 8.7 tons, which is similar
to Japan and, more surprisingly, to Indonesia, where changes in
worse-off. Some take the view that we should assist the worst-off
only if their poverry is due to circumstances for which they are
not responsible, like the family or country into which they were
born or the abilities they have inherited. Ochers think we should
help the worst-off irrespective of how they have come to be so
badly off. Among the various accounts that pay special attention
to the situation of the worse-off, by far the most widely discussed
is that of Rawls. Rawls holds that, when we distribute goods, we
can justify giving more to those who are already well off only if
this will bring about "the greatest benefit of the least advantaged
members of society."32 This approach allows us to depart from
equality, but only when doing so is the best thing we can do for
the worst-off.
Whereas the strict egalitarian is vulnerable to the objection
that equality can be achieved by "leveling down," that is, by
bringing the rich down to the level of the poor without im
221
proving the position of the poor, Rawls's account is immune to
this objection. For example, if allowing some entrepreneurs to
become very rich-and thus increasing inequality within the
society-will give them incentives to work hard and set up in
dustries that provide employment for the worst-off, and there is
no other way to provide chat employment or any similar benefit
to the worst-off, then that inequality would be permissible.
That there are today very great differences in wealth and in
come between people living in different countries is glaringly
obvious. Equally evident is the fact that these differences depend
largely on the fact that people are born into diverse circumstances,
not that they have failed to take advantage of opportunities open
Aiding the Worst-Off
to them. Hence if, in distributing the atmosphere's capacity to
Some of the best-known accounts of fairness hold that fairness absorb our waste gases without harmful consequences, we were
requires that we seek to improve the prospects of those who are to reject any distribution that fails to improve the situation of
48
49
those who, through no fault of their own, are at the bottom ent high per capita level of U.S. emissions to be compatible with
of the heap, we would not allow the living standard in poor Rawls's theory of justice, it would be necessary to show that the
countries to be reduced while rich countries remain much better country's high level of productivity not only makes the world as
off. 33 To put this more concretely: if, to meet the limits set for a whole better off but also provides the greatest benefit to those
the United States, taxes or other disincentives are used that go no who are worst-off, which in this situation would be the poorest
further than providing incentives for Americans to drive more people in the poorest countries.
fuel-efficient cars, it would not be right to set limits on China The major flaw in this argument is that the primary benefi
that prevent most Chinese from driving cars at all. ciaries of U.S. production are the residents of the United States
In accordance with Rawls's principle, the only grounds on itself The vast majority of the goods and services the country
which one could argue against rich countries bearing all the produces-more than 85 percent of them-are consumed in the
costs of reducing emissions would be that to do so would make United States.35 Even if we focus on the relatively small fraction
the poor countries even worse off than they would have been of goods produced in the United States that are sold abroad,
if the rich countries were not bearing all the costs. Is this plau U.S. residents benefit from the employment that is created, and,
sible? Presi_dent George W Bush defended his refusal to curb of course, U.S. producers receive payment for the goods they sell
U.S. greenhouse gas emissions by saying that his administration abroad. Many residents of other countries, especially of the poor
222
was adopting a "greenhouse gas intensity approach" which seeks est countries, cannot afford to buy goods produced in the United
to reduce the amount of greenhouse gases the United States States, and it isn't clear that they benefit from U.S. production.
emits per unit of economic activity. Bush added that "economic The factual basis of the argument has another flaw: the United
growth is the solution, not the problem," and "the United States States does not produce more efficiently, in terms of carbon
wants to foster economic growth in the developing world, in dioxide emissions, than other countries. Figures published by
cluding the world's poorest countries." 3 4 the International Energy Agency show that the United States is
Allowing countries to emit in proportion to their economic about average in the quantity of emissions it produces in propor
activity-in effect, in proportion to their gross domestic prod tion to its GDP. It is less efficient than many developed coun
uct-can be seen as encouraging efficiency, in the sense of lead tries like Germany, France, Italy, Singapore, Spain, or the United
ing to the lowest possible level of emissions for the goods and ser Kingdom and also less efficient than many developing countries
vices produced. But it is also compatible with the United States in Africa, Asia, and Central and South America.36
continuing to increase its greenhouse gases emissions because it Since the efficiency argument fails, we must conclude that a
is producing more goods. That will mean that other countries, principle that requires us to distribute resources so as to improve
including countries with far lower per capita emissions than the the level of the worst-off would still, given the huge resource gap
United States, must decrease their emissions if catastrophic cli between rich and poor countries, make the rich countries bear
mate change is to be averted. Hence for this defense of the pres- all of the costs of the required changes.
The Greatest Happiness Principle
Classical utilitarians would not support any of the principles of

fairness discussed so far. They would ask what proposal would
lead to the greatest net happiness for all affected-net happiness
being what you have left when you deduct the amount of suffer
ing the proposal causes from the amount of happiness it brings
about. An advocate of preference utilitarianism would instead
ask what proposal would lead to the greatest net satisfaction of
preferences for all concerned. In this context, the difference be
tween the two forms of utilitarianism is not very meaningful.
What is much more of a problem, for either of these views, is to
indicate how one might do such a calculation. Evidently, there
are good uJilitarian reasons for capping the emission of green
223
house gases, but what way of doing it will lead to the greatest
net benefits?
In considering what we need to do to bring about the greatest
net benefits, it is important that we look at this question impar
tially across time as well as across space-so not only between,
say, Americans and citizens of Nigeria or India, but also between
people living now and people who will be living on our planet a
century or more hence.
Because it is so difficult to estimate what will maximize util

ity in the long run, utilitarians may appeal to other principles
of fair or just distribution, like the ones we have been
discussing. These principles give you easier answers and are
likely to lead to an outcome that approximates the best
consequences (or is at
least as likely to do so as any calculation we could make without than if we take it from the person earning $700 a year. This
using those principles). The principles discussed above can be is known as diminishing marginal utility. When compared
justified in utilitarian terms, although each for somewhat differ with giving resources to meet someone's core needs, giving
ent reasons. To go through them in turn: further resources at the margin to someone else whose core
needs have already been satisfied will lead to less utility.
I. The principle chat "the polluter pays" or, more generally Hence a utilitarian will generally favor the worst-off when
"you broke it, you fix it," provides a strong incentive to be it comes to distributing resources. In contrast to Rawls,
careful about causing pollution, or breaking things. So if it however, a utilitarian does not consider chis principle to be
is upheld as a general rule, there will be less pollution, and absolute. The utilitarian always seeks the greatest overall
people will be more careful in situations where they might benefit, and it is only a rule of thumb that this will generally
break something, all of which will be to the general benefit. be obtained by adding to the stock of resources of those who
2. The equal per capita shares principle will not, in general, have the least.
be what utilitarians with perfect knowledge of all the
consequentes of their actions would choose. Where there
is no ocher clear criterion for allocating shares, however, it
224
can be defended as a compromise that leads to a peaceful
solution rather than to no change at all. Arguably, chat is
the best basis for defending one person, one vote as a rule of
democracy against claims that those with more education,
or who pay more taxes, or who have served in the military,
or who believe in the one true God, or who are worse off
should have additional votes because of their particular
attributes.39
3. In practice, utilitarians can often support the principle of
distributing resources to those who are worst-off because
when you already have a lot, giving you more does not
increase your utility as much as when you have only a little.
One of the 700 million people in the world living on $1.90
per day will get much more benefit from an additional $100
than will someone living on $100,000 per year. Similarly,
if we have to take $100 from someone, we will cause much
less suffering if we take it from the person earning $100,000
54
55
This proposal has an immediate practical implication: for

the five-yearly reviews of emission reduction targets envisaged
by the 2015 Paris agreement, countries with high per capita
emissions-starting with Australia, the United States, Canada,
Fairness: A Proposal
and European Union members like France, Germany, and the
Each of the four principles of fairness I have considered could be United Kingdom-should take the lead in adjusting their emis
defended as the best one to take, or we could take some in com sion targets sharply downward, thus setting an example of what
bination. I propose, both because of its simplicity and hence its can be and needs to be done. For all the moral reasons we have
suitability as a political compromise and because it seems likely now examined, they should not use the reluctance of developing
to increase global welfare, that we support the second principle, countries to take similarly strong action as an excuse for doing
that of equal per capita future entitlements to a share of the nothing themselves.
capacity of the atmospheric sink, tied to the current United Na
tions projection of population growth per country in 2050.
Some will say that this is excessively harsh on industrialized
countries like the United States, which will have to cut back
225
the most on their output of greenhouse gases. But we have now
seen that equal per capita shares is much more indulgent to the
United States and other developed countries than other princi
ples for which there are strong arguments. If, for example, we ac
cepted the principle that equal per capita shares should include
a state's previous emissions as well, then, as we saw earlier in this
chapter, we would hold that the emissions of the countries that
industrialized early ought to be held down to much less than an
equal per capita share for future emissions. fu things stand now,
even on the basis of an equal per capita share of future emis
sions, the developing countries are going to have to accept lower
outputs of greenhouse gases than they would have had to if the
industrialized countries had kept to an equal per capita share in
the past. So by saying, "Forget about the past, let's start anew,"
the equal per capita share of future emissions principle is a lot
more favorable to the developed countries than a timeless equal
per capita share principle would be.
226
Down from the Clouds?
To cynical observers of the negotiations on climate change,

some of this ethical argument may seem lacking in political
realism. There appears to be little real prospect of the United
States, Canada, or Australia committing themselves to
emission reduction targets based on a principle such as equal
per capita shares. So what is the point of even discussing such a
principle?
One aim of the preceding discussion is to help us to see
that there is no ethical basis for the present distribution of the
atmosphere's capacity to absorb greenhouse gases without drastic
climate change. If high-emitting countries choose to retain this When water systems become acid, forests can die and other
distribution or to use it as the starting point for setting targets plants and animals are affected also. Acid rain damages build
that are limited to small percentage reductions of their emis ings as well, including older stone buildings that are of cultural
sions, they are standing simply on their presumed rights as sov significance, and fine particles of sulfur dioxide in the air have a
ereign states. That and the raw military power they yield make harmful effect on human health, causing asthma and bronchitis.
it difficult for anyone else to impose a more ethically defensible There are now treaties between the United States and Canada
solution on them. If we, as citizens of the industrialized coun and between European states aimed at reducing air emissions
tries, do not understand what would be a fair solution to global that cause acid rain, 43 but if there were not, it would seem that
warming, then we cannot understand how flagrantly self-serving the states harmed by the sulfur dioxide emitted by other states
such a stance would be. If, on the other hand, we can convey to would have been able to sue for damages in the International
our fellow citizens a sense of what would be a fair solution to Court of Justice.
the problem� it may be possible to change the policies that are The science linking greenhouse gas emissions with global
now leading the world to a situation in which we are risking an warming is more complex than the science linking sulfur dioxide
irreversible ·catastrophe of unknown dimensions. emissions with acid rain, and the consequences of global warm
Today there is broad agreement that greenhouse gas emissions ing are more diverse than those of acid rain, but the underlying
227
should be reduced to a level that will keep global warming below principle is the same. If the United States allows large quantities
2°C, but even many states that accept this position are continu of carbon dioxide to be emitted into the atmosphere, causing
ing to emit amounts that cannot be defended on any reasonable damage to villagers farming the deltas of Bangladesh, Bangla
ethical principle. If the naming and shaming process initiated desh should have the same grounds for seeking action under in
in Paris in 2015 fails, we will need to consider whether there ternational law to restrain U.S. emissions as Canada would have
are ocher possible institutions or principles of international law had if the United States had done nothing to reduce its sulfur
that could help. The fact that seemingly harmless, trivial hu dioxide emissions.
man actions can affect people in distant countries makes a sig Another possibility worth considering is sanctions. There have
nificant difference to the sovereignty of states. Even without any been several occasions on which the United Nations has used
new international agreements, the principles of international sanctions against states that have been seen as doing something
law make states responsible for ensuring that activities within gravely wrong. Perhaps one day a reformed and strengthened
their jurisdiction do not cause damage to the environment of United Nations will invoke sanctions against states that do not
other states or of areas beyond the limits of national jurisdiction, play their part in global measures for the protection of the envi
such as the atmosphere or the sea. In the 1970s it became clear ronment. The problem is that by the time that day comes, it is
that sulfur dioxide emitted by industries in the United States likely to be too late, for the world will have already emitted more
was causing acid rain in Canada, and similarly emissions from than enough greenhouse gases to cross the threshold beyond
continental Europe were causing acidification in Scandinavia. which dangerous climate change can no longer be prevented.
Some scientists believe it is already too late to prevent climate climate finance" to meet the needs of developing countries and
change getting out of control and making parts of our planet co draw on both public and private funds for that purpose. The
uninhabitable;44 but even if they are mistaken, we should not preamble to the agreement mentions the sum of $IO0 billion
forget that climate change is harming people who bear little or per year for this purpose, but to the disappointment of many
no responsibility for it. They can expect more extreme weather developing countries there is no binding commitment to any
events, like hurricanes, heat waves, and droughts, and sea levels specific amount. 47
will continue to rise. When it comes to paying for the costs of adapting to climate
The United Nations Framework Convention on Climate change, the case for the historical principle-you broke it, you
Change recognized that developed countries have, historically, fix it-is very strong. Most legal systems make people or corpo
made the largest contribution to the greenhouse gases in the rations liable for harm they deliberately, recklessly, or negligently
atmosphere: that are causing climate change and that develop cause to others. This is sometimes called fault liability because it
ing countries have made a smaller contribution. The convention relies on the causer of the harm being at fault in some way. On
also states that developed countries will "assist the developing that basis, liability for paying for adaptation would be limited to
country P_grties that are particularly vulnerable to the adverse the period when climate science had developed to the point at
effects of climate change in meeting costs of adaptation to those which the developed countries knew their greenhouse emissions
adverse effe�ts." Developed countries have therefore accepted
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were likely to cause harm but recklessly did nothing about it;
that they have some responsibility to help developing countries or were negligent in not ascertaining whether or not they were
respond to climate change. In 2010 the World Bank completed likely to cause harm. As I mentioned when discussing historical
a major report on the cost of adapting to a world that is 2° C responsibility, this would, at a minimum, apply to the emissions
warmer and reached an estimate of $70-$IO0 billion per year from developed countries since 1992, when the Framework Con
between 2oro and 2050, an amount roughly comparable to the vention was accepted.
amount of aid that is given to developing countries each year The alternative legal form of liability, strict liability, does not
but small in relation to the roughly $60-trillion income the require any fault, not even negligence, on the part of the causer
world earns each year-it is, in fact, only 0.17 percent, or $0.17 of the harm. It is usually applied to inherently dangerous activi
in every $100 earned.45 The study also confirms that, as we have ties but is also often invoked to hold manufacturers of products
already noted, it is the poor who are most vulnerable to the ef liable for faults in them, irrespective of any negligence or other
fects of climate change. Yet the amount that is currently going misconduct by the manufacturer. As Paul Baer has pointed out,
into the international funds set up to help poor countries adapt strict liability is often applied to environmental pollution, not
to climate change is nowhere near the level that the World Bank only in court cases but also in legislation. The United States
estimates is required. Between 2010 and 2012 developed coun Superfund legislation or, to give it its full tide, the Comprehen
tries committed a total of only $30 billion.46 At Paris in 2015 sive Environmental Response, Compensation, and Liability Act
the developed countries agreed to "take the lead in mobilizing of 1980, a federal law, holds those who have dumped hazardous
wastes liable for the cost of deaning up contaminated sites, even

if the contaminants were not known to be hazardous when they
were dumped.48
Although the principle of historical responsibility offers a
strong answer to the question of who should pay for adaptation
-and one that is, at least if limited to fault liability, in accord
with widely accepted moral principles-it is not the only pos
sible way of deciding who should pay for adaptation. As is the
case with the principles that can be applied to allocate green
house gas emission quotas between states, however, all the plau
sible principles point in the same direction. Rawls's view that
inequalities should benefit the worst-off also suggests that the
developed countries should meet the developing country's costs
of adaptatiQn, and so does the principle of utilitarianism.
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Week 6
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John Stuart Mill (1859) On Liberty, Chapter I-III, excerpts.
CHAPTER I
the subject of this Essay is […] Civil, or Social Liberty: the nature and limits of the power
which can be legitimately exercised by society over the individual. […] The object of this
Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of
society with the individual in the way of compulsion and control, whether the means used be
physical force in the form of legal penalties, or the moral coercion of public opinion. That
principle is, that the sole end for which mankind are warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-protection. That the only
purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because
it will be better for him to do so, because it will make him happier, because, in the opinions of
others, to do so would be wise, or even right. These are good reasons for remonstrating with
him, or reasoning with him, or persuading him, or entreating him, but not for compelling him,
or visiting him with any evil in case he do otherwise. To justify that, the conduct from which
it is desired to deter him, must be calculated to produce evil to some one else. The only part
of the conduct of any one, for which he is amenable to society, is that which concerns others.
In the part which merely concerns himself, his independence is, of right, absolute. Over
himself, over his own body and mind, the individual is sovereign.
It is proper to state that I forego any advantage which could be derived to my argument from
the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate
appeal on all ethical questions: but it must be utility in the largest sense, grounded on the
permanent interests of man as a progressive being. Those interests, I contend, authorize the
subjection of individual spontaneity to external control, only in respect to those actions of
each, which concern the interest of other people. If any one does an act hurtful to others, there
is a primâ facie case for punishing him, by law, or, where legal penalties are not safely
applicable, by general disapprobation.
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CHAPTER II: Of the Liberty of Thought and Discussion
The time, it is to be hoped, is gone by when any defence would be necessary of the “liberty of
the press” as one of the securities against corrupt or tyrannical government. No argument, we
may suppose, can now be needed, against permitting a legislature or an executive, not
identified in interest with the people, to prescribe opinions to them, and determine what
doctrines or what arguments they shall be allowed to hear. This aspect of the question,
besides, has been so often and so triumphantly enforced by preceding writers, that it needs not
be specially insisted on in this place. Though the law of England, on the subject of the press,
is as servile to this day as it was in the time of the Tudors, there is little danger of its being
actually put in force against political discussion, except during some temporary panic, when
fear of insurrection drives ministers and judges from their propriety; and, speaking generally,
it is not, in constitutional countries, to be apprehended, that the government, whether
completely responsible to the people or not, will often attempt to control the expression of
opinion, except when in doing so it makes itself the organ of the general intolerance of the
public. Let us suppose, therefore, that the government is entirely at one with the people, and
never thinks of exerting any power of coercion unless in agreement with what it conceives to
be their voice. But I deny the right of the people to exercise such coercion, either by
themselves or by their government. The power itself is illegitimate. The best government has
no more title to it than the worst. It is as noxious, or more noxious, when exerted in
accordance with public opinion, than when in opposition to it. If all mankind minus one, were
of one opinion, and only one person were of the contrary opinion, mankind would be no more
justified in silencing that one person, than he, if he had the power, would be justified in
silencing mankind. Were an opinion a personal possession of no value except to the owner; if
to be obstructed in the enjoyment of it were simply a private injury, it would make some
difference whether the injury was inflicted only on a few persons or on many. But the
peculiar evil of silencing the expression of an opinion is, that it is robbing the human race;
posterity as well as the existing generation; those who dissent from the opinion, still more
than those who hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer
perception and livelier impression of truth, produced by its collision with error.
It is necessary to consider separately these two hypotheses, each of which has a distinct
branch of the argument corresponding to it. We can never be sure that the opinion we are
endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.
First: the opinion which it is attempted to suppress by authority may possibly be true. Those
who desire to suppress it, of course deny its truth; but they are not infallible. They have no
authority to decide the question for all mankind, and exclude every other person from the
means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to
assume that their certainty is the same thing as absolute certainty. All silencing of discussion
is an assumption of infallibility. Its condemnation may be allowed to rest on this common
argument, not the worse for being common.
Unfortunately for the good sense of mankind, the fact of their fallibility is far from carrying
the weight in their practical judgment, which is always allowed to it in theory; for while every
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one well knows himself to be fallible, few think it necessary to take any precautions against
their own fallibility, or admit the supposition that any opinion, of which they feel very certain,
may be one of the examples of the error to which they acknowledge themselves to be liable.
Absolute princes, or others who are accustomed to unlimited deference, usually feel this
complete confidence in their own opinions on nearly all subjects. People more happily
situated, who sometimes hear their opinions disputed, and are not wholly unused to be set
right when they are wrong, place the same unbounded reliance only on such of their opinions
as are shared by all who surround them, or to whom they habitually defer: for in proportion to
a man’s want of confidence in his own solitary judgment, does he usually repose, with
implicit trust, on the infallibilty of “the world” in general. And the world, to each individual,
means the part of it with which he comes in contact; his party, his sect, his church, his class of
society: the man may be called, by comparison, almost liberal and large-minded to whom it
means anything so comprehensive as his own country or his own age. Nor is his faith in this
collective authority at all shaken by his being aware that other ages, countries, sects,
churches, classes, and parties have thought, and even now think, the exact reverse. He
devolves upon his own world the responsibility of being in the right against the dissentient
worlds of other people; and it never troubles him that mere accident has decided which of
these numerous worlds is the object of his reliance, and that the same causes which make him
a Churchman in London, would have made him a Buddhist or a Confucian in Pekin. Yet it is
as evident in itself, as any amount of argument can make it, that ages are no more infallible
than individuals; every age having held many opinions which subsequent ages have deemed
not only false but absurd; and it is as certain that many opinions, now general, will be rejected
by future ages, as it is that many, once general, are rejected by the present.
The objection likely to be made to this argument, would probably take some such form as the
following. There is no greater assumption of infallibility in forbidding the propagation of
error, than in any other thing which is done by public authority on its own judgment and
responsibility. Judgment is given to men that they may use it. Because it may be used
erroneously, are men to be told that they ought not to use it at all? To prohibit what they think
pernicious, is not claiming exemption from error, but fulfilling the duty incumbent on them,
although fallible, of acting on their conscientious conviction. If we were never to act on our
opinions, because those opinions may be wrong, we should leave all our interests uncared for,
and all our duties unperformed. An objection which applies to all conduct, can be no valid
objection to any conduct in particular. It is the duty of governments, and of individuals, to
form the truest opinions they can; to form them carefully, and never impose them upon others
unless they are quite sure of being right. But when they are sure (such reasoners may say), it
is not conscientiousness but cowardice to shrink from acting on their opinions, and allow
doctrines which they honestly think dangerous to the welfare of mankind, either in this life or
in another, to be scattered abroad without restraint, because other people, in less enlightened
times, have persecuted opinions now believed to be true. Let us take care, it may be said, not
to make the same mistake: but governments and nations have made mistakes in other things,
which are not denied to be fit subjects for the exercise of authority: they have laid on bad
taxes, made unjust wars. Ought we therefore to lay on no taxes, and, under whatever
provocation, make no wars? Men, and governments, must act to the best of their ability.
There is no such thing as absolute certainty, but there is assurance sufficient for the purposes
of human life. We may, and must, assume our opinion to be true for the guidance of our own
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conduct: and it is assuming no more when we forbid bad men to pervert society by the
propagation of opinions which we regard as false and pernicious.
I answer, that it is assuming very much more. There is the greatest difference between
presuming an opinion to be true, because, with every opportunity for contesting it, it has not
been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete
liberty of contradicting and disproving our opinion, is the very condition which justifies us in
assuming its truth for purposes of action; and on no other terms can a being with human
faculties have any rational assurance of being right.
When we consider either the history of opinion, or the ordinary conduct of human life, to
what is it to be ascribed that the one and the other are no worse than they are? Not certainly to
the inherent force of the human understanding; for, on any matter not self-evident, there are
ninety-nine persons totally incapable of judging of it, for one who is capable; and the capacity
of the hundredth person is only comparative; for the majority of the eminent men of every
past generation held many opinions now known to be erroneous, and did or approved
numerous things which no one will now justify. Why is it, then, that there is on the whole a
preponderance among mankind of rational opinions and rational conduct? If there really is
this preponderance — which there must be, unless human affairs are, and have always been,
in an almost desperate state — it is owing to a quality of the human mind, the source of
everything respectable in man either as an intellectual or as a moral being, namely, that his
errors are corrigible. He is capable of rectifying his mistakes, by discussion and experience.
Not by experience alone. There must be discussion, to show how experience is to be
interpreted. Wrong opinions and practices gradually yield to fact and argument: but facts and
arguments, to produce any effect on the mind, must be brought before it. Very few facts are
able to tell their own story, without comments to bring out their meaning. The whole strength
and value, then, of human judgment, depending on the one property, that it can be set right
when it is wrong, reliance can be placed on it only when the means of setting it right are kept
constantly at hand. In the case of any person whose judgment is really deserving of
confidence, how has it become so? Because he has kept his mind open to criticism of his
opinions and conduct. Because it has been his practice to listen to all that could be said
against him; to profit by as much of it as was just, and expound to himself, and upon occasion
to others, the fallacy of what was fallacious. Because he has felt, that the only way in which a
human being can make some approach to knowing the whole of a subject, is by hearing what
can be said about it by persons of every variety of opinion, and studying all modes in which it
can be looked at by every character of mind. No wise man ever acquired his wisdom in any
mode but this; nor is it in the nature of human intellect to become wise in any other manner.
The steady habit of correcting and completing his own opinion by collating it with those of
others, so far from causing doubt and hesitation in carrying it into practice, is the only stable
foundation for a just reliance on it: for, being cognizant of all that can, at least obviously, be
said against him, and having taken up his position against all gainsayers. knowing that he has
sought for objections and difficulties, instead of avoiding them, and has shut out no light
which can be thrown upon the subject from any quarter — he has a right to think his
judgment better than that of any person, or any multitude, who have not gone through a
similar process.
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It is not too much to require that what the wisest of mankind, those who are best entitled to
trust their own judgment, find necessary to warrant their relying on it, should be submitted to
by that miscellaneous collection of a few wise and many foolish individuals, called the public.
The most intolerant of churches, the Roman Catholic Church, even at the canonization of a
saint, admits, and listens patiently to, a “devil’s advocate.” The holiest of men, it appears,
cannot be admitted to posthumous honors, until all that the devil could say against him is
known and weighed. If even the Newtonian philosophy were not permitted to be questioned,
mankind could not feel as complete assurance of its truth as they now do. The beliefs which
we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole
world to prove them unfounded. If the challenge is not accepted, or is accepted and the
attempt fails, we are far enough from certainty still; but we have done the best that the
existing state of human reason admits of; we have neglected nothing that could give the truth
a chance of reaching us: if the lists are kept open, we may hope that if there be a better truth,
it will be found when the human mind is capable of receiving it; and in the mean time we may
rely on having attained such approach to truth, as is possible in our own day. This is the
amount of certainty attainable by a fallible being, and this the sole way of attaining it.
In the present age — which has been described as “destitute of faith, but terrified at
scepticism,” — in which people feel sure, not so much that their opinions are true, as that they
should not know what to do without them — the claims of an opinion to be protected from
public attack are rested not so much on its truth, as on its importance to society. There are, it
is alleged, certain beliefs, so useful, not to say indispensable to well-being, that it is as much
the duty of governments to uphold those beliefs, as to protect any other of the interests of
society. In a case of such necessity, and so directly in the line of their duty, something less
than infallibility may, it is maintained, warrant, and even bind, governments, to act on their
own opinion, confirmed by the general opinion of mankind. It is also often argued, and still
oftener thought, that none but bad men would desire to weaken these salutary beliefs; and
there can be nothing wrong, it is thought, in restraining bad men, and prohibiting what only
such men would wish to practise. This mode of thinking makes the justification of restraints
on discussion not a question of the truth of doctrines, but of their usefulness; and flatters itself
by that means to escape the responsibility of claiming to be an infallible judge of opinions.
But those who thus satisfy themselves, do not perceive that the assumption of infallibility is
merely shifted from one point to another. The usefulness of an opinion is itself matter of
opinion: as disputable, as open to discussion and requiring discussion as much, as the opinion
itself. There is the same need of an infallible judge of opinions to decide an opinion to be
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Let us now pass to the second division of the argument, and dismissing the supposition that
any of the received opinions may be false, let us assume them to be true, and examine into the
worth of the manner in which they are likely to be held, when their truth is not freely and
openly canvassed. However unwillingly a person who has a strong opinion may admit the
possibility that his opinion may be false, he ought to be moved by the consideration that
however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as
a dead dogma, not a living truth.
There is a class of persons (happily not quite so numerous as formerly) who think it enough if
a person assents undoubtingly to what they think true, though he has no knowledge whatever
of the grounds of the opinion, and could not make a tenable defence of it against the most
superficial objections. Such persons, if they can once get their creed taught from authority,
naturally think that no good, and some harm, comes of its being allowed to be questioned.
Where their influence prevails, they make it nearly impossible for the received opinion to be
rejected wisely and considerately, though it may still be rejected rashly and ignorantly; for to
shut out discussion entirely is seldom possible, and when it once gets in, beliefs not grounded
on conviction are apt to give way before the slightest semblance of an argument. Waiving,
however, this possibility — assuming that the true opinion abides in the mind, but abides as a
prejudice, a belief independent of, and proof against, argument — this is not the way in which
truth ought to be held by a rational being. This is not knowing the truth. Truth, thus held, is
but one superstition the more, accidentally clinging to the words which enunciate a truth.
If the intellect and judgment of mankind ought to be cultivated, a thing which Protestants at
least do not deny, on what can these faculties be more appropriately exercised by any one,
than on the things which concern him so much that it is considered necessary for him to hold
opinions on them? If the cultivation of the understanding consists in one thing more than in
another, it is surely in learning the grounds of one’s own opinions. Whatever people believe,
on subjects on which it is of the first importance to believe rightly, they ought to be able to
defend against at least the common objections. But, some one may say, “Let them be taught
the grounds of their opinions. It does not follow that opinions must be merely parroted
because they are never heard controverted. Persons who learn geometry do not simply
commit the theorems to memory, but understand and learn likewise the demonstrations; and it
would be absurd to say that they remain ignorant of the grounds of geometrical truths,
because they never hear any one deny, and attempt to disprove them.” Undoubtedly: and such
teaching suffices on a subject like mathematics, where there is nothing at all to be said on the
wrong side of the question. The peculiarity of the evidence of mathematical truths is, that all
the argument is on one side. There are no objections, and no answers to objections. But on
every subject on which difference of opinion is possible, the truth depends on a balance to be
struck between two sets of conflicting reasons. Even in natural philosophy, there is always
some other explanation possible of the same facts; some geocentric theory instead of
heliocentric, some phlogiston instead of oxygen; and it has to be shown why that other theory
cannot be the true one: and until this is shown, and until we know how it is shown, we do not
understand the grounds of our opinion. But when we turn to subjects infinitely more
complicated, to morals, religion, politics, social relations, and the business of life, three-
fourths of the arguments for every disputed opinion consist in dispelling the appearances
which favor some opinion different from it. The greatest orator, save one, of antiquity, has
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left it on record that he always studied his adversary’s case with as great, if not with still
greater, intensity than even his own. What Cicero practised as the means of forensic success,
requires to be imitated by all who study any subject in order to arrive at the truth. He who
knows only his own side of the case, knows little of that. His reasons may be good, and no
one may have been able to refute them. But if he is equally unable to refute the reasons on the
opposite side; if he does not so much as know what they are, he has no ground for preferring
either opinion. The rational position for him would be suspension of judgment, and unless he
contents himself with that, he is either led by authority, or adopts, like the generality of the
world, the side to which he feels most inclination. Nor is it enough that he should hear the
arguments of adversaries from his own teachers, presented as they state them, and
accompanied by what they offer as refutations. That is not the way to do justice to the
arguments, or bring them into real contact with his own mind. He must be able to hear them
from persons who actually believe them; who defend them in earnest, and do their very
utmost for them. He must know them in their most plausible and persuasive form; he must
feel the whole force of the difficulty which the true view of the subject has to encounter and
dispose of; else he will never really possess himself of the portion of truth which meets and
removes that difficulty. Ninety-nine in a hundred of what are called educated men are in this
condition, even of those who can argue fluently for their opinions. Their conclusion may be
true, but it might be false for anything they know: they have never thrown themselves into the
mental position of those who think differently from them, and considered what such persons
may have to say; and consequently they do not, in any proper sense of the word, know the
doctrine which they themselves profess. They do not know those parts of it which explain and
justify the remainder; the considerations which show that a fact which seemingly conflicts
with another is reconcilable with it, or that, of two apparently strong reasons, one and not the
other ought to be preferred. All that part of the truth which turns the scale, and decides the
judgment of a completely informed mind, they are strangers to; nor is it ever really known,
but to those who have attended equally and impartially to both sides, and endeavored to see
the reasons of both in the strongest light. So essential is this discipline to a real understanding
of moral and human subjects, that if opponents of all important truths do not exist, it is
indispensable to imagine them, and supply them with the strongest arguments which the most
skilful devil’s advocate can conjure up.
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But what! (it may be asked) Is the absence of unanimity an indispensable condition of true
knowledge? Is it necessary that some part of mankind should persist in error, to enable any to
realize the truth? Does a belief cease to be real and vital as soon as it is generally received —
and is a proposition never thoroughly understood and felt unless some doubt of it remains? As
soon as mankind have unanimously accepted a truth, does the truth perish within them? The
highest aim and best result of improved intelligence, it has hitherto been thought, is to unite
mankind more and more in the acknowledgment of all important truths: and does the
intelligence only last as long as it has not achieved its object? Do the fruits of conquest perish
by the very completeness of the victory?
I affirm no such thing. As mankind improve, the number of doctrines which are no longer
disputed or doubted will be constantly on the increase: and the well-being of mankind may
almost be measured by the number and gravity of the truths which have reached the point of
being uncontested. The cessation, on one question after another, of serious controversy, is one
of the necessary incidents of the consolidation of opinion; a consolidation as salutary in the
case of true opinions, as it is dangerous and noxious when the opinions are erroneous. But
though this gradual narrowing of the bounds of diversity of opinion is necessary in both
senses of the term, being at once inevitable and indispensable, we are not therefore obliged to
conclude that all its consequences must be beneficial. The loss of so important an aid to the
intelligent and living apprehension of a truth, as is afforded by the necessity of explaining it
to, or defending it against, opponents, though not sufficient to outweigh, is no trifling
drawback from, the benefit of its universal recognition. Where this advantage can no longer
be had, I confess I should like to see the teachers of mankind endeavoring to provide a
substitute for it; some contrivance for making the difficulties of the question as present to the
learner’s consciousness, as if they were pressed upon him by a dissentient champion, eager
for his conversion. […]
It still remains to speak of one of the principal causes which make diversity of opinion
advantageous, and will continue to do so until mankind shall have entered a stage of
intellectual advancement which at present seems at an incalculable distance. We have hitherto
considered only two possibilities: that the received opinion may be false, and some other
opinion, consequently, true; or that, the received opinion being true, a conflict with the
opposite error is essential to a clear apprehension and deep feeling of its truth. But there is a
commoner case than either of these; when the conflicting doctrines, instead of being one true
and the other false, share the truth between them; and the nonconforming opinion is needed to
supply the remainder of the truth, of which the received doctrine embodies only a part.
Popular opinions, on subjects not palpable to sense, are often true, but seldom or never the
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whole truth. They are a part of the truth; sometimes a greater, sometimes a smaller part, but
exaggerated, distorted, and disjoined from the truths by which they ought to be accompanied
and limited. Heretical opinions, on the other hand, are generally some of these suppressed and
neglected truths, bursting the bonds which kept them down, and either seeking reconciliation
with the truth contained in the common opinion, or fronting it as enemies, and setting
themselves up, with similar exclusiveness, as the whole truth. The latter case is hitherto the
most frequent, as, in the human mind, one-sidedness has always been the rule, and many-
sidedness the exception. Hence, even in revolutions of opinion, one part of the truth usually
sets while another rises. Even progress, which ought to superadd, for the most part only
substitutes one partial and incomplete truth for another; improvement consisting chiefly in
this, that the new fragment of truth is more wanted, more adapted to the needs of the time,
than that which it displaces. Such being the partial character of prevailing opinions, even
when resting on a true foundation; every opinion which embodies somewhat of the portion of
truth which the common opinion omits, ought to be considered precious, with whatever
amount of error and confusion that truth may be blended. No sober judge of human affairs
will feel bound to be indignant because those who force on our notice truths which we should
otherwise have overlooked, overlook some of those which we see. Rather, he will think that
so long as popular truth is one-sided, it is more desirable than otherwise that unpopular truth
should have one-sided asserters too; such being usually the most energetic, and the most
likely to compel reluctant attention to the fragment of wisdom which they proclaim as if it
were the whole. […]
We have now recognised the necessity to the mental well-being of mankind (on which all
their other well-being depends) of freedom of opinion, and freedom of the expression of
opinion, on four distinct grounds; which we will now briefly recapitulate.
First, if any opinion is compelled to silence, that opinion may, for aught we can certainly
know, be true. To deny this is to assume our own infallibility.
Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a
portion of truth; and since the general or prevailing opinion on any subject is rarely or never
the whole truth, it is only by the collision of adverse opinions that the remainder of the truth
has any chance of being supplied.
Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered
to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive
it, be held in the manner of a prejudice, with little comprehension or feeling of its rational
grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger
of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the
dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground,
and preventing the growth of any real and heartfelt conviction, from reason or personal
experience.
Before quitting the subject of freedom of opinion, it is fit to take some notice of those who
say, that the free expression of all opinions should be permitted, on condition that the manner
be temperate, and do not pass the bounds of fair discussion. Much might be said on the
impossibility of fixing where these supposed bounds are to be placed; for if the test be offence
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to those whose opinion is attacked. I think experience testifies that this offence is given
whenever the attack is telling and powerful, and that every opponent who pushes them hard,
and whom they find it difficult to answer, appears to them, if he shows any strong feeling on
the subject, an intemperate opponent. But this, though an important consideration in a
practical point of view, merges in a more fundamental objection. Undoubtedly the manner of
asserting an opinion, even though it be a true one, may be very objectionable, and may justly
incur severe censure. But the principal offences of the kind are such as it is mostly
impossible, unless by accidental self-betrayal, to bring home to conviction. The gravest of
them is, to argue sophistically, to suppress facts or arguments, to misstate the elements of the
case, or misrepresent the opposite opinion. But all this, even to the most aggravated degree, is
so continually done in perfect good faith, by persons who are not considered, and in many
other respects may not deserve to be considered, ignorant or incompetent, that it is rarely
possible on adequate grounds conscientiously to stamp the misrepresentation as morally
culpable; and still less could law presume to interfere with this kind of controversial
misconduct. With regard to what is commonly meant by intemperate discussion, namely
invective, sarcasm, personality, and the like, the denunciation of these weapons would
deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it
is only desired to restrain the employment of them against the prevailing opinion: against the
unprevailing they may not only be used without general disapproval, but will be likely to
obtain for him who uses them the praise of honest zeal and righteous indignation. Yet
whatever mischief arises from their use, is greatest when they are employed against the
comparatively defenceless: and whatever unfair advantage can be derived by any opinion
from this mode of asserting it, accrues almost exclusively to received opinions. The worst
offence of this kind which can be committed by a polemic, is to stigmatize those who hold the
contrary opinion as bad and immoral men. To calumny of this sort, those who hold any
unpopular opinion are peculiarly exposed, because they are in general few and uninfluential,
and nobody but themselves feels much interested in seeing justice done them: but this weapon
is, from the nature of the case, denied to those who attack a prevailing opinion: they can
neither use it with safety to themselves, nor, if they could, would it do anything but recoil on
their own cause. In general, opinions contrary to those commonly received can only obtain a
hearing by studied moderation of language, and the most cautious avoidance of unnecessary
offence, from which they hardly ever deviate even in a slight degree without losing ground:
while unmeasured vituperation employed on the side of the prevailing opinion, really does
deter people from professing contrary opinions, and from listening to those who profess them.
For the interest, therefore, of truth and justice, it is far more important to restrain this
employment of vituperative language than the other: and, for example, if it were necessary to
choose, there would be much more need to discourage offensive attacks on infidelity, than on
religion. It is, however, obvious that law and authority have no business with restraining
either, while opinion ought, in every instance, to determine its verdict by the circumstances of
the individual case; condemning every one, on whichever side of the argument he places
himself, in whose mode of advocacy either want of candour, or malignity, bigotry, or
intolerance of feeling manifest themselves; but not inferring these vices from the side which a
person takes, though it be the contrary side of the question to our own: and giving merited
honour to every one, whatever opinion he may hold, who has calmness to see and honesty to
state what his opponents and their opinions really are, exaggerating nothing to their discredit,
keeping nothing back which tells or can be supposed to tell, in their favour. This is the real
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morality of public discussion: and if often violated. I am happy to think that there are many
controversialists who to a great extent observe it, and a still greater number who
conscientiously strive towards it.
CHAPTER III: Of Individuality, as One of the Elements of Well-Being
Such being the reasons which make it imperative that human beings should be free to form
opinions, and to express their opinions without reserve; and such the baneful consequences to
the intellectual, and through that to the moral nature of man, unless this liberty is either
conceded, or asserted in spite of prohibition; let us next examine whether the same reasons do
not require that men should be free to act upon their opinions—to carry these out in their
lives, without hindrance, either physical or moral, from their fellow-men, so long as it is at
their own risk and peril. This last proviso is of course indispensable. No one pretends that
actions should be as free as opinions. On the contrary, even opinions lose their immunity,
when the circumstances in which they are expressed are such as to constitute their expression
a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of
the poor, or that private property is robbery, ought to be unmolested when simply circulated
through the press, but may justly incur punishment when delivered orally to an excited mob
assembled before the house of a corn-dealer, or when handed about among the same mob in
the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to
others, may be, and in the more important cases absolutely require to be, controlled by the
unfavourable sentiments, and, when needful, by the active interference of mankind. The
liberty of the individual must be thus far limited; he must not make himself a nuisance to
other people. But if he refrains from molesting others in what concerns them, and merely acts
according to his own inclination and judgment in things which concern himself, the same
reasons which show that opinion should be free, prove also that he should be allowed, without
molestation, to carry his opinions into practice at his own cost. That mankind are not
infallible; that their truths, for the most part, are only half-truths; that unity of opinion, unless
resulting from the fullest and freest comparison of opposite opinions, is not desirable, and
diversity not an evil, but a good, until mankind are much more capable than at present of
recognising all sides of the truth, are principles applicable to men’s modes of action, not less
than to their opinions. As it is useful that while mankind are imperfect there should be
different opinions, so is it that there should be different experiments of living; that free scope
should be given to varieties of character, short of injury to others; and that the worth of
different modes of life should be proved practically, when any one thinks fit to try them. It is
desirable, in short, that in things which do not primarily concern others, individuality should
assert itself. Where, not the person’s own character, but the traditions or customs of other
people are the rule of conduct, there is wanting one of the principal ingredients of human
happiness, and quite the chief ingredient of individual and social progress.
In maintaining this principle, the greatest difficulty to be encountered does not lie in the
appreciation of means towards an acknowledged end, but in the indifference of persons in
general to the end itself. If it were felt that the free development of individuality is one of the
leading essentials of well-being; that it is not only a co-ordinate element with all that is
designated by the terms civilization, instruction, education, culture, but is itself a necessary
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part and condition of all those things; there would be no danger that liberty should be
undervalued, and the adjustment of the boundaries between it and social control would
present no extraordinary difficulty. But the evil is, that individual spontaneity is hardly
recognised by the common modes of thinking, as having any intrinsic worth, or deserving any
regard on its own account. The majority, being satisfied with the ways of mankind as they
now are (for it is they who make them what they are), cannot comprehend why those ways
should not be good enough for everybody; and what is more, spontaneity forms no part of the
ideal of the majority of moral and social reformers, but is rather looked on with jealousy, as a
troublesome and perhaps rebellious obstruction to the general acceptance of what these
reformers, in their own judgment, think would be best for mankind. Few persons, out of
Germany, even comprehend the meaning of the doctrine which Wilhelm Von Humboldt, so
eminent both as a savant and as a politician, made the text of a treatise—that “the end of man,
or that which is prescribed by the eternal or immutable dictates of reason, and not suggested
by vague and transient desires, is the highest and most harmonious development of his
powers to a complete and consistent whole;” that, therefore, the object “towards which every
human being must ceaselessly direct his efforts, and on which especially those who design to
influence their fellow-men must ever keep their eyes, is the individuality of power and
development;” that for this there are two requisites, “freedom, and a variety of situations;”
and that from the union of these arise “individual vigour and manifold diversity,” which
combine themselves in “originality.”*
Little, however, as people are accustomed to a doctrine like that of Von Humboldt, and
surprising as it may be to them to find so high a value attached to individuality, the question,
one must nevertheless think, can only be one of degree. No one’s idea of excellence in
conduct is that people should do absolutely nothing but copy one another. No one would
assert that people ought not to put into their mode of life, and into the conduct of their
concerns, any impress whatever of their own judgment, or of their own individual character.
On the other hand, it would be absurd to pretend that people ought to live as if nothing
whatever had been known in the world before they came into it; as if experience had as yet
done nothing towards showing that one mode of existence, or of conduct, is preferable to
another. Nobody denies that people should be so taught and trained in youth, as to know and
benefit by the ascertained results of human experience. But it is the privilege and proper
condition of a human being, arrived at the maturity of his faculties, to use and interpret
experience in his own way. It is for him to find out what part of recorded experience is
properly applicable to his own circumstances and character. The traditions and customs of
other people are, to a certain extent, evidence of what their experience has taught them;
presumptive evidence, and as such, have a claim to his deference: but, in the first place, their
experience may be too narrow; or they may not have interpreted it rightly. Secondly, their
interpretation of experience may be correct, but unsuitable to him. Customs are made for
customary circumstances, and customary characters; and his circumstances or his character
may be uncustomary. Thirdly, though the customs be both good as customs, and suitable to
him, yet to conform to custom, merely as custom, does not educate or develope in him any of
the qualities which are the distinctive endowment of a human being. The human faculties of
perception, judgment, discriminative feeling, mental activity, and even moral preference, are
exercised only in making a choice. He who does anything because it is the custom, makes no
choice. He gains no practice either in discerning or in desiring what is best. The mental and
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moral, like the muscular powers, are improved only by being used. The faculties are called
into no exercise by doing a thing merely because others do it, no more than by believing a
thing only because others believe it. If the grounds of an opinion are not conclusive to the
person’s own reason, his reason cannot be strengthened, but is likely to be weakened, by his
adopting it: and if the inducements to an act are not such as are consentaneous to his own
feelings and character (where affection, or the rights of others, are not concerned) it is so
much done towards rendering his feelings and character inert and torpid, instead of active and
energetic.
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The Appearance of Hate 77
鐨鑔鑕鑞鑗鑎鑌鑍鑙鐅鐅鐗鐕鐖鐗鐓鐅鐭鑆鑗鑛鑆鑗鑉鐅鐺鑓鑎鑛鑊鑗鑘鑎鑙鑞鐅鐵鑗鑊鑘鑘鐓鐅鐦鑑鑑鐅鑗鑎鑌鑍鑙鑘鐅鑗鑊鑘鑊鑗鑛鑊鑉鐓鐅鐲鑆鑞鐅鑓鑔鑙鐅鑇鑊鐅鑗鑊鑕鑗鑔鑉鑚鑈鑊鑉鐅鑎鑓鐅鑆鑓鑞鐅鑋鑔鑗鑒鐅鑜鑎鑙鑍鑔鑚鑙鐅鑕鑊鑗鑒鑎鑘鑘鑎鑔鑓鐅鑋鑗鑔鑒鐅鑙鑍鑊鐅鑕鑚鑇鑑鑎鑘鑍鑊鑗鐑鐅鑊鑝鑈鑊鑕鑙鐅鑋鑆鑎鑗鐅鑚鑘鑊鑘
鑕鑊鑗鑒鑎鑙鑙鑊鑉鐅鑚鑓鑉鑊鑗鐅鐺鐓鐸鐓鐅鑔鑗鐅鑆鑕鑕鑑鑎鑈鑆鑇鑑鑊鐅鑈鑔鑕鑞鑗鑎鑌鑍鑙鐅鑑鑆鑜鐓
Hatred and Law in a Well-Ordered Society.
Will hate speech be tolerated by law in a well-ordered society?

We have already considered one response: yes, it will be tolerated
as part of the energizing diversity of a free market of ideas. An-
other response goes as follows: a society cannot be well-ordered if
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78 t he ha rm i n hat e s pe e ch
people are advocating racial or religious hatred. The idea of a

well-ordered society is the idea of a society being fully and effec-
tively governed by a conception of justice. In technical terms, it is
full-compliance theory rather than partial-compliance theory.
On this account, discussion of a society with sufficient rancor and
division to generate hate speech cannot be discussion of a well-
ordered society (in John Rawls’s sense), since both the hatred
this speech expresses and the hatred it is calculated to drum up
are incompatible with the attitudes whose prevalence among the
citizenry—indeed, whose universal adoption—is supposedly de-
finitive of a well-ordered society. We don’t call a society “well-
ordered” unless these attitudes have died out and been replaced
by sentiments of justice.
So compare what Rawls says about illiberal religions. Intol-
erant religions—Rawls says—“will cease to exist in the well-
ordered society of political liberalism” (PL, 197). Religions that
demand the suppression of other religions, that insist upon con-
stitutional establishment, or that demand the adoption of a cer-
tain comprehensive conception of the good by the whole soci-
ety—a society cannot be well-ordered unless such religions have,
so to speak, died out. Accordingly, the question of what to do
about such religions in a well-ordered society will not arise. Sim-
ilarly, a society cannot become well-ordered unless the bigots and
racists give up their mission and accept the basic principles of
justice and equal respect that were formerly anathema to them.
And so the question of what to do about hate speech and group
defamation in a well-ordered society does not arise. A well-
ordered society will definitely not look racist, on this account.
But, it may be said, this will not be because there are laws against
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that sort of thing. It will be because the citizens—being citizens

of a well-ordered society—have no wish or motivation to express
themselves in these terms.
Taking this response one step further, our well-ordered re-
spondent may also say: even if it is true that Rawls’s ideal society
would not be festooned with racial signage, Islamophobic leaf-
lets, and ethnically prejudiced billboards, still nothing of interest
follows from this for our debate about hate speech laws or group-
defamation laws. A well-ordered society would not need such
laws, because there would be no impulse to do what they forbid.
Maybe the lesson for us, in our much-less-than-well-ordered so-
ciety, is that we must hope that hate speech dies out, just withers
away, not because of coercive laws limiting free speech, but be-
cause of changes of heart brought about perhaps by public edu-
cation and (not least) by effective answers to hate speech in the
free marketplace of ideas.
It is an interesting argument. But I think that this response—
which I am not attributing to anyone in particular—is miscon-
ceived at a number of levels. Most notably, it misconceives the
role of law in a well-ordered society. It is true that Rawls’s con-
ception of a well-ordered society is part of what he calls “strict-
compliance theory.” But, for one thing, it is not at all clear how
we are supposed to get there. Consider again the case of intoler-
ant religions. They don’t feature in a well-ordered society. Why?
Presumably because they have died out. But Rawls says a little
more than that: he says that the basic institutions of a just society
“inevitably encourage some ways of life and discourage others, or
even exclude them altogether” (PL, 195). That is an ambiguous
formulation. What does “discourage” mean here, in terms of the
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operation of institutional arrangements? And what does it mean

to “exclude” certain ways of life altogether?
One thing is for sure. We should not think of a well-ordered
society as a utopian fantasy, in which laws are unnecessary be-
cause everyone’s attitudes are now utterly just. No one supposes
that law can be eliminated from the basic structure of a well-
ordered society, or that we can drop the laws about murder or
burglary because, by definition, no one in a just society would
ever be motivated to engage in those crimes. Rawls’s society is
not utopian in that fantasy sense; it is steadfastly located in the
circumstances of justice, which include subjective circumstances
of anxiety and limited strength of will among the citizens.
Rawls himself gives us a fine discussion in A Theory of Justice of
the role of law, including the role of coercive law and sanctions, in
a well-ordered society. He says there that
even in a well-ordered society the coercive powers of gov-

ernment are to some degree necessary for the stability of so-
cial cooperation. For although men know that they share a
common sense of justice and that each wants to adhere to
the existing arrangements, they may nevertheless lack full
confidence in one another. . . . [T]he existence of effective
penal machinery serves as men’s security to one another.
Maybe in a well-ordered society “sanctions . . . may never need to

be imposed.” But this doesn’t mean that their existence or the
laws providing for them are unnecessary or redundant. Apart
from anything else, as Emile Durkheim argued, penal laws have
an important expressive as well as a coercive function; and one
250
would expect that expressive function to be at the fore in a well-

ordered society, particularly in connection with the public and
visible assurance of just treatment that a society is supposed to
provide to all of its members.
In any case, even if a well-ordered society could dispense with
laws prohibiting group defamation, it would be a mistake to infer
from this that the societies we know must be prepared to dis-
pense with those laws, as a necessary way of becoming well-
ordered. Societies do not become well-ordered by magic. The
expressive and disciplinary work of law may be necessary as an
ingredient in the change of heart within its racist citizens that a
well-ordered society presupposes. And anyway, as with all issues
of justice, the necessity of such laws is a matter of the goods to be
secured and the likelihood that they can be secured in the ab-
sence of legal intervention. If, as I am going to argue, the good to
be secured is a public good, a general and diffuse assurance to all
the inhabitants of a society concerning the most basic elements
of justice, then it is natural to think that the law would be in-
volved—both in its ability to underpin the provision of public
goods and in its Durkheimian ability to express and communi-
cate common commitments. This is particularly likely to be true
in the case of societies, like European societies (and I think also
the United States), which have not yet entirely shaken off histo-
ries of murderous racist terror and oppression.
Assurance
Why does it matter what a well-ordered society looks like? Why

do appearances count? The answer has to do with security and
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assurance. As I said earlier, I want to build on an insight of

Rawls’s that a well-ordered society is one “in which everyone ac-
cepts, and knows that everyone else accepts, the very same prin-
ciples of justice” (PL, 35). The idea is that the look of a society is
one of its primary ways of conveying assurances to its members
about how they are likely to be treated, for example, by the hun-
dreds or thousands of strangers they encounter or are exposed to
in everyday life.
The content of the assurances conveyed in this way might vary.
In Rawls’s philosophical ideal, a well-ordered society is defined
by reference to the whole detailed array of principles that char-
acterize his conception of justice as fairness: what people know,
and what they assure each other of, is their joint allegiance to the
“Principle of Basic Liberties,” the “Difference Principle,” and the
exact balance between the Difference Principle and the “Equal-
Opportunity Principle,” along with the various priority rules and
so on. These are the principles constitutive of Rawls’s own con-
ception of justice, and he is using the idea of a well-ordered soci-
ety to imagine what a society would be like if it and all its mem-
bers were imbued with respect for principles of this kind. He is of
course right to note that one of the reasons we cannot describe
the United States as a well-ordered society in this sense is that
there is nothing approaching a consensus about justice at this
level of detail. But in the real world, when people call for the sort
of assurance to which hate speech laws might make a contribu-
tion, they do so not on the controversial details of someone’s fa-
vorite conception of justice, but on some of the fundamentals of
justice: that all are equally human, and have the dignity of hu-
manity, that all have an elementary entitlement to justice, and
252
that all deserve protection from the most egregious forms of vio-
lence, exclusion, indignity, and subordination. Hate speech or
group defamation involves the expressed denial of these funda-
mentals with respect to some group in society. And it seems to
me that if we are imagining a society on the way to becoming
well-ordered, we must imagine ways in which these basic assur-
ances are given, even if we are not yet in a position to secure a
more detailed consensus on justice.
So far as these fundamentals are concerned, in a well-ordered
society, “[c]itizens accept and know that others likewise accept
those principles, and this knowledge in turn is publicly recog-
nized” (PL, 66). Why, exactly, is the public and visible conveyance
of this knowledge important? I referred earlier to political aes-
thetics: the decent drapery celebrated by Edmund Burke; the no-
tion that to make us love our country, our country must be lovely;
and so on. But when we ask about the public conveyance of these
assurances, we are not just talking about justice on show for the
sake of an impressive or pretty display (in the way that a soci-
ety might display the glories of its power or the splendor of its
culture or the prowess of its athletes). We are not even talking
about a society displaying pride in its achievements on the front
of equality or diversity, touching though such displays sometimes
are. We are talking about displays that matter to the individuals
whose ordinary conduct of life and business relies on widespread
acceptance of the fundamentals of justice. We are talking about
the security that such individuals have and need in connection
with that reliance. In a well-ordered society, where people are vis-
ibly impressed by signs of one another’s commitment to justice,
everyone can enjoy a certain assurance as they go about their
253
business. They know that when they leave home in the morning,
they can count on not being discriminated against or humiliated
or terrorized. They can feel secure in the rights that justice de-
fines; they can face social interactions without the elemental risks
that such interaction would involve if one could not count on
others to act justly; there is security, too, for each person’s proper
pride and dignity against the soul-shriveling humiliation that
a discriminatory rebuff can give rise to. David Bromwich once
quoted a remark that President Lyndon Johnson made in re-
sponse to a question about the moral necessity of the 1964 Civil
Rights Act. The president’s response? “A man has a right not to
be insulted in front of his children.” It is a telling image of
the ugliness and distress that the details of discrimination inflict
upon people; and it is security against interactions of this kind
in the ordinary dailiness of life, as much as the upholding of any
grander constitutional right, that is at stake when we ask about the
assurances that a well-ordered society holds out for its citizens.
In a landmark case that we have already mentioned, R. v. Keeg-
stra (1990), the Canadian chief justice Brian Dickson said this
about the effect that public expressions of hatred may have on
people’s lives:
The derision, hostility and abuse encouraged by hate propa-

ganda . . . have a severely negative impact on the individual’s
sense of self-worth and acceptance. This impact may cause
target group members to take drastic measures in reaction,
perhaps avoiding activities which bring them in contact
with non-group members or adopting attitudes and pos-
tures directed towards blending in with the majority. Such
254
consequences bear heavily in a nation that prides itself on

tolerance and the fostering of human dignity through,
among other things, respect for the many racial, religious,
and cultural groups in our society.
The point of the visible self-presentation of a well-ordered soci-

ety, then, is not just aesthetic; it is the conveying of an assurance
to all the citizens that they can count on being treated justly.
However, when a society is defaced with anti-Semitic signage,
burning crosses, and defamatory racial leaflets, that sort of assur-
ance evaporates. A vigilant police force and a Justice Department
may still keep people from being attacked or excluded, but they
no longer have the benefit of a general and diffuse assurance to
this effect, provided and enjoyed as a public good, furnished to all
by each.
Focusing for a moment on the assurance itself, notice how
it connects to dignity and reputation in the sense discussed in
Chapter 3. A person’s dignity is not just a decorative fact about
that individual. It is a matter of status, and as such it is in large
part normative: it is something about a person that commands
respect from others and from the state. Moreover, one holds a
certain status not just when one happens to have a given set of
entitlements, but when the recognition of those rights or entitle-
ments is basic to how one is in fact dealt with. The element of
assurance that one will be dealt with on this basis is an intrinsic
part of what dignity requires. So it is with the fundamentals of
social reputation. (Remember how we distinguished the funda-
mentals of an individual’s reputation as a person, a member of
society in good standing, from the details of personal reputation
255
which it might be the function of tort law to enforce.) We accord

people dignity on account of the sorts of beings human persons
are, and we are gravely concerned when it is said publicly that
some people by virtue of their membership in a racial, ethnic, or
religious group are not really beings of that kind and so are not
entitled to that basic dignity. Such hateful claims are not just an-
thropological speculations; they intimate that the people con-
cerned should expect to be treated in a degrading manner if the
person making the hateful claim and the fellow-travelers that he
is appealing to have their way.
Does this mean that individuals are required to accord equal
respect to all their fellow citizens? Does it mean they are not
permitted to esteem some and despise others? That proposition
seems counterintuitive. Much of our moral and political life in-
volves differentiation of respect. People respect those who obey
the law and do good, while withholding their respect from those
they regard as wrongdoers. Democrats respect President Barack
Obama, while some conservatives despise him; most Republicans
have a great deal of respect for former president George W. Bush,
while some of his political opponents want him tried as a war
criminal. Many people despise bankers after the recent financial
crisis. So are we now saying that these distinctions of respect are
impermissible and that everyone has a duty to respect everybody
else? Not quite.
It is im por tant to distinguish between two senses of “respect”
that might be in play here—what Stephen Darwall has called
“appraisal respect” (which varies in one’s estimation of a person
by their virtues, vices, crimes, views, merits, and so on) and “rec-
ognition respect” (which is fundamental to the dignity of persons
256
and which is invariant, even governing how they are to be treated

when they are guilty of terrible crimes). It is recognition respect
that we are talking about here: one’s entitlement “to have other
persons take seriously and weigh appropriately the fact that they
are persons in deliberating about what to do.” The fact that we
might subscribe to different estimations of different persons as a
matter of appraisal respect does not show that we may not rea-
sonably be required to play our part in society’s accordance of
recognition respect for one another.
Let us come back now to the assurance that people need from
one another in a well-ordered society. How is this assurance con-
veyed? I don’t think Rawls imagines that there will be billboards
proclaiming the principles of justice as fairness or even the fun-
damentals of recognition respect. The creepy totalitarian flavor
of that makes us uneasy, and rightly so. There may be some af-
firmative efforts: I think of the public proclamation of a new
constitution, like the South African constitution, seeking to fo-
cus people’s attention on the fact that they all now have these
rights; or just the mundane business of pamphlets and advertise-
ments ensuring that people know their rights and know how to
claim them. I saw a sign recently on the New York subway, in
English and Spanish, telling people that they do not have to put
up with unwanted sexual touching in a crowded subway car.
Mostly, however, the assurance is implicit, as though the un-
derlying status of each person as a citizen in good standing goes
without saying. Various forums of social, political, and commer-
cial interaction are just open to all, as a matter of course; no one
has to say “Muslims Welcome” or “African Americans Allowed.”
Indeed, if they do, that in itself is evidence of a problem, now or
257
in the recent past. It is tremendously important that assurance be

conveyed in this implicit way so that it can be taken for granted,
and so that people who might otherwise feel insecure, unwanted,
or despised in social settings can put all that terrible insecurity
out of their minds, and concentrate on what matters to them in
social interaction: its pleasures and opportunities.
At the same time, the necessary implicitness of this assurance
makes it tremendously vulnerable. Suppose that a spate of dis-
criminatory signs appear; maybe they bespeak a real intention to
discriminate, or maybe they do not. But suddenly the stakes have
changed for those to whom they are directed. Or think of this:
suppose that after a 9/11-type attack, hateful signs go up intimat-
ing that Muslims should be accosted as terrorists, and suddenly
taxicabs in New York City start sporting American-flag decals.
One could read the presence of those flags as a sign not of pride
or patriotism, but of fear—that cabs without them will have their
Muslim-looking drivers beaten up.
This helps us to see what hate speech is about. The point of
the bigoted displays that we want to regulate is that they are not
just autonomous self-expression. They are not simply the views
of racists letting off steam. The displays specifically target the so-
cial sense of assurance on which members of vulnerable minori-
ties rely. Their point is to negate the implicit assurance that a so-
ciety offers to the members of vulnerable groups—that they are
accepted in society, as a matter of course, along with everyone
else; they aim to undermine this assurance, call it in question, and
taint it with visible expressions of hatred, exclusion, and con-
tempt. And so it begins: what was implicitly assured is now visi-
bly challenged, so that there is a whole new set of calculations for
258
a minority member to engage in as he sets out to do business or

take a walk in public with his family.
259
260
Week 7
261
262
MICHEL FOUCAUL T
DE GEBOORTE VAN
DE GEVANGENIS
DISCIPLINE,
TOEZICHT
263
EN STRAF
H
1997
HISTORISCHE UITGEVERIJ GRONINGEN

ten, controleren en verbeteren van abnormalen. In alle machts waker, en de tussenmuren belemmeren het contact met lotge
mechanismen die tegenwoordig het abnormale omringen om noten. De gedetineerde wordt gezien, maar hij ziet niet; hij is
het te merken en om het te veranderen, komen deze twee oor object van informatie, maar nooit subject van communicatie.
spronkelijke vormen samen. Door de ligging van zijn kamer recht tegenover de centrale to
ren is hij radiaal zichtbaar; vanwege de verdeling van de ring in
* afgescheiden cellen is hij echter van weerszijden onzichtbaar,
waardoor de orde wordt gegarandeerd. Zijn de gedetineerden
Het Panopticon van Bentham is de architectonische gedaante veroordeelden, dan bestaat er geen gevaar voor complotten,
van deze versmelting. Het principe is bekend: een ringvormig gemeenschappelijke uitbraakpogingen, plannen voor toekom
gebouw; in het midden een toren met grote ramen, die uitkij stige misdaden of wederzijdse slechte beïnvloeding; zijn het
ken op de binnenzijde van de ring; het gebouw is verdeeld in zieken, dan is er geen besmettingsgevaar; krankzinnigen kun
cellen die de volle breedte van het gebouw beslaan; iedere cel nen elkaar niet te lijf gaan; kinderen kunnen niet afkijken, niet
beschikt over twee ramen, één dat naar binnen is gericht en kletsen, geen herrie schoppen, of onoplettend zijn. Bij arbeiders
correspondeert met een raam in de toren, en een buitenraam voorkomt het diefstal, samenscholing, handgemeen, en aflei
waardoor de cel tot in alle hoeken wordt verlicht. En of nu dingen die het werk vertragen, de kwaliteit verminderen of on
krankzinnigen, zieken, veroordeelden, arbeiders of scholieren gelukken veroorzaken. De me�igte, die compacte massa met
in de cellen zijn opgesloten, met één bewaker in de centrale to haar ontelbare uitwisselingen, vervloeiende individualiteiten
ren kan worden volstaan. Dankzij het tegenlicht kan hii vanuit en effecten van collectiviteit, maakt plaats voor een verzame
264
de toren in de cellen de kleine, scherp afgetekende silhouetten ling gescheiden individualiteiten. De menigte wordt vanuit het
van de gevangenen waarnemen. Iedere kooi is een klein theater gezichtspunt van de bewaker vervangen door een veelheid die
waarin de acteur alleen is, volmaakt geïndividualiseerd en per geteld en gecontroleerd kan worden, en vanuit het gezichts
manent zichtbaar. Het panoptische systeem schept ruimtelijke punt van de gedetineerde door een afgezonderde eenzaamheid
eenheden die onophoudelijke waarneming en ogenblikkelijke die voortdurend wordt geobserveerd".
herkenning mogelijk maken. Kortom, het principe van het ca Daaruit ontstaat het belangrijkstè effect van de panoptica:
chot wordt omgekeerd; of meer precies, van zijn drie functies de gedetineerde wordt bewust gemaakt van zijn permanente
-opsluiten, van daglicht beroven en verbergen-blijft enkel zichtbaarheid, waardoor de macht automatisch kan functione
de eerste behouden terwijl de beide andere in hun tegendeel ren. Het toezicht, al is het discontinu, dient continu effect te
verkeren. De blik van de bewaker en het volle licht houden be hebben. De macht dient zo volmaakt te zijn dat haar feitelijke
ter gevangen dan de duisternis, die uiteindelijk bescherming uitoefening overbodig wordt; het architectonische apparaat
biedt. Zichtbaarheid is een valstrik. moet een machine zijn die, onafhankelijk van degene die macht
Allereerst voorkomt dit-als negatief effect-de compacte, uitoefent, een machtsbetrekking produceert en handhaaft;
krioelende en roerige massa in de oorden van opsluiting, zoals kortom, de gedetineerde dient opgesloten te worden in een
door Goya geschilderd en door Howard beschreven. Iedereen
wordt opgesloten in een aparte cel in het volle zicht van de be- 1 Bentham (1843-1859) IV, pag. 60-64. Vgl. afb. 17
276 277
machtssituatie die hijzelf in stand houdt. Daartoe is het onop De panoptica is als systeem zo belangrijk omdat het de
houdelijk observeren van de gevangene door een bewaker tege macht automatiseert en ontindividualiseert. Het principe van
lijk te veel en te weinig-te weinig, want essentieel is dat hij de macht is niet zozeer gelegen in een persoon als wel in een
voortdurend beseft dat hij bewaakt wordt; te veel, omdat hij strak gearrangeerde verdeling van de lichamen, de vlakken, de
niet werkelijk bewaakt hoeft te worden. Bentham heeft daarom blikken en het licht; in de apparatuur waarvan de interne me
als principe gesteld dat de macht zichtbaar maar ondoorzichtig chanismen de betrekking produceren waarin de individuen ge
moet zijn. Zichtbaar-onophoudelijk ziet de gedetineerde het vangen zijn. De ceremoniën, rituelen en merktekenen waarmee
silhouet voor zich van de hoge centrale toren van waaruit hij de soeverein zijn overmacht manifesteerde, zijn overbodig ge
wordt bespied. Ondoorzichtig-de gedetineerde mag nooit we worden. Er is nu een machinerie die de asymmetrie, het onder
ten of er daadwerkelijk naar hem gekeken wordt, maar moet scheid in niveau en in macht waarborgt. Het maakt dus weinig
ervan doordrongen zijn dat dit te allen tijde mogelijk is. Om de uit wie de macht uitoefent. Ieder willekeurig individu kan de
gevangene over de aanwezigheid van de bewaker in het onge machine in gang houden: bij afwezigheid van de directeur zelfs
wisse te laten, om te vermijden dat hij vanuit zijn cel ook maar zijn gezin of naaste omgeving, zijn vrienden, zijn gasten of zijn
een schaduw of silhouet kan zien, stelt Bentham niet alleen bedienden'. Hun motieven zijn evenmin van belang: het kan in
voor om de ramen van de centrale controleruimte van buiten discrete nieuwsgierigheid of kinderlijk vermaak zijn, de we
blinden te voorzien, maar ook om deze ruimte van binnen af te tensdorst van de filosoof die dit museum van de menselijke na
zetten met loodrecht op elkaar staande schotten, die haar ver tuur wil aanschouwen of de boosaardigheid van degene die ge
delen in verschillende vertrekken die onderling niet door deu noegen schept in het bespieden en straffen. Naarmate deze ano
ren, maar door chicanes zijn verbonden: de minste kier of het nieme en tijdelijke waarnemers in aantal toenemen, stijgt de
265
geringste lichtschijnsel verraadt immers de aanwezigheid van kans dat de gedetineerde wordt verrast en groeit bij hem het
een bewaker'. De panoptica functioneert als een machine die onzekere besef dat hij wordt geobserveerd. Het panopticon is
het koppel zien en gezien worden ontbindt: in de buitenste ring een wonderbaarlijke machine die uit de meest uiteenlopende
is men altijd zichtbaar, zonder ooit te zien; in de centrale toren motieven en verlangens homogene machtseffecten fabriceert.
ziet men alles, zonder ooit gezien te worden 2 • De mechanica van fictieve betrekkingen resulteert in een
reële onderwerping. Geweldsmiddelen zijn niet langer noodza
1 In het Postscript to the Panopticon (1843-1859, 1v, pag. 67-172)
kelijk om de veroordeelde tot goed gedrag te dwingen, de
voegt Bentham hier nog duistere, zwartgeschilderde galerijen aan
krankzinnige tot kalmte, de arbeider tot werk, de scholier tot
toe, die rondom het centrale gebouw lopen en ieder afzonderlijk
ijver en de zieke tot naleving van de voorschriften. Bentharn
zicht bieden op twee celverdiepingen.
2 Vgl. afb. 17. In zijn eerste versie van het Panopticon had Bentham
was enthousiast over de lichtheid van de panoptische instellin
ook nog een akoestische bewaking bedacht, door middel van buizen gen: geen traliewerken meer, geen kettingen, geen zware slo-
die van de cellen naar de centrale toren liepen. Hij heeft dit idee in
het Postscript weer verlaten, misschien omdat hij er geen gevangene. Later zal Julius (1831, pag. 18) nog trachten een
asymmetrie in kon aanbrengen die zou verhinderen dat de asymmetrisch afluistersysteem te ontwikkelen.
gevangene de bewaker even goed hoorde als de bewaker de ► 1 Bentham (1843-1859) iv, pag. 45.
278 2 79
ten; heldere afscheidingen en overzichtelijke openingen waren tuuronderzoek. Het stelt in staat verschillen vast te stellen:
voldoende. De oude, logge 'huizen van verzekering' met hun men kan van iedere zieke afzonderlijk de symptomen observe
vestingsarchitectuur kunnen worden vervangen door de een ren zonder dat de opeenhoping van bedden, de circulatie van
voudige en spaarzame geometrie van een 'huis van zekerheid'. miasmen en de effecten van besmetting de klinische tabellen
De dwingende kracht van de machtsuitoefening wordt in zeke beïnvloeden; bij kinderen kan men zonder dat ze kunnen afkij
re zin getransponeerd naar het toepassingsgebied. Degene die ken of overschrijven prestaties beoordelen, capaciteiten her
onderworpen is aan de zichtbaarheid en zich hiervan bewust is, kennen, karakters inschatten, strikte klassementen opstellen,
neemt als spontaan de dwang van de macht over en past deze en aan de hand van een normale ontwikkeling onderscheid ma
op zichzelf toe; hij verinnerlijkt de machtsbetrekking door te ken tussen 'luiheid en koppigheid' en 'ongeneeslijke achterlijk
gelijkertijd beide rollen te spelen, en wordt zo het principe van heid'; bij arbeiders kan men afzonderlijke capaciteiten beoorde
zijn eigen onderwerping. Hierdoor kan de externe macht zich len, de tijd die ze nodig hebben om een bepaald werk te verrich
ontdoen van haar fysieke gewicht; en naarmate ze de grens van ten vergelijken en, indien ze dagloner zijn, hieruit hun salaris
het onlichamelijke nadert, zijn haar effecten constanter en in berekenen'.
tenser, eens voor altijd verworven en voortdurend zelfvernieu Tot zover het panopticon als dierentuin. Maar het kan ook
wend: een eeuwig terugkerende overwinning, die iedere fysieke als laboratorium worden gebruikt, als experimentele machine
confrontatie uit de weg gaat en die bij voorbaat is beslist. voor gedragsverandering, voor individuele dressuur en correc
Bentham vermeldt niet of zijn project is geïnspireerd op de tie. Men kan met medicamenten experimenteren en hun effec
menagerie die Le Vaux in Versailles had gebouwd 1. Het was de ten verifiëren. Men kan op gevangenen, afhankelijk van hun
eerste diergaarde waarvan de verschillende afdelingen niet zo misdaden en karakter, verschillende straffen uitproberen en de
266
als gebruikelijk verspreid lagen over een park: in het midden meest effectieve selecteren. Men kan arbeiders tegelijkertijd
stond een achthoekig paviljoen, waarvan de eerste verdieping verschillende technieken aanleren en vaststellen welke de beste
uit één vertrek bestond, de salon van de koning; grote ramen is. Men kan pedagogische experimenten uitvoeren-met name
zagen uit op de zeven kooien (de achtste zijde diende als ingang) het fameuze probleem van de opvoeding in afzondering onder
waarin verscheidene diersoorten opgesloten zaten. Ten tijde zoeken door gebruik te maken van vondelingen; men zou kun
van Bentham was deze diergaarde reeds verdwenen. Maar in nen observeren wat er gebeurt als meisjes en jongens op hun
het plan van het panopticon treffen we eenzelfde zorg aan voor zestiende of achttiende met elkaar geconfronteerd worden;
individualiserende observatie, karakterisering, classificatie en men zou kunnen nagaan of Helvetius' stelling, dat iedereen al
analytische ordening van de ruimte. Het panopticon is een ko les kan leren, waar is; men zou 'de genealogie van ieder waar
ninklijke diergaarde, waarin het dier is vervangen door de neembaar idee' kunnen volgen; men zou verschillende kinde
mens, de groepering in soorten door de individuele verdeling, ren in verschillende denksystemen kunnen opvoeden door
en de koning door de machinerie van een verborgen macht. On sommigen bijvoorbeeld te doen geloven dat twee plus twee niet
danks dit onderscheid is ook het panopticon een plaats voor na- vier is, of dat de maan van kaas is, om ze allemaal bijeen te
1 Loisel (1912) 11, pag. 104-107. Vgl. afb. 10 1 Bentham (1843-1859) rv, pag. 60-64.
280 281
brengen wanneer ze twintig of vijfentwintig zijn; er zouden dan
discussies ontstaan die evenveel waard zijn als de preken en le
zingen waarvoor zoveel wordt betaald; men zou in ieder geval
de gelegenheid hebben om ontdekkingen te doen op het gebied
van de metafysica. Het panopticon vormt een uitgelezen plaats
voor het experimenteren met mensen, en voor het nauwkeurig
analyseren van de transformaties die men bij hen teweeg
brengt. De panoptica kan zelfs een apparaat construeren dat
zijn eigen mechanismen controleert. Vanuit de centrale toren
kan de directeur al het personeel dat onder zijn leiding staat in
het oog houden: verplegers, artsen, voormannen, onderwijzers
en bewakers; hij kan ze continu beoordelen, hun gedrag veran
deren, en ze methoden opleggen die hij het meest geschikt acht;
en hijzelf zal op zijn beurt gemakkelijk geobserveerd kunnen
worden. Een inspecteur die onvoorzien in het centrum van het
panopticon opduikt, kan met één oogopslag, zonder dat iets
voor hem verborgen gehouden kan worden, oordelen over het
functioneren van de gehele instelling. Want zelfs de directeur,
267
die in het hart zetelt van deze architectonische voorziening, is
erin opgesloten en er feitelijk mee vergroeid. De incompetente
geneesheer die de besmetting niet heeft bedwongen, de onbe
kwame directeur van een gevangenis of werkplaats, zijzelf zul
len het eerste slachtoffer zijn van de epidemie of de revolte.
"Mijn eigen lot, zegt de meester van het panopticon, heb ik
door alle banden die ik kon bedenken verbonden met dat van
hun'." Het panopticon functioneert als een soort laboratorium
van de macht. De observatiemechanismen vergroten zijn effec
tiviteit en zijn vermogen om door te dringen in het menselijke
gedrag; op de voorposten van de macht groeit de kennis, die in
alle domeinen waar de macht wordt uitgeoefend kenbare ob
jecten ontdekt.
•*
1 Bentham (1843-1859) 1v, pag. 177.
282
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College Library, Londen) Vgl. pag. 277 v.v.
270
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388 PART III: INSTRUMENTARIAN POWER FOR A THIRD MODERNITY Big Other and the Rise of Instrumentarian Power
or union organizers, and the computation of individualized "threat scores" compiling data from public and private sources ... searchable by fingerprints
using data drawn from social media. Law-enforcement agencies have been and other biometrie characteristics."29
among Geofeedia's most prominent clients.24 When the Boston Police De Although China's social credit vision is invariably described as "digital
partment announced its interest in joining this roster in 2016, the city's police totalitarianism" and is often compared to the world of Orwell'.s 1984, it is bet
commissioner described to the Boston Globe his belief in machine certainty as ter understood as the apotheosis of instrumentarian power fed by public and
the antidote to social breakdown: "The attack ... on the Ohio State University private data sources and controlled by an authoritarian state. The accounts
campus is just the latest illustration of why local law-enforcement authori of its pilot programs describe powerful examples of surveillance capitalism's
ties �eed every tool they can muster to stop terrorism and other violence be economies of action and the intricate construction of superscale means of
fore it starts."25 .An ACLU attorney countered that the government is using behavior modification. The aim is the automation of society through tuning,
tech companies "to build massive dossiers on people" based on nothing more herding, and conditioning people to produce preselected behaviors judged as
than their constitutionally protected speech.26 Another, more prominent desirable by the state and thus able to "preempt instability," as one strategie
surveillance-as-a-service company, Palantir, once touted by Bloomberg Busi studies expert put it.30 In other words, the aim is to achieve guaranteed so
nessweek as "the war on terror's secret weapon," was found to be in a secret cial rather than market outcomes using instrumentarian means of behavioral
collaboration with the New Orleans Police Department to test its "predictive modification. The result is an emergent system that allows us to peer into one
policing" technology. Palantir's software not only identified gang members version of a future defined by a comprehensive fusion of instrumentarian and
but also "traced people's ties to other gang members, outlined criminal his state power.
tories, analyzed social media, and predicted the likelihood that individuals China's vision is intended as the solution to its own unique version of the
283
would commit violence or become a victim."27 curse of social dissolution. Writing in Foreign Policy, journalist Amy Haw
kins explains that China's pandemie of social distrust is the problem to which
the social credit system is addressed as the cure: "To be Chinese today is to
IV. The China Syndrome live in a society of distrust, where every opportunity is. a potential con and
every act of generosity a risk of exploitation."31 A fascinating empirica! study
It is now possible to imagine one logical conclusion of this trend toward the of social trust in contemporary China actually finds high levels of "in-group"
substitution of certainty for society as the Chinese government develops a trust but discovers that these are correlated with negative health outcomes.
comprehensive "social credit" system described by one China scholar as the The conclusion is that many Chinese trust only the people who are well
"core" of China's internet agenda. The a.im is "to leverage the explosion of known to them. All other relationships are regarded with suspicion and anx
personal data ...in order to improve citizens' behavior.... Individuals and en iety, with obvious consequences for social trust as well as well-being.32 Tuis
terprises are to be scored on various aspects of their conduct-where you go, rampant distrust, typically assigned to the traumas of rapid modernization
what you buy and who you know-and these scores will be integrated within and the shift to a quasi-capitalist economy, is also the legacy of Chinese to
a comprehensive database that not only links into government information, talitarianism. The Chinese Communist Party dismantled traditional domains
but also to data collected by private businesses."28 of affiliation, identity, and social meaning-family, religion, civil society, in
The system tracks "good" and "bad" behavior across a variety of finan tellectual discourse, political freedom-recalling Arendt's description of the
cial and social activities, automatically assigning punishments and rewards "atomization" that destroys bonds of trust.33 As Hawkins writes, "But rather
to decisively shape behavior toward "building sincerity" in economie, social, than promoting the organic return of traditional morality to reduce the gulf
and political life: "The aim is for every Chinese citizen to be trailed by a file of distrust, the Chinese government has preferred to invest its energy in
3 90 PART III: INSTRUMENTARIAN POWER FOR A THIRD MODERNITY Big Other and the Rise ofInstrumentarian Power 3 91
technological fixes . . . and it's being welcomed by a public fed up of not know system: "The government doesn't want this very important infrastructure of
ing who to trust ... in part because there's no alternative."34 The Chinese gov the people's credit in one big company's hands." The Chinese government
ernment intends to commandeer instrumentarian power to replace a broken appears to understand that power accrues to the owners of the means of be
society with certain outcomes. havioral modification. It is the owners who set the behavioral parameters that
In 2015 the Chinese centra! bank announced a pilot project in which the define guaranteed outcomes. Thus, fusion advances.
top e-commerce companies would pioneer the data integration and software A sense of the kind of social world that might be produced by the fusion
development for personal credit scoring. Among the largest of the pilots was of instrumentarian and state power begins with the ·"judgment defaulter's
Alibaba's Ant Financial and its "personal credit scoring" operation, "Sesame list," described by the Economist as the heart of the social credit system and
Credit." The Sesame Credit system produces a "holistic" rating of"character" perhaps the best indicator of its larger ambitions. The list includes debtors
with algorithmic learning that goes far beyond the timely payment of bills and anyone who has ever defied a court order:
and loans. Algorithms evaluate and rank purchases (video games versus chil
dren's books), education degrees, and the quantity and "quality" of friends. People on the list can be prevented from buying aeroplane, bullet
One reporter's account of her Sesame Credit experience warns that the al train or first- or business-class rail tickets; selling, buying or building
gorithm veers into "voodoo," considering the credit scores of her social con a house; or enrolling their children in expensive fee-paying schools.
tacts, the car she drives, her job, school, and a host of unspecified behavioral There are restrictions on offenders joining or being promoted in the
variables that supposedly "correlate with good credit." The shadow text re party and army, and on receiving honours and titles. If the defaulter
mains out of reach, and users are left to guess how to improve their scores, is a company, it may not issue shares or honds, accept foreign invest
284
including shedding friends with low scores and bulking up on high-scoring ment or work on government projects.38
individuals who, some believe, can boost one's own rank.35
The company's CEO boasts that the scoring system "wil! ensure that the According to a report in China Daily, debtors on the list were automati
bad people in society don't have a place to go, while good people can move cally prevented from flying 6.15 million times since the blacklist was launched
freely and without obstruction." Those with high scores receive honors and in 2013. Those in contempt of court were denied sales of high-speed train
rewards from Sesame Credit's customers in its behavioral futures markets. tickets 2.22 million times. Some 71,000 defaulters have missed out on ex
They can rent a car without a deposit, receive favorable terms on loans and ecutive positions at enterprises as a result of their debts. The Industrial and
apartment rentals, receive fast-tracking for visa permits, enjoy being show Commercial Bank of China said it had refused loans worth more than 6.97
cased on dating apps, and a host of other perks. However, one report warns billion yuan ($1.01 billion) to debtors on the list.39 No one is sent to a reedu
that the privileges linked to a high personal credit score can suddenly turn cation camp, but they may not be allowed to purchase luxury goods. Accord
bie for reasons unrelated to consumption behavior, such as cheating on a ing to the director of the Institute of the Chinese Academy of International
university exam.36 Trade and Economie Cooperation, "Given this inconvenience, 10 percent of
In 2017 the centra! bank retracted its support for the private-sector per people on the list started to pay back the money they owed spontaneously.
sonal credit programs, perhaps because they were too successful, their concen Tuis shows the system is starting to work."40 Economies of action were per
trations of knowledge and power too great. Sesame Credit had acquired more forming to plan.
than 400 million users in just two years, staking a claim to just about every Por the 400 million users of Sesame Credit, the fusion of instrumentarian
aspect of those users' lives.37 A journalist who wrote a book on Ant Financial and state power bites hard. Those who might find themselves on the black
anticipates that the government is preparing to assert control over the whole list discover that the credit system is designed to thrust their scores into an
392 PART III: INSTRUMENTARIAN POWER FOR A THIRD MODERNITY Big Other and the Rise ofInstrumentarian Power 393
inexorable downward spiral: "First your score drops. Toen your friends hear you containing sensitive terms such as "Tibetan independence" or "Tiananmen
are on the blacklist and, fearful that their scores might be affected, quietly drop Square incident."43
you as a contact. The algorithm notices, and your score plummets further."41 As distinct as our polities and cultures may be or have been, the emerg
The Chinese government's vision may be impossibly ambitious: the big ing evidence of the Chinese social credit initiatives broadcasts the logic of sur
dream of total awareness and perfect certainty mediated by algorithms that veillance capitalism and the instrumentarian power that it produces. Sesame
filter a perpetual flood of data flows from private and public supplies, includ Credit doubles down on every aspect of surveillance capitalist operations, with
ing online and offline experience culled from every domain and able to ric hundreds of millions of people caught in the gears of an automated behavioral
ochet back into the individual Jives of 1.5 billion people, automating social modification machine and its bubbling behavioral futures markets dispersing
behavior as the algorithms reward, punish, and shape action right down to perks and honors like Pokémon fairy <lust in return for guaranteed outcomes.
the latest bus ticket. So far the project is fragmented across many pilots, not Chinese users are rendered, classified, and queued up for prediction with
only in the tech companies but also in cities and regions, so there is no real every digital touch, and so are we. We are ranked on Uber, on eBay, on Face
test of the scale that the government envisions. There are plenty of experts book, and on many other web businesses, and those are only the rankings
who believe that a single system of that scale and complexity will be difficult that we see. Chinese users are assigned a "character" score, whereas the US
if not impossible to achieve. government urges the tech companies to train their algorithms for a "radi
There are other good reasons to discount the social credit system's rele calism" score. Indeed, the work of the shadow text is to evaluate, categorize,
vance for our story. To state the obvious, China is not a democracy and its and predict our behavior in millions of ways that we can neither know nor
culture differs profoundly from Western culture. Syracuse University re combat-these are our digital dossiers. When it comes to credit scoring, US
285
searcher Yang Wang observes that Chinese culture places less value on pri and UK banks and financial services firms have floated business models based
vacy than does Western culture and that most Chinese have accommodated on the mining and analysis of social media data for credit scores. Facebook it
to the certain knowledge of online government surveillance and censorship. self has hinted of its interest, even filing a patent.44 These efforts receded only
The most common word for privacy, yinsi, didn't even appear in popular because the Federal Trade Commission threatened regulatory intervention.45
Chinese dictionaries until the mid-199os.42 Chinese citizens have accepted na Oxford University China scholar Rogier Creemers, who translated some
tional ID cards with biometrie chips, "birth permits," and now social credit of the first documents on the social credit system, observes that "the trend to
rankings because their society has been saturated with surveillance and pro wards social engineering and 'nudging' individuals towards 'better' behavior
filing for decades. For example, the "dang'an" is a wide-ranging personal dos is also part of the Silicon Valley approach that holds that human problems
sier compiled on hundreds of millions of urban residents from childhood and can be solved once and for all through the disruptive power of technology....
maintained throughout life. Tuis "Mao-era system for recording the most in In that sense, perhaps the most shocking element of the story is not the Chi
timate details of life" is updated by teachers, Communist Party officials, and nese government's agenda, but how similar it is to the path technology is tak
employers. Citizens have no rights to see its contents, let alone contest them. ing elsewhere."46
The dossier is only one feature of long-institutionalized and pervasive ad In 2017 a surveillance technology trade show held in Shenzhen was
ministrative systems of behavioral control and surveillance in daily life that packed with US companies selling their latest wares, especially cameras
bestow honors on some and punishments on others. Social control programs equipped with artificial intelligence and facial recognition. Among the crowd
have expanded with the growth of the internet. For example, the "Golden was the managing director of CCTV direct, a UK distributor of surveil
Shield" is an extensive online surveillance system. China's cyber-censors lance equipment. He lamented "how far behind the Western countries are,"
can suspend internet or social media accounts if their users send messages compared to the skills and thrills of China's surveillance infrastructure, but
394 PART III: INSTRUMENTARIAN POWER FOR A THIRD MODERNITY Big Other and the Rise ofInstrumentarian Power 395
he also comforted himself with this thought: "What starts here ends up in its breathtaking velocities, and the obscurity of its aims and purpose are in
homes, airports, and businesses back in America."47 tended to disarm, disorient, and bewilder. Inevitabilist ideology works to
The difference betweefl surveillance capitalism in the West and China's equate surveillance capitalism and its instrumentarian power with nature: not
emerging social credit system pivots on the patterns of entanglement and a human construction but something more like a river or a glacier, a thing
engagement between instrumentarian and state power. There are structural that can only be joined or endured. All the more reason to ask: Might the ba
differences. In the West, as we have seen, the patterns have taken on many nalities of today's declarations ("instruct the vehicular monitoring system not
forms. The state began as bosom and shelter, then eager student and envious to allow the car to be started ") also reveal themselves in the fullness of time as
cousin. Surveillance capitalism and its instruments have come of age now, the seeds of our century's greatest nightmare? What of the authors of the in
producing a fitful but necessary partnership. Key instrumentarian capabilities strumentarian project? How will we appraise the smiling, robust faces of the
are docked in the big surveillance capitalist firms, and the state must move tech titans when we revisit those images in the glossy pixels of some twenty
with and through these firms to access much of the power it seeks. first-century version of Look? The road from Shenzhen to an American or
In the Chinese context, the state will run the show and own it, not as a mar European airport also leads to the Roomba vacuum cleaner mapping your
ket project but as a political one, a machine solution that shapes a new society living room and your breakfast with Alexa. lt is the road to machine certainty
of automated behavior for guaranteed political and social outcomes: certainty imposed by instrumentarian power and produced by surveillance capitalism.
without terror. All the pipes from all the supply chains will carry behavioral Tuis journey is not as long as you might think.
surplus to this new, complex means of behavioral modification. The state will There is a fork in the raad.
assume the role of the behaviorist god, owning the shadow text and determin In one direction lies the possibility of a synthetic declaration for a third
286
ing the schedule of reinforcements and the behavioral routines that it will shape. modernity based on the strengthening of democratie institutions and the
Freedom will be forfeit to knowledge, but it will be the state's knowledge that it creative construction of a double movement for our time. On this road we
exercises, not for the sake of revenue but for the sake of its own perpetuation. harness the digital to forms of information capitalism that reunite supply and
demand in ways that are both genuinely productive of effective life and com
patible with a flourishing democratie social order. The first step down this
V. A Fork in the Road road begins with naming, establishing our hearings, reawakening our aston
ishment, and sharing a sense of righteous indignity.
Recall Carl Friedrich's observation on the challenge of grasping the naked If we follow the other road, the one that links us to Shenzhen, we find our
facts of totalitarianism: "Virtually no one before 1914 anticipated the course way to surveillance capitalism's antidemocratic vision for a third modernity
of development which has overtaken Western civilization since then....To fashioned by instrumentarian power. lt is a future of certainty accomplished
this failure to foresee corresponds a difficulty in comprehending." 48 Recall without violence. The price we pay is not with our bodies but with our free
too the grinning, robust "Joe " Stalin planted among Hollywood luminaries dom. Tuis future does not yet exist, but like Scrooge's dream of Christmas
on the glossy pages of a 1939 Look magazine. Will we suffer the same lack of future, the materials are all in place and ready for assembly. Chapter 14 ex
foresight as those who could not comprehend totalitarianism's rise, paralyzed amines this next way station on the road that began with an unprecedented
by the sheer power of Big Other and its infinite echoes of consequence, dis capitalism, turned toward an unprecedented power, and now leads to an un
tracted by our needs and confused by its speed, secrecy, and success? precedented society, theorized and legitimated by a burgeoning intellectual
Astonishment is a necessary alarm. We need it, but it should not leave ecosystem of thinkers, researchers, and practitioners. What is this new place
us frozen in disbelief. The steady drumbeat of Big Other's manifest destiny, that they would have us call home?

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Faculteit der Rechtsgeleerdheid

Amsterdam College of Law

2023-2024 / Semester 2 blok 1

L. Fuller, The Morality of Law (selectie), Yale University 1964 41

Statutory Lawlessness and

Downloaded from http://ojls.oxfordjournals.org/ at University Library, University of Amsterdam on February 6, 2014

TRANSLATED BY BONNIE LITSCHEWSKI

4 Oxford Journal of Legal Studies VOL. 26

Puttfarken was condemned by the Thuringian Criminal Court not as an indi-

4. In Saxony again, the following case comes to light in an article by Chief

With statutory lawlessness and supra-statutory law serving, then, as points of

The culpability of judges for homicide presupposes the simultaneous determi-

SPRING 2006 Statutory Lawlessness and Supra-Statutory Law (1946) 11

This chapter will begin with a fairly lengthy allegory. It concerns

Eight Ways to Fail to Make Law

l. The Socîology of Georg Sîmme/ (1950), trans. Wolff; §4, "lnteraction

2. I have discussed some of the features of this deterioratioo in my

3 · THE ELEMENTS OF LAW

assumed that the child would regard him as an authority on

In contrast with the indeterminacies of examples, the com­

In all fields of experience,

classification under the general terms which at any g1ven

language used in this context fixes necessary conditions which

In fact all systems, in different ways, compromise between

A technique is used where the sphere to be

so that long befo re be has come to the point in the case

know thoroughly that compJicated congeries we loosely

If the personality of the judge is the pivotal factor in

discreti.on, individual ize abstract rules,

Thus the fact that the rules, which

To argue in this way is to ignore what rules actually are in

This is not to say that pretence or 'window dressing' is not

The Model of Rules I

3. RULES, PRINCIPLES, AND POLICIES

4. PRINCIPLES AND THE CONCEPT OF LAW

6. THE RULE OF RECOGNITION

the rights secured by justice are not subject to political bargaining or to

2. THE SUBJECT OF JUSTICE

3. THE MAIN IDEA OF THE THEORY OF JUSTICE

choice of the ﬁrst principles of a conception of justice which is to regulate

clearly is to determine which principles of justice would be chosen in the

fare of all.6 Once we decide to look for a conception of justice that

6. For the formulation of this intuitive idea I am indebted to Allan Gibbard.

impartial judgment not likely to be distorted by an excessive attention to

The ﬁrst statement of the two principles reads as follows.

These principles primarily apply, as I have said, to the basic structure

24. THE VEIL OF IGNORANCE

sources and the environment of nature. There is also, theoretically any-

26. THE REASONING LEADING TO THE TWO

Now consider the point of view of anyone in the original position.

grees of responsibility, that work to make everyone better off in compari-

17. THE TENDENCY TO EQUALITY

I wish to conclude this discussion of the two principles by explaining the

18. See, for example, Spiegelberg, pp. 120f.

Thus it is incorrect that individuals with greater natural endowments

Rawls on Race/Race in Rawls

the privileged race tendentially producing certain distinctive interests

methodological decision to focus in A Theory of Justice on “ideal theory”—

Affirmative action … is probably best understood in Rawlsian terms as an attempt at

RAWLS ON RACE: THE TEXTUAL RECORD

Justice as Fairness: A Restatement

Finally, this 2001 book—edited by Erin Kelly, and unfinished because of

RACE IN RAWLS: A CRITICAL OVERVIEW

And this prescriptive albinism is, as earlier emphasized, complemented

In contrast with the indeterminacies of examples, the com

Id. at 104.

See id. at 196-244.

The most splendid generation was succeeded by another gen

Implicit in the term "globalization" rather than the older "in